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Bennett & Belfort Attorneys Win Jury Trial on Overtime Claims

Posted on: October 11th, 2019 by admin

 

On October 4, a Suffolk County jury awarded three restaurant workers $114,498 in unpaid overtime compensation. The jury’s verdict followed a seven-day trial in which B&B attorneys, Michaela May and Craig Levey, represented the Thai kitchen workers.

Each of the Plaintiffs routinely worked six or seven days per week, usually for much more than 40 hours per week, for the Defendant, the Rice Barn restaurant in Needham. Rice Barn failed to pay them the “time and a half” required by the Fair Labor Standards Act (“FLSA”). Rice Barn’s problematic record keeping practices required each plaintiff and some of their former co-workers to reconstruct their hours worked and wages paid through memory. Ultimately, the jury found the plaintiffs and their co-workers credible and awarded each of the three plaintiffs between $27,000 and $46,000 in overtime pay.

Previously, a judge of the Superior Court found that Rice Barn’s failure to timely pay overtime compensation was also a violation of the Massachusetts Wage Act and that, therefore, the Plaintiffs would be entitled to treble damages under that law. Attorneys May and Levey anticipate requesting statutory trebling of the jury’s verdict and an award of attorneys’ fees and costs shortly.

The case is Devaney et al v. Zucchini Gold, LLC, et al (C.A. No. 15-2839).

Bennett and Belfort, P.C. Partner, Todd Bennett, quoted in Massachusetts Lawyers Weekly

Posted on: October 4th, 2019 by admin

Partner Todd Bennett was quoted in a September 30, 2019 Massachusetts Lawyer’s Weekly article about a recent case involving physicians’ attorney-client privilege and peer-review privilege.

 

The underlying case was brought against Massachusetts General Hospital by a physician who alleged that he was fired in retaliation for whistleblower activity after he raised concerns about the hospital’s practice of scheduling surgeons for more than one operation at time.  In the course of the litigation, a dispute arose as to whether the Plaintiff should be granted access to the report of an attorney hired by MGH to conduct an independent investigation of the hospital’s practice of booking overlapping surgeries.  The hospital refused to provide the report to the Plaintiff’s attorney upon request, citing both peer-review privilege and attorney client privilege. In response, the physician’s attorney filed a motion asking the court to compel MGH to produce the report. Ultimately, the court ruled in the physician’s favor.

 

The investigation in question was conducted years before the physician filed suit, based in part upon his whistleblowing activity and the Boston Globe’s reporting on the issue.  MGH hired an attorney to conduct an independent investigation of the hospital’s surgery scheduling practices, and to recommend any necessary changes in policy and procedure. In a subsequent Boston Globe opinion piece, MGH stated that the investigator’s report had concluded the hospital’s practices were lawful and proper. MGH further defended its scheduling practices by giving the report to a public relations firm to share with the Globe.

 

Lawyers Weekly contacted Attorney Bennett for comment on this case because of his experience in litigating employment matters.   As Attorney Bennett noted in the article, the hospital’s legal argument—that it could not provide the Plaintiff physician with the report produced by its investigating attorney due to attorney-client privilege—was problematic.  “If the company is relying on portions of the report as a defense, it puts the contents of the report at issue and it almost certainly is going to be discoverable,” Attorney Bennett explained.  Superior Court Judge Rosemary Connolly’s determination in the MGH case illustrates this point:  In ruling that the investigator’s report must be turned over to the physician, Judge Connolly stated that the report was not privileged because although the report was written by an attorney, it was not written for the purpose of providing legal advice to MGH; and additionally, that even if the report were written for the purpose of providing legal advice to MGH, the attorney-client privilege was waived because the hospital, rather than keeping the report confidential, had given it to a public relations firm for purposes of responding to the Boston Globe article.

 

MGH’s unsuccessful defense in this discovery dispute, as Attorney Bennett told Lawyers Weekly, demonstrates an all-too-common tendency of companies to engage independent investigators without properly considering all of the potential consequences.  The Lawyers Weekly article, which contains a link to the full court opinion, can be read at https://masslawyersweekly.com/2019/09/26/investigators-report-discoverable-in-retaliation-case-vs-mgh/.

FMLA Protects Employee Leave for School Meetings

Posted on: August 19th, 2019 by admin

In a recent opinion letter, the Department of Labor clarified that the FMLA can require employers to allow leave for employees to attend school special education meetings.  The Department issued the August 8, 2019, opinion letter in response to an inquiry from the parents of two children with FMLA-qualifying serious health conditions.

