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of Business and Employment Law

Six B&B Attorneys Recognized as “Super Lawyers”

Posted on: October 25th, 2019 by admin

 

Bennett & Belfort is proud to announce that Thomas Reuters / “Super Lawyers” has listed Bennett & Belfort P.C. Partners David Belfort,  Todd Bennett and Michael Mason as 2019 New England Super Lawyers; and Partner Eric LeBlanc and Senior Associates Michaela  May and Craig Levey as Rising Stars.

 

Attorney Belfort was selected as a “Top 100” attorney and in the area of Employment Litigation: Plaintiff, and Attorney Bennett in the area of Business Litigation.  Attorney Mason was selected as a Super Lawyer in Employment and Labor.  Attorneys LeBlanc and Levey were selected as “Rising Stars” (Super Lawyers under 40 or within the first 10 years of practice) in the area of Business Litigation. Attorney May was selected as a “Rising Star” in the area of Employment and Labor.

 

“Super Lawyers” evaluates attorneys who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. Up to 5 percent of the lawyers in a state are named to Super Lawyers, and no more than 2.5 percent are named to Rising Stars.

Bennett & Belfort P.C. concentrates its practice in business and commercial litigation and employment law and litigation.

 

Bennett & Belfort Attorneys Win Jury Trial on Overtime Claims

Posted on: October 11th, 2019 by admin

 

On October 4, a Suffolk County jury awarded three restaurant workers $114,498 in unpaid overtime compensation. The jury’s verdict followed a seven-day trial in which B&B attorneys, Michaela May and Craig Levey, represented the Thai kitchen workers.

Each of the Plaintiffs routinely worked six or seven days per week, usually for much more than 40 hours per week, for the Defendant, the Rice Barn restaurant in Needham. Rice Barn failed to pay them the “time and a half” required by the Fair Labor Standards Act (“FLSA”). Rice Barn’s problematic record keeping practices required each plaintiff and some of their former co-workers to reconstruct their hours worked and wages paid through memory. Ultimately, the jury found the plaintiffs and their co-workers credible and awarded each of the three plaintiffs between $27,000 and $46,000 in overtime pay.

Previously, a judge of the Superior Court found that Rice Barn’s failure to timely pay overtime compensation was also a violation of the Massachusetts Wage Act and that, therefore, the Plaintiffs would be entitled to treble damages under that law. Attorneys May and Levey anticipate requesting statutory trebling of the jury’s verdict and an award of attorneys’ fees and costs shortly.

The case is Devaney et al v. Zucchini Gold, LLC, et al (C.A. No. 15-2839).

Bennett and Belfort, P.C. Partner, Todd Bennett, quoted in Massachusetts Lawyers Weekly

Posted on: October 4th, 2019 by admin

Partner Todd Bennett was quoted in a September 30, 2019 Massachusetts Lawyer’s Weekly article about a recent case involving physicians’ attorney-client privilege and peer-review privilege.

 

The underlying case was brought against Massachusetts General Hospital by a physician who alleged that he was fired in retaliation for whistleblower activity after he raised concerns about the hospital’s practice of scheduling surgeons for more than one operation at time.  In the course of the litigation, a dispute arose as to whether the Plaintiff should be granted access to the report of an attorney hired by MGH to conduct an independent investigation of the hospital’s practice of booking overlapping surgeries.  The hospital refused to provide the report to the Plaintiff’s attorney upon request, citing both peer-review privilege and attorney client privilege. In response, the physician’s attorney filed a motion asking the court to compel MGH to produce the report. Ultimately, the court ruled in the physician’s favor.

 

The investigation in question was conducted years before the physician filed suit, based in part upon his whistleblowing activity and the Boston Globe’s reporting on the issue.  MGH hired an attorney to conduct an independent investigation of the hospital’s surgery scheduling practices, and to recommend any necessary changes in policy and procedure. In a subsequent Boston Globe opinion piece, MGH stated that the investigator’s report had concluded the hospital’s practices were lawful and proper. MGH further defended its scheduling practices by giving the report to a public relations firm to share with the Globe.

