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Archive for the ‘sick leave’ Category

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for 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.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

EMPLOYER ALERT: NEW PREGNANT WORKER LAW STARTS APRIL 1ST

Posted on: January 25th, 2018 by admin

pregnant women

On April 1, 2018, An Act Establishing the Massachusetts Pregnant Workers Fairness Act, (“PWFA”) goes into effect.  All employers in Massachusetts should be aware of this law.  The PWFA extends the protections of Massachusetts anti-discrimination law (Massachusetts General Laws, Chapter 151B) to pregnant workers within the Commonwealth, and grants additional safeguards for pregnant workers seeking workplace accommodations relating to their pregnancy. The PWFA specifically extends coverage for pregnancy, and related conditions, including lactation.

Essentially, the PWFA applies the reasonable accommodation standards that are used in disability cases to pregnancy, and requires employers to engage in an interactive process and to provide employees reasonable accommodations, unless doing so would impose an undue hardship on the employer. The PWFA includes a non-exhaustive list of specific accommodations that may be available to pregnant employees, including:

(1)   Time off to recover from childbirth (with or without pay);

(2)   More frequent or longer breaks (with or without pay);

(3)   Temporary transfer to a less strenuous/hazardous position;

(4)   Job restructuring;

(5)   Light duty;

(6)   Private non-bathroom space for expressing breast milk;

(7)   Assistance with manual labor; or

(8)   Modified work schedules.

The PWFA requires the need to engage in an interactive process, which is essentially a dialogue between the employee and employer concerning possible accommodations that may be available.

The PWFA also makes it illegal for an employer to: (1) retaliate against pregnant workers who seek accommodations, (2) refuse to hire an individual who may need an accommodation  relating to pregnancy or the need to express breast milk; (3) require a pregnant or lactating employee to accept an accommodation that does not enable them to perform the essential functions of their job; (4) require a pregnant or lactating employee to take a leave of absence, when other accommodations may be available; and (5) refuse to hire an individual because of her pregnancy ore related condition.

Importantly, all employers covered by the act are required to provide written notification to existing employees of their rights under the PWFA on or before April 1, 2018, and new employees at the start of their employment.

As with other violations of Chapter 151B, employers who fail to comply with the provisions set forth in the PWFA may be liable for back pay, front pay, emotional distress, punitive damages, and attorneys’ fees and costs.

 

 

Bennett & Belfort secures $1,235,000 Jury Verdict v MWRA

Posted on: January 18th, 2018 by admin

2013-david-b-photo-150x150A Suffolk County jury today awarded $1,235,000 to Richard DaPrato against the Massachusetts Water Resources Authority (MWRA). In reaching today’s verdict, the jury concluded that the MWRA deliberately retaliated against Mr. DaPrato  after 11 years of unblemished service by firing him for taking medical leave for surgery, and for requesting future leave.

Mr. DaPrato was represented by David E. Belfort of Bennett & Belfort PC of Cambridge and Robert S. Mantel of Powers, Jodoin, Margolis & Mantell LLP of Boston. The jury strongly rejected the Authority’s argument that Mr. Daprato violated the public trust.  Instead, the jury found that the MWRA, a public entity, violated Mr. DaPrato’s rights to medical leave under both the Family Medical Leave Act and the Massachusetts Fair Employment Practices Act (M.G.L. 151B)

The Jury awarded Mr. Daprato $320,000 in lost pay damages, including his future pension losses, in addition to $200,000 in emotional distress damages.  The Jury issued punitive damages to deter future outrageous conduct by the MWRA in an amount of $715,000.

David Belfort said, “This decision affirms the rights of employees to request and take legally protected medical leave without being subjected to adverse action.”

The final judgment, which has not yet been entered, will also include pre-judgment interest and a petition for Mr. DaPrato’s attorneys’ fees is forthcoming.  (See Jury Verdict Slip Below)

DaPrato Verdict 1.18.18_Page_1DaPrato Verdict 1.18.18_Page_2

 

WHEN IS THE DUTY TO ENGAGE IN THE INTERACTIVE PROCESS TRIGGERED?

