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Archive for November, 2010

The Critical Role of Dialogue Between Mentally Disabled Tenants and their Landlords in the Interactive Process

Posted on: November 20th, 2010 by admin No Comments

There is an interesting tension in the law between the rights of disabled tenants to receive additional process when they disturb their neighbors and the rights of neighbors and landlords to maintain an orderly living environment free of interference.  Under federal and state law, landlords are prohibited from discriminating against qualified handicapped tenants because of their mental disability.  Landlords may not evict a disabled tenant if there is a reasonable accommodation – an adjustment or modification in the landlord’s rules, policies, practices, or services – that will enable the tenant to conform to the rules of his or her tenancy.  Landlords also have an obligation to provide a safe dwelling for the residents of their buildings.  These obligations may come into conflict when one tenant’s mental disability threatens other residents’ safety or quiet enjoyment of their rental units.  In this type of situation, where the simplest response seems to be evicting the ‘problem tenant,’ the landlord must strike a careful balance between the rights of the disabled tenant and the rights of the other residents. 

In situations where landlords make a good faith effort to accommodate a mental disability but no reasonable accommodation is possible, the courts typically allow evictions to proceed.  In Andover Hous. Authy. v. Shkolnik, 443 Mass. 300 (2005), one of the tenants had senile dementia, shingles, and depression, and repeatedly engaged in behavior that substantially disturbed neighbors, including loud arguing, yelling, and excessive television or radio volume, often in the middle of the night. Through a grievance process established by the landlord, the landlord and the tenants explored some possible physical modifications to the unit such as sound proofing, but no adjustments seemed to be effective.  The landlord then commenced eviction proceedings against the disabled tenant for excessive noise in violation of the terms of the lease.  The tenants claimed that the landlord had discriminated against them by failing to withdraw or delay the eviction proceedings as a reasonable accommodation for the tenant’s disabilities.  On appeal, the Supreme Judicial Court affirmed the judgment of the housing court allowing the eviction, concluding that the landlord was not required to withdraw the eviction proceedings as a reasonable accommodation because, even if eviction proceedings were withdrawn or delayed, the tenants were not able to comply with the terms of their lease by not disturbing their neighbors.       

On the other hand, the courts have held landlords liable for discrimination in situations where the landlord is aware of a tenant’s mental disability and fails to engage in the interactive process to determine if an accommodation is available which would allow the tenant to comply with the terms of the tenancy prior to commencing eviction proceedings.  For example, like the tenants in Shkolnik, one of the tenants in Boston Housing Landlord v. Bridgewaters, Slip. Op. SJC-10107 (January 7, 2009), 2009 WL 26765 had a mental disability which disturbed other tenants in the building.  While the disabled tenant was transitioning between doctors, the tenant suspended use of his medication for manic depression and assaulted his brother, who was his co-tenant in his rental unit.  During the eviction proceedings brought by the housing landlord, the tenant requested a stay as an accommodation for his mental disability, but the housing court allowed the eviction to proceed.  On appeal, the Supreme Judicial Court held that the landlord discriminated against the tenant on the basis of disability by refusing to withdraw eviction proceedings.   The Court reasoned that the eviction was discriminatory because the landlord was on notice prior to the eviction trial that the tenant was disabled, the tenant had requested a reasonable accommodation, and the landlord failed to make an individualized assessment as to whether an accommodation would allow the tenant to comply with the terms of his lease before concluding that the tenant posed a direct threat to others.

Shkolnik and Bridgewaters are similar in that they both involve tenants with mental disabilities who were subject to eviction proceedings brought by a public housing landlord.  One of those eviction proceedings was found to be lawful while the other was not.  The landlord who engaged in the interactive process in good faith was allowed to proceed with the eviction, while the landlord who failed to consider less drastic alternatives to eviction was not permitted to evict the disabled tenant.   

Unlike physical handicaps, mental disabilities are typically hidden and often undiagnosed.  The landlord’s task of ascertaining a reasonable accommodation for a mental disability only begins when the landlord knows, or should know, that a tenant has a disability.  This is clear when a tenant explains how an accommodation will assist them but is far more complex when a landlord observes behavior that might suggest mental illness.  Prior to pursuing an eviction against a disabled tenant, landlords have an obligation to engage in the interactive process to determine whether an appropriate accommodation will enable the disabled tenant to comply with the lease.  Otherwise, the landlord may be inviting allegations that it wrongfully discriminated against the tenant.

Amendments to Massachusetts Personnel Records Law: A Double-Edged Sword?

Posted on: November 12th, 2010 by admin No Comments

The Massachusetts Legislature recently passed a comprehensive job-creation bill that contained a little publicized amendment substantially modifying the Massachusetts Personnel Record Law, M.G.L. c. 149 § 52C.  Prior to this recent change, the law required employers with 20 or more employees to maintain written personnel records and make those records available to employees 5 days after written request.  The recent modifications to the statute added a requirement that those employers must now also provide notification to an employee within 10 days of placing information in the employee’s file “to the extent that the information is, has been used or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action.”  The statute is enforced by the Attorney General, and penalties of up to $2,500 may be assessed for each violation.

This change promises some potential workplace benefits.  Employees will now be in a better position to know where they stand and, if necessary, improve their performance accordingly.  Any disagreements over employee reviews, discipline, and the like can now be addressed and resolved in a timely manner, avoiding battles over “surprise” documents later on.  However, some commentators have decried these amendments as, among other things, placing an undue burden on employers.

