Bennett & Belfort P.C.
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Developments in the Dynamic World
of Business and Employment Law

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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Partner, Eric LeBlanc, quoted in Massachusetts Lawyers Weekly Article Regarding an Employee’s Successful Post-Termination Claim of Workplace Retaliation

Posted on: January 11th, 2018 by admin

wwa_eric-117x150Massachusetts Lawyers Weekly sought commentary from Bennett & Belfort partner, Eric LeBlanc, in its article on a recent U.S. Bankruptcy Court decision concerning a contract worker’s claim against her former employer’s Chapter 11 bankruptcy estate for severance pay.  (“At-will worker can seek severance against bankruptcy estate: Company’s failure to offer benefits deemed retaliatory,” Mass. Lawyers Weekly, December 21, 2017.)  Dr. Christine Briggs, while an at-will employee of Genesys Research Institute, Inc., was one of a number of workers who filed whistleblower complaints against the company for alleged misuse of restricted funds.  Although an employer is not required to offer severance pay when laying off an at-will employee, Dr. Briggs discovered that when Genesys terminated at-will employees in a series of layoffs prior to filing for bankruptcy, it had systematically offered severance to those who had not lodged whistleblower complaints but failed to offer severance to those who had made complaints.  In the case, In Re: Genesys Research Institute, Inc., Justice Joan Feeney concluded that the employer’s conduct was retaliatory, and thus Dr. Briggs, although an at-will employee, was entitled to claim severance pay.

Attorney LeBlanc remarked that the Judge’s decision is significant because the court sustained a claim concerning an employer’s retaliatory conduct that occurred after the employee’s termination.  “There are mitigating factors in this case because it was a bankruptcy decision with a different burden-shifting, and the trustee made limited attempts to refute the claim,” Attorney LeBlanc told Lawyers Weekly. “But it could still be applicable in assisting plaintiffs in getting over an initial hurdle regarding a potential retaliatory action that occurs post-termination… Put more simply, you can use post-termination employer behavior to potentially prove either discrimination or retaliatory animus.”

From a common-sense, layperson’s perspective, it goes without saying that retaliation and discrimination by any person or entity against another can post-date the technical termination of the relationship between perpetrator and victim.  The case law in this regard is, however, a work in progress.

READ BEFORE YOU SIGN: DAVID E. BELFORT, QUOTED ON FIDUCIARY DUTY CLAIM INVOLVING AN ALLEGED ILLICIT TRANSFER OF SHARES

Posted on: January 3rd, 2018 by admin

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We are pleased to announce that Bennett and Belfort, P.C. managing partner, David E. Belfort, was quoted in the December 21, 2017 issue of Massachusetts Lawyers Weekly in a cover page article entitled, “Breach-of-fiduciary claim vs. accountant allowed.” http://masslawyersweekly.com/2017/12/21/breach-of-fiduciary-duty-claim-vs-accountant-allowed/. The article discusses a Suffolk Superior Court decision coming out of the Business Litigation Session authored by Hon. Judge Leibensperger on a Motion To Dismiss.  The Court held that a lawsuit can proceed for breach of fiduciary duty where an accountant allegedly obtained an equity interest in the investment fund he managed through written instruments he submitted to the plaintiffs (his bosses) without fully disclosing that the documents transferred equity to the Defendant.  Interestingly, this purported ownership transfer took place just a short time before the Defendant left the company’s employ, and the transfer documents were prepared by a junior level attorney at a law firm that represented the company.

Attorney Belfort addressed the evidentiary challenges which remained for the plaintiff as the case continues. “Fiduciary duty claims still require that you have actual evidence of malfeasance in some way or a material omission,” Attorney Belfort said. “In this case, if they are able to prove that the defendant deliberately misled them or concealed key information, then they have a chance. If they can’t, they’re going to have a tough time getting through summary judgment.”   The Plaintiffs admit they signed two documents relative to the equity transfer at issue but say they did not fully read the documents.  Plaintiffs claim that the Defendant, as a senior executive at the firm, had a fiduciary duty beyond presenting the documents to them for signature, including to inform them about the equity transfer it contained, which was done – they argue – without Plaintiffs’ knowledge and approval.  This, they claim, is sufficient to show a breach of fiduciary duty under Massachusetts law and at this early stage according to Judge Leibensperger – they were correct.

