Massachusetts Lawyer Blog

James Vaznis of the Boston Globe reports,

A Middlesex Superior Court jury has decided that the City of Cambridge should pay a former employee more than $4.5 million, after the jury found that the city retaliated against the woman for filing a discrimination case nearly 10 years ago. ...

The jury included $3.5 million in punitive damages. The city intends to appeal.

Massachusetts law does not allow employers to retaliate against employees for their discrimination complaints.

Age Discrimination

A Supreme Court decision extends federal workers' rights in filing age-bias suits by a vote of (6-3). A U.S. 1st Circuit Court of Appeals in Boston's ruling (upholding a lower court's dismissal) was overturned. The ruling allows federal employees retaliated against (because of their discrimination complaints) to pursue lawsuits under the Age Discrimination in Employment Act (ADEA). Prior to this case, it was argued the ADEA only applied to private sector workers. This case establishes it applies to federal employees as well.

Racial Discrimination

Also, in a vote (7-2), the Supreme Court ruled a provision of the Civil Rights Act of 1866 (known as known as section 1981) covers claims of retaliation following complaints about discrimination based on race. The dissents in both these cases were Justices Antonin Scalia and Clarence Thomas. While Chief Justice John Roberts dissented in only in the age bias case, he was with the majority in the racial discrimination case.

With rights expanding, the question becomes how do you prove discrimination. This led to interest in the "me too" evidence case. However, for now no new answers emerge form the Court on this issue.

Me Too Evidence

George Lenard, reports on his blog, George's Employment Blawg, in detail about the issue of "me too" evidence in discrimination cases:

In its recent unanimous decision in Sprint v. Mendelsohn, the Supreme Court largely avoided the tough issue before it: admissibility of “me-too” evidence in discrimination cases — testimony of other employees who believed they too had been discriminated against.

Genetic Information Discrimination On May 21, 2008, President George W. Bush signed the Genetic Information Nondiscrimination Act of 2008 (GINA) protecting people from discrimination based on genetic material. GINA becomes effective November 21, 2009. A general "primer" on GINA is covered at the Genetic Genealogist.

All and all, May has been a discriminating month...

A previous post discussed Massachusetts short sales. This post explains Massachusetts workout agreements. In Massachusetts an alternative to defaulting on a loan or entering foreclosure is to renegotiate the terms of your loan.

This may be called:

a) A workout agreement,
b) Loan restructuring,
c) Debt workout,
d) Loan modification, or
e) Other names.

Basically the lender (mortgagee) agrees with the borrower (mortgagor) to restructure the terms of a loan or the repayment period. The bank benefits by not proceeding with costly foreclosure and the borrower keeps the property but with loan terms they can handle. These arrangements may be available to residential or commercial borrowers or loans secured by residential or commercial real estate. In general, the sooner you seek a workout agreement, the better your chances of success are.

Today I spoke with a woman who is considering a severance package from her employer. While there were other issues involved, one of the questions she asked is, "Am I entitled to see my personnel file."

In Massachusetts, the answer is yes. Massachusetts employees have the right of access their personnel records when they make a written request to their employer. An employee generally has three options available to them concerning the materials contained in their record:

   1. When an employee disagrees with information in their personnel file, then the information can be corrected or removed by employer.

   2. If the information is not corrected or removed then the employee may write a statement and have the statement added to their file.

   3. If an employee knows material in their file is false, then the employee may seek its removal through a collective bargaining agreement, other personnel procedures, or in judicial process to have the information expunged.

The law defines, "Personnel record" as,

a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record as provided in this section. A personnel record shall not include information of a personal nature about a person other than the employee if disclosure of the information would constitute a clearly unwarranted invasion of such other person’s privacy. Without limiting the applicability or generality of the foregoing, all of the following written information or documents to the extent prepared by an employer of twenty or more employees regarding an employee shall be included in the personnel record for that employee: the name, address, date of birth, job title and description; rate of pay and any other compensation paid to the employee; starting date of employment; the job application of the employee; resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee; all employee performance evaluations, including but not limited to, employee evaluation documents; written warnings of substandard performance; lists of probationary periods; waivers signed by the employee; copies of dated termination notices; any other documents relating to disciplinary action regarding the employee. A personnel record shall be maintained in typewritten or printed form or may be handwritten in indelible ink.

