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

Modification of a MA child support order was recently discussed in the Massachusetts Appeals Court case, Kenneth R. Whelan vs. Kathleen A. Whelan. One of the issues discussed in this case involved self-employment income as it relates to MA child support obligations. In a footnote, Note (17), the court writes:

(17) New Child Support Guidelines became effective in Massachusetts on January 1, 2009. The new Guidelines define income as "gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or State Department of Revenue or other taxing authority." Guidelines I-A (2009). With respect to income from self-employment, the new Guidelines provide that "[i]n general, income and expenses from self- employment or operation of a business should be carefully reviewed to determine the appropriate level of gross income available to the parent to satisfy a child support obligation. In many cases this amount will differ from a determination of business income for tax purposes." Guidelines I-C (2009).

While the prior Child Support Guidelines, "do not specifically provide for deduction of business-related expenses from self-employment income[,]" the court indicated the new MA Child Support Guidelines "clarify" the approach MA courts have taken.

The 2006 Guidelines, in effect at the time of trial, do not specifically provide for deduction of business-related expenses from self-employment income. Indeed, these guidelines list in the definition of income from whatever source both "income from self-employment" as well as, by way of comparison, "net rental income." Guidelines I-A(1), (25) (2006). Nevertheless, we think it is implicit that such expenses may be deducted where they are reasonable and necessary for the production of income, and our decisional law supports this conclusion. See, e.g., Smith-Clarke v. Clarke, 44 Mass. App. Ct. 404, 406 (1998) (due to lack of substantiation and commingling of personal and business expenditures, judge properly could disregard certain claimed business deductions from husband's gross income or substitute a reasonable figure for others); Maillet v. Maillet, 64 Mass. App. Ct. 683, 689-690 (2005) (remand ordered where financial statement of husband, sole owner of business, set forth income of $800 per week, and "his corporation in 2002 had income of $227,744 exclusive of suspended losses and depreciation").

The court reasoned the test to be applied by a judge in determining income from self-employment is,

...whether claimed business deductions are reasonable and necessary to the production of income, without regard to whether those deductions may be claimed for Federal or State income tax purposes.

While the MA Child Support Guidelines help bring a degree of certainty to Massachusetts child support orders, this case shows the numbers one uses in the child support formula may not necessarily be the same as income reported on tax forms or found in business reports. In self-employment and investment income cases, it's important to be able to articulate what income and expenses should be taken into consideration in determining the income which should be entered into the child support worksheet.

Technorati Tags: MA Divorce, Modification, Self-Employment, Income, Modification

Thank you to the Patriot Ledger and Reporter Julie Onufrak for covering my Privacy Law and Policy Blog in today's business section, Weymouth lawyer blogging about the Internet and privacy. It was a pleasure to meet Julie and we had an interesting discussion on the future of media, blogs, newspapers, as well as privacy issues.

The U.S. Supreme Court in, Melendez-Diaz v. Massachusetts (PDF), concludes, "[t]he Sixth Amendment does not permit the prosecution to prove its case via ex parte out-of-court affidavits[.]" Thus, MA defendants and defense attorneys will now be allowed to challenge the prosecutions' evidence prepared for trial by questioning the person who prepared a forensic report or analysis. SCOTUS Blog's analysis of the MA case states,

Expressing a heavy dose of skepticism that crime lab reports are so reliable as to be beyond question, the Supreme Court on Thursday cleared the way for chemists and other scientists who prepare such reports to be summoned to the witness stand in criminal trials to defend their analysis.  The 5-4 ruling in Melendez-Diaz v. Massachusetts (07-591) resulted from some unusual alliances among the Justices, and continued the deep division within the Court over how to interpret the Constitution’s guarantee that an individual on trial for a crime has a right to face and challenge the witnesses for the prosecution.

Justice Antonin Scalia, writing for the majority, found this case to follow the court's precedent expressed in Crawford v. Washington. In laying the framework, Scalia states:

The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment, Pointer v. Texas, 380 U. S. 400, 403 (1965), provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” In Crawford, after reviewing the Clause’s historical underpinnings, we held that it guarantees a defendant’s right to confront those “who ‘bear testimony’” against him. 541 U. S., at 51. A witness’s testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Id., at 54.

See the SCOTUS Wiki for more on this case.

Technorati Tags: MA, Confrontation, Defense, Supreme Court, Forensic

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...

