Massachusetts Lawyer Blog

Auto accident laws (in Massachusetts or anywhere for that matter) should exist to protect consumers involved in auto accident claims and settlements, but the victims of car accident injuries will likely tell you the process can be confusing and daunting.  For many, it appears, the laws protect the insurers more than the injured.

Massachusetts personal injury attorneys help balance the equation against the powerful insurance companies as well as keep in check the unfair or deceptive practices that can be employed.  Without a MA lawyer to help assess a Mass. personal injury case (property damage, lost wages, car accident injuries, insurance, medical bills, out of pocket costs, prescriptions, …), how does the average consumer know if a settlement of their car accident claim is in their best interests?  The insurance company/industry wants you to believe they can help you with this and you don't need a lawyer.

This post is the first of five that addresses some of the themes to be on the lookout for when settling your car accident case or questioning whether you need a lawyer at the start of your Massachusetts personal injury case.  In the posts to follow, I'll touch on a few general themes such as: lowball offers, "friendly" adjusters (who aren't your friend), delay tactics, blaming the victim, and fear of trials.  While having an attorney won't necessarily prevent these tactics from arising, your lawyer can deal with these head on and refocus the discussion back on obtaining the highest value for your case.  In sum, the theory behind these posts is: "forewarned is forearmed."

"Tort reform" sounds quaint, until you look under the hood and see what's really driving the engine.

Lawyers and the battles they fight on behalf of wronged clients are what often serves to keep the system accountable. Detractors say it's just about the money and greedy lawyers, but often the crux of the lawsuit isn't about money, it's about standing up for respect, integrity, and human decency.

Sure, sometimes this fight can only change an individual wrong, but other times fighting the good fight can change a broken system. Broken systems surround us and are out of balance -- medical care for the elderly is just one example that comes readily to mind.

It doesn't matter if you're from Massachusetts or Mississippi, end of life decisions will never be easy, but they should be made with proper medical evidence as this Mississippi case illustrates. 

The Mississippi Supreme Court recently upheld a $4 million award to the family of a woman who was misdiagnosed with pancreatic cancer and then given a lethal dose of painkillers.  An autopsy showed the woman never suffered from cancer.  The daughter best summed it up, 'a simple lab test could have stopped this from happening.' 

This should give you pause the next time you hear someone say, "we could run this lab test or that, but it's probably not going to show ..."  If there's an option, why not run the test?  Who is really being inconvenienced?  Is it wise to place all our faith and offer complete deference to the "professionals" making important medical decisions about care. A healthy dose of "prove it to me" isn't a bad thing, especially when we're talking about life and death. 

Sure it's easy to dismiss junk lawsuits, but cases like this above demonstrate that sometimes the only place to make a difference and force real change is to hit them in their pockets -- and hit them big.  Now maybe a few more life or death tests will get ordered, maybe it will take even more verdicts to send a lasting message. 

Of course, there are powerful interests that would like a limit on their economic liability -- they try to sell this in words like "reform," but it's really about protecting their profits and ignoring the pain caused to individuals who will undoubtedly suffer when greed and bonuses drive decisions over common decency and respect.

Employees and waitstaff in Mass. seem to be finding increasing success through lawsuits and settlements over undistributed tips being handled by lawyers well versed in the Massachusetts tips statute.

A Massachusetts-based luxury resort and spa will reportedly pay $14.7 million to resolve claims it wrongly kept employees from receiving tips. According to the Boston Globes' coverage of the lawsuit, guests of Canyon Ranch were charged 18% in service charges, but those charges were not given to workers at the resort/spa. The settlement is reported to be awaiting the approval of a federal judge according to the Globe's Jonathan Saltzman who had written an article covering the Massachusetts tips law and Starbucks claims in March.

At the heart of these issues lies the little-known Massachusetts tips statute:

Chapter 149: Section 152A. Service charges and tips; tip pools; penalties

Section 152A. (a) As used in this section, the following words, unless a different meaning is required by the context or is specifically prescribed, shall have the following meanings:—

“Wait staff employee”, a person, including a waiter, waitress, bus person, and counter staff, who: (1) serves beverages or prepared food directly to patrons, or who clears patrons’ tables; (2) works in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) who has no managerial responsibility.

“Service employee”, a person who works in an occupation in which employees customarily receive tips or gratuities, and who provides service directly to customers or consumers, but who works in an occupation other than in food or beverage service, and who has no managerial responsibility.