 

Lawyers Weekly contacted Attorney Bennett for comment on this case because of his experience in litigating employment matters.   As Attorney Bennett noted in the article, the hospital’s legal argument—that it could not provide the Plaintiff physician with the report produced by its investigating attorney due to attorney-client privilege—was problematic.  “If the company is relying on portions of the report as a defense, it puts the contents of the report at issue and it almost certainly is going to be discoverable,” Attorney Bennett explained.  Superior Court Judge Rosemary Connolly’s determination in the MGH case illustrates this point:  In ruling that the investigator’s report must be turned over to the physician, Judge Connolly stated that the report was not privileged because although the report was written by an attorney, it was not written for the purpose of providing legal advice to MGH; and additionally, that even if the report were written for the purpose of providing legal advice to MGH, the attorney-client privilege was waived because the hospital, rather than keeping the report confidential, had given it to a public relations firm for purposes of responding to the Boston Globe article.

 

MGH’s unsuccessful defense in this discovery dispute, as Attorney Bennett told Lawyers Weekly, demonstrates an all-too-common tendency of companies to engage independent investigators without properly considering all of the potential consequences.  The Lawyers Weekly article, which contains a link to the full court opinion, can be read at https://masslawyersweekly.com/2019/09/26/investigators-report-discoverable-in-retaliation-case-vs-mgh/.

FMLA Protects Employee Leave for School Meetings

Posted on: August 19th, 2019 by admin

In a recent opinion letter, the Department of Labor clarified that the FMLA can require employers to allow leave for employees to attend school special education meetings.  The Department issued the August 8, 2019, opinion letter in response to an inquiry from the parents of two children with FMLA-qualifying serious health conditions.

One of the parents received medical certification supporting her need for intermittent leave and had received approval from her employer to attend medical appointments.  However, her employer did not approve her leave to attend school meetings that were regularly held to discuss the children’s’ Individualized Education Programs (IEPs) and review the children’s educational and medical needs, well-being, and progress.

The FMLA provides for up to 12 weeks of leave to eligible employees to, among other things, “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”  See 29 U.S.C. § 2612 (a)(1)(C).

The Department determined that these IEP meetings were indeed a necessary part of caring for a family member with a serious health condition.  Specifically, the Department noted that the employee attends these meetings to help participants make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy; to discuss their children’s wellbeing and progress with the providers of such services; and to ensure that the school environment is suitable to their medical, social, and academic needs.

The Department’s determination recognizes the reality that working parents of children with serious health conditions need leave from work not only for doctor’s appointments, but also to communicate and manage their children’s care at school, daycare, and with other providers.  Going forward, these parents should be sure to follow their employer’s FMLA leave request procedures in order to take leave for any time off that relates to their child’s care.

Final Paid Family and Medical Leave Regulations Issued

Posted on: July 8th, 2019 by admin

 

Effective July 1, 2019, final regulations for the Massachusetts Paid Family and Medical Leave Law (PFML) are now available for review by employees and employers.

The final regulations come on the tail of a three-month delay of the start of employers paying into the state leave program.  The new family and medical leave law goes into effect in stages, with employees beginning to see benefits beginning in 2021:

(Graphic Source: https://www.mass.gov/info-details/timeline-of-paid-family-and-medical-leave-contributions-and-benefits).  Employers have until September 30, 2019 to complete mandatory, documented disclosures  to covered employees and other individuals of their rights under the law.

For more on the expansion of employee family and medical leave rights in Massachusetts, read Bennett & Belfort’s blog entry  on the topic, and feel free to contact Bennett & Belfort P.C.

 

Supreme Judicial Court Affirms $2 Million Judgment upon jury verdict for Bennett & Belfort client Richard DaPrato against the Massachusetts Water Resources Authority

Posted on: June 6th, 2019 by admin

On June 5, 2019, the Massachusetts Supreme Judicial Court (SJC) affirmed our client’s Suffolk Superior Court jury verdict and judgment in an amount now exceeding $2,000,000 in the case of Richard DaPrato v. Massachusetts Water Resources Authority (MWRA) 482 Mass. 375 (2019) (click on link for SJC slip opinion: DaPrato v MWRA SJC 6.5.19 ).

Mr. DaPrato was represented both at trial and on appeal by David E. Belfort and Andrew S. McIlvaine of Bennett & Belfort, PC, of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and because he planned to take additional leave in the future. Claims in the case included discrimination and retaliation under the Family Medical Leave Act (FMLA (29 U.S.C. sec. 2601 et seq.)), The Americans with Disabilities Act (ADA) and under the Massachusetts Fair Employment Practices Act, M.G.L. c. 151B.