One of the parents received medical certification supporting her need for intermittent leave and had received approval from her employer to attend medical appointments.  However, her employer did not approve her leave to attend school meetings that were regularly held to discuss the children’s’ Individualized Education Programs (IEPs) and review the children’s educational and medical needs, well-being, and progress.

The FMLA provides for up to 12 weeks of leave to eligible employees to, among other things, “care for the spouse, or a son, daughter, or parent, of the employee, if such spouse, son, daughter, or parent has a serious health condition.”  See 29 U.S.C. § 2612 (a)(1)(C).

The Department determined that these IEP meetings were indeed a necessary part of caring for a family member with a serious health condition.  Specifically, the Department noted that the employee attends these meetings to help participants make medical decisions concerning their children’s medically-prescribed speech, physical, and occupational therapy; to discuss their children’s wellbeing and progress with the providers of such services; and to ensure that the school environment is suitable to their medical, social, and academic needs.

The Department’s determination recognizes the reality that working parents of children with serious health conditions need leave from work not only for doctor’s appointments, but also to communicate and manage their children’s care at school, daycare, and with other providers.  Going forward, these parents should be sure to follow their employer’s FMLA leave request procedures in order to take leave for any time off that relates to their child’s care.

Final Paid Family and Medical Leave Regulations Issued

Posted on: July 8th, 2019 by admin

 

Effective July 1, 2019, final regulations for the Massachusetts Paid Family and Medical Leave Law (PFML) are now available for review by employees and employers.

The final regulations come on the tail of a three-month delay of the start of employers paying into the state leave program.  The new family and medical leave law goes into effect in stages, with employees beginning to see benefits beginning in 2021:

(Graphic Source: https://www.mass.gov/info-details/timeline-of-paid-family-and-medical-leave-contributions-and-benefits).  Employers have until September 30, 2019 to complete mandatory, documented disclosures  to covered employees and other individuals of their rights under the law.

For more on the expansion of employee family and medical leave rights in Massachusetts, read Bennett & Belfort’s blog entry  on the topic, and feel free to contact Bennett & Belfort P.C.

 

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.

Belfort Organizes And Serves As Panelist For MELA’s Making A Million Dollar Practice

Posted on: January 22nd, 2019 by admin

On January 9th, Bennett & Belfort P.C. partner David E. Belfort, helped organize and served as a panelist at the Massachusetts Employment Lawyers Association (MELA)  Making A Million Dollar Practice fundraising event. The panel was hosted at the Boston College Club and included invited speakers that represented clients in employment cases in 2018 that resulted in seven figure jury trial verdicts.

In front of a packed audience, the trial attorney panelists each tackled various litigation practice topics from the beginning of trial to the closings.  Panelists integrated their first hand trial experiences in an effort to learn from these series of unprecedented successes – that collectively returned verdicts in excess of 41 million dollars combined.

Mr. Belfort presented on the mechanics and interactive nature of the new Massachusetts Juror Voir Dire process, on how to present an effective Opening Statement and on the use of demonstrative evidence, models and how to effectively rebut damning videotape evidence.

Congratulations to Mr. Belfort for his leadership and participation in this successful event.

 

B&B Welcomes Michaela C. May

Posted on: November 27th, 2018 by admin

Bennett & Belfort is thrilled to announce that Attorney May joined the firm’s litigation team in April.  Attorney May comes with vast counseling and employment litigation experience.  Ms. May concentrates her practice in employment discrimination and wage-and-hour matters.  She serves as Co-Chair of the Massachusetts Employment Lawyers Association’s committee on the Massachusetts Commission Against Discrimination.   Michaela’s full biography is at <LINK>

Four B&B attorneys honored with “Super Lawyers” distinction for 2018

Posted on: November 6th, 2018 by admin

 

 

We are proud to announce that Thomas Reuters / “Super Lawyers” has listed Bennett & Belfort P.C. Partners, David E. Belfort and Todd J. Bennett, as 2018 New England Super Lawyers; and Partner Eric R. LeBlanc and Senior Associate Michaela C. May as Rising Stars.

Attorney Belfort was selected as a “Top 100” attorney and in the area of Employment Litigation: Plaintiff, and Attorney Bennett was selected as a “Super Lawyer” in the area of Business Litigation.  Mr. LeBlanc was selected as a “Rising Star (Super Lawyers under 40)” in the area of Business Litigation. Ms. May was selected as a “Rising Star” in the area of Employment and Labor.

