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What the New Massachusetts Equal Pay Act Will Do to Address the Wage Gap, What It Means for Women, and How Women Can Use This Law in Their Favor

Posted on: March 30th, 2018 by admin

 

 

At First Glance

On July 23, 2016, the Massachusetts Legislature passed the Act to Establish Pay Equity (the “Equal Pay Act”), M.G.L. c.149, Section 105A, which is to take effect on July 1, 2018..

While the terms “equal” and “pay equity” come up frequently in discussions of the Equal Pay Act, the new law will not mandate that wages between women and their male coworkers be equal. However, it will increase transparency concerning wages, and make remedies available to women who are paid less than their male coworkers for “comparable work.”

The Equal Pay Act forces employers to evaluate their pay practices to ensure there is no discrimination in wages or salary on the basis of gender alone.  Further, the law provides employees with the freedom to discuss wages and salary amongst themselves, giving female employees more access to information about how their pay rates compare with those of male employees doing “comparable work.”

What is “Comparable Work”?

Employees who do “comparable work” are not simply employees with identical job titles or job descriptions.  Under the Equal Pay Act, two employees are said to perform “comparable work” if their jobs “require[s] substantially similar skill, effort and responsibility and [are] performed under similar working conditions.”

What Employers CANNOT Do under the Equal Pay Act

The Equal Pay Act states:  “No employer shall discriminate in any way on the basis of gender in the payment of wages, or pay any person in its employ a salary or wage rate less than the rates paid to its employees of a different gender for comparable work.” The Act also makes clear that if an employer is violating the Equal Pay Act by, for instance, paying female employees $20 per hour and male employees $22 per hour for comparable work, the employer may not lower everyone’s wages to $19 per hour just to become compliant with the law.

What Employers CAN Do under the Equal Pay Act

There are still six instances in which employers can legally pay different wages and/or salaries to people doing comparable work. Employers are NOT considered to be in violation of the Equal Pay Act if differences in pay are based on:

  1. Seniority with the employer, as long as seniority is not reduced by any time an employee spends on leave for a pregnancy-related condition or on parental, family or medical leave;
  2. A merit system;
  3. Certain productivity benchmarks;
  4. Differences in the geographic locations where the jobs are performed;
  5. Differences in employees’ education, training, or experience, if “reasonably related to the particular job in question”; or
  6. Differences in regularly required, necessary travel.

The Impact of the Equal Pay Act: Before the Job and on the Job

Before you get a job, an employer cannot request your wage or salary history from you or from your current or former employer, nor can an employer require that your prior wage or salary history meet certain criteria. But if you volunteer such information to an employer that is considering hiring you, the employer may:

  1. Confirm your prior wages, or permit you to confirm prior wages or salary; or
  2. Seek or confirm your wage or salary history after an offer of employment with compensation has been negotiated and made to you, the prospective employee.

Once you start work and are on the job, an employer cannot require that, to keep your job, you refrain from asking other employees about their wages or from sharing information about your own wages.

Importantly, an employer cannot fire or otherwise retaliate against you if you challenge anything the employer does that is in violation of the Equal Pay Act; mention an intention to complain about such conduct; participate in any investigation or proceeding concerning a violation of the Equal Pay Act; disclose your own wages or salary; or discuss other employees’ wages or salaries with them.

What Do You Do If Your Employer Is Violating the Equal Pay Act?

You may take legal action against your employer for any violation of the Equal Pay Act. Such an action must be taken within three years after the date of the alleged violation.

What Are the Possible Results of Taking Legal Action Against Your Employer for an Equal Pay Act Violation?

If your employer is found to have violated the Equal Pay Act, the employer may be required to compensate you for unpaid wages, plus an equal amount of liquidated damages (an amount of damages that is calculable by the Court). In addition to any judgment obtained, you would be entitled to reasonable attorneys’ fees and costs in connection with your action, to be paid by the employer.

Employment Agreements and Lack of Intent to Discriminate are NOT Defenses.

If you are a female employee receiving less pay than a male colleague for comparable work (and none of the exceptions described above apply), this is a violation of the Equal Pay Act even if your employer insists it didn’t mean to discriminate; whether the employer meant to or not is irrelevant under the law. Furthermore, even if you signed a contract when you were hired agreeing to a wage that was less than what the Act legally entitled you to, your employer cannot use the agreement as a way to avoid legal responsibility for the violation. Similarly, if you were paid less at a previous job than the Equal Pay Act now entitles you to, this cannot be used by your current employer as a justification for illegally underpaying you.

An Employer’s Line of Defense: The “Self-Evaluation”

An employer who is found to have violated the Equal Pay Act has a potentially valid defense if it can show (a) that it has conducted a “Self Evaluation” of its own pay practices within three years of the violation, and (b) that it has made “reasonable progress… towards eliminating the wage differentials based on gender for comparable work in accordance with that evaluation.” While the Attorney General may, in the future, establish specific requirements for the detail and scope of an employer’s Self Evaluation, there are no such requirements in the current version of the Equal Pay Act. It is up to the judge or other arbiter evaluating a case to determine whether the employer’s evaluation was sufficient.

Information contained in this publication is intended for informational purposes only and does not constitute legal advice or opinion, nor is it a substitute for the professional judgment of an attorney.

$1.2M Bennett & Belfort Verdict Receives National Attention

Posted on: February 8th, 2018 by admin

ReservoirThe January 18, 2018, Richard DaPrato v Massachusetts Water Resources Authority $1,235,000 jury verdict has generated national media attention.  Mr. DaPrato sued the MWRA for firing him because he took medical leave for foot surgery and planned future leave.  He sued the MWRA in Suffolk Superior Court based on claims for 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.

2013-david-b-photo-150x150Mr. DaPrato was represented in the litigation by Bennett & Belfort partner David E. Belfort  and senior associate Andrew S. McIlvaine .   They co-counseled with attorney Robert S. Mantell of Powers, Jodoin, Margolis & Mantell LLP of Boston.  After 7.5 days of trial and a second day of deliberations the 14 person jury found that Mr. DaPrato was deliberately retaliated against for taking medical leave for surgery and seeking future leave.  The jury’s award is broken down as follows:

$    19,777.00 Lost Back Pay

$  300,000.00  Lost Front Pay

$  200,000.00 Emotional Distress

$  715,385.00  Punitive Damages

$1,235,162.00 Total Jury Award

 

The final judgment has not yet been issued, but is expected to include pre-judgment interest, liquidated damages under the FMLA and attorneys’ fees as permitted by state and federal law.

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

 

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.