In the Superior Court case, the jury strongly rejected the MWRA’s argument that Mr. Daprato violated the public trust. Instead, the jury found that the MWRA, a quasi-public entity, engaged in extreme and outrageous misconduct that violated Mr. DaPrato’s rights to medical leave.

On direct appellate review by the SJC, the MWRA sought a reversal of the jury’s decision and a new trial on a myriad of grounds, including that the jury should have been instructed that an honest but unconsciously biased decision to fire a person should excuse an employer from liability for FMLA discrimination. The SJC rejected the appeal, noting that the so-called “good faith or honest belief” FMLA defense relates to avoiding mandatory liquidated damage awards rather than excusing the underlying retaliatory conduct.

The SJC’s resounding rejection of the MWRA’s appeal reinforces the position that an employer cannot automatically presume a disabled employee is violating the terms of their medical leave when they go on vacation during medical leave. At trial, DaPrato’s supervisor acknowledged that he knew DaPrato was on medical leave and testified that had previously approved DaPrato’s vacation to Mexico. DaPrato’s treating physician confirmed that DaPrato was not cleared to return to work during the leave and vacation period. The physician also testified that DaPrato’s vacation activities did not violate his post-surgical restrictions. Furthermore, DaPrato entered his annual vacation in the office calendar system, received permission to park his car at the MWRA facility during the vacation, and attended a staff meeting where he announced that he was leaving on vacation to senior managers. Nonetheless, the MWRA did not seek to review his medical records, declined to conduct an independent medical examination, and ignored the FMLA paperwork that DaPrato submitted. Perhaps most shocking, the MWRA brazenly claimed that DaPrato denied going on vacation altogether when confronted. The SJC affirmed the punitive damages award in full, commenting that it underscored the jury’s conclusion that the MWRA acted in an extreme and outrageous manner. In allowing this punitive damages award to stand, the Court cited to DaPrato’s long tenure without any discipline, the punitive award’s reasonable relationship to the compensatory damages, and the litany of pretext evidence in the record.

The SJC’s decision affirms the trial judgment issued to Mr. DaPrato after his jury trial in the following specific amounts $19,777 in back pay, $188,666 in front pay, $200,000 in emotional distress, $715,385 in punitive damages, $208,443 in liquidated damages, and $605,690 in pre-appeal attorneys’ fees. Including statutory interest of 12%, the aggregate final judgment is expected to significantly exceed $2,000,000.  See Law 360 article: Law 360 6.5.19

Congratulations to our client, Rick DaPrato, and to the entire trial team at Bennett & Belfort PC.

Paid Family and Medical Leave is on the Horizon

Posted on: May 14th, 2019 by admin

Although it was ushered in quietly, the new Massachusetts Paid Family and Medical Leave law (“PFML”), M.G.L. c. 175M, will represent a monumental change for both employers and workers. The statute will entitle qualifying workers to as many of 26 weeks of protected, paid medical and family leave. The PFML will apply not only to employees of small businesses, but in some cases, to “1099” contractors and self-employed individuals as well.

Leave Entitlements

Beginning January 1, 2021, covered workers may be entitled to (1) up to 20 weeks of paid medical leave in a benefit year if they have a serious health condition that incapacitates them from work; and (2) up to 12 weeks of paid family leave in a benefit year related to the birth, adoption, or foster care placement of a child, or because of a qualifying exigency arising out of the fact that a family member is on active duty or has been notified of an impending call to active duty in the Armed Forces; and (3) up to 26 weeks of paid family leave in a benefit year to care for a family member who is a covered service member with a serious health condition.

Further, beginning July 1, 2012, covered individuals may be entitled to up to 12 weeks of paid family leave to care for a family member with a serious health condition.

Employers must continue to make their contributions to employee health insurance during leave.

In total, leave is restricted to an aggregate 26 weeks in a benefit year.

Departures from the FMLA

The Massachusetts PFML differs from its federal counterpart, the Family and Medical Leave Act (“FMLA”), in several key aspects:

  • Leave under the PFML is paid, based on the employee’s average weekly earnings, with a maximum benefit of $850 per week, paid through the Commonwealth in a fashion similar to unemployment.