Posted on: March 27th, 2017 by admin

In MCAD & Amanda LaPete v. Country Bank for Savings, the Massachusetts Commission Against Discrimination (“MCAD”) awarded Complainant (Amanda LaPete), a woman who was terminated while on approved leave for post-partum depression, back pay plus $50,000.00 for emotional distress stemming from her employer’s disability discrimination.  Docket No. 10-SEM-02769 (Kaplan, J., February 5, 2017).

While employed by Respondent (Country Bank for Savings), Complainant was granted 17 weeks of leave to give birth, which comprised of accrued sick and vacation time, eight weeks of maternity leave (as permitted by M.G.L. c. 149, § 105D), and an additional four weeks pursuant to the federal Family and Medical Leave Act (“FMLA”).

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Complainant suffered post-partum depression while on leave and notified Respondent of her disability.  She consistently provided Respondent with updates during her leave, including a timeframe for her return to work.  Notably, Complainant fully intended to return to work with Respondent, yet her health care provider suggested she take further time off due to persistent depression and anxiety.  Complainant requested an additional four weeks of leave, however, Respondent ignored her request and terminated her employment.

The Massachusetts anti-discrimination statute, M.G.L. c.151B, prohibits discrimination by an employer based on disability.  To prove a case of disability discrimination for failure to provide a reasonable accommodation, complainant must show: (1) that she is “handicapped”; (2) that she is a “qualified handicapped person” capable of performing the essential functions of her job; (3) that she needed a reasonable accommodation to perform her job; (4) that Respondent was aware of her handicap and the need for a reasonable accommodation; (5) that Respondent was aware, or could have been aware, of a means to accommodate her handicap; and (6) that Respondent failed to provide Complainant the reasonable accommodation.  Hall v. Laidlaw Transit, Inc., 25 MDLR 207, 213-214 (2004).

In Country Bank for Savings, the MCAD Hearing Officer ruled that Complainant established sufficient evidence to prove a prima facie case of disability discrimination for failure to provide a reasonable accommodation by demonstrating that she: 1. was handicapped for purposes of the statute; 2. was qualified to perform the essential functions of her job; 3. required a reasonable accommodation; and 4. adequately kept Respondent informed of her need for an accommodation while out on leave.  The MCAD also found that Complainant’s finite request for extended leave was a reasonable accommodation so that she could cope with her post-partum depression.

The MCAD found that Respondent’s termination of Complainant without engaging in an interactive dialogue about the request for extended leave was a violation of the employer’s duty under the statute.  Importantly, the Hearing Officer stressed in her decision that an employer is not shielded from liability simply by allowing an employee leave under the FMLA.  Rather, the employer has an affirmative responsibility to engage in the interactive process when the employee is preparing to return from leave.

Notably, there was no persuasive evidence that Complainant’s request for extended leave would cause the Respondent an undue burden on its operations or finances.

This decision highlights the requirement that employers understand the timing of when their obligation to engage in the interactive process is triggered.  Though a company’s obligation is clear when an employee explicitly requests an accommodation, employers must also engage in the interactive process when they have reason to believe an employee needs a reasonable accommodation absent a specific request citing to the statute.

 

 

Compliance With Massachusetts’ Earned Sick Time Law

Posted on: December 23rd, 2014 by admin

file000480371600 (1)On July 1, 2015, MGL Chapter 149, Section 148C, Massachusetts’ Earned Sick Time For Employees law goes into effect, and with it thousands of employees begin accruing time-off rights that were not previously enjoyed.

Who gets sick time off?

The voter approved initiative potentially entitles all non-federal government workers in Massachusetts sick time off from work to care for the employee’s child, spouse, parent, parent of a spouse, or for the employee him or herself.  Employees of Massachusetts cities and towns, however, will only be covered by the law if application of the statute is accepted by vote or appropriation of the city or town.

