Massachusetts Employment Lawyer Blog

The fact that employment and business laws in Massachusetts have failed to keep pace with the exponentially-expanding social media landscape should surprise no one - particularly when you recognize that the state's "blue laws" still restrict certain firms from doing business on Sundays and holidays.

Our Boston business attorneys recognize that this has left both employees and employers with a huge question mark when it comes to legal information gathering and sharing with regard to potential applicants and current employees.

As an example, just because there is no law against using Facebook or Twitter to screen potential workers or monitor employees -- does that mean you should? Are you crossing some shady legal line, or does it just make smart business sense?

On the one hand, social media networks are treasure troves of information to which companies may not otherwise have access. For example, many firms may find it valuable to ascertain whether an employee or potential employee is projecting the sort of image the firm wants to maintain. "Friending" current employees could also be a way to keep undesirable behavior in check, which may otherwise reflect poorly on the company.

There is ample concern that doing so may be a violation of discrimination laws, privacy rights, intellectual property rights and even National Labor Relations Act restrictions.

Now, there may be another consideration: A bill has been introduced by a state representative on the Committee on Labor and Workforce Development that would specifically limit an employer's ability to mandate submission of social media log-in and password information as a condition of employment, as well as the employer's ability to require employees to add their supervisor to their "friends" lists.

Rep. Cheryl Coakley-Rivera, who is introducing the measure, indicated that such actions open a window of information to employers that they would otherwise not be legally entitled to possess. For example, information such as a person's age, marital status, religion, medical history or sexual orientation is readily available on these sites. Yet, current state law prohibits companies from asking applicants to reveal this kind of information -- and employers are also prohibited from using it to make decisions regarding whether to hire or fire someone.

Coakley-Rivera introduced a similar bill last year, but it failed to make it into law. The new bill, called "An Act relative to social network and privacy employment," was introduced last month. Not only would the measure make it illegal for companies to require employees or applicants to hand over passwords or add the business to its "friend" list, it bars companies from taking adverse employment action against a worker or applicant who refuses to do so.

The measure would exempt social media accounts created solely for professional use on behalf of the firm. It also would not stop a company from maintaining its policies on acceptable social media communication by employees or use of the firm's own equipment.

As it now stands, the bill has a considerable amount of support, with 46 co-sponsors so far signing off. A total of six states have so far passed similar laws, and 11 other states have bills pending.

But even in the interim, employers may be taking a risk in requiring workers or potential workers to hand over this information. As we wait for the law to play catch-up with technology, it's important for businesses with questions on the development of company-wide social media policies to consult with an experienced local business attorney for a better idea on how to proceed.

Continue reading "Boston Businesses, Workers, Grapple With Social Media Policies" »

A former attorney for a large law firm in Massachusetts has filed suit against her ex-employer, whom she says fired her for taking leave after an adoption.

Our Boston employment lawyers know that similar to the protected maternity leave extended to new mothers of biological children, adoptive parents are eligible for the same leave under state law.

The Massachusetts Maternity Leave Act, M.G.L. c. 149, 105D, allows for up to eight weeks of time for which a female employee may be absent from her job for the purpose of either giving birth OR adopting a child and then subsequently caring for that new child. The law stipulates that adoptive parents, just like biological parents, may take time to prepare for and participate in the birth.

The protection extends to adoptive parents who are legally adopting any child under the age of 18 or under the age of 23 if the child is physically or mentally disabled. The law holds that the employee has to give at least two weeks' notice and employers are not allowed to refuse this time, even in cases where doing so would create a hardship.

MMLA affords this opportunity to female employees, though the law makes note that if employers extend this time only to female workers and not male workers, they may be in violation of federal law, even if they are in compliance with the state law.

In this case, the plaintiff alleges that her law firm employer terminated her shortly after she formalized her adoption of a daughter from China and went on her protected leave period. She alleges that despite a long record of stellar reviews, she received her first negative review shortly after the adoption. Further, she was given a significant reduction in bonus pay.

She now says that she was discriminated against, as one of the firm's older female employees, for taking a period of leave that was unquestionably protected. In addition to economic damages for back pay and interest, she is seeking $5 million compensation for punitive and compensatory damages, as well as attorneys' fees.

In backing her claim, the plaintiff alleges that in her seven years working for the firm, only one female employee over the age of 50 was promoted to partner. Mind, you this was an agency that employed more than 1,000 lawyers. The majority of those who were so bestowed were under the age of 40, according to her contentions.

Complaints of gender discrimination can be difficult to prove, and require a legal representative with extensive experience. In many cases, it's not enough to prove that an employer was dishonest about an employment decision; it must be proven that the dishonesty was intended to conceal discriminatory intent.

Continue reading "$5M Boston Gender Discrimination Suit Filed Following Adoption Leave" »

If a worker is fired in part, but not entirely, due to discrimination, is that enough grounds for legal compensation?