 

  • Workers’ who meet the PFML’s “financial eligibility test” (based on previous earnings) may be entitled to leave even early in their employment, in contrast to the FMLA which applies only to employees who have worked for their employer for at least 12 months, and for no less than 1,250 hours.

 

  • “Family members” is expansively defined under the PFML, as a spouse, domestic partner, child, parent or parent of a spouse or domestic partner; a person who stood in loco parentis to the covered individual when the covered individual was a minor child; or a grandchild, grandparent or sibling.

 

  • Entitlement to PMFL is determined by the Massachusetts Department of Family and Medical Leave, rather than by employers as under the FMLA.

 

  • Benefit years under the PFML are counted from the date a worker first takes leave.

Funding

The program will be funded through contributions from employees and employers. The program applies to employers of all sizes, with few exemptions. In some instances, it applies even to 1099 workers. Self-employed persons may choose to participate.

Starting July 1, 2019, employers must begin making deductions from employees’ wages to cover the anticipated benefits. Employers with 25 or more employees must contribute as well. Contributions will be remitted quarterly, and the Commonwealth will adjust benefit contributions annually.

Under narrow circumstances, an employer may attain an exemption from paying contributions. If an employer offers employees paid family leave, medical leave, or both, with benefits that are at least as generous as those provided under the law, the Commonwealth may grant an exemption.

Right to Reinstatement

Employers may not retaliate against employees who take leave under the PFML. Generally, employers must reinstate employees to their previous position or to an equal position, with the same status, pay, employment benefits, length-of-service credit, and seniority as of the date of leave. The reinstatement requires does not apply to “1099” contractors.

In court, a worker who was subject to an “adverse action” (e.g., termination, pay cut, change in seniority status) within six months of returning from leave is entitled to a presumption of retaliation, that can only be overcome is the employer makes a showing by clear and convincing evidence that its motive was not retaliatory.

Enforcement

Workers who believe they have been retaliated against in violation of the PFML may bring a civil action in Superior Court within three (3) years. Prevailing workers may be entitled to reinstatement, traditional tort remedies (e.g., pain and suffering); back pay and benefits, with the possibility of treble damages; and attorneys’ fees and costs.

Choosing Arbitration in #metoo Cases

Posted on: February 26th, 2019 by admin

Over the past couple of years, as part of the ‘#metoo’ movement, many high-profile sexual harassment cases have been reported and discussed in the public eye. However, because many high-ranking corporate officers have employment agreements with arbitration terms, the resolution of many of these cases may end up shrouded in secrecy, away from the public eye.

For example, Leslie Moonves, former CBS Corporation Chairman and CEO, was terminated by CBS Corp. in September after multiple women alleged sexual misconduct against Moonves.  CBS refused to pay Mr. Moonves’ $120 million severance under his employment contract because he was terminated for cause, and therefore not eligible for the severance payment under the terms of his contract. However, pursuant to that same employment contract, the parties can elect to arbitrate disputes between Mr. Moonves and CBS.  Mr. Moonves elected for binding arbitration in January of 2019. This means that Moonves’ fight to challenge his ‘for cause’ termination – by litigating over whether he indeed engaged in sexual harassment – will be decided outside of the courts, in a confidential proceeding.

In binding arbitrations, the arbitrator has the ability to issue a decision that is recognized and enforced by courts. The process and detailed findings of the arbitrator, if any are made, are kept out of the public eye and these decisions are rarely subject to appeal through the courts.

Arbitration agreements are not just for millionaire CEOs like Moonves; all types of companies use these agreements with all levels of employees. Regularly, companies require employees to agree to arbitration for future claims against them as a condition of their employment.

 

 

How is arbitration different from litigation?

Arbitration certainly has its pros and cons for the parties. While it is quicker and often less expensive than litigation, arbitrators can still charge hundreds of dollars per hour.  Arbitrators are also not bound by the same rules of evidence or procedure that apply in court.  One “pro”, especially for Mr. Moonves, is the party who bears the cost can also be articulated in the employment agreement; CBS Corp. is paying Mr. Moonves’ legal bills and will cover the cost of arbitration if Mr. Moonves is successful in his challenge. The costs will be split if CBS’ decision is confirmed.