In addition to the requirements found in Chapter 149, Section 52C: "Personnel records; review by employee; corrections; penalty", an employee may obtain their employment records in lawsuits or other matters involving administrative agencies and employment matters.

Today was a great day for a bike ride and my four and a half year old daughter let me know it. We rode our bikes about ½ mile to Joe Fucile’s bike shop in Columbian Square. Our mission was to buy her a new helmet. Tweety bird may have been cool a couple of years ago, but now it’s time for an upgrade. While Joe was out today, we were pleasantly helped in finding her a new pink helmet with flowers on it. The outing was lots of fun. Although it can be difficult to keep pace with a flash of lightning on training wheels, I managed and the conversation was lots of fun.

A few minutes ago, I checked my email and found a funny reminder that the ½ Ironman triathlon I signed up for, Mooseman, is a few weeks away. The water temperature is measuring a brisk 51 degrees. As I contemplated the lack of time training I’ve put in recently, I began to wonder... Perhaps I can use my daughter’s training wheels for the bike portion. Meanwhile my wife, Sue, is walking in the Avon Breast Cancer Walk this weekend. Her, her two teammates, and many others will be embarking on a marathon walk on day one, sleep in a tent for the night, and finish with a half marathon walk on day two. My firm is a sponsor of her walk, and I’m very proud of her commitment. Sue walks in memory of her mother, Barbara, who passed away from breast cancer when Sue was thirteen. You can read an article Ed Baker of the Weymouth News wrote about Sue a few months ago.

My daughter and son are very proud of her too. They have been hard at work on their t-shirts to cheer on their mom. Unfortunately, I had used the wrong side of the iron-on decorations, which in turn ruined the iron. To her credit, I think Sue was impressed I knew how to turn the iron on -- I’m no longer allowed to use the clothes washing machine after a similar incident.

But anyway, here’s my limited time special offer…

Some may find this an odd post to read on lawyer’s blog. As I was considering what to write about, it struck me that May is national bike month and The League of American Bicyclists is promoting Bike-to-Work Week from May 12-16 and Bike-to-Work Day on Friday, May 16. Having had a great bike ride with my daughter today, thinking about the bike ride I’m not looking forward to in a few weeks, and reflecting on our family’s pride in Sue’s efforts, I’ve decided to do something a little different in this post.

Many of our clients know we are active with many local causes and events. In fact, many of our clients are active too. I’d like to invite you to join us and to take action. If you live in Massachusetts and you send me a picture of you and your bike – with the picture postmarked before Sunday, along with a donation for any amount you decide upon payable to the Avon Breast Cancer Two Day Walk, I’ll prepare a simple will for you personally or for you and your spouse for free. That’s right, no legal fee whatsoever.

The donation amount is completely up to you and the amount will have no bearing on the offer. If you send me an email address, I’ll send you a questionnaire so we can get started or I can mail it to you if you prefer. After I receive your answers, I’ll call you if I have any questions or send you a draft will within one week. Once you’ve received the draft will, I’ll be happy to answer any questions you have at no charge. Next I’ll make any needed changes before sending you a final draft with instructions on how to execute it.

Since I do, however, want to strike while the iron is hot (in consideration of the iron I ruined), this offer is only open to the first ten people or couples who respond. If you’re number 11 or above, I’ll return your donation or forward it along, it will be your choice completely.

What do you have to lose? Simply:

1. Take a bike ride,
2. Send me a picture,
3. Make a donation to help fight breast cancer, and
4. Receive a free will prepared by a Massachusetts attorney.

Get pedaling…

Mail to:

Wilson & Whitaker, LLC
Attn: Avon Walk for Breast Cancer
53 Winter Street
Weymouth, MA 02188

p.s. To the skeptics out there, this isn’t some gimmick. I’ve done things like this before with other charitable events. Sue has already greatly exceeded her fundraising goal as have both her teammates. This is just frosting on the cake. What are you waiting for. Everyone wins.

p.p.s I'll make it even easier. Make a contribution on her donation site now, and I'll give you an extra week for you to send a picture of you and a bike. I can't, however, refund donations made through the site. If you're not donator 10 or under (since this was posted), you don't get the deal. Act now!

Whether you’re a passenger, driver, or pedestrian in a Massachusetts auto accident, the insurance issues can be tricky. It’s not uncommon for someoe injured in a car accident to go see a medical provider thinking their medical care should be covered by the person who caused their accident. If it’s not covered, they believe their medical insurance company should cover the bills. After all, that's why we pay so much for all this insurance, right? But did you know that thinking the insurance issues are simple and will take care of themselves could lead to receiving big bills for unpaid medical expenses?

