On August 9, 2016, B&B attorney Andrew S. McIlvaine, on behalf of his client, Alyx Tinker, obtained a favorable determination at the Massachusetts Commission Against Discrimination (“MCAD”) after presenting evidence at three day Public Hearing. Hearing Officer Eugenia M. Guastaferri, in a 19 page decision, found that Securitas Security Services USA, Inc. (“Securitas”) discriminated against Mr. Tinker based on his transgender status. MCAD Docket No. 13-BEM-01906, Decision Of The Hearing Officer (August 9, 2016). Specifically, the commission found in favor of Mr. Tinker’s claims against Securitas and his former supervisor for unlawfully discriminating against him on account of his gender, gender identity, and sexual orientation.
To briefly summarize the facts, Mr. Tinker began employment at Securitas as a female who self-identified as lesbian. During his employment, he disclosed to his co-workers and supervisors that he was transgendered and began the process of transitioning to identify as a male. He underwent hormone therapy and surgery as part of the transition process, changed his name, and asked his supervisor to refer to him by his new name and with male terms and pronouns.
The MCAD found that Mr. Tinker’s Securitas supervisor did not respect Mr. Tinker because he was transgender and he discriminated against Mr. Tinker because of our client’s gender, sexual orientation, or gender identity. The MCAD decision credited Mr. Tinker’s testimony that his supervisor ridiculed Mr. Tinker stating that he would “never be a real man,” that his insides would fill with scar tissue, and that the transition he was undertaking was wrong. Securitas’ supervisor was attributed with telling Mr. Tinker that he was unclean and going to go to hell. After hormone treatment began, the Securitas supervisor was found to have told Mr. Tinker that his brain would continue to grow because biologically men are smarter than women. While Securitas claimed that its supervisor stopped referring to Mr. Tinker with female pronouns within months of being asked to suspend such statements, this assertion was undermined based on documentary evidence to the contrary. In fact, an email the supervisor sent to Securitas upper management repeatedly referred to Mr. Tinker using female pronouns (at least nine times in one email). The email was written roughly two years after Mr. Tinker had first asked to be referred to as a male.
The MCAD found that Mr. Tinker complained about the way he was being treated to a series of Securitas supervisory managers. Nonetheless, Securitas never disciplined Mr. Tinker’s supervisor for the way he communicated to or about Mr. Tinker, including for the ongoing use of female pronouns to refer to Mr. Tinker years after Mr. Tinker’s request. Mr. Tinker suffered emotional stress and anxiousness due to his maltreatment at work, had nightmares and trouble sleeping, and came to dread the prospect of being alone with his supervisor.
MCAD Hearing Officer Eugenia Gustaferri awarded Mr. Tinker Fifty Thousand Dollars ($50,000) in emotional distress damages and invited a petition to reimburse Mr. Tinker for attorneys’ fees in accordance with applicable law. The ruling also requires Securitas to take corrective action and conduct training of human resources personnel, managers, and supervisors on issues related to gender and transgender discrimination in the workplace.
The decision offers significant precedent relative to the rights of transgendered individuals to be free of discriminatory harassment in the workplace, and the responsibility of employers to take harassment complaints about gender, sexual orientation, and gender identity seriously.
Congratulations to Mr. McIlvaine and Mr. Tinker for a hard fought victory that stands for LGTBQ equality and rights in the workplace.
Bennett & Belfort, P.C. is pleased to announce that Attorney Craig Levey has joined the firm. Mr. Levey focuses his practice on employment and business matters, representing both individuals and companies. He litigates claims of discrimination, sexual harassment, retaliation, and wage & hour disputes, as well as partnership and fiduciary duty issues. Mr. Levey also drafts, reviews, and negotiates non-competition, non-solicitation, and severance agreements, and routinely counsels companies on all facets of the employer-employee relationship, including the drafting and implementation of company policies, procedures, and employee handbooks.
Mr. Levey has experience in a wide variety of cases in Federal, Superior, and District courts, and before administrative tribunals, including the Massachusetts Commission Against Discrimination, Department of Unemployment Assistance, and the Division of Administrative Law Appeals.
Commenting on the move, Mr. Levey said, “Bennett & Belfort offers a creative and collaborative environment to work, which is the perfect platform for me to grow my practice. I am excited to join such a strong and determined team of attorneys, and I look forward to continuing the firm’s tradition of delivering top-notch service to its clients.”
Mr. Levey is a former associate attorney at Looney & Grossman, LLP and Davis, Malm & D’Agostine, P.C. in Boston.
On May 18, 2016, President Obama and Secretary of Labor, Thomas Perez, announced the publication of the Department of Labor’s “Final Rule” updating the overtime regulations. This is the first update in over a decade, and will mean that certain workers are now exempt from the requirement that they be paid “overtime wages.”