“Service bartender”, a person who prepares alcoholic or nonalcoholic beverages for patrons to be served by another employee, such as a wait staff employee.

“Employer”, any person or entity having employees in its service, including an owner or officer of an establishment employing wait staff employees, service employees, or service bartenders, or any person whose primary responsibility is the management or supervision of wait staff employees, service employees, or service bartenders.

“Patron”, any person who is served by a wait staff employee or service employee at any place where such employees perform work, including, but not limited to, any restaurant, banquet facility or other place at which prepared food or beverage is served, or any person who pays a tip or service charge to any wait staff employee, service employee, or service bartender.

“Service charge”, a fee charged by an employer to a patron in lieu of a tip to any wait staff employee, service employee, or service bartender, including any fee designated as a service charge, tip, gratuity, or a fee that a patron or other consumer would reasonably expect to be given to a wait staff employee, service employee, or service bartender in lieu of, or in addition to, a tip.

“Tip”, a sum of money, including any amount designated by a credit card patron, a gift or a gratuity, given as an acknowledgment of any service performed by a wait staff employee, service employee, or service bartender.

(b) No employer or other person shall demand, request or accept from any wait staff employee, service employee, or service bartender any payment or deduction from a tip or service charge given to such wait staff employee, service employee, or service bartender by a patron. No such employer or other person shall retain or distribute in a manner inconsistent with this section any tip or service charge given directly to the employer or person.

(c) No employer or person shall cause, require or permit any wait staff employee, service employee, or service bartender to participate in a tip pool through which such employee remits any wage, tip or service charge, or any portion thereof, for distribution to any person who is not a wait staff employee, service employee, or service bartender. An employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.

(d) If an employer or person submits a bill, invoice or charge to a patron or other person that imposes a service charge or tip, the total proceeds of that service charge or tip shall be remitted only to the wait staff employees, service employees, or service bartenders in proportion to the service provided by those employees.

Nothing in this section shall prohibit an employer from imposing on a patron any house or administrative fee in addition to or instead of a service charge or tip, if the employer provides a designation or written description of that house or administrative fee, which informs the patron that the fee does not represent a tip or service charge for wait staff employees, service employees, or service bartenders.

(e) Any service charge or tip remitted by a patron or person to an employer shall be paid to the wait staff employee, service employee, or service bartender by the end of the same business day, and in no case later than the time set forth for timely payment of wages under section 148.

(f) Whoever violates this section shall be subject to all of the civil and criminal penalties and remedies set forth in section 27C. Any person or employer who violates this section shall make restitution for any tips accepted, distributed or retained in violation of this section, together with interest thereon at the rate of 12 per cent per annum. An employee claiming to be aggrieved by a violation of this section may proceed pursuant to the second paragraph of section 150. The attorney general or, under said section 150, an employee may bring an action under this section within 3 years of any violation of this section.

(g) No employer or person shall by a special contract with an employee or by any other means exempt itself from this section.

In fiscal year 2007, the EEOC reportedly received 30,510 charges of race discrimination and resolved 25,882 race charges in FY 07 recovering $67.7 million in monetary benefits for charging parties and other aggrieved individuals (not including monetary benefits obtained through litigation). 

Today's question: Can a Massachusetts employer remove an employee or isolate a protected class member in an employment context?

The EEOC website offers the following examples demonstrating this prohibited conduct is employment discrimination. Thus an employee in Massachusetts facing these circumstances should consider seeking the help of an employment lawyer or consider pursuing a claim if they are being discriminated against in one of these manners in Mass.

Segregation and Classification of Employees

Title VII is violated where employees who belong to a protected group are segregated by physically isolating them from other employees or from customer contact. In addition, employers may not assign employees according to race or color. For example, Title VII prohibits assigning primarily African-Americans to predominantly African-American establishments or geographic areas. It is also illegal to exclude members of one group from particular positions or to group or categorize employees or jobs so that certain jobs are generally held by members of a certain protected group. Coding applications/resumes to designate an applicant's race, by either an employer or employment agency, constitutes evidence of discrimination where people of a certain race or color are excluded from employment or from certain positions.

If you look at the MCAD's Fair Employment Law Poster hanging up in most places of employment you will note it states:

IT IS UNLAWFUL:

• to print or circulate any advertisement or use any application form which directly or indirectly specifies any limitation on the basis of race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability.

• to discharge or reuse to hire any individual on the basis of their race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability.