A Texas trial court thought so, and in 2006 ordered a hospital to pay a $3 million judgment to a doctor who had been terminated. However, the hospital appealed, saying only termination based solely on discrimination entitles a plaintiff to compensation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a).

Our Boston employment lawyers note the U.S. Supreme Court has agreed to answer that question, which is posed in University of Texas Southwestern Medical Center v. Nassar.

The plaintiff doctor, of Middle Eastern descent, had been employed as a faculty member with the university, which was affiliated with a local hospital where the faculty substantially comprises the hospital staff. The doctor was a clinician at the branch of the hospital specializing in HIV/AIDS treatment.

After about three years of employment, he came under the supervision of a new chief of infectious disease medicine. She immediately raised questions regarding his billing practices and productivity. The following year, she reportedly remarked that Middle Eastern people are lazy. She later told another staffer that the hospital had hired another "dark skin Muslim" like the plaintiff, adding that she would be watching their productivity more closely than others. When the other staffer noted the plaintiff's high level of productivity, the supervisor became critical of his billing practices.

The plaintiff doctor was eventually promoted, but his billing and productivity were more closely scrutinized than other doctors by the infectious disease chief. A second promotion was blocked as a result, according to his discrimination claim.

The plaintiff doctor ultimately resigned, citing "continuing harassment and discrimination" by the chief. He eventually landed another position at an AIDS clinic in California, but later filed suit against his old employer for discrimination.

A jury awarded the doctor approximately $500,000 in back pay and another $3 million for compensatory damages.

Upon appeal, justices held that the doctor had failed to prove that his working conditions were so intolerable that a reasonable employee would have felt compelled to quit. However, the court did uphold the jury's finding that the doctor had been retaliated against. As such, the issue of monetary damages was sent back to the trial court for reconsideration.

In its petition to the U.S. Supreme Court, the employer conceded that while the decision in Price Waterhouse v. Hopkins required that the plaintiff need only prove discrimination as a motivating factor for adverse employment actions, the decision in Gross v. FBL Financial Services held a defendant employer would not be liable if the adverse action would have been taken for some other, non-discriminatory reason.

If the court finds in favor of the employer, it would have an impact on all future employment discrimination litigation, as it would increase the burden of proof required by the plaintiff. He or she would subsequently have to prove that discrimination was the sole reason, or at least the dominant reason, for adverse employment action, rather than one of several factors.

Continue reading "Supreme Court to Hear Employment Discrimination Case" »

Think bullies are relegated to elementary school playgrounds?

Think again.

Our Boston business attorneys know that an increasing number of employer liability claims are stemming not from sexual harassment, but workplace bullying.

Victims of bullying aren't necessarily a protected class, but it is considered a form of harassment. Some 40 percent of workers surveyed in Massachusetts said they had been bullied at some point during their career.

Such actions might include:

• Verbal abuse;


• Work interference, sabotage or any actions that prevent the victim's work from getting done;


• Offensive behavior or conduct, including non-verbal, that is intimidating, humiliating or threatening.

For example, a bully might falsely accuse a co-worker of mistakes or errors. They may yell, shout or scream. They may practice exclusion through the silent treatment. They might withhold necessary information or resources from the victim. They might lob excessive put-downs, insults or harsh criticism. They might make unreasonable work demands.

Some believe these types of actions have increased amid the heightened pressure heaped on employers and employees in this struggling economy. Victims may not have many options to leave their jobs, meaning they are forced to stay and suffer the mistreatment.

Firms without policies in place to stop bullying or those that fail to take steps to stop it once it is reported could find themselves shelling out a lot of money for settlements.

In Massachusetts last year, the Healthy Workplace bill was introduced to provide some form of relief to workers who had been hurt either physically, psychologically or financially as a result of being subjected to an abusive work environment. The bill would have provided incentives for employers to enact preventative measures.

It didn't pass last year, but it was reintroduced this year as HB 1766. The measure currently has 31 House sponsors and eight Senate sponsors, all but one being Democrat.

The bill would hold that:

• No employee should be subjected to an abusive work environment;


• An employer may be held liable when violations of this right result from a lack of reasonable preventative action, failure to appropriately correct the problem or retaliation against the employee who complained;


• An employee may be held individually liable if he or she is found to have perpetuated the abuse.

Already, the National Association of Government Employees Local 282 is one of the first unions in the country to include anti-bullying clauses in its collective bargaining agreements.

Massachusetts is among roughly a dozen states to consider such action. The idea is that plaintiffs may be able to pursue lost wages, medical expenses, benefits, and essentially compel employers within the state to prevent a work environment that is rife for abuse.

While the vast majority of complaints stem from verbal abuse, lies or malicious gossip, these actions may not even need occur in person to qualify as harassment or abuse. A federal appeals court in California last year found that a corrections agency was liable for harassment of one employee via a blog. While this decision is not binding on Massachusetts, it sets persuasive precedent for other courts, should a suit of a similar nature be brought elsewhere in the country.

