Articles Posted in Massachusetts

At its Annual Meeting on March 15, 2016, the members of the Belmont Tennis Club (BTC), one of the oldest tennis clubs in America, honored its venerable Groundskeeper – Charles T. “Chuck” Jennings. BTC President Alison Borelli’s remarks follow:

“Chuck, you are the Groundskeeper in name only – yes, you keep the Club in pristine shape, but you give so much more of yourself and your time. This is not part of your job description, nor are you compensated for it.  I wouldn’t be surprised if most members didn’t realize that you are not required to be there whenever the sun is shining! You could show up in the morning, ready the courts, and leave if you wished.

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But, you love this place, and you devote much of your time here. You take care of so many small issues that arise that, left unattended, would fester and become much more difficult to address.

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. keyboard.jpg

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.
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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. macrocoffee.jpg

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.
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A Pittsfield firefighter has alleged in a lawsuit, joined by the U.S. Justice Department, that he lost out on a promotion because he missed too much time due to his commitment to serving as a Navy reservist, the Associated Press reports.

Allegations of Massachusetts military discrimination can result in job loss, loss of seniority or loss of opportunities for advancement.
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The firefighter alleges that the city violated The Uniformed Services Employment and Reemployment Rights Act of 1994. Boston employment lawyers know that this act provides protection for those in the military and prevents them from facing discrimination based on their service and taking time for military leave.

Those who are protected include people who serve in the “uniformed services,” which include the Army, Navy, Air Force, Marine Corps, Coast Guard and Public Health Service commissioned corps and reserves.

Companies and municipalities aren’t allowed to not hire or not promote workers who provide some form of service to the United States military. But that’s what has been alleged in this case.

According to the news report, the firefighter alleges that he was passed over for a promotion in September 2010, despite scoring higher than another firefighter on the promotion test. The firefighter alleges that his superiors showed “hostility” in a letter regarding his military obligations. They cited his being gone for periods of time between 2007 and 2009 as a reason for not promoting him.

The lawsuit also states that during the interview process, he was asked if he had any upcoming military duty. He scored second highest on the test and the first- and third-highest scoring firefighters were promoted.

The lawsuit seeks a retroactive promotion to lieutenant as well as damages, back pay, seniority he would have had if he had been promoted more than a year ago and other lost benefits. On top of the discrimination, the lawsuit alleges that the city retaliated against him by not reinstating him to a promotion list after he filed a complaint with the U.S. Labor Department.

The firefighter is a 21-year veteran. He served in the Massachusetts National Guard for a year and has been in the Navy Reserve for nearly a decade. He was been called into active duty three times between October 2007 and September 2009.

Bolstering his case is the fact that the United States Justice Department has joined in on the lawsuit. That lends credibility and resources to the firefighter’s fight against the city.

No military veteran should be denied work, a promotion or training simply because they have chosen to serve their country. While businesses are focused more on their own needs than those of their employees, discrimination has no place in this country. If if happens, the violators must be held accountable. This is never more true than when the victim is penalized for serving the nation in a time of war.
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Boston business attorneys note small business economic confidence posted its first gains in seven months in September as outlook for sales improved and businesses prepare for the holidays.

Reuters reports the National Federal of Independent Business said fewer small businesses expect sales to decline. The recession from which the country is still trying to emerge has been a precarious time to start a business. Yet statistics show that this recession, like the ones that have come before it, continues to incubate small businesses. In many cases, laid off or downsized employees have struck out on their own out of necessity. In other cases, other factors made it the right time to launch an enterprise. 1200761_main_street_vs__wall_street.jpg

The BBC recently reported that employees in both the U.S. and Europe are increasingly turning to starting their own business as a way to better ensure their own job security amid today’s unforgiving corporate climate. While the U.S. unemployment rate sits at more than 9 percent and Congress debates job proposals of varying credibility, the number of new businesses is growing at the fastest rate in 15 years.

Such businesses are the driving force behind the U.S. economy –accounting for 52 percent of the workforce, according to the Small Business Administration. Nearly 20 million workers are employed at companies with fewer than 20 workers. Another 20 million work at companies with fewer than 100 workers. Together they rival the 47 million who work at companies with 500 or more employees.