The Final Rule focuses primarily on updating the salary and compensation levels needed for Executive, Administrative and Professional workers to be classified as “exempt” from overtime payment. Specifically, the Final Rule makes the following significant changes to the existing regulations:
- Raises the standard salary level required for a full-year worker to meet the exemptions. The level will be raised from $455 per week, or $23,660 annually, to $913 per week, or $47,476 annually;
- Sets the total annual compensation requirement for highly compensated employees subject to a certain test known as the “minimal duties test.” The level will be raised to $134,004 from the current level of $100,000; and
- Establishes a mechanism for automatically updating the salary and compensation levels every three years.
The Final Rule goes into effect on December 1, 2016. On that date, the initial increases to the standard salary level and highly compensated employees’ total annual compensation requirement will become effective. Future automatic updates to those thresholds will occur every three years based on inflation, beginning on January 1, 2020.
As a result of this rule change more employees will be entitled to receive overtime wages. An estimated 18% of full-time salaried employees in Massachusetts will be eligible for time and a half from the new overtime provisions, while an estimated 35% of full-time salaried employees will benefit nationally from the new provisions.
Because of the strict penalties against employers (and certain individuals associated with the employers), both employees and employers must be aware of these important changes.
On Friday, May 6, 2016, Bennett & Belfort partner, David E. Belfort moderated the Labor and Employment Update Panel at the Massachusetts Bar Association’s 37th Annual Labor & Employment Law Spring Conference at Suffolk University Law School.
The Panelists addressed a variety of recent legislative and common law developments in both labor and employment law before a room of about 85 attendees.
The experienced panelists included labor attorneys Nicole Decter and Kenneth Bello in addition to employment counsel Joshua Davis, and Ellen Messing. These seasoned advocates engaged in a spirited dialogue as to the impact of several noteworthy state and federal decisions spanning 2015 and early 2016.
Bennett & Belfort, P.C. partner, David E. Belfort, recently published an article in the Massachusetts Bar Association’s Lawyer’s Journal entitled “The Value of Disconnecting.”
The piece, which ran in the monthly’s March/April Section Review, focuses on the importance of uninterrupted vacations and down time in the age of boundless smart-phone technology and a seemingly endless stream of professional emails. Mr. Belfort discusses findings by Human Resource professionals indicating that time away from work is an essential component in the promotion of worker productivity – and he suggests the same principles apply to attorneys.
Mr. Belfort goes on to share some of his workplace strategies to allow for proper, relaxing breaks while away from the office in suggesting that we all ‘work’ to make time away from the office an authentic “break.”
Partner, Michael L. Mason and Associate Andrew S. McIlvaine recently secured an arbitration award of over $150,000 for a client who was wrongfully terminated without cause. Our client was a financial adviser whose employment contract stated that he could only be terminated “for cause.” His employer terminated him three years into his five-year contract, claiming he creating a hostile environment for a colleague. However, after a six-day proceeding, the Arbitrator found that it was our client’s colleague – not our client – who created the hostile environment. Indeed, the arbitrator concluded that the employer unfairly placed blame on our client in order to support its argument that there was “cause” to terminate him. The Arbitrator also dismissed the employer’s claims that our client violated the employment agreement, finding instead that the employer breached the contract and was liable for our client’s lost wages. Congratulations attorneys Mason and McIlvaine for this successful result.
On February 11, 2016, Bennett & Belfort P.C. partner David E. Belfort again chaired and presented at a seminar entitled “Proving & Valuing Damages in Employment Cases” at Massachusetts Continuing Legal Education’s (MCLE) Boston conference center. Joining Attorney Belfort on the panel were his respected colleagues Attorneys Robert S. Mantell, Esq. of Rodgers, Powers & Schwartz LLP, Mary E. O’Neal, Esq. of Conn Kavanaugh Rosenthal Peisch & Ford LLP and Honorable Kenneth W. Salinger of the Superior Court, Business Litigation Session. Mr. Belfort moderated the panel and presented on how to effectively introduce damages evidence in a failure to pay wages case, proving emotional distress damages in discrimination cases and the efficacy of spousal testimony in proving emotional injury.
On February 25, 2016 Mr. Belfort served as an invited panelist for an MCLE seminar entitled “Top 25 Critical Cases Every Employment Litigator & Counselor Must Know.” Mr. Belfort’s colleague Nina J. Kimball, Esquire of Kimball Brousseau LLP chaired the seminar and Jaclyn L. Kugell, Esquire of Morgan, Brown & Joy served as a fellow panelist.
The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field. Attorney Belfort was charged with discussing cases relating to discrimination damages, associational discrimination and wage and hour disputes in addition the fiduciary duty issues and developments in the rights of shareholder – employees in closely held corporations. There was a rigorous discussion as to a number of other relevant topics, including: proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law.
