Massachusetts Lawyer Blog

Sarah Randag, recently posted on the ABA Journal a labor and employment law post, LinkedIn Reviews Can Come Back to Haunt Employers, Lawyers Say, which opens with,

Management-side employment lawyers are advising their clients against writing recommendations for current or recent employees on LinkedIn.

The same argument could be made on Facebook, Twitter, or any other social media web site.  Does your company have a social media policy? If so, are you tracking or keeping a record of what is being said, if anything, about your employees by their managers on the web? Do you prefer to not know? When workplace disputes arise, do you see if anything has been brought up or mentioned on the web. If so, and you discover something online, are you dealing with it in a way that could lead to litigation down the road? On a related issue, if an employee complains to you about another employee's postings on the web, are you prepared to respond? With changes in communication methods and technology's quickening pace come new and constant challenges to consider when employment issues arise.

Technorati Tags: employment, law, LinkedIn, review, handbook

Law and business clients often ask, "Have we reached the bottom, yet?" The number of bankruptcy inquiries, loan workout requests, short-sale questions, employment termination calls, and divorce consultations our law firm is receiving makes me believe we have not reached the bottom yet.

Local economic statistics referenced in three recent Boston Business Journal's (BBJ) articles make  me further believe that my anecdotal evidence isn't merely anecdotal. The BBJ's, May's home sales near 20-year low, adds,

This report shows that home sales are still slow in Massachusetts. In the late 1990s and into the early part of this century, the state was averaging over 5,000 single-family home sales during the month of May. Last month, we saw fewer than 3,300 home sales, making it the lowest sales pace for the month of May in almost two decades,” said Timothy M. Warren Jr., chief executive officer of The Warren Group, in a statement.

Further, a BBJ article from last week, Mass. foreclosures slipped 59% in May indicates that while foreclosure deeds dropped compared to last year,

...the number of foreclosure petitions filed in May was six times the 390 petitions filed the same month a year ago. Foreclosure petitions mark the start of the foreclosure process in Massachusetts. In addition, the number of foreclosure petitions climbed 15.7 percent from 2,013 in April.

And finally, another BBJ article from last week, Mass. unemployment rate hits 8.2 percent, adds:

Massachusetts’ unemployment rate inched up to 8.2 percent in May, as local employers reported 111,100 fewer workers on their payrolls when compared to the year-earlier period.

No, I'm afraid it appears we have not reached the bottom yet and perhaps we may not for some time...

My new Privacy Law and Policy blog is underway. This blog examines privacy law issues that include:

• Privacy Rights
• Privacy Invasions
• Security Breaches and Crimes
• Open Government

I help individuals in civil and criminal matters and represents municipalities and businesses in privacy compliance matters, security breaches, commercial privacy infringements, cybercrimes, and crimes involving privacy issues.

You can also follow Kevin Whitaker on Twitter at http://twitter.com/kevinwhitaker

Massachusetts attorney Kevin Whitaker's new Privacy Law and Policy Blog is live.

Technorati Tags: Privac, Privacy Law, Privacy Lawyer, Privacy Attorney

What do you do when a problem arises that could harm your reputation? How do you know when it's happening?

For starters, Google alerts provides one tool to keep track of what's being said about you online. A search on twitter might help, too. This list from author, Andy Beal, provides 34 more tools to consider, 34 Online Reputation Management Tools | Small Business Marketing Blog from Duct Tape Marketing.

Beal rightly states:

User generated media, blogs and discussion forums have changed the flow of information about your company forever.

Lee Odden in Basics of Online Reputation Management | Online Marketing Blog, proposes a three step approach: Monitor, Optimize and Engage. To start, Odden suggests monitoring:

• Brands
• Products
• Company
• Key Executives

OK, so once you have the information, now what do you do about it? Visit Odden's post describing more about optimizing and engaging.

In general, when a problem arises, one should consider both legal liability and business reputation issues when choosing the best course of action. Sometimes, however, these different approaches may not agree.

Continue reading "Web Identity Tips for Online Reputation Management" »

Think twice before hitting send. Massachusetts attorney, Robert Ambrogi at Legal Blog Watch, posts Bloggers Have BigLaw Watching Its Back, discussing how lawyers are being careful about what they post in their emails and memos. Ambrogi references an ABA Journal article written by Terry Carter reporting,

...leaking...has law firm leaders exercising caution. ... firms are well aware their private e-mails may end up in the public spotlight....

Carter Clayton an assistant managing partner at WilmerHale is quoted in the ABA article saying her firm now vets all firmwide memos, adding "It could be on a blog," she said. "It makes us careful."

Whether you're a business owner, manager, serve on a board of directors, or otherwise, you have to ask yourself, "Am I ready for this email to become public? Or posted on a blog and published for all to see forever and ever?" Exercise "send" with caution.

After my last COBRA post, COBRA Insurance Relief Under the Stimulus Package: New Employee Benefit Issues for Employees and Employers, I've been getting quite few COBRA inquiries from people who have lost a job. People are asking, "What do I do to get these COBRA benefits?"

To learn if you qualify and what to do, first try contacting your former employer and then your former health insurance Plan Administrator.

If you don't get an informed response then here are some links from the U.S. Department of Labor (phone numbers are included, too):

• COBRA Premium Reduction Provision

• Joint Explanatory Statement of the Committee of Conference on the COBRA Premium Reduction Provision

• COBRA Premium Reduction Fact Sheet

• Job Loss Poster (8½" x 11")

• Job Loss Poster (11" x 17")

• Flyer for Employers • Flyer for Employees

• COBRA Continuation Health Coverage FAQs for Employees

• COBRA Continuation Health Coverage FAQs for Employers

• Basic COBRA Information for employees • [Spanish]

• Basic COBRA Information for employers • [Spanish]

• Other Job Loss Resources

• IRS Information on COBRA Premium Reduction

• DOL Information Related to the American Recovery and Reinvestment Act of 2009

Last night during a budget meeting of the Weymouth town council, we discussed the Massachusetts Governor's recent 9C cuts and how we would handle the lost revenues during this fiscal year. While layoffs were discussed, we opted (although not unanimously) to avoid layoffs this fiscal year because we would only have about one fiscal quarter (after the notice period ran) to make the full $1,000,000 in cuts.

Despite my strong reluctance to use a one time nonrecurring revenue source to make-up the difference (we had funds available from the sale of a town owned property), I thought it better to spread the cuts over a full fiscal year should any become necessary as we move forward. Had we opted to act now, we were looking at laying off 120-140 employees next week.

In those cities and towns without an adequate reserve or a new revenue source, they may be forced into making tough choices on layoffs soon. For employees who are displaced due to job loss, there is some help in the stimulus package in the form of a 65% employer paid subsidy of COBRA premiums for nine months. The Employee Benefits Legal Blog has a good post, Employer Paid COBRA Subsidies in the Economic Stimulus Bill: Initial Action Plan and alert that applies to the employer side of this, but provides a good overview for employees, too.

Eligible employees who suffered an involuntary job loss or had a qualifying event (between September 1, 2008 to December 31, 2009) or qualified beneficiaries, should make sure they understand how this COBRA provision affects them and their insurance coverage options.  Covered employers, on the other hand, have the new challenges of dealing with this program and its requirements. While employers are eligible for a payroll tax credit for the COBRA premiums paid under the Act, this Act is a major change to COBRA law and administration and thus must be taken into consideration before making any reductions in the workforce.

Massachusetts Lawyer's Weekly (LW) reports,

The Governor's Council voted 6-2 in favor of Superior Court Judge Ralph
D. Gants' nomination to a seat on the Supreme Judicial Court.

In a second story LW states,

Superior Court Judge Margaret R. Hinkle will succeed Judge Ralph D. Gants as head of the Business Litigation Session.

Ronald J. Levine and Susan L. Swatski-Lebson in Legal Technology ask, Are Social Networking Sites Discoverable?  This is another article demonstrating the risks and considerations in social networking sites.  They conclude,

Although these sites provide users with a sense of intimacy and community, they also create a potentially permanent record of personal information that becomes a virtual information bonanza about a litigant's private life and state of mind. The converse thus becomes the moral for litigation counsel -- this new generational fount of potentially discoverable information should be high on the list of priorities when evaluating a new matter.