How is it earned?

Covered employees begin accumulating sick time hours on the later of July 1, 2015, or their date of hire – however an employee cannot begin to use accrued sick days until ninety (90) days after the first day of their employment.

One hour of sick time off under the law is earned for every thirty (30) hours worked by an employee.  Employees who are exempt from the overtime rules established by the Federal Fair Labor Standards Act are assumed to work forty (40) hours a week for purposes of accumulating sick time, unless they work less than forty (40) hours a week in which case the actual hours a week worked govern their accumulation of sick time.

How is it used?

When the sick time is foreseeable, employees are expected to make a good faith effort to give advance notice of use of the intended leave.

Earned sick time can be used to take time off from work to care for the employee’s child, spouse, parent, parent of a spouse, or for the employee him or herself.  The sick time can also be used to address the physical, psychological, or legal effect of domestic violence.  A physical or mental illness that requires home care or professional medical care creates justification for use of the sick time.  Routine medical appointments are also covered by the act, as is preventive medical care.   In addition to covering biological, adopted, foster children, stepchildren, and legal wards, the term child includes “a child of a person who has assumed the responsibilities of parenthood.”  Similarly, the term parent includes biological, adoptive, foster or step-parent of an employee or employee’s spouse, as well as a “person who assumed the responsibility of parenthood when the employee or employee’s spouse was a child.”

An employee is entitled to use up to forty (40) hours of sick time during any single calendar year.  Up to forty (40) hours of earned sick time can be carried over from one calendar year into the next.

Who is entitled to paid sick time?

Employees of employers with eleven (11) or more employees are entitled to paid sick time off under the statute.  Earned paid sick time involves compensation at the same hourly rate as the employee earns at the time of the leave.   Employees of employers with ten (10) or less employees are also entitled to sick time under the statute, but such time off is unpaid.

Can an employer ask for a doctor’s note?

The statute expressly allows an employer to require certification of the basis of the sick time if earned sick time covers more than twenty four (24) consecutively scheduled work hours, although the employer may not require that the documentation explain the nature of the illness of details of domestic violence.  The statute implicitly, although not expressly, forbids an employer from asking for certification to justify the use of earned sick time if the leave covers less than twenty four (24) consecutively scheduled work hours.

Do employers who give paid vacation time have to give paid sick time too?

Employers of eleven (11) or more employees who provide paid time off under a vacation or other paid time off policy, and who provide employees with at least as much paid time off as the employee would have under the Earned Sick Time For Employees law which can be used for the same purposes and under the same conditions as the Earned Sick Time For Employees law are not required to provide additional earned paid sick time leave.

Are employees entitled to be paid for unused earned sick time at the end of their employment?

No.  The earned sick time, even if paid sick time, is a use-it-or-lose-it entitlement.

How is the law enforced?

After July 1, 2015, it shall be unlawful for an employer to interfere with, restrain, or deny the exercise (or attempted exercise) of any right under the Earned Sick Time For Employees law.  It will also be unlawful for an employer to take adverse action against an employee because the employee opposed a practice believed to be in violation of the law, or if the employee supports another employee’s exercise of rights under the law.

In addition to authorizing the Massachusetts Attorney General to enforce violations of the law, an employee claiming to be aggrieved by a violation the law may, ninety (90) days after the filing of a complaint with the Attorney General (or sooner if the Attorney General assents in writing), and within three (3) years after the violation, institute civil lawsuit for injunctive relief, damages, lost wages and benefits, costs, reasonable attorney fees, and treble damages as liquidated damages.

Will regulations be issued to clarify the operation of the Earned Sick Time For Employees law?

Eventually.  The Massachusetts Attorney General is tasked with creating rules and regulations to carry out the purpose of the law, but as of the date of this posting no regulations have been adopted.

Should you have any questions or require guidance as to the sick leave law or any other employment legislation, please feel free to contact Bennett & Belfort P.C.