Partner Eric LeBlanc Speaks on the Interactive Process at MCLE Annual Employment Law Conference

Posted on: January 2nd, 2018 by admin

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The MCLE (Massachusetts Continuing Legal Education) New England held its annual Employment Law Conference on December 8, 2017, and Bennett & Belfort partner Eric R. LeBlanc was one of two attorneys selected to lecture and moderate discussion in a breakout session entitled “The Interactive Process: Everything You Need to Know and Understand to Advise Your Clients and Litigate Your Case.”  If an employee advises his or her employer of a physical or mental impairment that affects the employee’s ability to perform the job effectively, the employer must work with the employee to attempt to discern a “reasonable accommodation” that might enable adequate job performance. Massachusetts and federal law do not formally define this “interactive process,” nor is a reasonable accommodation possible in every instance; but once an employee has disclosed a disability and requested reasonable accommodation, significant harm can result from either party’s failure to engage in a good faith interactive process.  At the December 8th breakout session, Attorney LeBlanc joined Attorney Katherine Rigby of Ogletree, Deakins, Nash Smoak & Stewart in educating attendees about the specific actions required of employers and employees in the interactive process; common pitfalls to avoid; potential claims, liability and defenses for clients on either side of process; and developing trends in the relevant case law.  Attorney LeBlanc and Attorney Rigby were able to share their experience and expertise with a wide audience because the session was held via webcast as well as in person at MCLE’s conference center.

BENNETT AND BELFORT, P.C. PARTNER, TODD BENNETT, QUOTED IN THE BOSTON BUSINESS JOURNAL

Posted on: December 8th, 2017 by admin


tb-124x150Bennett and Belfort, P.C. partner, Todd Bennett, was quoted in the November 29, 2017 Boston Business Journal article entitled, “Biotech’s #MeToo Moment.” https://www.bizjournals.com/boston/news/2017/11/29/biotech-s-metoo-moment-lawyers-say-bias-harassment.html.  The article is about the recent uptick in claims of sexual harassment and gender discrimination being brought by female employees in the biotech industry.  Attorney Bennett stated that in his experience, there remains an “inaccurate stereotype among leadership, which is predominantly male, that women lack the scientific acumen to either perform the necessary functions of their jobs or to be promoted to a leadership role,” which is oftentimes used as a “pretext for the failure to promote or hire.”

In light of the current publicity concerning widespread sexual harassment by prominent and powerful figures in the entertainment and media industries, we believe that more and more women are realizing not only that it is permissible and personally empowering to  speak out when subjected to sexual harassment and discrimination at their jobs, but that these complaints may very well give others the courage to come forward and may prevent future employees from suffering the severe emotional distress caused by such unacceptable and unlawful behavior.

MASSACHUSETTS CONSUMER PROTECTION LAW

Posted on: September 29th, 2017 by admin

Someone pays a contractor, but the work is not done, or the work violates the building code.  A vendor has “hidden fees,” or falsely states in its advertising that it has adequate insurance to cover damage to property.  These are examples of “unfair or deceptive acts or practices” from which a consumer can seek relief under Massachusetts General Laws, Chapter 93A.  But it is important to take certain steps to properly assert your rights.  M.G.L. c. 93A, sec. 2.

The first step in a 93A claim is the demand letter.  A wronged consumer must notify the offending business of his or her claim in writing, and allow the business 30 days to respond with a “reasonable offer of settlement.”  The letter must clearly identify the consumer making the claim, reasonably describe the complained of unfair or deceptive act or practice, and state the injuries suffered by the claimant because of the unfair or deceptive act or practice.  Moreover, rulings of the Massachusetts Supreme Judicial Court suggest that a demand letter is not adequate under Chapter 93A unless it defines the relief—financial compensation and/or specific actions—which the consumer seeks in order to settle the claim.

The timing of the demand letter is also crucial.  If a consumer wishes to file a lawsuit against an offending business, the demand letter must be mailed or delivered at least 30 days before the lawsuit is filed; failure to do so is grounds for a court to dismiss the lawsuit.  Chery v. Metro. Prop. & Cas. Ins. Co.  (If a 93A claim is being raised as part of a counterclaim to an existing lawsuit, if a 93A claim is a “business to business” claim, or if the offending business has no location or assets in Massachusetts, a demand letter is not required.)  Additionally, a claim for violating M.G.L. Chapter 93A must generally be filed within four years of the time the unfair or deceptive business practice occurred.  M.G.L. c. 260, sec. 5A.