It can be confusing for employers to know what exactly their obligations are or what measures they can take to shield themselves from this kind of action. And employees who have suffered from this kind of maltreatment need a place they can go to learn more about their rights.

Continue reading "Boston Businesses Could be Liable for Workplace Bullying" »

The Equal Employment Opportunity Commission (EEOC) is hoping in the next three years to push reforms that would require companies to accommodate pregnant women in much the same way they must provide for disabled workers.

Our Boston employment lawyers know that as it stands, many pregnant employees are forced to take unpaid leave after they have been denied accommodations that are given to others with recognized disabilities. That last part is important, though, because although employers may not discriminate against pregnant workers, per a 1978 amendment to Title VII, they usually don't have to make any special allowances for pregnant women - unless they do the same for other "similarly situated workers" who have temporary disabilities.

But pregnancy, or at least "ordinary pregnancy," doesn't qualify as a disability under the Americans with Disabilities Act.

It seems common sense that employers would need to provide certain accommodations to pregnant workers, particularly later in their term when the physical strains of their position are most likely to result in medical complications. This would reduce the number of potential on-the-job injuries, not to mention reduce the employer's liability.

But as it stands, many employers will often extend light duty assignments to workers who have been temporarily disabled by on-the-job injuries, but won't give pregnant workers the same consideration - even when the workers' doctor restricts them from things like heavy lifting. That's because pregnant workers aren't considered disabled, weren't injured on the job and therefore aren't considered "similarly situated." The courts have tended to narrowly define the "similarly situated" provision, meaning it has been tough for plaintiffs to successfully argue for pregnancy accommodations. (One recent case was Reeves v. Swift Transportation in which the 6th Circuit decided in 2006 that pregnancy workers not injured on the job weren't considered eligible for light duty.)

We could soon see a shift, however. The EEOC is making this issue a priority in its 2012-2016 Strategic Enforcement Plan, naming the accommodation of pregnant workers among the top emerging issues. The draft of this plan indicates employers would be wise to tread carefully on this issue, lest they face legal action.

In one such case, written testimony the EEOC submitted for a discrimination hearing slated to be heard this month asserts that the recently-expanded provisions of the ADAAA require disability accommodations for certain types of pregnancy-related conditions, such as anemia, sciatica, carpal tunnel syndrome and gestational diabetes. So even though pregnancy itself isn't specifically protected, certain health issues stemming from it very well could be - meaning companies would have a responsibility to make accommodations as necessary. This also could lead to employers changing the policy with regard to light duty, meaning other pregnant workers might be covered as well.

But it's not just the EEOC taking on this issue. Last fall, the Pregnant Workers Fairness Act was introduced in both the House (H.R. 5647) and Senate (S. 3565). The measure would have made it illegal for employers to refuse to make reasonable accommodations to workers relative to pregnancy, childbirth or any related medical condition. The bill died in committee, but we expect similar proposals to be made in the future.

The bottom line is that company leaders would do well to consider making reasonable accommodations to pregnant workers when possible to avoid possible litigation. And pregnant workers who believe they have been discriminated against should contact a Boston employment lawyer as soon as possible to discuss your options.

Continue reading "Boston Employment Lawsuits and Pregnancy" »

The economic recovery may have many in Massachusetts considering whether to embark on a new business venture.

Our Boston small business attorneys know that this can be an exciting adventure, and we find that such enthusiasm can be contagious. However, it is critical if you are starting a new business that you cover your legal bases with the help of an experienced business attorney. This helps to ensure your business is built on a solid foundation, and can prevent problems and headaches from stalling your dream.

Such was the case for a contractor in Framingham, who is now being sued by the Massachusetts Attorney General's Office.

A small business lawyer would have told him that he would need to have a license for the type of contracting work he was performing and that customer payments for a job could not be appropriated for other uses.

These are the foundation of the allegations made by Massachusetts Attorney General Martha Coakley, who is seeking not only consumer restitution but also civil penalties. Coakley's office alleges multiple violations of the Massachusetts Consumer Protection Act, which falls under Massachusetts General Law, Part I, Title XV, Chapter 93A. This law is broken down into 11 sections, which include:

• Unfair trade practices;
• Exempted transactions;
• Discontinuance of unlawful method of practice;
• Examination of books, records;
• Failure to comply with notices or appear;
• Habitual violations of injunctions.

In this case, Coakley's office alleges that the defendant represented himself as a licensed home improvement contractor, when in fact he was not. He then later reportedly accepted money from consumers for his services, which he never completed.

The attorney general was able to obtain a preliminary injunction that bars him from soliciting or engaging in contract work without registering with the state. It also prevents him from getting rid of or transferring any money or other assets while the civil suit is pending.

The defendant was reportedly doing business as a representative of five different companies, though it's unclear if any of those companies were actually legitimate. Services advertised were for home improvement and custom carpentry. However, his license had been revoked by the state back in 2000.

