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Archive for April, 2015

Massachusetts Adjusts Its Trial Rules Allowing Lawyers to Argue for Specific Awards

Posted on: April 23rd, 2015 by admin

DOLLAR SIGNMassachusetts has modernized its rules governing attorney argument as to specific damage awards at trial – but only in Superior Court.  Newly amended M.G.L. chapter 231, section 13B, has opened the door for juries to consider specific requests for damage sums which are sought by an aggrieved or injured plaintiff.

Prior to this amendment, plaintiffs’ counsel in Superior Court civil trials were prohibited from arguing that their clients were entitled to a specific award when it came to intangible damages like those awarded for emotional distress, pain and suffering, the loss of use or function of a body part, or punitive damages. Massachusetts jurors were expected to determine damage amounts, if any, based on their life experiences.  This often left juries without guidance as to unfamiliar or esoteric concepts of value without any direct assistance or argument from counsel.  Juries were left to determine what damage sums the evidence supports and the law allows given the nature and extent of a breach or injury.

With the recent implementation of the new law all this changed.  Now “in a civil action in the Superior Court, parties, through counsel, may suggest a specific monetary amount for damages at trial.”  Freed to advocate for their clients as to remedies, plaintiff’s counsel may now provide juries with argument geared at suggesting specific awards for damages in cases involving financial recovery.

As with all argument at trial, there are risks.  Attorneys may well suggest damage figures that are far lower than a jury would have ordinarily awarded.  Alternatively, a jury might find an advocate’s recommendations exaggerated and artificially high award recommendations may undermine a lawyer’s credibility in the eye of the jury.  This may well impact their assessment on the merits of liability.  Of course, leaving the damages assessment entirely up to the jury is also a danger in that ordinary jurors considering large money figures might well minimize damage awards based on their personal life experiences, biases against run-away jury awards or preconceived notions association with the personal perceptions or misconceptions of a profit motive by the lawyers.

Massachusetts’ new law also changes the manner in which defendant’s counsel may wish to respond to claims for specific damages.  Attorneys defending civil cases in the Superior Court should consider attacking inflated or unrealistic damage suggestions.  Of course, a liability defense aimed at preventing a damage assessment altogether will remain a focus in most cases for defense counsel.  In most cases, including when liability is clear, defense counsel must be prepared to argue and advocate for their client’s own view on damages, including presenting a rational view on the scope and extent of injury or damage to the plaintiff.  For example, Defendants routinely highlight the role of any pre-existing injury or allude to evidence of plaintiff’s failure to mitigate their damages.

As attorneys in Massachusetts wrestle with this new law at the Superior Court level, Bennett & Belfort PC will keep you updated as to trends and developments in this rapidly evolving area of trial practice.  Should you have any questions on this or any other employment legislation, please feel free to contact Bennett & Belfort P.C.

Attorney Belfort Moderates Labor & Employment Law Update Panel at MBA’s 36th Annual Spring Conference

Posted on: April 15th, 2015 by admin

MBAOn Tuesday, April 14, 2015, Bennett & Belfort partner, David E. Belfort moderated the Labor and Employment Update Panel at the Massachusetts Bar Association’s 36th Annual Labor & Employment Law Spring Conference at Suffolk University Law School.  The Panelists addressed a variety of new developments, both legislative and case-related, in both labor and employment law over the last year.

Seasoned labor attorneys Ira Sills and James Pender led the panel in addressing, among other issues, the NLRB’s newly announced expedited election rules and the expanding prohibitions limiting employee communications as to the terms and conditions of employment under the NLRA – even in the non-unionized workplace.  Experienced employment law panelists, Anthony Califano and Nina Kimball, addressed a variety of major US Supreme Court decisions that came down over the last year, including relative to pregnancy accommodations.  On the very active state level, the panel highlighted new Massachusetts legislation pertaining to gender neutral pregnancy leave, paid sick leave, protections for victims of domestic violence and the new Domestic Workers’ Bill of Rights (a/k/a “Nanny law”).

36th Annual

SEXUAL HARASSMENT – FACTS YOU MAY NOT HAVE KNOWN

Posted on: April 1st, 2015 by admin

MCADBelow are some facts about sexual harassment claims in Massachusetts that you may not have known.  There are many other important details relating to sexual harassment claims that are not discussed in this blog. We will update future blogs with additional information regarding sexual harassment law.  If you have questions about sexual harassment in Massachusetts, please contact our office (617.577.8800).