The failure to take the right steps with insurance coverage in MA accidents can lead to a bill going unpaid and later ending up in collection. This is not a good result for someone who was injured by another in a car accident. Here’s a very basic overview for someone injured in an accident. (For simplicity sake, I’ll assume no time was missed from work, but that’s a bad assumption for lawyers to make in most serious car accidents.)

The first $2,000 in medical bills should be paid by your Auto Insurer’s Motor Vehicle Personal Injury Protection (PIP) insurance benefits. If you have health insurance, then your health insurance provider should pay for claims beyond the first $2,000 unless you have MedPay benefits under your auto insurance policy. If you have MedPay, a recent case confirms your health insurer may defer coverage to the MedPay insurer and the MedPay policy should pay until it maxes out its payments in accordance with the policy. Then, your health insurer would make the remaining payments. For the purposes of this post, I won’t get into how these issues also relate to settlements and trials.

No matter what, however, don't make the costly mistake of going outside your health insurance plan or you risk having to pay for the medical services out of your own pocket. “[E]ven when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care.” Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

If you don’t have health insurance, then your PIP benefits should pay the first $8,000 in claims and if you have MedPay benefits, it should pay until the coverage limit is reached.

The interplay of PIP, MedPay and Health Insurer issues was recently addressed with the Massachusetts Supreme Judicial Court (SJC) concluding there is “… nothing in the statutory language governing PIP or MedPay to prohibit health insurers from deferring coverage due to the existence of MedPay benefits...” Metropolitan Property and Casualty Insurance Company vs. Blue Shield of Massachusetts, Inc. SJC-09944 (slip opinion)

Justice Bostford, writing for the court, provides a statutory framework of the insurance issues raised.

Statutory framework. The Massachusetts "no-fault" insurance plan, adopted in 1970, originally provided for PIP benefits (up to $2,000) to be paid in place of tort recovery for injuries that caused less than $500 in medical expenses. See § 34A (defining "[p]ersonal injury protection"), as amended through St. 1970, c. 670, §§ 1, 2; G. L. c. 90, § 34M, inserted by St. 1970, c. 670, § 4; G. L. c. 231, § 6D, inserted by St. 1970, c. 670, § 5. See also Pinnick v. Cleary, 360 Mass. 1, 5-10 (1971). In 1988, in an effort to bring the statutory amounts in line with escalating medical costs and further to control automobile insurance premiums, the Legislature increased the tort threshold to $2,000 and increased PIP coverage to $8,000, but provided that PIP would pay only the first $2,000 in medical expenses in cases where the insured also had health insurance that would cover expenses above that amount. See § 34A, as amended through St. 1988, c. 273, §§ 15-16; G. L. c. 231, § 6D, as amended by St. 1988, c. 273, § 55. See also Creswell v. Medical W. Community Health Plan, Inc., 419 Mass. 327, 329-330 (1995). This "coordination of benefits" scheme providing for the sharing of costs between automobile and health insurers is expressed in two sentences in the final paragraph of § 34A:

"[P]ersonal injury protection provisions shall not provide for payment of more than two thousand dollars of expenses incurred within two years from the date of accident for [medical and funeral services] if, and to the extent that, such expenses have been or will be compensated, paid or indemnified pursuant to any policy of health, sickness or disability insurance . . . . No policy of health, sickness or disability insurance . . . shall deny coverage for said expenses because of the existence of personal injury protection benefits."

§ 34A, as amended through St. 1988, c. 273, § 16. Under these provisions, PIP only covers medical expenses above $2,000 if they are not covered by health insurance. Moreover, even when there is health insurance, PIP does not cover claims denied by a health insurance provider because the insured has failed to comply with the health insurance contract, for example by seeking out-of-network care. Dominguez v. Liberty Mut. Ins. Co., 429 Mass. 112, 115-117 (1999).