... we take this opportunity to stress that we have no doubt that self-settled, irrevocable trusts may, if so structured, so insulate trust assets that those assets will be deemed unavailable to the settlor. ... Muriel's trust is a carefully crafted, entirely appropriate estate planning device. But neither the trust's validity nor her good intentions determine the present question. In our view, Muriel's trust, as structured, allows the trustees a degree of discretionary authority that would, if sanctioned, permit Muriel to enjoy her assets, preserve those assets for her heirs, and receive public assistance, to, in effect, "have [her] cake and eat it too." ... Congress has declared a contrary intent, that Medicaid benefits be made available only to those who genuinely lack sufficient resources to provide for themselves. We perceive no reason in this case to deviate from that mandate.

MURIEL DOHERTY vs. DIRECTOR OF THE OFFICE OF MEDICAID, Essex Docket No. 08-P-939.

This case shows the importance of the entire trust document as a whole and the importance of not simply relying on certain provisions or words to protect assets.

Technorati Tags: Medicaid. Trust, Irrevocable trust, Self-settled trust, Distribution, Trustee's discretion

In Coombes v. Florio, 450 Mass. 182 (2007), a physician owed a duty of reasonable care to those foreseeability put at risk by a doctor’s failure to warn the patient of the side effects of the patient's treatment. In Coombes a young boy was struck and killed by a car driven by one taking medications, but who had neither been warned of the medications' side effects, nor been told not to drive while taking these medications. See Massachusetts Bar Association review of Coombes. Thus, liability under Coombes could be extended and include those not having any doctor-patient relationship. A recent case dealing with negligence, duty, and foreseeability sought to expand this holding even further, but it was unsuccessful before the Massachusetts Supreme Judicial Court (SJC).

In Leavitt vs. Brockton Hospital, Inc., Sheila Smith and Karen Sullivan (slip opinion), a pedestrian involved in a car accident had undergone a colonoscopy earlier in the day and was walking home from Brockton Hospital when struck by another vehicle. While heading to the accident's location, a Whitman police cruiser was hit by another vehicle resulting in an officer being seriously and permanently injured. The police officer sued the hospital for negligence claiming they had breached their duty of care, among other things, when they released the previously sedated patient without an escort. The Supreme Judicial Court agreed the case had been properly dismissed by a lower court and upheld that court's decision.

In a footnote, the court noted the different standards for reviewing a motion to dismiss because the standard had changed from the time of the judge's ruling to the time of the SJC's review. Regardless, the court opined this case would have failed under either standard.

After the judge had ruled on the hospital's motion to dismiss, we adopted as applicable to our civil rules the United States Supreme Court's revision of the standard for reviewing the adequacy of a complaint challenged by a motion to dismiss pursuant to Fed. R. Civ. P. 12 (b) (6). See Iannacchino v. Ford Motor Co., 451 Mass. 623, 635-636 (2008), quoting Bell Atl. Corp. v. Twombly, 127 S. Ct. 1955, 1966 (2007) ("What is required at the pleading stage are factual 'allegations plausibly suggesting [not merely consistent with]' an entitlement to relief . . ."). The hospital does not ask that we apply the new, "stricter" standard. See Flomenbaum v. Commonwealth, 451 Mass. 740, 751 n.12 (2008). The complaint would not survive the hospital's motion to dismiss under either standard.

Technorati Tags: negligence, duty, police, hospital, Coombes

Does your Massachusetts divorce agreement have a provision that addresses disagreements regarding the college selection process or does it tightly define what are reasonable education costs? Perhaps it should. With a number of colleges now above $50,000/year for each child, and the economy where it's at, disputes over education expenses are likely to be on the rise for some time.

What are "reasonable college expenses" and what happens when parents disagree during the college selection process? The answer depends on many factors, holds a MA Appeals Court in Paula A. Mandel vs. Shawn W. Mandel. The court introduced the Mandel case as follows:

In 1996, the parties, Paula Mandel and Shawn Mandel, obligated themselves...to each pay for one-half of their daughters' "college education expenses." The provision contained no further explanation regarding cost or choice of school, although another...provision provided both parents with the right to participate fully in their daughters' activities and with input into educational decisions. A decade later, their older daughter enrolled at a private university costing approximately $34,000 a year. The parties never reached an agreement on payment, and when Shawn refused to pay fifty percent of the cost, Paula initiated contempt proceedings against him. A Probate and Family Court judge eventually found that Paula and the child had selected a school "financially out of reach" for Shawn and ordered him to pay approximately one-quarter of the expenses of the private college. On appeal, Paula claims the judge erred by not requiring Shawn to pay one-half of the expenses actually incurred. Shawn argues that the judge properly limited his obligation to the expenses he would have paid had the child attended a State university.