Other civil action has been taken against him by individual customers, who were awarded damages. However, the defendant has reportedly failed to pay those, which is presumably why the attorney general's office stepped in with their case.

In a written statement to the press, Coakley's office said that when a person conducts home contracting work without a license, licensed contractors are put at an unfair disadvantage. Plus, consumers may be harmed.

Still, for every entrepreneur who may not follow proper procedures, there are many more who want to do things the right way. We realize that even good business owners sometimes slip up when trying to shore up the legal ends on their own. Local, state and federal laws can be complex and sometimes even prohibitive, depending on your industry.

If you are considering starting your own company, one of the first things you need to do is meet with a business lawyer.

Continue reading "Massachusetts Small Business Start-Ups Need Legal Advice" »

Our Boston franchise attorneys understand a number of competing car dealerships have banded together to file suit against a rival they contend is skirting state auto dealership franchise laws - specifically, Massachusetts General Law 93B.

This legislation, which governs the business practices of auto manufacturers, dealers and franchises in Massachusetts, says, in part, that a manufacturer is prohibited from owning a dealership. Usually that's not an issue, as manufacturers make the vehicles, which are then shipped off to a dealership to be sold. These dealership franchises, which are independently-owned, must abide by a list of state regulations, including holding special licenses and guaranteeing that they can conduct repair work on the vehicles they sell.

The target of this action, by the Massachusetts State Automobile Dealers Association and the National Automobile Owners' Association, is Tesla Motors. Tesla Motors, according to the complaint in a Boston Superior Court, allegedly broke the law when it opened its own dealership, albeit a small one, in the Natick Mall.

The rival companies say that Tesla has an unfair advantage because it's not investing the millions of dollars that other car manufacturers must in order to ensure that their franchises are complying with their agreements and with the law. It's also not having to spend the money that multi-brand dealerships do when they have to dedicate a different showroom to each brand.

But Tesla says it isn't doing anything wrong. Company administrators say that because it is such a small firm, its production capacity is not nearly enough to adequately stock any of its two dozens stores. So customers have to get on a wait list in order to purchase a vehicle. Thus, Telsa is unlike a regular dealership, where a customer can walk in, sign some paperwork and drive off in a new car.

Still, the rival companies say they aren't backing off of their illegal trade practices lawsuit. Although a judge refused to issue an injunction that would have barred Tesla from operating its stores while the suit is pending, the company has stopped offering test drives and reservations at certain locations.

The CEO of Tesla, Elon Musk, said the real issue here is that these large manufacturers are terrified electric vehicles are going to undermine their business.

The other dealers, however, counter that it has more to do with the difficulties for customers who need to get services. For example, Tesla's Boston service center is scheduled to open in the spring, but it would be in a different location than the dealership, contrary to requirements for franchised dealers.

In reality, franchise laws weren't written with the goal of protecting the consumer. They were written to protect dealerships from distributors and manufacturers who might be otherwise cut off contracts without warning or be tempted to strong-arm dealerships into purchasing models.

There are a great deal of advantages - and disadvantages - when it comes to franchising, regardless of whether you are in the auto industry. Speaking to a Boston franchise attorney before entering into any franchise agreement is essential to ensuring your rights are protected. We encourage franchise owners or those considering opening a franchise to seek legal advice as early as possible in the process. .

Continue reading "Massachusetts Business Franchise Litigation Involves Auto Dealers " »

With President Barack Obama's re-election, the future of his health care initiative has been all but solidified, prompting a number of low-wage employers to shift toward part-time workers, rather than providing health insurance for full-time employees.

Already, the Wall Street Journal is reporting that a number of chain hotels, restaurants and retailers have started scaling back hourly workers to 30 hours weekly, which is the threshold at which employers with more than 50 workers would have to offer a minimum level of health insurance by 2014, or begin paying a $2,000-per-worker penalty.

Our Massachusetts employment lawyers want both businesses and workers to know what the rights are of part-time workers as outlined under state law, which tends to be more stringent than federal law with regard to employee protections.

Consultants have warned some businesses that moving to more part-time labor may risk a loss of productivity, higher staff turnover and low morale.

Still, some are making the move anyway.

Although businesses here already fall under the health care overhaul signed into law in 2006 by then-Gov. Mitt Romney, we may begin to see the effects amplified once the Affordable Care Act goes into full effect next year.

The U.S. Bureau of Labor Statistics indicates that roughly 18 percent of the country's workforce is part-time, while approximately 70 percent of the nation's companies offer some form of part-time work.

Aside from the health care overhauls, other factors that are contributing to an increasing number of part-time employment include:

• An increasing number of people who are making a gradual transition into retirement;
• More women with children who are working;
• An increased level of entry requirements for skilled jobs, meaning people are attending school and/or training for longer.

Regardless of whether an employee is full time or part-time, the minimum wage is $8.00 hourly in Massachusetts. For tipped employees, it's $2.63 an hour.