While employees need to be careful what they post, employers should take care in how they use the information they find, too.

Craig Ball, in his article, GPS Evidence Might Drive Your Case Home, writes:

Think how many murders, rapes, burglaries, robberies, thefts, kidnappings and drug deals could be solved -- and innocent persons exonerated -- by reliably placing suspects in space and time. DNA just puts the accused at the scene. Reliable GPS data puts the suspect there between 9:42 and 10:17 p.m. and reveals where she came from and went
next.

With the FCC's rules getting stricter on cell phones and locating services (as well as GPS systems in corporate vehicles or being used by consumers), this may be another area to keep watching in upcoming civil and criminal cases in Mass. and around the country.

A small sampling of other blogs or posts from other blogs discussing GPS and various civil and criminal legal issues are:

• GPS Tracking Systems
• Use of GPS Tracking Devices in the Workplace - Some Things Employers Should Consider
• Law - "Police Using G.P.S. Units as Evidence in Crimes"
• GPS: Privacy Law Blog
• GPS Trackers Foil Cheating Spouses
• John Burkoff on GPS and Search Law
• Stalkers Use GPS to Track Victims

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.

Driving from Weymouth to Rockland this morning (a short trip) the news was pretty consistent.  Things aren't good.  You don't need to be a bankruptcy lawyer to know the bankruptcy news is not limited to national stories.  Local impacts are being felt throughout Massachusetts.  As companies fold or downsize, jobs are eliminated, leaving employees questioning, "What's next?"

For some (not all), perhaps the answer includes starting a business in Massachusetts.  The Duct Tape Marketing Blog lists its Top 12 Resources for Start-Ups.  In addition to these 12, I thought I'd offer a dozen earlier posts I had written on business law issues or resources in Massachusetts a start-up might consider:

1. 10 free lessons on starting and running a business
2. Mistakes made in forming a partnership in Massachusetts
3. 7 issues to be prepared for in Massachusetts leases
4. Copyright law explained in a drawing
5. Independent contractor issues to be aware of in Massachusetts
6. Electronic evidence if you get sued
7. Wage and employment law in Mass.
   
8. Sexual Harassment and Discrimination Law in MA
   
9. Contracts and partnership agreements
10. Public infrastructure opportunities in MA
    
11. Employment Posts (in general) Massachusetts
    
12. Succession planning for Massachusetts business owners

Mass. employment, labor, and wage law issues are active lately so I thought this might be of interest to lawyers and consumers alike who are also following national employment issues.

The Wall Street Journal reports,

Two U.S. senators accused the Department of Labor of violating the 'spirit and goals' of a federal law aimed at protecting employees who report corporate wrongdoing, and called on the agency to stop rejecting claims from workers at subsidiary companies. In a letter to Secretary of Labor Elaine Chao, Sen. Patrick Leahy, a Vermont Democrat who is chairman of the Judiciary Committee, and Sen. Charles Grassley, an Iowa Republican who also is on the committee, wrote that they were dismayed that the 'administration -- the Department of Labor in particular -- has been using overly restrictive interpretation of this law to dismiss a majority of the complaints' filed under the whistleblower-protection provisions of the 2002 Sarbanes-Oxley Act. Sen. Leahy and Sen. Grassley, who wrote those provisions, said that 'there is simply no basis to assert' that employees of the subsidiaries of publicly traded companies aren't covered under the act, as the department has ass erted in numerous recent cases.

Our next choice in President will likely shape the policy choices at the Department of Labor. Perhaps this won't emerge as a topic of interesting debate, but it is one of consequence to employees and employers.

It never ceases to amaze me how attorneys need to fight for their employment clients' jobs or workplace rights even in open and shut cases.  This morning I was in Boston, MA passing time by reading an other lawyer's employment law article and case discussing the Family Medical Leave Act (FMLA) and employment retaliation claims. See Linda Horras' article for further review and/or download a copy of the full case: Bryant v. Dollar Gen. Corp., No. 07-5006 (6th Cir., Aug. 15, 2008).

SUMMARY

An employee fired four days after a Family Medical Leave Act (FMLA) leave was successful in her FMLA retaliation claim.  This makes logical sense -- why allow the right to take FMLA leave if one can be punished for it after?  The company argued the FMLA statute did not expressly prohibit retaliation against an employee.  The court didn't buy their argument.

LESSON

Employment retaliation claims, even when not expressly found in the law, may be reasonably inferred when they arise from a protected employment right.

Bankruptcy avoidance vs. filing for bankruptcy in MA has been a recurring theme I've been discussing in my law office with lawyers, debtors, and creditors in several recent discussions. Some are potential bankruptcy clients while others are small business owners worried about debts they're owed. The economy is hitting many hard. Gas prices and public transportation reliance provides a continuing example.

It is being reported that transportation data to be released is revealing 5.2 percent increase in transit ridership during the second quarter, "as record-high gas prices pushed people to take millions more trips on buses and rail systems." While gas prices are certainly one factor in the equation hitting peoples wallets there are others too.

People are struggling and unable to pay their rising debts. Many are worried about their homes, medicine, heating costs, credit cards, collection companies, mortgages, taxes, insurance... This has led to more conversations around places like Weymouth about bankruptcy and bankruptcy avoidance options. Whether they're single, married, kids, no kids, individual consumer, family, business owner..., no two case are the same.

Anyone in debt should not rely on rumors and unsubstantiated advice when it comes to their financial security and future. Instead they should seek the assistance of an attorney or debt relief agency that can find options for a fresh start or a workable plan. Not all plans or proposed solutions, however, are created equal. If something doesn't feel right, get a second opinion. I have a client who has struggled to make payments under a "plan" arranged for him by a credit "assistance" group, but it's obviously only made things worse for him during the last year -- he's in more debt now. Now it's time to file bankruptcy, it probably was the right time a year ago...

Blogs, social networks, and the web extend well beyond Massachusetts borders thus it's often instructive to look around the country and consider how laws are developing elsewhere as they relate to blogging and cyberspace in general. Trial lawyers of both today and of the future will need to be well versed in the law and understand this evolving interactive arena that changes day-by-day. Blogger and California law professor Eric Goldman recently mentions a case involving blog postings being introduced as evidence in a trademark infringement lawsuit. He quotes the court's holding which excluded the blog's comments from evidence.

The Court declines to consider these postings in reaching its decision. The Court is concerned, on this record, that the blog entries lack sufficient indicia of reliability.FN4

Nothing is known about the persons who made the entries, about whether they are related in any way to either party or whether they are describing true events and impressions. Moreover, the authors' meaning and the import of the blog entries are far from clear.

FN4. This should not be construed as a ruling by the Court that entries on Internet blogs could not, on a different record, be reliable and admissible.

(The case was as consumer confusion case on whether "Mooo Tracks" ice cream infringes upon "Moose Track" ice cream. Blue Bell Creameries, L.P. v. Denali Co., LLC, 2008 WL 2965655 (S.D. Tex. July 31, 2008)).

You can look at this from two perspectives, the blog comments were kept out. On the other hand, there were some criteria listed for their exclusion. If these were met, would the comments be allowed into evidence here? It would seem so, why shouldn't they be? Look to the next round of cases to have greater foundations laid down concerning the inclusion of blog comments as evidence.

Like many attorneys I talk with, I'm already seeing more of my clients who are relying on blogs or websites for much of their news. The constantly dwindling size of my newspaper backs this up too. Some do believe, "If I read it, then it's true," but as we know, that's often not the case.

Reliability, validity, authenticity are continuing concerns of justice and in the short term, it seems the web won't make things easier in these areas. Here the law still has much to work out regarding how it's going to keep pace with the web, social media, web 2.0 or whatever name or thing is next. Smart trial lawyers will need to keep pace with these evidentiary possibilities as more and more communications and events are recorded somewhere someplace electronically. Appellate courts and lawyers should see interesting and intellectually stimulaing times ahead in this area of law. While some of the tools of proof may be new, the principles remain the same -- it may just take a little time to connect the two.