Sexual harassment is a form of sex discrimination that violates both Massachusetts law (General Laws, Chapter 151B and General Laws, Chapter 214, Section 1C) and federal laws (Title VII of the Civil Rights -Act of 1964).

 

THERE ARE 2 TYPES OF SEXUAL HARASSMENT IN THE WORKPLACE

1. Quid pro quo” harassment

When an employee with authority or control over the terms and conditions of another employee’s work offers him/her a work benefit or advantage in exchange for sexual favors or gratification, this is quid pro quo harassment.  Also, if an employee is denied a work benefit or advantage due to his or her refusal to provide sexual favors, or as a result of rejecting requests for sexual favors, this is quid pro quo sexual harassment.  For example, quid pro quo harassment may exist if an employee declines to provide sexual favors to his or her boss and as a result, suffers termination; demotion; denial of a promotion; transfer; reduced or less preferential hours or scheduling; poor performance reviews; or decreased compensation.

2.  A “Hostile Work Environment” claimant must show that:

he or she was subjected to conduct of a sexual nature;

the conduct of a sexual nature was unwelcome;

the conduct of a sexual nature had the purpose or effect of creating an intimidating, hostile, humiliating or sexually offensive work environment; and

the conduct unreasonably interfered with the claimant’s work performance or altered the terms and conditions of the claimant’s employment.

While these cases are fact specific, any of the following types of conduct can serve as the basis for a potential hostile work environment sexual harassment claim (this list is not exhaustive): inappropriate touching; sexual jokes, gossip, sexual conduct or comments; requests for sex; displaying sexually suggestive pictures and objects; and leering, whistling, or making sexual gestures.  Keep in mind that other civil claims and criminal sanctions might be available remedies as well, including, but not limited to, assault and battery, interference with contractual relations, and retaliation.  Therefore, a careful review of these types of cases is recommended.

NOTE:  If the harasser is NOT in a supervisory role, the victim – in most cases – is expected to notify the Human Resources Department or a managerial employee of the employer, so that the employer is on notice of the misconduct and has an opportunity to take corrective action.

If the harasser is in a supervisory role, the employer is considered “strictly liable” for the conduct, whether or not the employer is aware of the sexual harassment. 

 

NOT EVERY INAPPROPRIATE COMMENT GIVES RISE TO A SEXUAL HARASSMENT CLAIM

Careful consideration must be given to an analysis of whether conduct in a particular situation is sexually charged (and not just a stray remark) or sufficiently severe and pervasive at the workplace to constitute actionable sexual harassment.

A single “off color” or sexually charged action or comment may or may not be sexual harassment.  In order to prove a hostile work environment sexual harassment claim, the claimant must show that the conduct was either severe or pervasive, or both.  While a single instance of improper lewd touching is usually severe enough to constitute a hostile work environment claim, generally speaking—even where it is inappropriate or sexually charged—a single lewd or inappropriate comment might not constitute a hostile work environment claim.  This is very fact specific, and each circumstance (including the background information) must be evaluated on a case by case basis.

 

SEXUAL HARASSMENT MATTERS ARE NOT ALWAYS MALE HARASSER AND FEMALE VICTIM

Not all sexual harassment cases involve a male harasser and a female victim.  The victim or harasser may be male or female, and same sex sexual harassment claims (female harasser and female victim, male harasser and male victim, etc.) appear to be on the rise.

 

AN EMPLOYER MAY BE LIABLE FOR THE ACTIONS OF THIRD PARTIES

An employer may be held liable for sexual harassment committed by non-employee third parties when the employer knew or should have known about the conduct and failed to take prompt, effective and reasonable remedial action.  Generally, the greater the employer’s ability to control the non-employee’s conduct, the more likely it will be found liable for the unlawful harassment.

 

MOST SEXUAL HARASSMENT CLAIMS MUST BE FILED WITHIN 300 DAYS

Sexual harassment claims pursuant to General Laws, Chapter 151B must be filed at the Massachusetts Commission Against Discrimination (MCAD) and/or the Equal Opportunity Employment Commission (EEOC) within 300 days of the adverse/discriminatory conduct.  There are exceptions, including situations in which the conduct complained about was of a continuing nature.

If a claimant files a claim after the applicable statute of limitations, his or her claim will be forever time barred. Time is of the essence with any discrimination claim.

 

NOT ALWAYS EMPLOYMENT RELATED

Most sexual harassment allegations arise from an employer-employee relationship.  However, sexual harassment is also prohibited in places of public accommodation,educational facilities,and housing.

We will update future blogs with additional information regarding sexual harassment law.  Please do not hesitate to contact us at 617.577.8800 if you have any questions.