Additionally, part-time employees are given the same kinds of considerations full-time workers would get with regard to holidays. So for example, if a paid holiday falls on a day that the part-time employee is scheduled to work, he or she should receive a day off with pay, as would a full-time worker. Similarly, if the part-time employee works that holiday, he or she should receive a pro-rated, holiday pay. (You can learn more about Massachusetts Blue Laws here.)

Part-time employees are also entitled to the same breaks as full-time workers, which is a full 30 minutes for every six hours worked.

It's worth noting that employers don't have to provide paid sick or vacation time to either full or part-time workers under state law, though an illness may fall under the federal Family Medical Leave Act.

If you have a question complying with state or federal labor laws -- or state of federal employee healthcare mandates -- contact an experienced Boston business law firm today.

Continue reading "Obamacare, Part-Time Help and Massachusetts Employment Law" »

Our Boston wage dispute attorneys know that there are many ways that a person can lose a civil lawsuit against a former boss.

One of those is not presenting enough evidence. Another is having a witness or witnesses who aren't credible. Yet another is waiting too long to take legal action.

However, one of the most preventable ways is failure to file the proper paperwork, particularly after the judge has ordered it. The best way to ensure this does not happen is to hire an experienced lawyer to prepare your case.

In Perry v. Zinn Petroleum Companies LLC, failing to do this was precisely the downfall of his case. After the judge dismissed the case, the plaintiff was ultimately successful in having the case re-opened upon appeal. But it's an unnecessary setback that should never happen - and a reminder that these cases are best handled by an experienced law firm.

According to court records, the plaintiff, "Perry," filed suit against his former employer, a petroleum company, back in September 2011. At the time, he had worked for the company for about two years. Perry alleged in his suit that the defendant willfully denied him overtime payment, in direct violation of 29 U.S.C. 207(a)(1). This is the federal law that defines a full work week as 40 hours; it also holds that overtime a non-salaried worker puts in must be compensated at a rate that is at least one and one-half times his or her regular rate of pay.

Perry claims that, in addition to this, he had injured his back while at work in the fall of 2009. Following that incident, he was not able to work for several months. When he was able to come back, the company told him there was no position available. The plaintiff held that this violated the state's workers' compensation law.

After the initial complaint was filed, the company filed a response. Then, the district court gave Perry 20 days to file something called a "statement of claim." This would specifically outline the exact amount of the overtime wages he claimed weren't paid and provide detail about the nature of those payments. He was told at the time that his failure to do this could result in the whole or partial dismissal of his complaint. And yet, Perry failed to properly file.

So in mid-January of 2012, the court gave him an extension. In that order, it was stated that failure to comply by the stated deadline would result in a dismissal of the case without prejudice, meaning he could file another case if he wanted. The plaintiff still did not file the paperwork, and neither did he or his attorney request another extension.

The plaintiff's attorney later told the court he had drafted the statement of claim, but then forgot to file it. He also stated there was a misunderstanding, as he thought the case had been referred to another judge who would adopt a new schedule for filings.

The court denied the plaintiff's motion for reconsideration and dismissed the entire claim.

The only reason the appellate court reversed in this case was due to the statue of limitations on wage claims, a dismissal without prejudice ultimately was akin to a dismissal with prejudice - because he would have been barred from filing again. So it was only due to a technicality that he ended up getting a second chance to present his case.

When you're filing a claim like this, you've already been let down by your employer. You don't want your attorney to let you down as well. Hire someone with proven skill and experience.

Continue reading "Wage Dispute Lawsuit Tossed Due to Forgotten Paperwork" »

Our Boston sexual harassment lawyers know that many individuals who file a sexual harassment lawsuit find it difficult for the fact that it involves dredging up uncomfortable or painful memories.

It can also sometimes mean that defense counsel will delve into their personal lives. And, in an increasing number of cases, employee's Facebook posts or other quasi-public forms of communication are being introduced into court as evidence. On the employer side, case law and legislation are quickly redefining the rules. In New Jersey, for instance, lawmakers are considering a proposal that would forbid employers from requesting access to an employee's Facebook account.

Regardless of your circumstances, it does not make sexual harassment acceptable - or legal. You are entitled by law to work in an environment that is free from harassment, sexual innuendos or quid pro quo demands.

That said, it's also important for you to keep discussions about your case between you and your attorney. In particular, be wary of making posts on social media sites or in other electronic communications.

It's long been known that law enforcement has gained access to such postings when they might be relevant in criminal cases. But now, a federal judge presiding over a sexual harassment case in Colorado has ordered the plaintiffs to hand over their Facebook passwords and text message records, in a move that has sparked uproar from privacy advocates.

Still, the judge isn't backing down.

The approximately 20 plaintiffs, in conjunction with the Equal Employment Opportunity Commission, has alleged that a manager often groped female employees and made sexual requests of those who worked for him at a food chain distributor.

