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Archive for the ‘Massachusetts Law’ Category

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)

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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

 

 

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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” .

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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.

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”).

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