• to discriminate against any individual in matters relating to compensation, terms, conditions, or privileges of employment because of their race, color, religious creed, national origin, sex, sexual orientation, genetic information, military service, age, ancestry or disability. ...
  

Further,

RETALIATION:

It is illegal to retaliate against any person because s/he has opposed any practices forbidden under this Chapter or because s/he has filed a complaint, testified, or assisted in any proceeding before the Commission. It is also illegal to aid, abet, incite, compel or coerce the doings of any of the acts forbidden under this Chapter or to attempt to do so.

Thus, not only is discrimination prevented, but so is retaliating against those who are involved in discrimination cases.  That is, there's a separate and distinct complaint one may have against an employer who takes an adverse employment action against an employee for asserting their rights and advancing their employment discrimination claims.  If you're interested in retaliation issues, you may want to see my prior post (with links at its bottom) for more discussion on retaliation claims and trends in employment matters.

A license to sell real estate in Massachusetts probate cases is obtained by bringing a completed petition to the county Probate and Family Court where the probate case is pending (i.e., Norfolk, Plymouth, Suffolk, Barnstable, Bristol, ....).  A local MA probate or estates lawyer can help an executor or administrator accomplish this in a Massachusetts probate estate case.

While a license to sell real estate is not always required to sell real estate following the death of a property owner, it is often required by the buyer or the buyer's lender in order to write a mortgage for the property.  Under a license to sell approach, the sale is free of debts and costs and provides added security for the buyer or potential lender (as well as certainty about the seller's legal power or authority to sell the property).

There are many times, however, when a license to sell real estate is not required to transfer real estate in probate matters (i.e., power contained in will, join tenancy...).  Each case depends on evaluating the circumstances, timing, and parties involved to determine the best course of action to suit all the interested parties' needs in a timely and cost effective manner.  In cooperative probate real estate transfer cases, the process can be relatively straightforward with only a few twists and turns.  In hostile probate sale cases, however, the process can be difficult, lengthy, and full of obstacles.

More employee retaliation rights in the employment context may be seen as emerging from the Supreme Court's questioning during a recent case, Crawford v. Nashville and Davidson County. Tony Mauro, writing for the Legal Time in Supreme Court Hears Environmental, Employment Discrimination Cases, writes:

And in the employment case, Crawford v. Nashville and Davidson County, lawyers for a Nashville, Tenn., school employee and for the Bush administration appeared to persuade the Court that Title VII of the Civil Rights Act protects employees from retaliation even when they complain about sexual harassment during an internal investigation -- before any formal charges are made.

...

In the employment case, the Court has in recent years been favorable to claims by those who suffer retaliation for complaining about Title VII workplace discrimination in the context of Equal Employment Opportunity Commission investigations. But the case before the Court involves the firing of someone who complained about sexual harassment during an internal investigation before any EEOC charges were filed -- a not uncommon scenario.

Vicky Crawford, the Nashville school employee in the case, complained about a supervisor's lewd behavior in an interview with a human resources department official, but made no formal charges and was later fired. The 6th U.S. Circuit Court of Appeals ruled that she was not protected from retaliation because her complaints did not amount to the kind of "active opposition" to school policies that Title VII requires.

University of Washington School of Law professor Eric Schnapper, a veteran advocate for employees in civil rights cases, argued strenuously that the law covers Crawford's situation because in making her complaints, she was actively objecting to her employers' conduct.

Justices peppered him with several hypotheticals, but Schnapper held to his position. Arguing in support of Crawford, assistant to the solicitor general Lisa Blatt also said Crawford should be protected against retaliation.

Francis Young, an assistant city attorney for Nashville, argued that Crawford did not meet the "opposition" requirement of the law because she did not make formal charges of sexual harassment.

Justice John Paul Stevens and other justices reacted incredulously. Noting that Crawford had told her harasser to "get the hell out of my office," Stevens said, "That's an active opposition, it seems."

For a few related posts I've written showing a trend in employment cases, see:

• Family Medical Leave Act (FMLA) Firing and Employment Retaliation Claims
• Religious Discrimination and EEOC's Lists of "Best Practices" for Employers and Employees
• Elder Employees Pick Up Another Employment Law Win at the Supreme Court
• Discrimination Law Gets Active. Discrimination Cases Extend Protected Rights in Age and Racial Discrimination. "Me too" Evidence an open Q. Bush signs law on Genetic Discrimination