Lately I've been hearing more and more from employees in Massachusetts who have been fired from their jobs or discriminated against at work. Some involve wage claims, others are retaliation claims. Many of these fired employees are forced to leave a bad employer (due to a new manager) and are looking to move on with a fair severance package or appropriate settlement arrangement, others just want a fair chance at having their jobs back. Some employees who are moving on are leaving jobs behind where they have worked for years. Now they wonder, how do I keep my new job in this tough economy.

An email from Keith Ferrazzi I received today discusses Stephen Viscusi's Bulletproof Your Job: 4 Simple Strategies to Ride Out the Rough Times and Come Out On Top at Work, a book on your personal brand at work. Here's his list of a few favorites he pulled directly from the book that can help those finding themselves in a new job or looking to secure their current employment positions.

Five Tips to Bulletproof Your Job Today

1. Introduce Yourself: "You don't need to get your name on a billboard to make yourself known to a company bigwig. You just need three things: say your name, assert your connection to her, and share your personal pitch... Follow up with an e-mail or handwritten note, reminding him of your brief meeting and saying how much you enjoyed it."

2. Volunteer to Lead: "Offering to take the lead shows you have a stomach for risk, the capacity to learn, and the desire for accomplishment that others might not possess."

3. Be Positive: "In short, positive people are easy to work with and negative people are not. And smart positive people are among the most valuable in the workplace.... You can choose to be positive - and to set off the whole chain of positive influence - simply by indentifying your current worldview and habits and making conscious positive adjustments... All you have to do is smile."

4. Be A Mentor: "...step up and offer a bit of support that will help newbies feel a connection that will make them want to stay in the game and get with the program... It allows you to plant seeds of influence and support throughout your company and your industry that will grow and become more valuable to you over time... You just need to know the ropes of your workplace and have some experience that would be helpful to someone else... Keep things informal, meet regularly, keep it professional, and keep up the connection."

5. Improve Your Networking Skills: "Job survival and advancement are about always having a substantial list of professional acquaintances... The most influential and useful are usually those who work in and around your field, but it's not at all unusual for an outsider to be the most effective person in your network... For every person you collect into your network because she may be helpful to you, you should count on being called onto be a resource for her, too."

An interesting article on law.com recently discussed the issue of lawyers asking jurors about their medication use. With so much of the population on medication, is drug use something that should be questioned of potential jurors? If so, how far should questioning go? Do we ask a general question? Whether the use of medication will interfere with a juror's duties, or do we delve deeper into more specific questions about the person, their conditions, and their treatments? The article, by Julie Kay, offers pros and cons while raising issues likely to continue making headlines(juror falling asleep in murder trial, someone goes off their medications during trial...).

As an attorney-advocate there may be times when seeking this information makes sense for my client. As the lawyer for my client I have the duty the pursue what's in my clients best interests. Personally, however, I think when we start asking jurors to divulge what medication they're taking, we're crossing a finer line. We have to wonder if the jurors' themselves aren't thinking, "Who is actually on trial, here?" Of course there are going to be exceptions to every rule, but speaking from a policy perspective, I'd rather have privacy rights' invasions remain the limited exceptions and not become the standard rule.

"Mediation’s Seven Deadly Sins - Avoiding the Seven Sure-Fire Ways to Torpedo Your Mediation, Upset Your Client and Enrich the Other Side" was the name of a discussion sponsored by the Section of Dispute Resolution held during the 2008 Annual American Bar Association Meeting in New York.

While mediation provides an opportunity to examine settlement, it also provides an opportunity to examine the other side, their case, and how a party may respond in court. One of the panelists, Joel Davidson, said

He sees the mediation process as a chance to get his point across in a specific way. He said he likes to show the person on the other side that I know the issue well.

... mediation provides the opportunity to examine how clients handle themselves. If a client does not come across rationally during mediation, I know that in advance of a trial...

Mediation, however, can also provide a receptive forum for an apology. Often parties want to apologize but are told not to apologize by their attorneys. The attorneys often fear an apology could be used as an admission of liability against them in court and/or reduce their bargaining position in settlement discussions. Handled properly, however, a sincere apology during mediation can sometimes go a long way towards resolving a a brooding conflict. Davidson notes mediation may,

... provide an opportunity for clients to either apologize for a wrong or acknowledge a misunderstanding. This simple communication may be enough to move a case toward settlement.

More and more, I'm finding people want to resolve their Massachusetts divorce, personal injury, or business case in mediation. There are a number of factors that contribute to this (control over the outcome, avoid formality of court, ease of scheduling, ...), but I'm sensing the Mass. economy is playing a role in this increase too.

People seem inclined to seek resolving their MA disputes fairly and quickly while avoiding the high costs and endless delays contentious litigation can sometimes bring. While not all cases can be resolved in mediation, many can. There's really nothing to lose in mediation. In the end, the parties have to agree on the ultimate solution in mediation (they can have an attorney review their agreement first or participate in the mediation with them).

I've been thinking about this more and more as I've begun to formalize our mediation practice offerings at Wilson & Whitaker, LLC. I've created a temporary website focusing solely on mediation as our Weymouth law firm continues to expand our mediation services. Let me know your thoughts and what questions you may have about mediation practices or disputes Massachusetts lawyers deal with.

From the SJC, a Diagram (see below) showing the Massachusetts Court System. Also, a resource titled, Representing Yourself in a Civil Case: Things to Consider When Going to Court.

I recently received an invitation to a tele-seminar on public infrastructure issues for attorneys, ABA 2007 Model Code For Public Infrastructure Development. With a focus on green development and neglected infrastructure improvements colliding, this should be a growth area for small businesses (and lawyers) that learn how to participate in these projects. It's also an area MA municipal governments and agencies must keep informed of to protect their interests.

For instance, the seminar material states:

Public infrastructure is a hot topic for public clients, construction industry firms, financial service firms, and their counsel. There is tremendous need for schools, new public buildings, water projects, sewer projects, bridges, roads, highways, energy conservation projects – and public resources are scarce. In addition, the way in which design, construction, operations, and financing can be structured to meet these needs is becoming increasingly important, and controversial.

As I look around Weymouth, I can’t argue anything to the contrary. Route 18 work is ongoing and its widening is down the road. Southfield is advancing the redevelopment of the old South Weymouth Naval Air Station under its expanded municipal powers. The financing arrangment on the East-West Parkway demonstrates how new initiaives are being backed with new vehicles. Ground has been broken on a new town owned water treatment facility (over $50 million). The high school addition is complete and our water and sewer infrastructure improvements have been significant. I recently saw information on two projects requiring over $5 million in needed school repair work. In Weymouth, projects such as Legion Field, Tufts Library, Fogg Library, improvements to the squares or villages, and the Fore River Bridge are just some of the many areas where significant public resources will be invested and present opportunities to qualifying businesses. In our last budget, there was even $500,000 for painting a water tower. The amounts involved are not insignificant.

While public projects can have their challenges and delays, it remains a growth area for developers and other professionals to consider in a down economy. After all, bridges must be built and someone needs to build them.

On the municipal side, what are the questions government leaders should be asking and how are liabilities being assessed? The seminar material's ask a few important questions:

• Is the infrastructure budget enough? Look again.
• Are recommendations being made for “Public Private Partnerships”? Are public officials listening?
• Are Design-Build and other innovative infrastructure procurement methods authorized in your jurisdiction? Are you sure?
• Are contracts for infrastructure services being awarded based on transparency and head-to-head competition? Are you sure?
• Is there public confidence that government officials are getting best value for money? Is this clear?
• How can you clarify legal authority for innovative procurement methods and also find help to manage novel, risk-allocation issues in contracts with very long performance times and huge financial consequences?

While Massachusetts discrimination claims are often commenced under state discrimination laws (before the Massachusetts Commission Against Discrimination or in Superior Court), federal laws also exist and can often overlap or provide additional context for interpreting or enforcing state laws. For instance, Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act (ADA) are federal laws that cover all private employers, state and local governments, and education institutions that employ 15 or more individuals. These laws also cover private and public employment agencies, labor organizations, and joint labor management committees controlling apprenticeship and training.

