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Archive for the ‘Family Medical Leave Act’ 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

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.

 

 

Handling Psychiatric Disabilities in the Workplace

Posted on: October 6th, 2016 by admin

2013 David B photo

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.

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 .  

kgordonmbarrettjscibak

 

 

 

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.

David 11.24.15 Panel

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.

Attorney Belfort Invited Panelist in MCLE’s Top 25 Employment Cases Seminar

Posted on: March 17th, 2015 by admin

2013 David B photo On February 25, 2015, Bennett & Belfort P.C. partner David E. Belfort served as a panelist for an MCLE seminar entitled “Top 25 Keys Cases Every Employment Litigator & Counselor Must Know.” Joining Attorney Belfort on the panel were his esteemed colleagues Attorneys Andrea C. Kramer (Chair) of Hirsch Roberts Weinstein LLP and Nina J. Kimball of Kimball Brousseau LLP.

The panelists reviewed 25 key cases in Massachusetts employment law and highlighted issues central to effective employment litigation in the Commonwealth, including a detailed discussion of foundational and developing case law in the field.  Attorney Belfort was charged with discussing cases relating to discrimination damages and wage and hour disputes.  There was a rigorous discussion as to a number of other relevant topics, including:  proving liability in discrimination cases; retaliation and whistleblower protections; the continuing violation doctrine and Cat’s Paw Theory; and disability and reasonable accommodation law. 

There was a lively dialogue regarding associational discrimination: an evolving and active area of employment law in which the individual experiencing discrimination is not a member of a protected class, but is related to (or associated with) someone who is.  The panelists also discussed the interesting procedural history and standards of appellate review of these central cases – often involving the interplay between various tribunals such as the Supreme Judicial Court’s review of lower Courts’ decisions or the Trial Court’s review of MCAD (Massachusetts Commission Against Discrimination) decisions.  One theme was the fight among litigants as to what standard of review governed each circumstance.  While in some cases the Courts conduct a “de novo” review (completely new trial on the merits) in others there is only a limited 30A administrative review available.  This 30A process is conducted without a jury, is a far more deferential standard to the underlying Agency decision, and considers only facts already in the record.

Here is a list, by general topic, of the top 25 Massachusetts cases that were covered in the Seminar:

 

Discrimination Law – General

1.         Abramian v. President & Fellows of Harvard College, 432 Mass. 107 (2000)

2.         Lipchitz v. Raytheon Co., 434 Mass. 493 (2001)

3.         College-Town Div. of Interco v. MCAD, 400 Mass. 156 (1987)

4.         Thomas O’Connor Constructors, Inc. v. MCAD, 72 Mass. App. Ct. 549 (2008)

5.         Mole v. Univ. of Massachusetts, 442 Mass. 582 (2004)

6.         King v. City of Boston, 71 Mass. App. Ct. 460 (2008)

7.         GTE Products Corp. v. Stewart, 421 Mass. 22 (1995)

8.         Sarni Original Dry Cleaners, Inc. v. Cooke, 388 Mass. 611 (1983)

9.         Haddad v. Wal-Mart, 455 Mass. 91 (2009)

10.       Stonehill Coll. v. MCAD, 441 Mass. 549 (2004)

11.       City of Boston v. MCAD, 39 Mass. App. Ct. 234 (1995)

12.       Massachusetts Elec. Co. v. MCAD, 375 Mass. 160 (1978)

13.       Flagg v. AliMed, Inc., 466 Mass. 23 (2013)

 

Disability Accommodation, Interactive Dialogue, and Leaves of Absence

14.       Russell v. Cooley Dickinson Hosp., Inc., 437 Mass. 443 (2002)

 

Harassment

15.       Muzzy v. Cahillane Motors, Inc., 434 Mass. 409 (2001)

16.       Cuddyer v. Stop & Shop Supermarket Co., 434 Mass. 521 (2001)

 

Wage & Hour Law

17.       Okerman v. VA Software, 69 Mass. App. Ct. 771 (2007)

18.       Boston Police Patrolmen’s Ass’n, Inc. v. City of Boston, 435 Mass. 718 (2002)

19.       Camara v. Attorney General, 458 Mass. 756 (2011)

20.       Smith v. Winter Place LLP, 447 Mass. 363 (2006)

21.       Crocker v. Townsend Oil Co., 464 Mass. 1 (2012)

22.       Depianti v. Jan–Pro Franchising Int’l, Inc., 465 Mass. 607 (2013)

23.       Lipsitt v. Plaud, 466 Mass. 240 (2013)

 

Common Law Claims

24.       Hobson v. McLean Hosp. Corp., 402 Mass. 413 (1988)

25.       Fortune v. National Cash Register Co., 373 Mass. 96 (1977)

 

The webcast of this program can be accessed through the MCLE website (http://www.mcle.org/product/catalog/code/2150165WBA).

MCLE Top 25

MASSACHUSETTS PARENTAL LEAVE LAW ESTABLISHES IMPORTANT RIGHTS FOR PARENTS OF BOTH GENDERS

Posted on: February 24th, 2015 by admin

On January 7, 2015, Governor Deval Patrick signed into law An Act Relative to Parental Leave (Parental Leave Act).  Effective April 7, 2015, the new law essentially makes the existing Massachusetts Maternity Leave Act (MMLA) gender neutral, so that the protections under the MMLA apply equally to both men and women.  The Massachusetts Parental Leave Act also extends benefits to the placement of a child pursuant to a court order, in addition to coverage for birth and adoption, both of which protections are covered for women under the MMLA.

man-holding-newbornThe Massachusetts Parental Leave Act requires employers with six or more employees to provide eligible employees with 8 weeks of unpaid leave after the birth or adoption of a child. Full-time employees become eligible for leave after the completion of an initial probationary period set by the employer, but no longer than three months.  If no period is set, employees become eligible after three consecutive months of work. Part-time employees are not eligible for leave under the law. Employees must provide employers with notice at least two weeks prior to the date he or she plans to begin leave, or as soon as possible if the delay is outside the employee’s control.

The law generally requires that employees be returned to the same or similar position with the same salary and benefits after leave ends, though exceptions apply where layoffs occur.  If two employees of the same employer are parents of the same child, the employees will only receive a total of 8 weeks between them, rather than 8 weeks each (for a total of 16 weeks).  Where applicable, parental leave may be taken more than once annually under the Parental Leave Act.

Parental leave may be paid or unpaid, or may exceed 8 weeks at the discretion of the employer.  If an employer provides more than 8 weeks of leave, but does not extend status and benefit protections beyond the required 8 weeks, the employer must inform the employee in writing before leave begins that loss of reinstatement or benefits will result from taking longer than 8 weeks.

Employers must post notice of employees’ rights under the Parental Leave Act and the employer’s related polices in an area where employees can see them.  Similar to the Maternity  Leave Act, the Massachusetts Commission Against Discrimination is responsible for enforcing provisions of the Parental Leave Act, and employees who believe their rights have been violated under the law must file a complaint with the MCAD within 300 days of the alleged violation in order to protect their rights.