In Mandel, the court ultimately held that further proceedings, regarding the reasonableness of the college expenses in these circumstances, are required. Some of the specific terms in the Mandel Agreement included,

Both parents shall participate fully in providing access to the child and her activities, and input into educational, medical, behavioral and other significant decisions affecting the child.
...

The Husband and Wife shall each contribute 50% toward each child's college education expenses, including, but not limited to, room, board, tuition, books, fees and other normal educational expenses.

Are reasonable education costs measured using public school costs as the standard, or are they the actual costs at a private school?  Or, is it something different altogether? In addressing these questions, the court reviewed "all relevant equitable factors" which courts have considered in examining the educational needs of the child and the financial circumstances of the parents, including:

• Financial resources of both parents;
• Standard of living the child would have enjoyed if the marriage had not been dissolved;
• Financial resources of the child;
• Cost of the school;
• Programs offered at the school;
• Child's scholastic aptitude;
• How the school meets the child's goals;
• Benefits the child will receive from attending the school;
• Parents' standard of living," which in some cases "includes the ability to provide certain opportunities...such as private school education"; and
• Massachusetts Child Support Guidelines, encouraging "joint parental responsibility for child support in proportion to, or as a percentage of, income."

An additional factor mentioned by the court in its opinion considers the college decision making process,

the extent to which [a party] unjustifiably may have been excluded from the [college] decision-making process.

But it appears timing, or taking some action during the process, is also an important factor,

Conversely, a party who has sat on his or her right to intervene, or to seek approval from the court when the parties disagree, until the college selection process has been completed, may have waived his or her right to object to the college and its concomitant cost.

So at the end of the day, the answer is, "it depends" and thus will require further litigation to answer the question as to what is reasonable under the circumstances. Knowing this analysis could be waiting for you in a divorce, do you prefer to take steps now to lock down these issues in a divorce agreement or leave them open for later interpretation. If later, are there any special considerations you want included in your agreement?

Divorce and education disputes are likely to be on the rise, as the court noted in a footnote,

Disagreement itself is not surprising. "With the explosive growth in the cost of financing a college education, the issue of who will pay those costs after the divorce of the parents is becoming increasingly acute." 2 Kindregan & Inker, Family Law and Practice § 39:50, at 830 (3d ed. 2002). Overall, college tuition and fees have increased 439 percent from 1982 to 2007, adjusted for inflation. National Center for Public Policy and Higher Education, Measuring Up 2008: The National Report Card on Higher Education 8 (2008). The difference between college costs at different types of universities is also significant. According to the National Association of State Universities and Land-Grant Colleges(NASULGC), tuition and fees averaged about $3,200 for community colleges and $33,000 for private research universities in 2006-2007. NASULGC, University Tuition, Consumer Choice and College Affordability: Strategies for Addressing a Higher Education Affordability Challenge 14, 85 (2008).

Technorati Tags: Divorce, Separation, Separation agreement, Child support, Modification, Child support, Education, Reasonable college expenses, Massachusetts, divorce agreement

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.

According to a report released by the Pew Center on the States,

Explosive growth in the number of people on probation or parole has propelled the population of the American corrections system to more than 7.3 million, or 1 in every 31 U.S. adults [.]

With respect to Massachusetts, here are some of their findings:

• 1 in 24 adults is under correctional control (probation, parole, prison, or jail.)
• 1 in 28 is on probate or parole.
• 1 in 190 is in prison or in jail.
• $1.25 billion is spent on corrections or 4.6% of 2008's general fund.
• 1 day of prison ($130.16) = 18 days of parole.
• For every dollar spent on prisons in 2008, 4 cents was spent on parole.

Anecdotal evidence suggests crime may rise in tough times, what impact will this have on strained budgets already compromised on public safety issues?

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

The ABA Journal post, Another Federal Judge Allows Twitter Coverage of Trial, discusses the use of twitter media coverage in a federal case involving six accused gang members.  Note, the journalist, not the gang members, was using twitter. Are we seeing the start of a courtroom coverage trend? In January, I posted about a federal judge allowing blog coverage of a trial. While reports of this type appear to be growing, courtroom coverage through new technology is not well received everywhere

In my prior post, I mentioned a Recording Industry Association of America (RIAA) case brought against Joel Tenebaum, a Boston University graduate student (involving alleged illegal music downloading from the internet.) In this case, U.S. District Court Judge Nancy Gertner granted a motion to allow video streaming coverage of the hearing via a webcam. RIAA argued against this and Judge Gertner evenhandedly postponed the hearing to allow an appeal. The hearing, originally postponed until Feb. 24, 2009, has now been postponed even further.