One of the lesser discussed discrimination prohibitions contained in Title VII concerns religious discrimination. While discrimination based on religion is seen less frequently than
other types of discrimination, its incidence of reporting has been
rising. Some attribute this to changes in the workforce,
attitudes post 9/11, and the increased attention focused on immigration issues. Perhaps due to these changes and others, the Equal Employment Opportunity Commission (EEOC) has released an updated Compliance Manual (PDF) covering religious discrimination. The newly revised "Section 12" (7/22/2008) provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

The revision includes 55 examples relating to religious discrimination issues and lists "best practices" for employers and HR professionals to be aware of (see list of best practices below).

The Section is organized in parts:

1. I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.
2. II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.
3. III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.
4. IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.
5. V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

The Overview states:

Religion is very broadly defined under Title VII. Religious beliefs, practices, and observances include those that are theistic in nature, as well as non-theistic “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” Religious beliefs can include unique views held by a few or even one individual; however, mere personal preferences are not religious beliefs. Title VII requires employers to accommodate religious beliefs, practices, and observances if the beliefs are “sincerely held” and the reasonable accommodation poses no undue hardship on the employer.

Some general areas include:

Prohibited Conduct

Religious harassment in violation of Title VII occurs when employees are: (1) required or coerced to abandon, alter, or adopt a religious practice as a condition of employment (this type of “quid pro quo” harassment may also give rise to a disparate treatment or denial of accommodation claim in some circumstances), or (2) subjected to unwelcome statements or conduct that is based on religion and is so severe or pervasive that the individual being harassed reasonably finds the work environment to be hostile or abusive, and there is a basis for holding the employer liable.

National Origin, Race, and Color

Title VII’s prohibition against religious discrimination may overlap with Title VII’s prohibitions against discrimination based on national origin, race, and color. Where a given religion is strongly associated – or perceived to be associated – with a certain national origin, the same facts may state a claim of both religious and national origin discrimination. All four bases might be implicated where, for example, co-workers target a dark-skinned Muslim employee from Saudi Arabia for harassment because of his religion, national origin, race, and/or color.

Retaliation

Title VII prohibits retaliation by an employer, employment agency, or labor organization because an individual has engaged in protected activity. Protected activity consists of opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes or of filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute. EEOC has taken the position that requesting religious accommodation is protected activity.

Employer Best Practices

• Employers can reduce the risk of discriminatory employment decisions by establishing written objective criteria for evaluating candidates for hire or promotion and applying those criteria consistently to all candidates.
• In conducting job interviews, employers can ensure nondiscriminatory treatment by asking the same questions of all applicants for a particular job or category of job and inquiring about matters directly related to the position in question.
• Employers can reduce the risk of religious discrimination claims by carefully and timely recording the accurate business reasons for disciplinary or performance‑related actions and sharing these reasons with the affected employees.
• When management decisions require the exercise of subjective judgment, employers can reduce the risk of discriminatory decisions by providing training to inexperienced managers and encouraging them to consult with more experienced managers or human resources personnel when addressing difficult issues.
• If an employer is confronted with customer biases, e.g., an adverse reaction to being served by an employee due to religious garb, the employer should consider engaging with and educating the customers regarding any misperceptions they may have and/or the equal employment opportunity laws.

• Employers should have a well-publicized and consistently applied anti-harassment policy that: (1) covers religious harassment; (2) clearly explains what is prohibited; (3) describes procedures for bringing harassment to management’s attention; and, (4) contains an assurance that complainants will be protected against retaliation. The procedures should include a complaint mechanism that includes multiple avenues for complaint; prompt, thorough, and impartial investigations; and prompt and appropriate corrective action.
• Employers should allow religious expression among employees to the same extent that they allow other types of personal expression that are not harassing or disruptive.
• Once an employer is on notice that an employee objects to religious conduct that is directed at him or her, the employer should take steps to end the conduct because even conduct that the employer does not regard as abusive can become sufficiently severe or pervasive to affect the conditions of employment if allowed to persist in the face of the employee’s objection.
• If harassment is perpetrated by a non-employee assigned by a contractor, the supervisor or other appropriate individual in the chain of command should initiate a meeting with the contractor regarding the harassment and demand that it cease, that appropriate disciplinary action be taken if it continues, and/or that a different individual be assigned by the contractor.
• To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of objectively abusive or insulting conduct, even absent a complaint.
• Employers should encourage managers to intervene proactively and discuss with subordinates whether particular religious expression is welcome if the manager believes the expression might be construed as harassing to a reasonable person.
• While supervisors are permitted to engage in certain religious expression, they should avoid expression that might – due to their supervisory authority – reasonably be perceived by subordinates as coercive, even when not so intended.

Reasonable Accommodation

• Employers should inform employees that they will make reasonable efforts to accommodate the employees’ religious practices.
• Employers should train managers and supervisors on how to recognize religious accommodation requests from employees.
• Employers should consider developing internal procedures for processing religious accommodation requests.
• Employers should individually assess each request and avoid assumptions or stereotypes about what constitutes a religious belief or practice or what type of accommodation is appropriate.
• Employers and employees should confer fully and promptly to the extent needed to share any necessary information about the employee’s religious needs and the available accommodation options.
• An employer is not required to provide an employee’s preferred accommodation if there is more than one effective alternative to choose from. An employer should, however, consider the employee’s proposed method of accommodation, and if it is denied, explain to the employee why his proposed accommodation is not being granted.
• Managers and supervisors should be trained to consider alternative available accommodations if the particular accommodation requested would pose an undue hardship.
• When faced with a request for a religious accommodation which cannot be promptly implemented, an employer should consider offering alternative methods of accommodation on a temporary basis, while a permanent accommodation is being explored. In this situation, an employer should also keep the employee apprised of the status of the employer’s efforts to implement a permanent accommodation.

Undue Hardship

• The de minimis undue hardship standard refers to the legal requirement. As with all aspects of employee relations, employers can go beyond the requirements of the law and should be flexible in evaluating whether or not an accommodation is feasible.
• An employer should not assume that an accommodation will conflict with the terms of a seniority system or CBA without first checking if there are any exceptions for religious accommodation or other avenues to allow accommodation consistent with the seniority system or CBA.
• An employer should not automatically reject a request for religious accommodation just because the accommodation will interfere with the existing seniority system or terms of a CBA. Although an employer may not upset co-workers’ settled expectations, an employer is free to seek a voluntary modification to a CBA in order to accommodate an employee’s religious needs.
• Employers should train managers to be aware that, if the requested accommodation would violate the CBA or seniority system, they should confer with the employee to determine if an alternative accommodation is available.
• Employers should ensure that managers are aware that reasonable accommodation may require making exceptions to policies or procedures that are not part of a CBA or seniority system, where it would not infringe on other employees’ legitimate expectations.

Schedule Changes

• Employers should work with employees who need an adjustment to their work schedule to accommodate their religious practices.
• Notwithstanding that the legal standard for undue hardship is “more than de minimis,” employers may of course choose voluntarily to incur whatever additional operational or financial costs they deem appropriate to accommodate an employee’s religious need for scheduling flexibility.
• Employers should consider adopting flexible leave and scheduling policies and procedures that will often allow employees to meet their religious and other personal needs. Such policies can reduce individual requests for exceptions. For example, some employers have policies allowing alternative work schedules and/or a certain number of “floating” holidays for each employee. While such policies may not cover every eventuality and some individual accommodations may still be needed, the number of such individual accommodations may be substantially reduced.

Voluntary Substitutes or Swaps

• An employer should facilitate and encourage voluntary substitutions and swaps with employees of substantially similar qualifications by publicizing its policy permitting such arrangements, promoting an atmosphere in which substitutes are favorably regarded, and providing a central file, bulletin board, group e-mail, or other means to help an employee with a religious conflict find a volunteer to substitute or swap.

Change of Job Assignments and Lateral Transfers

• An employer should consider a lateral transfer when no accommodation which would keep the employee in his or her position is possible absent undue hardship. However, an employer should only resort to transfer, whether lateral or otherwise, after fully exploring accommodations that would permit the employee to remain in his position.
• Where a lateral transfer is unavailable, an employer should not assume that an employee would not be interested in a lower-paying position if that position would enable the employee to abide by his or her religious beliefs. If there is no accommodation available that would permit the employee to remain in his current position or an equivalent one, the employer should offer the available position as an accommodation and permit the employee to decide whether or not to take it.