After receipt of the demand letter, the business has 30 days to respond to the consumer’s settlement demand in writing with a “reasonable offer of settlement.”  If the consumer does not accept the offer, or if an agreement cannot be negotiated and the consumer files a lawsuit, there are risks that both sides must face.  The consumer, if successful in court, may recover up to three times the actual damages suffered, and the court may also compel the business to pay the consumer’s attorney’s fees.  M.G.L. c. 93A, sec. 9.  However, a court may find that the business’s original settlement offer was reasonable and award the consumer only that amount—or the court may find that the consumer’s complaint is simply not supported by the facts.  The court must first determine whether the business’s conduct was, in fact, unfair or deceptive; and if the answer is yes, then the crucial questions to be decided are whether the conduct was willful, whether the business’s refusal to grant the consumer his or her original demand was in bad faith, and whether the business was aware of its violation of the law.

Please note that a violation of Chapter 93A does not cover conduct which is merely negligent in nature or which is simply in breach of a contract.  Also, in addition to consumer-related claims, Chapter 93A covers unfair competition and certain types of “business to business” claims, where a party is alleged to have committed unfair or deceptive acts or practices.

Bennett & Belfort P.C. frequently represents both individuals and businesses in both bringing and defending alleged violations of M.G.L. c.93A, Sections 2 and 11.

National Business Institute (NBI) Human Resource Law Seminar

Posted on: August 11th, 2017 by admin

 

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On July 12, 2017, Bennett & Belfort partner Eric R. LeBlanc spoke at the National Business Institute (NBI) Human Resource Law Seminar alongside Debra Dyleski‑Najjar, Julie A. Moore, Sarah E. Worley, Laurel M. Gilbert, Richard S. Loftus and Jeffrey S. Siegel.  Attorney LeBlanc and the other speakers shared their knowledge and perspectives on various aspects of human resource law, addressing such topics as “Updates in Employment Law;” “Discipline & Discharge- Necessary Documentation;” “Employee Handbooks & Policies;” “Wage & Benefits Issues;” “Investigating Complaints of Harassment & Other Misconduct;” and “Alternative Dispute Resolution in the Employment.”

Eric spoke about proper procedures to follow and pitfalls to avoid during all phases of the employer-employee relationship:  the hiring process, the period of employment, and the employee’s exit from employment, whether voluntary or involuntary.

Eric’s lecture touched on the following fundamentals:

A. Hiring:  How to craft a clear job description; what to look for, what to say and do, and what not to say and do how during selection and         vetting of candidates.

B. Policies and procedures:  Establishing unequivocal, written policies in the following areas and following them closely:

  1. Employment at Will
  2. Equal Opportunity
  3. Anti- Discrimination/Anti-Harassment/Reporting(including the process for investigating employee complaints of discrimination and harassment)
  4. Payment of Wages
  5. Conduct/Discipline

C. Performance:  Careful, contemporaneous documentation of employees’ job performance.

D. Termination:  Again, careful and contemporaneous documentation of the process as well as the presence of at least one witness to the employer-employee interactions.

Eric emphasized to seminar attendees that no matter how egregious an employee’s performance might be, compassion and respect are crucial elements of an employer’s stance at every point on the employment time line.

We are proud that Eric’s expertise in employment law was recognized by the National Business Institute, and pleased that he was able to contribute to employers’ understanding of practices beneficial to both sides of the employer-employee relationship.

Todd Bennett and Craig Levey Speak at the Massachusetts Bar Association’s Annual Labor & Employment Conference

Posted on: May 22nd, 2017 by admin

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On May 12, 2017, Bennett & Belfort, P.C. attorneys Todd J. Bennett and Craig D. Levey presented at the Massachusetts Bar Association’s 38th Annual Labor & Employment Spring Conference held at the MBA’s offices in Boston.  

 Attorney Bennett was a panelist along the Honorable Robert B. Gordon of the Massachusetts Superior Court and David Kerrigan of Kenney & Sams, P.C.  Together they presented relevant case law and practical tips on key discovery issues in Employment Law litigation, including: (1) defendant’s financial information for purposes of punitive damages; (2) social media posts; (3) production of mental health records; (4) employer’s past claims of discrimination/harassment; and (5) internal investigation documents.

Attorney Levey, who co-chaired the Conference along with Jaimeson Porter of Kenney & Sams, P.C., moderated the aforementioned discovery panel and a discussion on the Massachusetts Equal Pay Act, which included panelists Genevieve Nadeau, Division Chief of the Civil Rights Division of the Massachusetts Attorney General’s Office and Margaret Paget of Kurker Paget.

The Conference’s keynote speaker was Representative Stephen Lynch (D–Mass.), a member of the United States House Committee on Financial Services and the Committee on Oversight and Government Reform.