Here is a list, by general topic, of the top 25 (really 27) Massachusetts cases that were discussed at the Seminar:
Basic Protected-Class Discrimination Law
1. Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)
2. College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)
3. Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)
4. Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)
5. Psy-Ed Corp. v. Klein, 459 Mass. 697 (2011)
6. GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)
7. Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)
8. Haddad v. Wal-Mart, 455 Mass. 91 (2009)
9. Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)
10. Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)
11. Flagg v. AliMed, Inc., 466 Mass. 23 (2013)
Disability Accommodation, Interactive Dialogue, and Leaves of Absence
12. Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443
[2.] College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)
13. Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)
14. Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)
15. Dziamba v. Warner & Stackpole LLP, 56 Mass.App.Ct. 397 (2002)
16. Warfield v. Beth Israel Deaconess Med. Ctr, 454 Mass. 390 (2009)
17. City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)
Wage & Hour Law
18. Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)
19. Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435
Mass. 718 (2002)
20. Camara v. Attorney General, 458 Mass. 756 (2011)
21. Smith v. Winter Place LLP, 447 Mass. 363 (2006)
22. Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)
23. Lipsitt v. Plaud, 466 Mass. 240 (2013)
Common Law Claims
24. Awuah v. Coverall, 460 Mass. 484 (2011)
25. Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)
26. Fortune v. National Cash Register Co., 373 Mass. 96 (1977)
27. Selmark Assoc. v. Ehrlich, 467 Mass. 525 (2014)
Bennett & Belfort, P.C. partner, David E. Belfort , co-chaired, along with Margaret Paget and John Tocci a November 24, 2015 round table discussion at the Massachusetts Bar Association entitled “Legislative Updates on Employment Law with State Legislators” .
The legislative panelists included Rep. John Scibak, Chairman, Joint Committee on Labor and Workforce Development, Sen. Michael J. Barrett, Vice Chair, Joint Committee on Labor and Workforce Development and Rep. Kenneth I. Gordon, Vice Chair, Joint Committee on Election Laws and primary sponsor of H1718 .
The panelists engaged in a lively discussion in a packed room, providing helpful insights into the legislative process and their views on the likelihood that various pending employment legislation would become law.
The panelists addressed the following bills:
- H1769 – The Pregnant Workers Fairness Act
- H1718 – An Act Establishing Family and Medical Leave and Temporary Disability Insurance
- H1771 – An Act Addressing Workplace Bullying and Harassment
- H786 – the Mental Health Parity Bill, and
- H1757 – An Act addressing Non-discrimination Training in the Workplace
- S1024 – An Act to establish a living wage for employees of big box retail stores and fast food chains.
- Various Minimum Wage initiates.
In a published opinion by Massachusetts United States District Court Judge Richard G. Stearns, Bennett & Belfort partner Eric LeBlanc successfully defeated Defendant’s motion for summary judgment seeking dismissal of Plaintiff’s claims of age discrimination under M.G.L.c. 151B and the Age Discrimination in Employment Act.
In Seifaee, the 61-year-old Plaintiff was terminated as part of a reduction in force, along with 13 other employees – all over the age of 55. Seifaee v. Areva, Inc., 2015 U.S. Dist. LEXIS 152356 (D. Mass. Nov. 10, 2015). Plaintiff brought federal and state law claims alleging discrimination based on disparate treatment and disparate impact as a result of his age, as well as claims of unlawful interference arising from Defendant’s alleged misconduct.
In denying Defendant’s motion, the Court indicated that the age related statistical evidence presented by Plaintiff may well be sufficient by itself to permit a finding in plaintiff’s favor. In relevant part, the Court stated:
“At the end of the day, however, the mere fact alone that a supposedly objective process could look across a company at 136 employees and happen by chance to select an entire cohort of persons aged 55 or older for termination, while possible, seems statistically improbable (as Seifaee’s expert contends) and that alone might justify a verdict in Seifaee’s favor…The credibility of Seifaee’s statistical evidence is a question for the jury.” Id. at 13-12.
Further, the Court found that the age-related disparate impact claims are actionable under M.G.L.c. 151B, despite earlier First Circuit case law that brought this into question. Specifically, the Court acknowledged that Mullin v. Raytheon Co., 154 F.3d 696 (1st Cir. 1999) no longer controls, stating “[i]n Mullin, the First Circuit offered the prediction that ‘the SJC likely will look to [its and other] federal courts’ interpretation of the ADEA and hold that an age discrimination claim cannot be grounded solely on a theory of disparate impact.’ It turned out that the First Circuit was wrong in its fundamental premise…As the Massachusetts Appeals Court has since followed Smith’s lead (citations omitted), I have no reason to believe that the SJC would do differently.” Id. at 13.
This case will now proceed to a jury trial.
Congratulations to Dr. Seifaee and Mr. LeBlanc for this excellent result.