The judge's order came in response to the food chain's request, which purported that the women posted on the social media sites regarding details of the case and estimations of how much money they expected to win.

Additionally, the company alleged that one of the women was seen in a photo wearing a shirt emblazoned with a name she claimed the manager had called her, which she said had been highly offensive. There were also reportedly notes from one former employee about her positive outlook on life after she was fired, as well as her "self-described sexual aggressiveness," and sexual commentary between her and others.

There were also reportedly text messages exchanged among plaintiffs regarding the case.

As the director of consumer privacy for the Center for Democracy and Technology was quoted as saying, "It's an awful ruling." He said not only does it mandate the disclosure of personal information that's irrelevant to the case, but it's horrible from a security perspective.

The judge, however, maintains that the women opened themselves up to this by putting such information on a "public" platform.

This case illustrates why it's best to keep your electronic communications regarding any case, but particularly a case as sensitive as sexual harassment, to a minimum, until the conclusion of the litigation. You should disclose any such communications to your attorney promptly.

Continue reading "Plaintiffs' Electronic Communications Become Public in Sexual Harassment Trial" »

Company holiday parties are rife with all kinds of opportunity for employers and employees to cross the line.

Boston sexual harassment lawyers realize that often, these functions are paired with alcohol. When inhibitions are lowered, it can create a hostile environment - or make a bad situation even worse.

That's exactly what happened in Shiner v. State University of New York et al. , heard recently by the U.S. District Court in the Western District of New York. This was a federal case in which a female employee allegedly suffered extreme sexual harassment at more than one holiday function over the years. Eventually, she filed suit.

The defendant recently moved to dismiss the complaint based on the Federal Rule of Civil Procedure 12(b)(6), saying that the claims should be solely against the alleged offender - not the employer. However, the court dismissed that request, paving the way for the case to move forward.

We share this as a cautionary tale for both employers and employees. Higher ranking administrators need to exercise caution and a watchful eye at these events to protect the company from liability, while employees need to recognize their rights and not simply give offenders a pass because they may have been intoxicated - particularly if the actions are indicative of an ongoing pattern.

According to court records, the initial complaint was filed in December of last year. The plaintiff had been working as a clerk for the dental school, which holds an annual Christmas party for staffers. Two of those who host the event are supervisors in the department and have authority over the plaintiff, even though she didn't report directly to them.

When it came time for the party in 2010, she was hesitant to go because she had allegedly been harassed by these two individuals at previous events. The reported harassment involved sexually inappropriate and explicit comments made to her in front of other employees. She reportedly even told her supervisor exactly why she didn't plan to come.

However, she did attend the party. The event was held at a bar, and she was seated next to both men. Allegedly, both men behaved in a manner that not only clearly violates sexual harassment law, but potentially criminal law as well. Her complaint alleges that the worst of it was carried out by the lower-ranking administrator. According to her complaint, her boss:

• Fondled her breasts;
• Put his mouth on her ear;
• Chased her around the table;
• Grabbed both the plaintiff and another female employee by their necks and proceeded to bend them over a table;
• Pushed the plaintiff's and another female employee's faces together and demanded that they begin kissing;
• Told the plaintiff he wanted to engage in sexual activity with her and the other female employee;
• Pulled the plaintiff onto his lap and asked her to meet him somewhere after the party;
• Roughly pinched and squeezed her ribs when she tried to get away from him.

She further alleges that the higher-ranking administrator verbally encouraged all of this behavior.

The next day, she reportedly told her co-workers and her immediate supervisor about what had happened and indicated she was extremely upset and humiliated. The supervisor reportedly instructed her to take action, to which the plaintiff replied it was her boss who was supposed to take action.

The plaintiff did end up filing a complaint with the school, and disciplinary action was ultimately taken against against the lower-ranking administrator, but not the higher-ranking administrator.

The employee subsequently decided to file a lawsuit.

While this may seem an extreme example, holiday parties often provide just such an environment. Just because you are at an after-hours event, doesn't mean you are not protected from such treatment under the law.

Continue reading "Boston Sexual Harassment Concerns at Work Holiday Parties" »

A Massachusetts businessman is fighting to back out of one investment in favor of another. However, developers for both casino projects the investor is involved with are trying to lay claim, citing contracts he had with both firms.

Our Boston small business lawyers know this is one example of how important every last detail of a business contract can be. Some small business owners tend to rely upon boilerplate contracts, or Internet document mills. They may even use a standard contract form for each client or vendor or employee. This can be a mistake, as this case shows, because it is likely the fine print that is going to ultimately decide this case. Whoever loses stands to be stuck with hundreds of thousands more in expenses than initially anticipated. Having an experienced law firm draft your contract also helps ensure you will have competent legal representation in the event it becomes necessary to defend it.