Jaikumar Vijayan, in an informative post, New Hurdle for video streaming order in RIAA piracy case, writes:

The U.S. Court of Appeals for the First Circuit issued an order on Feb. 20 asking both sides in the case to provide their legal comments on a 1996 ban on the use of cameras in the circuit's court rooms.

The appeals court has given Tenenbaum and the music labels 20 days from the order to file the comments, or supplementary briefs, on the likely implications of the 1996 resolution on the present case.

In a separate development, a scheduled hearing of the case Tuesday in a federal district court in Boston, at which the live streaming was to have occurred, has been pushed back to April 30.

I applaud Justice Gertner for her ruling and I hope her decision is upheld. If so, I think it will be interesting to see what people tweet about on twitter while watching the streaming video coverage of an alleged illegal music downloading case. If you think about that idea for a minute, does anyone doubt the web isn't changing things dramatically?

Follow me on twitter.

March 4, 2009 could be a busy day, for some. News reports on mortgages and the stimulus package provisions for banks and homeowners have people on twitter, blogs, and their phones asking, "What do I do? How do I qualify? When can I do this?"  It has many others asking, "Will it work?" For some the answer is a tentative yes, but the jury is still out on the larger economy.

The Boston Globe in, Homeowners anxious for details, reports:

The Obama administration plans to issue guidelines March 4 when the program starts. Included in the plan is a change in lending rules to help as many as 5 million homeowners refinance, $75 billion to help up to 4 million homeowners most at risk of foreclosure, and a pledge of $200 billion to mortgage giants Fannie Mae and Freddie Mac to help keep mortgage rates low.

While the package holds hope for some, it is not expected to be a lifeline for everyone.

...first mortgages must also fall between 80 and 105 percent of the value of their home. About 25 percent of Boston-area homeowners...would meet this debt-to-value criteria, according to real estate tracker Zillow.com.

An editorial in the Philadelphia Inquirer addresses the here and now while applauding doing something rather than nothing,

...President Obama is addressing the root cause of the economic crisis in a way that should finally help struggling homeowners.

...

It's the most comprehensive effort yet at dealing with the impact of plummeting home values, which have left so many families "under water" - owing more than their homes are now worth.

The Tri City Herald, in, Housing rescue plan is a hopeful beginning, is more tempered in its analysis and discusses President Obama's statement that government intervention would keep the housing crisis "from wreaking even greater havoc" on the broader national economy. The Herald addresses the bailout in relation to the greater economic context:

The $75 billion lifeline to stave off foreclosures for millions of Americans comes as the stock market is dropping, jobs are vanishing and some of the nation's once-iconic corporations face possible bankruptcy.

The question many continue asking is, "Given the larger economic challenges, will this work?"

The Globe article cited above also quotes Nicolas Retsinas, director of Harvard University's Joint Center for Housing Studies, who said if homeowners lose their jobs, they likely can't hold onto their homes even with lower interest rates. "The storm cloud hanging over the plan is the economy[.]"

Adding a comparative international element to the looming question, Susan Cartier Liebel brought to my attention, via Twitter, this New York Times article, When Consumers Cut Back, Lessons From Japan, which looks at Japan's recent economic stimulus experience:

Economic stimulus programs like the one President Obama signed into law last week have been hampered in Japan by deflation, the downward spiral of prices and wages that occurs when consumers hold down spending — in part because they expect goods to be cheaper in the future.

Economists say deflation could interfere with the...cash handouts that the Japanese government is planning, because consumers might save the extra money on the hunch that it will be more valuable in the future than it is now.

The same fear grips many economists and policymakers in the United States. “Deflation is a real risk facing the economy,” President Obama’s chief economic adviser, Lawrence H. Summers, told reporters this month.

This fear of deflation seems to square with anecdotal evidence of how people are responding to our economic crisis.  Consider the following from The Wall Street Journal's, Remembering the Dawn of the Age of Abundance: Times are hard, but dynamism isn't dead,

All of this hunkering down has stopped the great churning, the buying, selling and buying that was at the heart of our prosperity. In private equity firms, the churning was life. They bought a company, removed the fat, sold it at a profit, and bought another one. They kept moving. That's over. No one is buying now, and no one can sell.

But, Peggy Noonan's article, offers a different type of stimulus, an innovative and local one:

I end with a hunch that is not an unhappy one. Dynamism has been leached from our system for now, but not from the human brain or heart. Just as our political regeneration will happen locally, in counties and states that learn how to control themselves and demonstrate how to govern effectively in a time of limits, so will our economic regeneration. That will begin in someone's garage, somebody's kitchen.... The comeback will be from the ground up and will start with innovation. No one trusts big anymore. In the future everything will be local. That's where the magic will be. And no amount of pessimism will stop it once it starts.