Modifying Workplace Practices, Policies, and Procedures

• Employers should make efforts to accommodate an employee’s desire to wear a yarmulke, hijab, or other religious garb. If the employer is concerned about uniform appearance in a position which involves interaction with the public, it may be appropriate to consider whether the employee’s religious views would permit him to resolve the religious conflict by, for example, wearing the item of religious garb in the company uniform color(s).
• Managers and employees should be trained not to engage in stereotyping based on religious dress and grooming practices and should not assume that atypical dress will create an undue hardship.
• Employers should be flexible and creative regarding work schedules, work duties, and selection procedures to the extent practicable.
• Employers should be sensitive to the risk of unintentionally pressuring or coercing employees to attend social gatherings after the employees have indicated a religious objection to attending.

Permitting Prayer, Proselytizing, and Other Forms of Religious Expression

• Employers should train managers to gauge the actual disruption posed by religious expression in the workplace, rather than merely speculating that disruption may result. Employers should also train managers to identify alternative accommodations that might be offered to avoid actual disruption (e.g., designating an unused or private location in the workplace where a prayer session or Bible study meeting can occur if it is disrupting other workers).
• Employers should incorporate a discussion of religious expression, and the need for all employees to be sensitive to the beliefs or non-beliefs of others, into any anti-harassment training provided to managers and employees.

Retaliation

• Employers can reduce the risk of retaliation claims by training managers and supervisors to be aware of their anti-retaliation obligations under Title VII, including specific actions that may constitute retaliation.
• Employers can help reduce the risk of retaliation claims by carefully and timely recording the accurate business reasons for disciplinary or performance related actions and sharing these reasons with the employee.

Employee Best Practices

• Employees who are the recipients of unwelcome religious conduct should inform the individual engaging in the conduct that they wish it to stop. If the conduct does not stop, employees should report it to their supervisor or other appropriate company official in accordance with the procedures established in the company’s anti-harassment policy.
• Employees who do not wish to personally confront an individual who is directing unwelcome religious or anti-religious conduct towards them should report the conduct to their supervisor or other appropriate company official in accordance with the company’s anti-harassment policy.
• Employees should advise their supervisors or managers of the nature of the conflict between their religious needs and the work rules.
• Employees should provide enough information to enable the employer to understand what accommodation is needed, and why it is necessitated by a religious practice or belief.
• Employees who seek to proselytize in the workplace should cease doing so with respect to any individual who indicates that the communications are unwelcome.

When asked, "What are my chances at winning at trial?", most lawyers in Massachusetts or elsewhere would reply, "It depends." A recent article in the New York Times is offering some percentages and cost estimates that will likely raise a few eyebrows.

The article entitled, Study Finds Settling Is Better Than Going to Trial, discusses a study finding settlement is statistically generally the best option. The article indicates plaintiffs were wrong to go to trial in 61% of the cases and defendants were wrong to proceed to trial in 24% of cases. Both were wrong because they could have settled the case for an amount better than what was achieved at trial.

The article reports:

...in just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

It's worth noting, however, that the estimated cost for making the wrong choice was a lot greater for defendants ($1.1 million) than it was for plaintiffs ($43,000).

While numbers are one factor to consider in proceeding to trial, the issues of civil justice, correcting a wrong, or having your day in court are worth something of societal value too. These are issues that can't be measured in dollars or percentages, but at the same time lawyers need to advise their client's to pursue their best interests. In the end, the right question may not only be: "What are my chances of winning at trial?" but also ,"Why do I want to go to trial?" The decision is always the clients and it's a decision that should be based on what is right for them, even when it's against all odds.

Often it's tempting to take an legal document found on the internet (sometimes prepared by a lawyer), make a few changes, and recycle the attorney's language to create any number of legal documents. Massachusetts consumers and businesses are smart and think, "Why pay a lawyer in Massachusetts when it's available for free online?" In some cases perhaps they could be right, in others they could be disastrously wrong. The key is to know the difference and that's where consumers and businesses can often fail. Is it worth the risk? Can what you don't know hurt you? Some examples to consider before answering:

LANGUAGE ISSUES

Real Estate Law - A party signs a "Standard Form" Offer or "Standard" Purchase and Sale Agreement, but later learns there were some key changes made to a few important words in the "standard" agreement. Just because it says "standard" don't think it is.

Employment or Discrimination Law - A company fires an employee and offers a severance package. The employee signs the severance agreement and cashes the severance check. Later the employee sues for age discrimination on the basis that the Older Workers' Benefit Protection Act ("OWBPA") was not explicitly followed. Why? Because the severance agreement made reference to 154 employees being affected by the terminations when, in fact, only 152 employees were. A federal court case covered in a Labor & Employment Law Update, Peterson v. Seagate, No. 07-2502, 2008 U.S. Dist. LEXIS 42179 (D. Minn. May 28, 2008), dealt with these facts. Here the employee's release was void, the employee kept the severance money, and the employee could also sue the employer under the Age Discrimination in Employment Act ("ADEA").

Divorce Law - An unsuspecting spouse signs the divorce agreement with all kinds of technical language concerning taxes and other issues which the other spouse has had reviewed by his or her lawyer, but tells you he or she just got it off the internet.

PROCESS ISSUES

In other cases, it's not just the language but also the process that must be followed to insure your wishes are followed.

Will - A parent has two adult children: one is a loving caregiver and the other hasn't been heard from in years. The parent decides to make a will leaving everything to the caregiver. The caregiver signs the will as a witness. Did you know the caregiver could now receive nothing and the other child everything?

Business Law or Trusts - A couple forms an LLC or Trust but fails to follow the steps needed to treat the LLC or Trust as a separate legal entity. The LLC or trust may end up providing no protection and leading to liability which hadn't been properly planned for.

Real Estate Deed - A simple deed is taken from the internet or copied from the public records at the local Registry of Deeds. Names are substituted and the deal goes forward. Later the buyer learns a probate estate matter was involved and the government has a lien against the property. This would have been found if a customary title exam was conducted. Guess who may now be on the hook for the lien amount?

RULES VS. PRINCIPLES

Last night, after a quick run from Weymouth to Hingham and back, I was reading a Law Practice article discussing the difference between our legal system and the U.K.'s approach to electronic evidence and discovery issues ("e-discovery") ("electronic data discovery" or "electronic data disclosure" known as "EDD"). The article contained a comment that I found interesting:

All the interviewees agreed that in the U.K. EDD is principles based, whereas in the United States it's rule based. Everyone believed that this is the biggest difference-and that the principles-based system is better.

While this is a good theoretical point to consider in reviewing this new area of law, it's not a debate you want to find yourself dealing with in a case that involves your interests. As you can see from above, our rules-based laws can lead to results that may not always agree with your principles or your intent. Think twice the next time you cut and paste.  Often when a legal document is involved, there's something of real value at stake.  Most times when a client asks me to look at "something" they found on the internet, it has serious flaws when applied to their specific circumstances.  Luckily, we can fix this before it's too late.  Those who come in after the fact and seeking help -- they don't tend to make the same costly mistake twice.

Commercial real estate development and deals are heating up in Weymouth, Massachusetts. As a Weymouth lawyer and elected town councilor, I'm seeing good economic signs in these difficult financial times. Weymouth, MA is poised to grow into a healthy business community for entrepreneurs and established businesses.

Convenient & Accessible by Car or Train

With gas prices rising, Weymouth remains a short drive to local beaches and recreation areas and it's only a one hour drive to a long weekend on Cape Cod or a reasonable drive to Boston (or 20 minute train trip to South Station). Weymouth is a suburb with three commuter rail stations (two Greenbush Line trains and one Old Colony line station) providing attractive new commuting options between Boston and the South Shore. While always considered somewhat of bedroom community of Boston, Weymouth is now an attractive place for economic opportunities and jobs on its own.

South Weymouth Naval Air Station Redevelopment

At each dinner party or event I attend people are asking what is happening at the old South Weymouth Naval Air Station (now Southfield) where 2855 housing units and 2 million square feet of commercial space are planned (along with recreation areas and other amenities). The recent conversations also include talks of Hollywood East coming to Weymouth. A potential movie studio deal seems to hinge on tax credits recently approved by the House. This would be solid anchor tenant for the air base's redevelopment and would provide a new local economic driver with good jobs and economic stimulus for the entire South Shore. But economic development is not limited to this site only.