Fortunately, there is reason to believe that the threat of calamity is not so serious as some fear.  The prior law already required employers to maintain these same documents in employees’ personnel records.  In fact, the very definition of “personnel record” has always included documents relating to “qualifications for employment, transfer, additional compensation or disciplinary action.”   The change for employers is not that they have to keep an ever-growing list of documents on file, but that they are now required to tell employees about the documents that may have negative consequences.

Employers do have some reason for concern, however – but so do employees.  One risk that both sides now face comes in the context of post-employment litigation.  An employer who may very well have a good-faith reason for discharging an employee will be vulnerable to claims of unfairly “papering” an employee’s file if it failed to provide notification that it placed negative documents in an employee’s file.  On the other hand, complying with this notification requirement could strain an already-fragile employee relationship.  Similarly, employees who do not go through the burdensome and potentially costly steps required to formally contest or rebut negative personnel records may effectively forgo their right to challenge the validity of those records later.

It may be that these changes to the Personnel Records Law will lead to greater communication, enhanced feedback, and more job security.  However, these changes could also lead to more frequent disputes and unintended negative consequences for employers and employees alike.  As all commentators agree, only time will tell.

B&B Attorneys Named Super Lawyers

Posted on: November 12th, 2010 by admin No Comments

Bennett & Belfort is pleased two announce that two of our lawyers have been selected for inclusion in the 2010 edition of New England Super LawyersDavid E. Belfort has been named a Super Lawyer in the “Employment Litigation: Plaintiff” practice area for the fifth consecutive year.  Michael L. Mason has been named a Rising Star in “Employment & Labor” for the second year in a row.

Super Lawyers are selected using “a rigorous, multiphase rating process. Peer nominations and evaluations are combined with third party research. Each candidate is evaluated on 12 indicators of peer recognition and professional achievement. Selections are made on an annual, state-by-state basis.”  In Massachusetts, only 5% of all attorneys are named Super Lawyers and only 2.5% are named Rising Stars.

Check out their listings in the New England Super Lawyers insert, included in this month’s Boston Magazine.


Posted on: November 8th, 2010 by admin No Comments

There has been significant recent debate regarding whether or not restrictive covenants, such as non-compete agreements between an employer and employee, should be enforceable in Massachusetts.  Proponents of narrowing (or eliminating) the applicability of such covenants point to, among other arguments, the free market benefits of allowing employees to move fluidly between employers.  Those favoring the current application of non-competition restrictions point to a company’s need to protect its investment in human capital.

Although non-compete agreements between an employer and employee are generally unenforceable in some states, such as California, these agreements are permitted in many other states, including Massachusetts.  In Massachusetts, non-compete agreement are generally enforceable if  they are: 1) supported by consideration; 2) reasonable in scope and duration, and 3) serve a legitimate business interest in protecting the employer.  All Stainless, Inc. v. Colby, 364 Mass. 773 (1974), citing National Hearing Aid Centers, Inc. v. Avers,  2 Mass.App.Ct. 285 (1974).

Massachusetts courts will look at several factors in order to determine whether or not a restrictive covenant, such as a non-compete or non-solicitation agreement, seeks to protect a legitimate business interest of a former employer, as opposed to a restraint that is merely anti-competitive in nature.  In deciding whether to enforce restrictive covenants, courts frequently review the nature of the employee’s duties and any unique training he or she may have, the degree of specialization the employee possesses, and the employee’s access to confidential and proprietary information.

Disputes regarding restrictive covenants between an employer and former employee are often resolved early on in litigation by means of preliminary equitable relief, such as a temporary restraining order or injunction.  In such a circumstance, an employer may file suit against the former employee together with a motion for a preliminary injunction, asking the Court to prevent the former employee from being employed by a competitor, or to prevent the former employee from soliciting customers of the former employer.  As one might imagine, these suits are sometimes used as a ‘sword’ to inhibit fair competition, to punish a ‘disloyal’ former employee, to cause a competitor (who may defend their new employee) to spend significant resources on litigation, or as a means of discovery into a competitor’s trade secrets.  When a court grants a motion for a preliminary injunction, preventing a former employee from working (for a competitor), it often induces the enjoined party to settle, even though it is very early in the ‘life’ of the case.  This is because the enjoined employee will likely continue to be prohibited from working for the competitor for the pendency of the litigation, which could potentially last for years.

The Massachusetts Legislature recently considered a bill authored by Representatives, Lori Ehrlich and William Brownsberger, that would have significantly limited the availability of non-compete agreements in Massachusetts.  A few of the highlights of the proposed legislation are as follows:

  • Only non-compete agreements signed during employment would be enforceable unless supported by additional consideration.  If a non-compete agreement were entered into post- employment, additional consideration of at least 10% of annual compensation would be required in order to be enforceable.
  • $75,000.00 annual compensation threshold for enforcement.  Only employees whose average gross income is at least $75,000 would be subjected to enforcement of non-competition agreements.
  • Attorneys’ fees.  A court would be required to award attorney’s fees to an employee in the event that: a) the court declined to enforce a material restriction or reforms a restriction in material respect; or b) if the court determines that the employer acted in bad faith in attempting to enforce the restriction.  On the other hand, an enforcing employer would only be able to recover its attorney’s fees in the event the agreement was enforced “as is,” and the court found that the employee engaged in bad faith conduct.  (to see the full text of the bill, click here)

Recently, this proposed legislation was dropped from consideration.  However, stay tuned – New, re-drafted non-compete-related legislation is bound to resurface in the near future.