Perhaps the stimulus package we need isn't only economic, but is social, too. Could our troubles lead us back to communities where people remain local and to where families grow and remain close, close enough (not 'close' defined in terms of distance only) to support each other again? Perhaps a return to ungated communities where people, instead of being locked out, are welcomed into their neighbors' lives?

Speaking personally, the town I grew up in has grown more distant to me. My mother's mother's mother down the years to my daughter have called this town home--I'm even an elected official here, but something has been missing, something amiss from my cherished youth. Don't get me wrong, there remain many friendly people and places, but many of these, surprisingly, I recall from years ago, and fewer, more recently. Today, a culture of stranger danger and selfism has made good fences more important than good neighbors. As a child, we had less, but we had more, too.

Fondly, I recall marching on picket lines with my father's union when jobs were scarce. Going to flea markets in the blue cargo van and working beside Dad for the day as we sold all sorts of things to help us get by. A cheese pizza at the Liberty, a small pub Mom was waitressing at. Fishing. Going to a single Red Sox game in Fenway Park. Our family trip to Disney World meant busting open the piggy bank we had been filling for years and six of us squeezing into a Datsun 210 while stopping at hotels along our way while checking prices for our night's stay. We played, in the neighborhood, climbed trees, ran in and outside the library. We made up our own games and enjoyed make-believe. Structure gave way to experimenting. Teachers taught with passion. Coaches placed character before winning trophies.

Years ago, while working with teens removed from their families, I became a fan of narrative therapy. Wikipedia states, "Narrative therapy holds that our identities are shaped by the accounts of our lives found in our stories or narratives." These resilient kids taught me circumstances alone don't make the person, but rather it's what you believe about yourself that matters most. It's a matter of perspective and identity. What story will define our times? What narrative will we write for future generations?

I, too, hope for a comeback, but the comeback I hope for isn't merely economic. While the stimulus plan won't save everyone, if it helps more people stay in their homes while preserving and building better communities, then it's a social investment we may all benefit from. It frames a prouder tale of hope and of help. Which story is better? Is taking helpful action preferable to succumbing to weaker woes of corruption, defeat, or a quitting attitude that it's just too late?

The narrative of our economic challenge might better be viewed through the eyes of those who landed in Plymouth with little more than hope and determination for a better life. What would they say to us? What can be accomplished against great odds when determined people, true survivors, come together? Emerson wrote of progress despite the negatives, "We see, now, events forced on, which seem to retard or retrograde the civility of ages. But the world-spirit is a good swimmer, and storm and waves cannot drown him."

Neither our economy nor our mortgage interest rates are the greatness of America. No, freedom and the opportunity for a better life have guided us true. Today provides an opportune time for us to rediscover those things that truly matter and to return to the basics. This is not defeat, we remain the land of the free and the home of the brave. As Thomas Paine declared in times of far greater peril,

I love the man that can smile in trouble, that can gather strength from distress, and grow brave by reflection. 'Tis the business of little minds to shrink; but he whose heart is firm, and whose conscience approves his conduct, will pursue his principles unto death.

Sure, there will be those passive people who may say to others, "Make it better for me today while I go on watching or complaining." But those truly living the American dream, a dream shared by our forebearers, will join together and with a proud smile proclaim (borrowing once more from Twain), "If there must be trouble, let it be in my day, that my child may have peace[.]"

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.

Today (according to the art surrounding my google search box) is Charles Darwin's birthday. Much has evolved in the intervening 200 years, including the practice of law. Yesterday, I attended the ABA's Techshow Roadshow in Boston and was pleased with what is emerging in legal technology. I'm always looking for ways to practice law both better and smarter while delivering innovative solutions to peoples' problems (I'll be speaking on this topic at a CLE seminar for lawyers in the spring and I'll post the details once they are finalized.)

While I haven't read it yet, lately, there's been a good deal of talk about Richard Susskind's new book, The End of Lawyers?: Rethinking the Nature of Legal Services.  Richard will be the Keynote speaker at ABA Techshow 2009 in Chicago this April. I look forward to his talk and the talk about his talk that will follow. What does the future hold for law, lawyers, and society?

I'm hoping the law and lawyers practices continue to evolve by making better use of technology. I hope this advancement results in benefits not just for lawyers, but for their clients and for society as a whole. Making the protections of law available to more through better uses of technology is possible. On the practical side, development and better use legal technology can also lead to attorneys who are more efficient and satisfied with their careers. Perhaps we're in the midst of a sort of adaptive evolution occurring within law and technology. Are legal blogs and lawyers on twitter the equivalent of Darwin's ecological niches in biology? Time will tell. Just like Darwin's contributions to our understanding and debates, there remain many doubters. Regardless (aka Irregardless in Boston), Happy Birthday, Chuck.