Growth

The South Shore Hospital's expansion and new cancer facility are going up fast along Route 18. The Rt. 18 intersections work is advancing and plans for the widening of Rt. 18 and a new Fore River Bridge in North Weymouth are also in the works. Further south along Route 18 towards the Abington line, a new CVS is replacing formerly vacant buildings. Other areas are seeing similar growth and transformation. Yesterday, The Boston Business Journal reports:

Foxrock Properties has acquired an office building at 90 Libbey Parkway in Weymouth from 90 Libbey Parkway LLC for $11.5 million.

The 80,000 square-feet building is located in more than five acres off Middle Street. Tenants at the time of the sale included: South Shore Hospital, Brigham & Women’s Hospital and South Coast Dermatology. After the sale, South Shore Sports Therapy signed a lease for 11,000 square feet.

Whether it's the new medical buildings emerging in the area (many have) or the influx of new medical companies, Weymouth is becoming an attractive option for those looking to live in a town that offers the business opportunities of a city. This is true for both big and small companies -- recently I was invited to attend the opening of Patricia & Company, a medical boutique that serves the cosmetic needs of oncology patients.

The Right Time

While the economy is undergoing its challenges and trying times look to still lie ahead, this may be an opportune time for business growth in Weymouth, especially in the areas of life sciences, bio-tech, entertainment, and health services. Additionally, growth in these industries will be a boom for the many ancillary businesses that will support this growth. While property values are eroding elsewhere, this may also be an opportunity for Weymouth to maintain or grow its residential value and position itself for a leap forward when the economy does turn around.

An Improving Community

With economic development in sight and a strong and expanding medical community emerging, Weymouth, Massachusetts is moving in directions for MA business owners and entrepreneurs to consider. Whether you work with our law firm's attorneys or not, I'd be happy to speak with any business thinking of relocating to the Weymouth area. As an elected councilor (at large) in Weymouth, I'm happy to help local business owners do well in these challenging economic times. It's not just good business, but it's good for our local community and our local families.

Massachusetts laws prohibiting discrimination against people with disabilities in Massachusetts disability cases, arising under Federal and MA Discrimination laws, may have different meanings in different contexts.

If you are being discriminated against due to a disability or perceived disability there may be a number of legal claims for you to consider to aid in protecting your rights.The enforcement of disability discrimination laws can involve different courts or commissions and may require various types of expert evidence and testimony.

The MA Disability Law Center offers a chart on Massachusetts laws prohibiting discrimination against people with disabilities and provides some examples of legal resources which may be available as a starting place.

Attorney John Parry has authored the book, Disability Discrimination Law, Evidence and Testimony. A Comprehensive Reference Manual for Lawyers, Judges and Disability Professionals, which covers a host of topics your lawyer or disability advocate may consider in handling your disability discrimination case.

Additionally, The Massachusetts Office on Disability (MOD) has prepared an online pamphlet to:

increase awareness of the rights of persons with disabilities, both by persons with disabilities themselves and by the larger community. Other goals of the Office include: the elimination of discrimination against persons with disabilities; the creation of a barrier free environment; the improvement of the state’s services delivery system for persons with disabilities, and the creation of fully integrated and accessible education, housing, transportation and employment in the public and private sectors.

Topics listed include:

• INTRODUCTION
• ABUSE / NEGLECT / TREATMENT CONDITIONS
• ARCHITECTURAL ACCESS
• AUTOMOBILES & TRANSPORTATION
• DISABILITY COMMISSIONS
• EDUCATION
• EMPLOYMENT
• EQUAL RIGHTS
• HATE CRIMES
• HOUSING
• PUBLIC PLACES & PROGRAMS
• SERVICE ANIMALS
• TELECOMMUNICATION AND TECHNOLOGY
• VOTING
• WHEELCHAIRS
• ZONING

Attorney Kevin Whitaker serves as a town councilor and as an appointed member of the Town of Weymouth, MA Commission on Disabilities.

Boston.com article, "Mass. woman kills self before home foreclosure," reports:

A 53-year-old wife and mother fatally shot herself shortly after faxing a letter to her mortgage company saying that by the time they foreclosed on her house that day, she would be dead.

According the the article, her husband did not know the foreclosure was scheduled today because his wife took care of the bills and mail.  The article also indicates the woman may have thought that life insurance proceeds could be used to pay for the home -- this isn't true.  No life insurance company that I'm aware of is going to pay any amount of an insurance policy for a suicide claim.  Let me be clear, suicide in not a solution.  This tragedy does, however, speak to the problem being faced by many -- times are financially tough and many people don't know what to do.

I'm seeing more despair and anxiety in my Weymouth law office with both new and old clients.  Often I'm meeting with distressed individuals, families, and business owners who break down in tears as they tell their story.  Many are relieved just by talking to someone or by getting their problems off their chest.  Later, when they learn alternatives to bankruptcy and foreclosure may exist for them, they ask, "Why didn't I do this sooner?"

If you are feeling overwhelmed by debt, the harassing phone calls, and threatening letters, then you need to seek help. You deserve the opportunity to explore all of your available options and to do so with an objective adviser.  There should be no guilt, or shame, or judgment associated with doing this.  Getting help is the responsible thing to do and it can often put you on the path toward a fresh start.  A new beginning without the burden and distraction of constant worry and anxiety could be right in front of you without you even knowing it.

Do you submit confidential documents to the U.S. Equal Employment Opportunity Commission (EEOC)?

David A. Skidmore, Jr. and William F. Becker in a Frost Brown Todd LLC Client Advisory, "Take care when providing proprietary or confidential information to the EEOC", discuss issues a company should consider when making an EEOC filing. Their article follows from their reading of Venetian Casino Resort, L.L.C. v. EEOC, decided June 27, 2008, the D.C. Circuit Court of Appeals:

First, employers should not submit information assuming that it will be treated by the EEOC as confidential. Second, if sensitive information is submitted to the EEOC, just labeling it “confidential” may not be enough to assure that the EEOC will provide notice before disclosing the information to anyone who asks for it. The Court of Appeals specifically stated that “. . . disclosure of information does not violate the [Trade Secrets Act] merely because that information was labeled ‘confidential’ by the submitter.”

At a minimum, confidential information submitted to the EEOC should include prominent notice that it is confidential, an explanation of how disclosure would cause “substantial harm to your company’s competitive position,” and a request that notice be given before the information is disclosed in response to a FOIA request.

Do you know what's being said about you on the internet? Whether you're a Massachusetts small business owner, an individual, or a parent, are you monitoring the conversations about you, your business, or your family taking place on the internet?

Check out What Should Every Company Be Monitoring? for a list of ideas.

You can't respond to what you don't know about. I use alerts and RSS feeds to help stay on top of issues and conversations involving our Weymouth, MA law firm and our Massachusetts clients. With more and more reputation attacks and defamation cases arising on the internet (as well as speculative and plainly erroneous information), this is likely to be growth area in law and business.

An ABA Journal Article, "Former Law Dean Obtains Internet Addresses of Anonymous Online Critics", is a reminder that what one anonymously writes on the internet may not be anonymous.

Could your blog, comments, or other online postings land you in the middle of a defamation suit? Or raise the possibility of an interference with business relations claim? Are you anonymously mentioning competitors or promoting your services in a manner that could be seen as unfair competition or as violations of consumer protection laws?

Things to consider before making "anonymous" postings or contributions. In the alternative, this is also a means to seek protection when you, your business, or your children are the targets of anonymous online attacks.

This morning my daughter suggested we take the net (from that game where you hit the thing that looks like an empty ice cream cone) and use it to play volleyball.  I knew immediately she was talking about the net from the old badminton set because the "empty ice cream cone" was certainly the birdie we hit back and forth about a month ago.  In communication and in law context is everything -- both combined can lead to real value.

You shouldn't need to talk in legal mumbo jumbo to get your point across or to achieve the result you desire.  Find a lawyer who knows the law but also gets where you are coming from.  Seek out an attorney who will invest in building a relationship with you.  This is the foundation for providing value -- a real value that seeks to first understand and then meet your needs.  Anything else is just an empty ice cream cone...