MedPay benefits are not part of the statutory scheme that established the no-fault system with its central feature of PIP benefits. Since 1943, G. L. c. 175, § 111C, has authorized, for various types of liability insurance policies, including automobile policies, optional endorsements to provide coverage for reasonable medical and related expenses. G. L. c. 175, § 111C, inserted by St. 1943, c. 375, § 1. Beginning in 1968, however, under G. L. c. 175, § 113C, automobile insurers doing business in the Commonwealth have been required to offer every person purchasing a policy the option of purchasing "medical coverage, so called . . . to a limit of at least five thousand dollars." G. L. c. 175, § 113C, as amended by St. 1968, c. 643, § 3. This obligation to offer optional medical, or MedPay, benefits is reflected in Part 6 of the standard Massachusetts automobile insurance policy (policy). In particular, Part 6 of the seventh edition of the policy, applicable to the accident in this case, provides in relevant part: "Under this Part, we will pay reasonable expenses for necessary medical and funeral services incurred as a result of an accident. . . . We must sell you limits of $5,000 per person if you want to buy them." Thus, it appears that G. L. c. 175, § 111C, authorizes automobile insurers to offer MedPay coverage, and G. L. c. 175, § 113C, requires them to do so. Accord Morin v. Massachusetts Blue Cross, Inc., 365 Mass. 379, 385 & n.5 (1974).
[Footnotes deleted]

In the end, it’s important to realize protecting your case (and your credit rating) is not simply about liability but also requires dealing with complicated insurance issues. Failure to take the right steps in a Massachusetts auto accident can lead to collections efforts against you and ultimately to you paying out of pocket for an injury (even when you were a passenger or completely blameless.)

A recently passed law in Weymouth, Massachusetts prevents level three sex offenders from establishing residency within 1,500 feet of places that children frequent. The law was recently covered in a Boston Globe article by Johann Seltz. The same topic is covered by in the Patriot Ledger's article by Jack Encarnacao as well as the Weymouth News article authored by Ed Baker. In the interest of full disclosure, I'm quoted in each article as Chairman of Weymouth's Ordinance Committee.

Massachusetts Lawyer's Weekly has posted a sampling of pro bono legal organizations in Massachusetts. Pro bono is short for the Latin phrase,"pro bono publico", or "for the public good." Pro bono legal organizations generally provide free or low cost legal representation in order to promote a social cause or to assist those who are unable to hire an attorney. These organizations serve a vaulable role in our legal system and often provide assistance to many who would be left without an advocate otherwise.

A study entitled Legal Liability: The Consequences of School Injury in the Journal of School Health, May 2007, Vol. 77, No. 5, (Abstract only) examined cases involving schools, lawsuits, and injuries. Schools paid awards about 2/3 of the time, either by verdict (26.8%) or settlement (40.4%). The average case lasted just under 4 years from the time of injury to the case’s resolution by trial or settlement. Surprisingly, they found it difficult to predict the cases resulting in an award, stating: “this study found no difference on any case characteristics between cases that resulted in awards and those that did not.”

They authors concluded,

Many of the injuries documented in this study may have been prevented through better maintenance of school facilities, equipment and playing fields; addition of safety features and equipment; improved supervision of students; education of school officials, students, and parents; and enforcement of building codes and rules, especially during sports and recreational activity.

Award Range: $1 to $15,398,762; Mean: $562,915; Median: $50,000; 25th percentile: $9,750; and 75th percentile: $300,000.

Massachusetts Independent Contractor Law: Attorney General Guidelines and Three Prong Test for Independent Contractors

The Massachusetts Office of the Attorney General has issued an Advisory regarding M.G.L. c. 149, s. 148B, to provide “guidance” on the Massachusetts Independent Contractor Law or the Massachusetts Misclassification Law.

Under M.G.L. c. 149, s. 148B(d), an employer violates the law when two acts occur.

1. An employer classifies or treats an individual other than as an employee and the worker fails to meet the following three prong test (each is required for an individual or independent contractor to be classified other than as an employee): a. Is the individual free from control and direction in connection with the performance and service, both under his contract for the performance of service and in fact?

b. Are the services the individual performs outside the usual course of business of the employer?

c. Is the individual customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed?

2. In receiving services from the individual, the employer violates one or more of the following:

a. The wage and hour laws set forth in M.G.L. c. 149.

b. The minimum wage law set out in M.G.L. c. 151, s. 1A, 1B, and 19; 455 CMR 2.01, et seq.

c. The overtime law set forth in M.G.L. c. 151, s. 1, 1A, 1B, and 19.

d. The law requiring employers to keep true and accurate employee payroll records, and to furnish the records to the Attorney General upon request as required by M.G.L. c. 151, s. 15.

e. Provisions requiring employers to take and pay over withholding taxes on employee wages. M.G.L. c. 62B. (purposes of income tax withholding, M.G.L. c. 62B provides a definition of employee that differs from the three prong test in M.G.L. c. 149, s. 148B.)

f. The worker’s compensation provisions punishing knowing misclassification of an employee. M.G.L. c. 152, s. 14.