Debt and bankruptcy lawyers across MA know it's not just Massachusetts bankruptcies, a look at all bankruptcy filings by state shows bankruptcy filings continue to rise. For additional statistics see the American Bankruptcy Institute's News Room and Statistics. The ABI shows a graph alongside their assertion that consumer debt is consistent with bankruptcy filings and also states:

Research by the Federal Reserve indicates that household debt is at a record high relative to disposable income. Some analysts are concerned that this unprecedented level of debt might pose a risk to the financial health of American households. A high level of indebtedness among households could lead to increased household delinquencies and bankruptcies, which could threaten the health of lenders if loan losses are greater than anticipated.

As go consumers (and consumer bankruptcy) so go some retailers, too. Linens-N-Things and Circuit City are only two recent big name business bankruptcies.  Some consumers looking for last minute deals may be scouring the "going-out-of-business sales" in search of a bargain price.  A Better Business Bureau article, however, is warning shoppers to be on the lookout for false deals. The BBB article cites examples of prices being marked up by the liquidators handling the sale.

If you'd like to discuss bankruptcy or alternatives to bankruptcy with a Massachusetts attorney, contact us.  If you are a Wilson & Whitaker, LLC client looking for our online bankruptcy portal (where you can work on or enter all the needed information from any computer connected to the internet), visit here.

Recent articles from the ABA Journal touch upon how the use of technology is not just shaping trials and trial techniques, but also how trials are covered and may be covered in the future.

The first article, Judge Explains Why He Allowed Reporter to Live Blog Federal Criminal Trial, discusses an Iowa case where a reporter, Trish Mehaffey, was allowed to use a laptop to cover a tax fraud trial through a live blog.  The practice may be a growing one.

Mehaffey says she’s heard of several reporters allowed to blog from state court proceedings. A few federal judges besides Bennett [the judge above] have also allowed live-blogging of trials.  Accredited journalists were allowed to use laptops and other electronic devices to cover the trial of five men convicted of plotting to attack Fort Dix, according to a court website listing the rules. The media representatives received a password giving them wireless Internet access in the courtroom.

In a second article, US Appeals Court Orders Expedited Briefs in Webcast Challenge, brings us to Boston where use of a webcam was approved to cover a hearing involving an alleged illegal music download case (the hearing has been delayed until Feb. 24 as the Recording Industry Association of America is appealing the judge's decision.) The Boston Globe reports,

The appeals court said ... the question of webcasting raises "subtantial and novel questions," and it has invited groups and individuals to file friend-of-the-court briefs by Jan. 29. The appeals court said it may hold oral arguments, as well.

In a third article, In Seeming First, Aussie Court Says Default Judgment Can Be Served on Facebook, a link to a Herald Sun article, Lawyers given permission to serve debtors with default judgment through Facebook, discusses how social networks on the web could be making inroads into post judgment issues in Australia.  Here the plaintiff was allowed, by the court, to serve a default judgment through Facebook.

The Facebook profiles showed the defendants' dates of birth, email addresses and friend lists -- and the co-defendants were friends with one another. This information was enough to satisfy the court that Facebook was a sufficient method of communicating with the defendants.

These early cases are examples of the issues likely to come.  Remember, these issues were all approved by a few of today's jurists.  What changes will the Web 2.0 generation of judges and beyond be considering?

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.

Looking to file an unemployment claim in Mass.? There are two (2) ways to file an unemployment insurance (UI) claim: by telephone or in person.  Before calling you may want to see the State's FAQ about unemployment insurance. For instance: What information do I need when I apply? can help you have the information available when it's needed.

An article at WBZ NEWSRADIO 1030 - "MA lengthens hours for unemployment call-in centers" discusses the increased hours at call-in centers for filing Massachusetts unemployment claims due to the increase in demand from the newly unemployed:

A surge in layoffs has led to lines as long as two hours at unemployment centers and lengthy waits for those filing by phone. Call center workers answered nearly 30 percent more calls in October, compared to a year ago.

Effective immediately and through the end of the year, the statewide Teleclaim Centers will be open Monday-Friday from 8:30 a.m. to 6:30 p.m., and Saturdays from 8 a.m. to 1:30 p.m.

On the Massachusetts Employment Law front, with the number of claims being processed, there will likely be an increase in appeals, too.  Just because a claim is initially denied doesn't mean it won't be allowed if the denial is correctly challenged.