In Blank Rome's Newsletter, Ninth Circuit Ruling Raises Stakes for Companies and Individuals Facing Parallel Civil and Criminal Investigations By: Matthew D. Lee and Tyler Brody, they discuss issues raised in a case were a civil governmental investigation was being coordinated with criminal investigations, United States v. Stringer, 521 F.3d 499 (9th Cir. 2008) Download Case.

The criminal investigations were slowed down and not overtly acted upon so the civil investigation could proceed and obtain statements which would not likely to be provided in a criminal case.  Here, the civil and criminal activities were closely coordinated and the civil investigators were even instructed on how to ask questions in depositions to help build the government's criminal case.  When the target's attorney asked about the possibility of a criminal investigation, despite knowing in was ongoing, the civil investigation did not need to disclose this fact when an SEC Form 1662 was provided which makes a blanket statement that information collected may be shared with other governmental agencies.

The Blank Rome article states:

The impact of the Stringer decision on how counsel should approach the defense of a civil investigation cannot be under - stated. Defense attorneys must be aware that their clients can potentially, and unknowingly, waive their Fifth Amendment rights after they are given minimal notice by civil investigators. Thus, even if a government investigation appears to be merely civil in nature, an astute defense attorney must anticipate the possibility that the civil attorneys are working with, or taking direction from, prosecutors seeking to build a criminal case. Counsel also must realize that, simply because the existence of criminal investigation is not readily apparent, does not mean that one is not underway, especially if their clients are cooperating with civil investigators. Indeed, Stringer allows criminal and civil investigators to conceal a significant amount of collaboration and joint strategic planning without triggering concerns that the government is acting in bad faith.

They conclude:

The Stringer decision shows that defense counsel should handle the defense of a client subject to a civil investigation as though it were criminal, and strongly consider the extent to which their clients should be cooperating with government lawyers, particularly where the lawyer knows that the client may have criminal exposure. Because the result of Stringer affords government lawyers so much leeway in using evidence collected in a civil investigation to build a criminal case, counsel must be careful not to allow their clients to supply the government with the proverbial rope with which they will ultimately be hung.

A Boston Business Journal article lists the , Top 10 Mistakes Businesspeople Make when Forming Partnerships (see the full article for explanations of each.)

1. Not having a signed partnership agreement. 2. Not having an attorney assist with drawing up the agreement. 3. Not including a way out. 4. Not using your individual strengths. 5. Not forming a limited partnership. 6. Not considering the liability issues. 7. Rushing in. 8. Not adhering to state requirements and regulations. 9. Choosing the wrong partner. 10. Not adequately capitalizing the partnership.

This is a good list to review if you are thinking about a forming a partnership in Massachusetts. Any one these could be fatal to a business.

A recent Massachusetts Superior Court decision shows some of the complex issues that can be raised in tenancy agreements.  This particular case involved a commercial lease, but a review of the areas covered provides general insight into leases and agreements whether you are a consumer, a business, lessor, lessee, owner, tenant, guarantor, or landlord.

Seven Issues To Consider in Lease Agreements & Tenancy Litigation

1. Fraud in the Inducement - To establish fraud in the inducement you must show misrepresentation of a material fact, made to induce action, and reasonable reliance on the false statements to the detriment of the person relying.
2. Chapter 93A - General Laws c. 93A, § 2 makes unlawful all unfair or deceptive acts or practices in the conduct of any trade or commerce. Conduct is deceptive if it possesses a tendency to deceive -- could reasonably have caused a person to act differently than he or she would have.
3. Breach of Contract & Integration Clause - When an agreement, such as a lease, is unambiguous and contains an integration clause, a party to the lease may not rely on evidence extraneous to the four corners of the lease to claim rights under the lease.  The contract will be enforced according to its express terms.
4. Quantum meruit - A theory of recovery based on unjust enrichment.
5. Implied Covenant of Good Faith and Fair Dealing - Contracts are subject to an implied covenant of good faith and fair dealing.  A party may not appeal to the covenant, however, to create rights and duties not otherwise provided for in the existing contractual relationship.
6. Negligence - Where a contract has a valid integration clause, claims of negligent misrepresentation are barred.
7. Rescission - Without a viable claim for breach of a lease agreement, a claim for rescission based on breach of the lease agreement must fail.

(NOTE: I've cut and pasted language in the decision, changed sentence structure here and there, changed some words around, and removed all legal citations to focus on the general nature of these issues.  I also added links to general information, not MA law.  The full decision which is much better than my piecemeal approach is available in Middlesex Superior Court Civil Action No. 07-3147.)

Contract Lesson: Be careful of any representations being made and review what's in (and what's not in) your tenancy agreement.

The United States Supreme Court has been active on the employment front this term. Previous posts discussed some of these cases, but the newest ruling (Meacham ET AL v. Knolls Atomic Power Laboratory, AKA KAPL, Inc., ET AL.) takes up a disparate-impact
claim under the Age Discrimination in Employment Act of 1967 (ADEA), 29 U. S. C. §621 et seq.

The company reduced its work force by having managers score subordinates on “performance,” “flexibility,” and “critical skills”; these scores, along with points for years of service, were used to determine who was laid off. Of the 31 employees let go, 30 were at least 40 years old and a ADEA claim followed.

The holding in this case places the burden of proof on employers when the termination involves an an older worker. This creates additional issues an employer must be prepared to prove. Here the employer must prove the termination was based on reasonable factors other than age (RFOA) by:

1) Producing evidence affirmatively raising the defense, and

2) Persuading the factfinder of the merits of this defense.

The case creates important considerations for both employers and employees in considering an ADEA claim. The result will certainly create additional costs for businesses but is being hailed as a victory for elder law advocates.

Recently, Boston.com listed the Globe 100, The Best of Massachusetts Business 2008.

While its nice to be on that list and certainly good for the local economy. I personally like the local success stories conveyed by this young man in a picture sent to me from a relative in CA.

For those in other parts of the country who may not understand the local meaning of "parades," please allow me to explain:

As pointed out in a USA Today's blog entitled, Nothing common about Boston's recent title tradition, "This makes six major professional sports titles in three sports in the past 6½ years for Boston."

For those still counting: 3 Patriots Super Bowl wins, 2 Red Sox World Series wins, and this Celtics NBA Finals win. At Christmas time we sing and add, "And a partridge in a pear tree."

It sure is nice to have bragging rights, huh? And it's good business too. How could any top 100 Massachusetts Business List not include the companies behind these local success stories?

For those looking for more pictures of Boston Celtics fans check out Boston.com's Celtics Fans Photos.

A recent law firm survey of 100 corporate clients indicated 53 percent of respondents "had a negative outlook on the economy" with 31 percent considering a "recessionary economy" to be the biggest threat.

Whether from Boston, Weymouth, Cape Cod, or elsewhere in MA, anecdotal evidence from talking with attorneys, accountants, and Massachusetts business owners confirms the same.  As a result, Massachusetts small business owners and family businesses are now taking pause and seeking ways to help them protect their assets, both personal and business.

If you have concerns, here are some questions you should be considering today:

• Have you been too busy growing or focusing on your businesses and not made the time to protect your home and family assets?
• Are you conducting risky business in business entities that may not limit your liabilities?
• Are personal guarantees placing your family's assets at risk?
• Do you own companies and assets under one umbrella, possibly exposing everything to liability when an issue arises?

This is my advice whether you are just starting a business or are an existing business owner with liability concerns:

First, take an inventory of your personal assets and personal liability exposures.

Second, take proactive steps to protect yourself and your family.

Third, reduce business liability issues with proper planning and by making use of ordinary and creative options.

While insurance and accounting practices are good steps toward your goals, adding a combination of legal protections with these is a more powerful approach.  Don't wait until you get knocked down and it's too late to take advantage of all your options.  Begin taking stronger strides towards keeping what you have protected, especially while weathering fluctuations in an uncertain or even a recessionary economy.

In this instance it is far better to take arms against a sea of troubles, and by opposing end them...