Still, the reality is that more than half of all small businesses fail during the first 5 years. Common reasons include:

-Lack of experience
-Poor location
-Over investment in fixed assets
-Poor credit availability
-Insufficient funding
-Personal use of business capital

-Unexpected growth
-Competition
-Low Sales

Tax and regulatory concerns can also play a part in small business failure, as can lack of access to experienced legal counsel. Business formation includes your choice of entity and is an important consideration. Formations include sole proprietorships, partnerships, limited liability corporations (LLC), S-corporations and C-corporations. Each has its pros and cons — including tax implications.

Early stage coaching, business startup and planning and corporate finance are also critical aspects of getting a business off the ground. Complying with state and federal employment law is critical as well.

The challenging nature of starting a successful business means such ventures are often started by midnight CEOs — someone who is hanging onto a steady job while launching a business in his or her spare time. In many cases, they are starting a business similar to the one in which they already work — which can raise issues involving employment contracts, non-competes and other protective measures.

Most believe such ventures will offer them the job security not present in corporate America. And that can be the case — just be sure you are launching your business with a solid legal foundation.
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State officials inadvertently created a powder keg (as opposed to a beer keg!) when they instituted new regulations forcing micro-brewers to use at least half their hops and grains from local farms, the Boston Herald reports.

An experienced Boston business attorney understands the impact government regulations can have on the viability and profitability of a Massachusetts business. In this case, brewers claim the law could kill the fledgling industry just as it gets off the ground.
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The Massachusetts Alcoholic Beverage Control Commission permits small brewers (less than 5,000 barrels) to set up shop with a $22 Farmer-Brewery license. The only other options is a Manufacturer License, the cost of which starts at $4,500. The advisory issued through the MABCC aims to “encourage the development of domestic farms.”

Brewers say local farms could not come close to meeting demands.

In some cases, it may be necessary to consult an experienced law firm to lobby on behalf of your business when the state or federal government is considering legal changes. Certainly waiting and hoping the government gets it right is not the best approach. In other cases, whether planning a business startup in Massachusetts or working to ensure compliance with new or existing regulations, consulting a Massachusetts business law firm is the best bet when it comes to keeping your business on the right side of the law.

As a result of the new regulations, brewers found themselves stuck in a no-man’s land — the Farmer-Brewery License requires brew be made with local crops but forbids on-site sales, tasting and self-distribution, which are key points in the business plans of most microbrewers.

“If this stands for 2012, we don’t have a business,” said Jean-Claude Tetreault, owner of Trillium Brewing Co.

By Tuesday, the uproar caused the MABCC to reverse itself. More than two dozen brewers had complained, according to the Boston Globe. After meeting with the makers of Samuel Adams, Cape Ann Brewing Company and Ipswich Ale Brewery, Massachusetts Treasurer Steven Grossman said the commission had made a mistake.

Common industries regulated through the Massachusetts Office of Consumer Affairs and Business Regulation include autos and transportation, banking services, cable TV and telecommunications, energy and utilities, home improvement and construction contractors, insurance, retailers, landlords and real estate.

Businesses also have an obligation to safeguard personal information from identify theft. Rules and regulations involving workers’ compensation, unemployment and social security disability benefits is another complex area of law. Ignorance is not a defensible excuse for noncompliance. A firm offering General Counsel on Call services can keep you legal and can help you avoid regulatory violations or other costly legal mistakes in the formation or operation of your Massachusetts business.
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An employee who suffered sporadic muscle flare-ups can sue his employer for disability discrimination where the business failed to accommodate his occasional problem, a federal appeals court recently ruled.
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The worker, a parts manager at an AutoZone store, had a condition that caused intermittent tightening in his back muscles. When the condition flared up, he couldn’t perform specific tasks.

The company fired him after keeping him on involuntary medical leave for more than a year.

The worker sued under the Americans with Disabilities Act (ADA). In response, AutoZone argued that he wasn’t “disabled” because his condition only occasionally limited him in his ability to perform major life activities.

The 7th Circuit Federal Court of Appeals, however, disagreed, and said a “predictable yet intermittent pattern” of muscle problems could amount to a disability under the ADA.

The ADA defines “disability” as (a) a physical or mental impairment that substantially limits one or more of the major life activities of an individual; (b) a record of such an impairment; or (c) being regarded as having such an impairment. See 42 U.S.C. § 12102(2) (2006). The EEOC relied on subsection (a), a physical impairment that substantially limits a major life activity, to argue that the employee was disabled from March 2003 to September 12, 2003, because his condition substantially limited his ability to engage in the major life activity of caring for himself.
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MBA
Boston Bar Assosiation