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Archive for the ‘Massachusetts Law’ Category

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.

EMPLOYER ALERT: NEW PREGNANT WORKER LAW STARTS APRIL 1ST

Posted on: January 25th, 2018 by admin

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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.

 

 

Handling Psychiatric Disabilities in the Workplace

Posted on: October 6th, 2016 by admin

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Bennett & Belfort, partner, David E. Belfort, along with MBA Labor and Employment Section Council Vice-Chair Attorney Meghan H. Slack, co-chaired a September 29, 2016, panel at the Massachusetts Bar Association entitled “Handling Psychiatric Disabilities in the Workplace.”

 The panelists included, Attorney Laurence J. Donoghue of Morgan, Brown & Joy and Attorney Susan Fendell of the Mental Health Legal Advisors Committee.

 The lively discussion covered a wide range of topics impacting employees with psychiatric disabilities and their employers.  The panelists debated wide ranging issues from hiring to separation, including reasonable accommodations, Family Medical Leave Act (FMLA) and violence in the workplace.

BENNETT & BELFORT WELCOMES ATTORNEY CRAIG LEVEY TO FIRM

Posted on: June 13th, 2016 by admin

 

 

Levey Craig (2)

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.

Attorney Belfort Moderates Labor & Employment Law Update Panel at MBA’s 37th Annual Spring Conference

Posted on: May 20th, 2016 by admin

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.

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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.

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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.

 

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Attorney Belfort Chairs Massachusetts Bar Association Legislative Roundtable on Employment related bills with Three Massachusetts State Legislators

Posted on: December 22nd, 2015 by admin

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” .

2013 David B photo

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 .  

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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.

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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.

Supreme Court Clarifies Rules for Accommodating Pregnant Employees

Posted on: June 10th, 2015 by admin

BellyUPS driver Peggy Young became pregnant in the fall of 2006 and was advised by her doctor to restrict lifting to 20 pounds.  Young’s job typically required her to lift up to 70 pounds, and she sought accommodations from UPS to comply with her doctor’s advice.  UPS denied her request and told her to return to work after the pregnancy.  UPS took the position that it could only accommodate lifting restrictions for employees in three specific groups: employees who were considered disabled under the Americans with Disability Act, employees who were injured on the job, and employees who lost their Department of Transportation Driving Certification.  In the past, UPS accommodated workers who were unable to lift heavy objects due to job related injuries only, not physical reasons.  In justifying its denial of Young’s request, UPS asserted that it was exercising neutrality and fairness. 

As a result, Young lost out on several months of pay without medical coverage.  She sued UPS in July 2007 under the Pregnancy Discrimination Act (“PDA”).  The PDA states that pregnant employees “shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work.”  According to Young, the refusal of UPS to temporarily reassign her job duties or allow co-workers to assist with heavy lifting tasks constituted discrimination in violation of the PDA.  She argued that the PDA required employers to accommodate pregnancy in the same manner they accommodate any temporary disability.  UPS countered that since it only accommodated lifting restrictions for workers who were injured on the job, its refusal to accommodate Young was in keeping with its policy and was not discriminatory.   Both a federal court judge and an appeals court ruled in favor of UPS, stating that the company’s policy was neutral, and the employees whom UPS had accommodated were not comparable to Young because their restrictions were related to distinguishable, job-related factors.  Not satisfied with the interpretation of the PDA, Young took the matter to the Supreme Court which ruled 6-3 in her favor.

Justice Breyer, who authored the decision for the Court, found both the arguments of Young and UPS wanting.  While he didn’t agree with Young that the PDA grants pregnant women a blanket right to accommodations, he also didn’t agree that UPS’ neutrality argument was viable.  Rather, Justice Breyer’s opinion clarified that if an employer chooses to accommodate restrictions caused by some temporary disabilities, the employer must also accommodate the same restriction if caused by pregnancy.

Following the Court’s ruling, Young must now return to Virginia courts and prosecute her discrimination claim under this clarification of the law.  Meanwhile, employers who are subject to the PDA are now on notice that they must accommodate pregnancy-related restrictions to the same extent that they accommodate other disabling conditions when they arise.