Critically for Moonves and CBS, arbitration is also less transparent then litigation. In litigation, proceedings are open to the public, and all of the parties’ case filings are public record, with rare exception.  Arbitrations are closed to the public, and the evidence, filings, and decisions are kept confidential.  In court litigation, parties are afforded wide latitude to perform discovery and obtain documents and other evidence from the opposing party. In arbitration, employees and employers are constrained in the types and volume of discovery they can seek.

In the Moonves case, both sides benefit from the confidential nature of arbitration.  This lack of transparency may help shield Mr. Moonves and CBS from future public scrutiny of their actions.  Often, employees would prefer to submit their claims to a jury of their peers and go after their employers in a public forum.

Courts generally enforce arbitrations agreements, and recent history, including cases like the Moonves case, show us that arbitration of employment disputes is here to stay.

We can help you approach all types of employment agreements, arbitration agreements and the arbitration process with confidence. Should you have any questions on this or any other employment matters, please feel free to contact Bennett & Belfort P.C.

https://www.nytimes.com/2019/01/17/business/media/les-moonves-cbs-arbitration.html

https://www.cbsnews.com/news/les-moonves-to-fight-cbs-corp-for-120-million-severance-in-arbitration/

https://variety.com/2019/biz/news/leslie-moonves-cbs-arbitration-severance-1203110471/

Belfort Organizes And Serves As Panelist For MELA’s Making A Million Dollar Practice

Posted on: January 22nd, 2019 by admin

On January 9th, Bennett & Belfort P.C. partner David E. Belfort, helped organize and served as a panelist at the Massachusetts Employment Lawyers Association (MELA)  Making A Million Dollar Practice fundraising event. The panel was hosted at the Boston College Club and included invited speakers that represented clients in employment cases in 2018 that resulted in seven figure jury trial verdicts.

In front of a packed audience, the trial attorney panelists each tackled various litigation practice topics from the beginning of trial to the closings.  Panelists integrated their first hand trial experiences in an effort to learn from these series of unprecedented successes – that collectively returned verdicts in excess of 41 million dollars combined.

Mr. Belfort presented on the mechanics and interactive nature of the new Massachusetts Juror Voir Dire process, on how to present an effective Opening Statement and on the use of demonstrative evidence, models and how to effectively rebut damning videotape evidence.

Congratulations to Mr. Belfort for his leadership and participation in this successful event.

 

Bennett & Belfort Obtains Jury Verdict on Behalf of Commercial Landlord

Posted on: January 3rd, 2019 by admin

On September 13, 2018, after three days of trial and almost five hours of deliberations, a Suffolk County jury found that Bennett & Belfort’s client, Michael Caruccio, Trustee of the Caruccio Family Trust, had proven by a preponderance of the evidence that the defendant, Alves’ Boston TKD, LLC, breached the terms of their commercial lease agreement.  The jury also found that Plaintiff had proven that defendant, Manuel Jorge Alves, may be held personally liable for the contract breach committed by his company, Alves’ Boston TKD, LLC under a “piercing the corporate veil” theory.

 

The jury awarded the Plaintiff $87,765.05 in compensatory damages (the entire amount owed under the lease) plus $40,975.28 in attorney’s fees and costs, for a total judgment in the amount of $128,740.33.

 

Mr. Caruccio was represented at trial by Attorney Craig D. Levey.

 

Mr. Caruccio filed a complaint against his former tenant for unpaid rent stemming from occupancy at 7 Michael’s Mall, Winthrop, Massachusetts between 2005 and June 2013.  Plaintiff’s complaint included counts for: (1) Breach of Contract; (2) Quantum Meruit/Unjust Enrichment; (3) Promissory Estoppel; and (4) Piercing the Corporate Veil.

 

The jury’s finding that Plaintiff had successfully proven a case for “piercing the corporate veil” is incredibly rare.  The jury found that Bennett & Belfort, on behalf of the Plaintiff, had presented sufficient evidence at trial to disregard the corporate form of the defendant LLC to reach the assets of the individual defendant.  In particular, evidence was presented at trial that Mr. Alves had pervasive control of the LLC, intermingled personal and business assets, the LLC was thinly capitalized, observed almost no corporate formalities, and there was an absence of corporate records.