There are numerous types of contracts for small business owners to consider. Among them:

• Employee agreements;


• Invention assignment agreements;


• Services contracts;


• Sales contracts;


• Confidentiality agreements;

Employment agreements are some of the most important, as it will serve to insulate you from potential legal action down the road. These agreements will spell out everything, including the detail and scope of the job description or nature of the relationship, as well as each party's responsibilities. Again, having your attorney assist you, can save you a world of trouble later on.

Invention assignment agreements give you control over products, ideas, inventions and strategies developed by the employee while they were working for you.

Services contracts are important if your business model is geared to providing a service, as opposed to a product. It will spell out all the terms and conditions, responsibilities, fees and liabilities.

Then there are sales contracts, which are primarily for companies that sell a certain product. These documents will offer details on the prices, goods, terms and conditions, warranties and timelines.

And finally, you may need to consider confidentiality agreements or non-compete contracts, which would bar current or former employees from sharing information that is either confidential or proprietary with another person or party.

These are just a few of the contracts you may need to consider having drawn up by your small business lawyer.

In the case involving the casino, the Boston Globe reports that the businessman had initially pledged an investment to the Palmer project back in 2008, should the commonwealth legalize casinos, which it later did in 2011. When that happened, the Palmer company was one of the first considered by the state for a casino license.

However, late last summer, the businessman announced he had "disassociated" himself with the Palmer project, and was instead going 50-50 with a new casino project in Springfield. But the Palmer developers say that losing him - and his money - to a competitor as a major blow to their success, and they intend to sue him and their rival if he doesn't return. Meanwhile, the businessman and the Springfield developers say they will file their own suit if the Palmer company interferes with their plans to move forward.

Continue reading "Boston Business Contracts Can Save You Grief... May Save Your Business" »

The case of Feldman v. Olin, heard recently by the U.S. Court of Appeals for the Seventh Circuit, deals with an issue that almost every employer confronts at some point during the course of business, which is reasonable accommodations that must be made for employees with disabilities.

Our Boston employment attorneys have represented clients on both sides of the aisle. On one hand, workers who have a disability must, when possible, be afforded the opportunity to continue to work and be productive members of society. On the other hand, employers sometimes have little flexibility in offering those opportunities, depending on the type of work required.

In this case, the appellate court determined that the district court had erred in finding that the employer, Olin, had complied with the Americans with Disabilities Act. In fact, the appellate court found, the company was liable for damages to the plaintiff, and as such, reversed the earlier verdict and remanded the case back to the lower court to determine appropriate sanctions against Olin.

According to court documents, the plaintiff worked as a tractor operator during the day shift at the manufacturing company. The plaintiff had previously been diagnosed as having sleep apnea and fibromyalgia. The former is a sleep disorder characterized by interruption in sleep patterns caused by abnormal breathing. The latter is a condition in which an individual has pain throughout the body and tenderness in joints, muscles and soft tissues.

As such, doctors had advised the plaintiff to continue working his regular daytime shifts with no overtime. This was not an issue until the company, for various reasons, was required to re-align its workforce. This meant that the plaintiff had to work day, evening and night shifts, as well as overtime. The plaintiff contended he tried to do this for a time, but in the end, found that his medical condition prevented him from continuing this schedule. When he informed Olin of his medical restriction, he was laid off soon thereafter. Olin contended it didn't place him in another position because none were available.

He was eventually brought back on when another day shift position opened up.

Still, the plaintiff filed suit alleging that the company had violated the Americans With Disabilities Act, 42 U.S.C. 12111. He also alleged that he was retaliated against once he did return to work. He additionally alleged age discrimination, but that was not an issue in the appeal.

The district court had found that the plaintiff had not adequately proven that he was disabled, and summarily dismissed all of his claims. The appellate court reversed this action, finding that the district court rejected the plaintiff's claims too hastily.

The appellate court cited evidence provided by the plaintiff's doctor, showing that a sleep study in 2007 determined the employee's sleep efficiency (or the amount he actually slept during a given night) was at 48 percent, which garners a "very poor" rating.

To succeed with a claim under ADA, the plaintiff has to show that he or she is disabled, that he or she is otherwise qualified to perform essential functions of the job with or without reasonable accommodations and that the employer took adverse job action because of the disability OR failed to provide reasonable accommodation.

The appellate court found that the company failed to, at any point, offer a reasonable accommodation to the employee with regard to his disability.

Further, the company had alleged that the plaintiff had failed to prove his disability, which required him to show that he had an actual disability that significantly limited him in one or more major life activities; that he has a record of such impairment and that the employer knew and had record of that impairment.

The appellate court determined the plaintiff had met that threshold.

Continue reading "Feldman v. Olin: Employers Must Make Accommodations for Employees with Disabilities" »

A panel of judges at the U.S. Court of Appeals in Boston has upheld an earlier ruling in favor of Massachusetts baristas, holding that Starbucks violated the state's tip law for allowing supervisors to take a cut of their tips.