The advisory arrives at a time when employer liability concerns in Massachusetts' employment matters are growing. See my prior post, New Massachusetts Wage and Employment Law: Tougher on Employers, Better for Employees and Unions, on this topic and a May 6, 2008 email/MCLE Press Release stating,

Just two weeks ago, legislation mandating treble damages for prevailing wage-and-hour plaintiffs was passed, considerably raising the stakes for independent contractor classification and other wage and hour issues. See 2008 Mass. Acts c. 80 (formerly Mass. Senate Bill No. 1059). The new law will be effective July 13, 2008.

With the potential for treble (triple) damages around the corner, now is a good time for all businesses to review both their employment and independent contractor agreements and practices.

Public records can be helpful in government matters but also for business purposes, in automobile and personal injury cases, or many others types of litigation.

People sometime ask, "How do I get a copy of a local government record?" In Massachusetts, the Secretary of State has published A Guide to the Massachusetts Public Records Law, updated January 2008.

Records are presumed public unless they fall under one of sixteen exclusions, but fees may be charged to obtain them.

The difference between the federal Freedom of Information Act (FOIA) and the Massachusetts Public Records Law is FOIA applies to federal records while the Massachusetts Public Records Law applies to state and local records.

Lawyers are generally aware of changes in court rules that deal with electronic evidence, but many small businesses don’t have inside counsel or general counsel available to them who can keep them apprised of what to do and also, what not to do. An article in Law Technology Today: March/April 2008, “Are You Litigation Ready?” by Matthew W. Blake, found,

Most American corporations are ill-prepared to respond to electronic discovery requests and go to court. … In a survey of more than 100 information technology managers in medium and large American corporations, only 6 percent said they “immediately and confidently” can field electronic discovery requests. Just 9 percent told pollsters they receive proper legal guidance and funding for electronic discovery procedures; 40 percent said they receive no guidance at all. Fewer than half feel they have IT professionals competent to testify in court regarding electronically stored information (ESI). More than half said their companies have no enterprise search tools. Three-fourths lack effective e-mail intelligence systems.

Blake recommends taking these three steps: Assess What You Have; Map Out Your Data; and Strengthen Your “Hold” on the Data Giant

He argues failure to take these steps can lead to increased future litigation costs. I agree and would add that failure to take the right steps could also lead to sanctions, fees, and liability in matters that were not handled the way they should have been. Is your Massachusetts business ready for these issues if you were sued today? Do you have a lawyer who understands litigation, local rules of court, and can advise your managers and IT staff on what to do to protect your business interests? As the saying goes, "forewarned is forearmed."

Currently, I’m in the process of reviewing Weymouth’s annual budget (around 150 million dollars). The proposed budget would eliminate over twenty positions from the school department’s budget, never mind police and other town services that are being impacted in these tough fiscal times.

David W. White Jr., President of the Massachusetts Bar Association asks,

And what is it about our priorities that has us spending more on incarceration than higher education? In Massachusetts, we have over 25,000 inmates serving time in county jails or state prisons. Governor Deval Patrick's proposed 2009 budget seeks $1.4 billion for the sheriffs' departments and the Department of Correction. This money is primarily for incarceration. The same budget proposes $963 million for higher education.

This isn't an attack on the Governor as the problem certainly isn’t a Massachusetts only problem, Steven Ballard author of the Massachusetts Divorce & Family Law Blog, introduces in a recent post,

The New York Times yesterday published a good basic primer on a most embarrassing type of American Exceptionalism, i.e., America as Incarceration Nation

White should be commended for discussing solutions, even politcally unpopular ones. He offers several in, Fixing our criminal sentencing system,

Maybe it’s time we realize being tough, not wise, on crime, is being tough on schools and education. A 2007 Boston Globe Editorial made its case,

THE ROUGHLY $45,000 spent to lock up a prisoner in Massachusetts for a year is money well spent when it provides social defense against violent offenders who destroy families and destabilize neighborhoods. But such an expense starts to look suspect in cases involving nonviolent drug offenders, especially when recidivism rates are running so high among prisoners who receive inadequate vocational or educational training.