Erik J. Heels (described as "an MIT engineer, patent and trademark lawyer, Red Sox fan, and music lover) offers a simple visual concerning copyright law in his blog post a Drawing That Explains Copyright Law .

He states:

My drawing could be better. And my explanation could be better. But again, I drew this for a child, so it's a good place to start. The main point is that there are three classes of uses: unregulated, fair use, and protected.

Sometimes a picture can be worth one thousand words...

Potential business owners will often get an idea in their head that won't go away. They start thinking, "How can I do this? How do I go about starting or running my own business?"

There are many resources on the web, some good, some not. A place you might begin conducting some free research is you local SBA office. Visit the Massachusetts SBA local site or the state selector for more choices. In addition, the U.S. Small Business Administration (SBA) provides programs and services to help you start, grow, and succeed as a business owner. They offer several courses listed by topic at their Services > Online Training > Free Online Course page.

The ten free course topics include:

The courses are self-paced and you can choose which you're interested in. No course will answer all your questions about starting a business but there's nothing to lose with trying these out. While the courses aren't a substitute for professional advice, they can help you identify additional questions to raise with your lawyer and accountant.

The U.S. Environmental Protection Agency (EPA) has released its 2008 Report on the Environment.

The document is public resource to enable understanding of trends and challenges to quality in air, water, land and human health. It seeks to measure progress toward protecting the environment and human health by providing data relevant to planning.

The EPA’s website states,

To accomplish its mission to protect human health and the environment, the U.S. Environmental Protection Agency (EPA) must pay close attention to trends in the condition of the nation’s air, water, and land, as well as related trends in human health and ecological systems. To meet this needs, EPA embarked on a bold initiative in 2001 to assemble, for the first time, the most reliable available indicators of national environmental and health conditions and trends that are important to EPA’s mission. EPA initially presented these indicators in its Draft Report on the Environment (ROE) Technical Document (TD), and its publicly oriented companion document the Draft Report on the Environment (ROE), both released in 2003. Since then, EPA has revised, updated, and refined the ROE in response to scientific developments, as well as feedback from EPA’s Scientific Advisory Board (SAB) and stakeholders. As a result, the EPA's 2008 Report on the Environment provides both an update and an improvement over the 2003 draft editions.

List of Regions for Regional Indicator Reports

Region One Indicators Report (Includes Massachusetts).

While not specific to Massachusetts, a recent AAJ Law News Digest (by email, June 5, 2008) cited three articles illustrating interesting developments in arbitration and law, as well as an interesting poll.

Costs vs. Benefits in Arbitration

In No Room for Error in Arbitration?, Thomas E.L. Dewey and Kara Siegel, New York Law Journal, June 03, 2008, write:

Arbitration of commercial disputes has become increasingly common, due in part to the widely held perception that arbitration is a less expensive and more expeditious method of dispute resolution. Recent court decisions, however, have underscored the fact that those perceived benefits come at a price: the U.S. Supreme Court ruled in April that parties cannot agree to a higher standard of judicial review of arbitration awards, and appeared to question the validity of a long-standing doctrine that does permit courts to overturn arbitration awards that are in "manifest disregard" of the law. The net result: parties who agree to arbitrate their disputes should understand that it will be very difficult to obtain relief from an erroneous arbitration award.

Franchise Concerns in Arbitration

In Pressure Grows to Rethink the Use Of Mandatory-Arbitration Clauses By Richard Gibson, he states:

Most franchise contracts once called for mandatory arbitration of issues, rather than going to court. But these days there is growing pressure -- from franchisees, judges, Congress and even some franchisers -- to rethink that longstanding arrangement. 'The trend toward arbitration has pretty much ended,' says Peter Lagarias, a franchisees' attorney in San Rafael, Calif. Among the concerns is that there is no guaranteed right of appeal. 'You have to take what the arbitrator decides,' says Joshua Becker, an in-house counsel for fast-food franchiser Kahala Corp. For that reason, he says, Kahala, whose brands include Blimpie submarine sandwiches and TacoTime, favors resolving issues with franchisees in court."

Doctors Not Treating Patients without Arbitration

The Tampa Tribune Editorial, New 'Hello' In Health Care: Sign Here Not To Sue, states:

"It's not uncommon today for a woman visiting her gynecologist to give up her right to sue if something goes wrong. The doctor simply won't treat her unless she agrees to take any potential claim to an arbitration panel rather than the courts. The same goes for many acute-care hospitals and nursing homes, where stressed-out families with little choice are handed 60-odd pages of documents to sign. Sandwiched near the end, the mandatory-arbitration agreement gets the briefest of explanations. Binding arbitration - not health precautions and explanations - is the new 'hello' in health care. It's a physician's answer to the threat of litigation and the high cost of malpractice insurance. Like some trial lawyers who have convinced clients to sign away their constitutional rights to limited legal fees, doctors are getting patients to sign away their constitutional right to sue, too. This troubling new practice is a barrier to the doctor-patient relati onship, akin to signing a pre-nuptial agreement before getting married. The practice is a form of blackmail: Sign it or get out."

Consumer Poll Results on Arbitration

The AAJ on their webites provide the article, New Poll: Americans Say “No Thanks” To Binding Arbitration:

Washington, DC—Americans generally disapprove of binding arbitration provisions in consumer contracts as an alternative to civil legal proceedings involving a judge or jury, according to a recent national poll by survey firm Peter D. Hart Research Associates Inc.

“Mandatory binding arbitration doesn’t give consumers a choice,” said American Association for Justice President Kathleen Flynn Peterson. “This poll proves that when asked to choose, consumers overwhelmingly say ‘no thanks’ to unfair arbitration agreements. Arbitration can only be a valid and effective method of resolving disputes when both parties agree voluntarily.”

Consumers are sometimes required to sign a contract with a company when purchasing products or services ranging from cell phones to nursing home care. These contracts often include a binding arbitration provision which states the consumer agrees to have any dispute with the company decided by an arbitrator, rather than by a judge or jury in a civil legal proceeding.

Binding arbitration has even been enforced in nursing home deaths. Massachusetts resident John Donahue suffered an eye injury so severe that it required removal of his eye while under the care of a nursing home. The infection caused by his injury eventually led to his death. When his daughter Marlene Owens went to file a claim against the nursing home corporation she was told that her father signed a binding arbitration agreement without any family members present. The nursing home insists that the case be taken to arbitration and the case is currently pending.

According to the polling, when consumers learn that the company picks the arbitrator, and they give up their right to take the case to court and binding arbitration applies even if they are seriously injured, 81 percent disapprove.

The poll also shows broad support for Congressional legislation called the “Arbitration Fairness Act” that seeks to protect Americans from abusive arbitration agreements. The legislation would ensure that the decision to arbitrate be made voluntarily and after a dispute has arisen. In addition, the legislation enjoys very strong support across party lines with no statistically significant differences between Democrats (+38) and Republicans (+37).

Last week, the U.S. House and Senate passed The Food, Conservation and Energy Act of 2008 conference agreement containing a voluntary arbitration provision which would allow farmers to opt out of binding mandatory arbitration clauses at the time they sign a contract with a processing company. The enactment of this provision would mark a significant step forward for farmers who are subject to these abusive contracts.

Summary

Is arbitration right for you? What are your downsides and upsides? These are questions to consider anytime you're faced with an arbitration clause or are considering including one in your contracts. The larger issues remains, are forced arbitration agreements fair and should they be allowed under law? It appears both consumers and companies are now giving this some additional thought.

The article, Whether Paid Keyword Search Advertising Constitutes Trademark Infringement: Opens Rifts Among US Courts, appears in the Intellectual Property Update, Spring 2008, Squire, Sanders & Dempsey L.L.P. It concludes with,

While we expect the importance of the Internet and search engines to lead to a greater number of disputes over paid search keywords and related issues, the creation of a uniform set of rules – and with them settled expectations – will require additional time. In the meantime, both trademark owners and those using trademarks as paid search keywords should pay close attention to this area of the law as it continues to develop.

The article explains the use of keywords in online advertising and looks at the different results different courts have reached. The analysis is worth reviewing to anyone using keywords. This is true in their own advertising campaigns or for anyone who is seeing unexpected results from searches on their trademarks.

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...