Our Boston employment lawyers understand that the coffee giant has been ordered to pay $14.1 million for violating the state's tip law. The class action lawsuit was originally filed back in 2008, and last year, a federal judge ruled against the company, which had appealed that decision.

Starbucks could decide to appeal again, though it seems unlikely they will, given a statement released by representatives shortly after the decision was made. The representatives stated they would respect the court's ruling by changing the tipping policy in Massachusetts. It was still evaluating the best way to do that in order to be in compliance with state law.

Massachusetts has some of the best protections for tipped employees in the country, and this case should put employers on notice that they must follow it.

If you aren't familiar, the law is found under Mass. General Laws, c. 149, s.152A. Specifically, it requires two things:

1. A tipped employee has to be paid a minimum of (currently) $2.63 each hour, so that the employee can receive at least $8 per hour (or whatever the minimum wage is) by including tips. If the total hourly rate for the employee doesn't even out to minimum wage, the employer has to make up that difference.

2. An employer can require a tipped employee to divvy up those tips into pools with other service staff, bartenders or servers. However, that portion has to be paid in fair proportion to the amount of services provided, and under no circumstances can management, owners or supervisors take a portion of the employees' tips.

The law is very clear in this regard.

However, Starbucks tried to argue that shift supervisors didn't technically have responsibilities that were managerial.

But as supervisors, the appellate court ruled, these individuals were barred from sharing in those tip pools.

Baristas usually make the standard minimum wage, and then the tips, which are collected in a jar at the register, are divvied up at the end of each shift.

This specific ruling will affect an estimated 11,000 Massachusetts employees who worked at Starbucks between 2005 and 2011. It's estimated that with interest, the total amount of damages could equal as much as $18 million.

There is actually a second, similar case pending against the coffee giant as well. That case was filed subsequent to the first case, once it became obvious that Starbucks was continuing its practice of pooling tips to supervisors.

That second case had been stayed, pending the ruling by the U.S. Court of Appeals. That case could force the chain to shell out another $6 million.

Starbucks isn't the only company to run afoul of Massachusetts tip laws. Dunkin' Donuts, for example, is facing similar allegations of managers sharing in those tip pools. Last year, a franchise owner filed a suit intended to change state law, hoping to allow shift supervisors to be included in tip pools. A decision on that is pending.

Continue reading "U.S. Court of Appeals: Starbucks Owes Massachusetts Baristas Millions in Tips" »

A former employee of a city water department in Palmer, Massachusetts has filed a federal lawsuit alleging that she was subjected to sexual harassment and later fired for filing a complaint about it.

USA Today reported recently that the number of sexual harassment claims made to the U.S. Equal Employment Opportunity Commission have been on the decline, with about 11,700 claims being reported in 2010, down from roughly 16,000 in 1997. But we know that while some of this may be attributed to improving workplace conditions, a larger part is likely the economic slump. When the economy is not doing well, employees may be afraid of coming forward, for fear of losing their job.

Unfortunately, as this allegations made in this case may illustrate, that may sometimes be a risk. But that certainly does not mean you should have to suffer through it. If you're being sexually harassed at work and are unsure how to proceed, contact an experienced employment lawyer first. This way, you may potentially avoid having to take the case to court at all. But if you do, the series of events leading up to that point will be well-documented by a firm that is familiar with the laws and your rights.

From an employer's perspective, it's important to have an updated sexual harassment policy, and a clear process for reporting violations. Consulting a Massachusetts employment law attorney when designing and enforcing such a policy can help protect your legal rights should allegations surface.

In this case, the woman was an administrative assistant with the city's water department for about two decades when she allegedly began suffering the overtures of the department's treasurer. She claimed he would ask her whether she was wearing a bra. He would allegedly reach down the middle of her shirt to pull it down. She claimed he would make sexual innuendos and ask for sexual favors. He allegedly would bring to work lingerie advertisements and show her the pictures, asking about her own anatomy.

If the assistant made a comment about being tired, the treasurer would allegedly respond with a remark about how she and her husband must have engaged in sexual intercourse the previous night.

The employee said the harassment began sometime in 2008 and continued until she was fired from her position.

She reportedly not only informed her superiors about the harassment - she went to the board of commissioners. In a public meeting, she raised her concerns about the treasurer's behavior and comments toward her. Rather than acting upon her concerns, or even investigating, the commission did nothing, according to the allegations in her complaint.

A month later, the assistant said she gave the department superintendent a letter detailing the continued sexual harassment she claimed to have suffered, despite her many complaints. Again, no action was reportedly taken.

Instead, soon after, she said her hours of work were slashed from a full-time, 40 hours per week down to just 15 hours a week.

She then filed a complaint with the EEOC. Soon after that, she was fired.

Her lawsuit claims four counts of sexual harassment and four counts of retaliation.

State law governing sexual harassment is found in Massachusetts General Laws, Chapter 151C, Section 1(e).

Continue reading "Massachusetts Sexual Harassment Claim from Former City Employee" »