“Super Lawyers” evaluates attorneys who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations and peer evaluations. While up to 5 percent of the lawyers in a state are named to Super Lawyers, no more than 2.5 percent are named to Rising Stars.

Bennett & Belfort P.C. concentrates its practice in business and commercial litigation and employment law and litigation.

ATTORNEY TODD BENNETT, PARTICIPATES ON FACULTY PANEL AT THE MASSACHUSETTS CONTINUING LEGAL EDUCATION SEMINAR, TRYING CIVIL CASES.

Posted on: October 18th, 2018 by admin

On October 16, 2018, Bennett & Belfort, P.C. Partner, Todd Bennett, shared his trial experience with attendees at the Massachusetts Continuing Legal Education’s Trying Civil Cases, program in Boston.

In this unique program, attendees heard from a panel consisting of: Attorney Bennett, the Honorable Paul D. Wilson, Justice of the Massachusetts Superior Court; Lindsey M. Burke, Director at Kenney & Sams, P.C.; and Warren F. Fitzgerald of Fitzgerald Dispute Resolution LLC. The panel discussed their commentary and experiences relating to a mock trial performed by William J. Dailey, III of Sloan and Walsh LLP and Valerie A. Yarashus of Meehan, Boyle, Black & Bogdanow, P.C.

The program covered everything from pre-trial motions through closing arguments. Attendees also had the opportunity to see how jurors view the case from the jury box, and to vote on the winner.

It was particularly interesting to hear from the Honorable Judge Wilson with respect to how judges expect attorneys to conduct themselves at trial, as well as from different attorneys, some of whom represent companies and some of whom represent individuals.

Attorney Bennett was honored to contribute to this “real time” teaching tool for attorneys just embarking on, or hoping to improve, their civil litigation practices.

NEW NON-COMPETITION LAW MEANS BIG CHANGES FOR EMPLOYERS AND EMPLOYEES

Posted on: September 25th, 2018 by admin

On October 1, 2018, Massachusetts’ new law governing non-competition agreements goes into effect.  This statute is the culmination of many years of efforts to enact some legislative parameters around employment non-competition agreements.  As a result, it reflects a number of trade-offs between pro-employer and pro-employee positions.  The new law also contains some ambiguous provisions that will, no doubt, require interpretation by the courts.

 

Employers and employees should seek specific legal advice regarding the impact of the law in their own circumstances.  However, here are some of the highlights and key provisions to be aware of:

 

  1. This statute covers only non-competition agreements. A non-competition agreement is defined as follows:

 

“an agreement between an employer and an employee, or otherwise arising out of an existing or anticipated employment relationship, under which the employee or expected employee agrees that the employee will not engage in certain specified activities competitive with the employee’s employer after the employment relationship has ended”

 

  1. This law does not impact other restrictive covenants like non-solicitation or non-disclosure agreements. It also does not govern non-competition agreements that are entered into as part of a business sale, or where there is no employment relationship.  Non-competition agreements that are made in connection with the cessation of employment are exempted, as well.

 

  1. The new law only applies to non-competition agreements entered into on or after October 1, 2018.

 

  1. There is now an explicit requirement that consideration be provided in exchange for a non-competition agreement. Employers must provide “garden leave” or “other mutually-agreed upon consideration.”  The garden leave requirement is fifty percent of the employee’s base pay for the duration of the restricted period.  The law does not define “mutually-agreed consideration.”

 

  1. The law contains certain formal requirements, including that agreements be in writing, signed by both the employer and employee, and affirm the employee’s right to consult with counsel.

 

  1. Procedurally, non-competition agreements must be presented at the time of an employment offer or ten days before a new employee’s start date, whichever is earlier. Existing employees may be asked to sign non-competes, but employers must now provide consideration “independent from the continuation of employment.”

 

  1. The law requires that a non-competition agreement be reasonable. It must be no broader than necessary to protect an employer’s trade secrets, confidential information, and goodwill.  It must not exceed one year in duration, and it must be reasonable in geographic scope and in the scope of prohibited activities.

 

  1. Finally, it is important to note that the new law prevents enforcement of non-competition agreements against certain employees, including non-exempt employees, short-term student employees, employees who have been terminated without cause or laid off, and employees who are 18 years old or younger.

 

This is merely a general overview and is not a substitute for legal advice regarding any particular situation.  This new non-competition statute was a long time coming, and it is sure to present many novel issues for employers and employees.  Anyone with questions about how this law affects them should consult with qualified employment counsel.