Probate lawyers in Brockton, Plymouth, Quincy, Weymouth or, for that matter, anywhere in Massachusetts help executors, estate administrators, and others with the mechanics of selling probate real estate or with probate in its entirety. Some general probate areas might include:

• Having a will approved;
• Probating a will;
  
• Obtaining a court appointment as an executor or administrator;
• Managing assets;
• Determining an estate's liabilities;
  
• Filing an inventory of property with the probate court;
  
• Dealing with state and federal estate tax issues;
• Obtaining a license to sell real estate;
• Negotiating and paying debts of the decedent;
  
• Making distributions to heirs and others;
  
• Providing accounts to the court; and
  
• Other matters before closing out the probate matter.
  

While individual cases may be simple or complex (depending on the law and circumstances), I've observed complications aren't usually about the law or legal procedures, but often involve people, their relationships, and their different perceptions and perspectives. I've seen this occur in many probate areas, but ofen in probate real estate matters.

Probate real estate sales can be procedurally nuanced but easily managed with proper guidance from an attorney.  A probate lawyer with an understanding of both Massachusetts real estate law and MA probate courts' customs and procedures can get most people through the maze of issues, forms, and procedures succesfully.  Getting people to agree on a fair selling price, however, can often be more difficult at times. This obstacle is primarily perception driven and often includes not only buyers and sellers with different price assessments, but can also include several related sellers each with differing opinions on what the asking or ultimate selling price should be.  While proper advanced estate planning can help avoid some conflicts, there are other practical steps to consider when estate planning isn't in place.  During a series of posts that follow I'll be discussing these in more detail.

This Mass PI law post is last in a series of five that revealed 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.)

Wolf in sheep’s clothing – The friendly insurance adjuster (from the car that hit you) wants to check in on you and see how you’re doing.  In order to help you and get your bills paid, they’d like to come visit you at your home and go over some simple forms (some don’t even announce their visit and just show up).  Perhaps the tape recorder comes out, perhaps the wolf asks the questions in a cunning way, perhaps you're left wondering what just happened or even worse, perhaps you think he/she seemed like a nice person.  If so, there may not be any pleasant fairy tale endings in store for you.  If the wolf's already been around, get help quickly you're case becomes his next snack.

Massachusetts consumers beware. This New York Times article gives gift card givers something to think about, especially as the holidays near.

This Mass PI law post is the fourth in a series of five discussing themes to watch out for when settling your car accident case (or questioning whether you need a lawyer at the start of  your Massachusetts personal injury case.)

Fear of trial – How far do you want to take your case? Are you willing to lose it all?  In addition, are you willing to go through all the pre-trial actions and wait for a trial date in the distant future? These are fears that can be relied on and can often lead to low settlement offers being offered, and unfortunately too often, accepted.

Next installment: Part 5 -- Wolf in Sheep's Clothing

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.

What is considered "income" in a Massachusetts divorce for the purposes of Child Support under the new Child Support Guidelines Effective January 1, 2009?

For purposes of these guidelines, income is defined as gross income from whatever source regardless of whether that income is recognized by the Internal Revenue Code or reported to the Internal Revenue Service or state Department of Revenue or other taxing authority. Those sources include, but are not limited to, the following:

1. (a) salaries, wages, overtime and tips; (b) income from self employment;
2. commissions;
3. severance pay;
4. royalties;
5. bonuses;
6. interest and dividends;
7. income derived from businesses/partnerships;
8. social security excluding any benefit due to a child’s own disability;
9. veterans’ benefits;
10. military pay, allowances and allotments;
11. insurance benefits, including those received for disability and personal injury, but excluding reimbursements for property losses;
12. workers’ compensation;
13. unemployment compensation;
14. pensions;
15. annuities;
16. distributions and income from trusts;
17. capital gains in real and personal property transactions to the extent that they represent a regular source of income;
18. spousal support received from a person not a party to this order;
19. contractual agreements;
20. perquisites or in-kind compensation to the extent that they represent a regular source of income;
21. unearned income of children, in the Court’s discretion;
22. income from life insurance or endowment contracts;
23. income from interest in an estate, either directly or through a trust;
24. lottery or gambling winnings received either in a lump sum or in the form of an annuity;
25. prizes or awards;
26. net rental income;
27. funds received from earned income credit; and
28. any other form of income or compensation not specifically itemized above.

The New Guidelines also discuss Overtime and Secondary Jobs, Self-Employment or Other Income, Unreported Income, and Non-Parent Guardian Income.

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

This Massachusetts PI law post is the third in a series of five addressing 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.