COURT RULING OPENS DOOR TO COMMISSION PAYMENTS AFTER EMPLOYMENT ENDS

Posted on: May 15th, 2017 by admin

Massachusetts employees who earn sales commissions may have a right to recover those commissions even after the end of their employment despite company policies to the contrary, according to the recent 2017 case of Israel v. Voya Institutional Plan Services, LLC.

The Massachusetts Wage Act  applies when wages, including commissions generated by salespersons, are considered earned.  Sales commissions are considered earned when they are due and payable.  The figure that is due and payable must be ascertainable with specificity and definitely determined.  Special contracts, agreement terms, personnel policies and employment manuals that circumvent application of the Wage Act are unenforceable according to both the express language of the Wage Act and public policy.  An employee who is not timely paid earned wages may be entitled to sue for three times the amount of withheld wages, interest, plus mandatory recovery of reasonable attorneys’ fees.  The Wage act is a powerful financial deterrent to prevent employers from improperly withholding earned wages and commissions.

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Massachusetts Courts have not definitively ruled on whether policies that prohibit the payment of commissions after an employee’s separation are indeed special contracts that violate the Wage Act. The Israel case involved a sales representative who was compensated in part with commissions based on sales.  The employer, Voya Institutional Plan Services’ (“Voya”), maintained a commission plan that entitled certain employees to commissions roughly three months after the company received payment on a sale.  The plan also contained a provision indicating that an employee who resigned would not be entitled to commissions following resignation.

Israel resigned his employment in lieu of being terminated.  At the time of his resignation, he had roughly $30,000.00 in completed sales commissions in the pipeline – which had not been paid exclusively because of the delay between accrual and payment date.  The employer refused to pay the commissions on account of its resignation policy.

The court in Israel  ruled that Voya and Israel’s commissions contract could improperly avoid the Wage Act’s requirement that commissioned wages be timely paid once the commission sums were definitely determined.  Since the commissions had been definitely determined before the end of Israel’s employment, the commissions were due and payable regardless of the employer’s policies or those contract terms suggesting otherwise.  Voya’s adherence to its commission policy in order to deny payment of commissions to Israel was found to violate the Massachusetts Wage Act.

The Israel court determined that the Wage Act trumped an employer’s policy prohibiting the payment of post separation commissions.  As such, Massachusetts employers and commissioned employees must be attentive to the timely payment of definitely determined sales commissions even after separation in order to comply with the strict requirements of the Massachusetts Wage Act.  Should you have any questions on the developments regarding the Massachusetts Wage Act of or any other employment or civil rights matters, please feel free to contact Bennett & Belfort P.C.

 


 

Craig Levey Named “Up and Coming” Attorney by Massachusetts Lawyers Weekly

Posted on: April 7th, 2017 by admin

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Bennett & Belfort, P.C. is pleased to announce that Craig Levey has been selected by Massachusetts Lawyers Weekly to receive the Excellence in the Law Award in the category of “Up and Coming” Lawyers.  The “Up & Coming” category is a salute to the rising stars of the Massachusetts Bar who have been practicing for 10 years or less, yet have already distinguished themselves in the practice of law.  The 26 award winners were selected based on achievement in the legal field, high peer recognition, community activities, and civil involvement.

 

Outside of his thriving law practice, Attorney Levey is on the Board of Directors of the Boston Police Foundation, a non-profit organization created to raise financial support for needed resources for the Boston Police Department.  He is also on the Board of Directors of the Massachusetts Alliance on Teenage Pregnancy, a non-profit organization that advocates to increase opportunities for youth, and empower young adults to make wise decisions on relationships, parenting, and life.

 

Attorney Levey is an active member of the Massachusetts Bar Association’s (MBA) Labor & Employment Section Council, where he is co-chair of the 2017 annual conference.  At the MBA, Levey co-founded and currently co-moderates the “Feed Your Mind: Legal Lunch” series, a monthly program that discusses commercial litigation topics.  Levey is also an active member with the New England – Canada Business Council, an organization that assists to facilitate relationships between businesses in New England and Canada.

 

The Excellence in the Law Award dinner will be held on Thursday, April 27, 2017 at the Marriott Long Wharf Hotel in Boston.  The ceremony will also recognize individuals in the following categories: Excellence in Alternative Dispute Resolution, Firm Administration / Operations, Marketing, Paralegal Work, and Pro Bono.

 

Massachusetts Lawyers Weekly will publish interviews with the award winners in April in both print and online at www.masslawyersweekly.com.