Wait them out – A driver injured when another car struck her from behind suffered injuries and incurred minor damages.  The medical bills were just under the threshold for a claim to be pursued ($2,000 at the time).  Don’t expect the insurance company to tell you about the out of pocket expenses you can be reimbursed for and make your claim actionable.  In other instances, they can just wait you out and offer to make a small payment knowing you are getting collection letters and want to protect your credit.  If you don't know about the tort threshold is, are close but not sure what counts, or concerned about your unpaid bills, then consult with a MA personal injury attorney.

Next installment or Part IV: Fear of Trial

Did you know there are lawyers in Massachusetts who are qualified for offering services in certain Probate and Family Courts on a limited basis?  This allows you to hire a lawyer to help you with some things but not others.  For instance, a lawyer could help you draft a complaint for divorce, a probate petition, a license to sell real estate, or coach you on evidence matters.  Some could even be hired for a day or part of day to attend a motion, deposition, conference, mediation, hearing, or trial. 

The goal of this program is to find ways for people to gain access to qualified attorneys on an as needed basis.  The philosophy is, some representation is better than no representation.  You can read more about this program at the Massachusetts Bar Association site or visit here for various orders from the SJC extending the program in certain counties through 2008.

Massachusetts had three questions on its statewide ballot in yesterday's election.

• Question 1 (eliminate state income tax) failed;
• Question 2 (marijuana possession of one ounce a civil fine not criminal matter) passed; and
• Question 3 (eliminate dog racing in MA in 2010) passed.

Boston Globes Results
Massachusetts Ballot Questions as Appeared November 4 2008

"Yes he did." Now with respect to the judiciary, "Yes he can," remains a theme likely to apply without much opposition. Bloomberg.com: News reports

The election of Barack Obama and a Democratic surge in the legislative branch could signal a shift in the nation’s court system. As President, Obama will be able to appoint federal, and possibly Supreme Court,judges that are more supportive of consumer and employee rights than many currently on the bench. Equally, a Democratic majority in the Senate should lead to swift confirmation of appointees.

Greg Stohr's article provides more analysis and context for court's future under an Obama Administration.

This post is the second in a series 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.)

Blame the victim -- The at-fault driver’s insurance company tries to pressure you into a speedy, unfair settlement and if you don’t agree they threaten to sue you. The theory becomes you’ll get nothing, and be responsible for the unpaid bills. I have an elderly client they tried this with. She was parked at a light and rear-ended but they tried to bully her and claim it was “her” fault. Don't let them push you around. If it starts, end the conversation and get an attorney.

Next installment #3 -- Wait them out.

Thanks to Susan Cartier Liebel's blog post for pointing me to a great video. In under 9 minutes, the video, "Did you know 2.0", clearly conveys an appreciation of America's challenges in education and with evolving technology.

I find the video's message akin to Al Gore's movie "An Inconvenient Truth" (view trailer), but instead of environmental challenges, this video illuminates challenges in both education and technology -- although I suspect neither of these is ultimately too far removed from Gore's concerns. With the elections approaching, the economy struggling, and people's desire for change bubbling over, it think it's fair to predict for the times they are a-changin' in politics, technology, and law.

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

I got the chance to check out the Massachusetts Bar Association and Lawyers Weekly Legal Tech Expo at the Sheraton in Boston today.  I'm glad I was able to attend and I'd recommend the March 2009 event to practicing attorneys in the area. 

It was nice to connect with local folks from TurboLaw and other favorite vendors.  The football from Esquire Litigation Solutions was a big hit with my son -- it was worth carrying around for him.

Rick Borstein's presentation on Adobe Acrobat 9 shows some promising features, but I'm still waiting to hear how it integrates with TimeMatters (until I find the perfect TimeMatters replacement.) Rick wasn't sure so I'll probably have to wait and see.

For real estate conveyancers, e-recording is here and moving ahead: check out simplifile.  I had an informative discussion with Attorney Paul Roth and I was suprised to learn the number of MA counties already recording online, including Plymouth.

Matthew Dorris of Z Media Technologies Inc. provides support for media projects.  We had a  brief but impressive discussion about video production options for web content.  This may be reasonably priced solution if you're looking for one.

I've not mentioned others (some business cards are still in my car) and still others I didn't get to meet, but everyone I spoke with shared a vision of using technology to improve the delivery of legal services and was excited about what the future holds.  If you interested in more information, see the full list of vendors.  Also, consider visiting Law Office Management Assistance Program for additional resources or consider attending the March 20, 2009 event at the Sheraton Framingham.  I'm also putting together a Legal Tech Continuing Legal Education program or series in South Eastern MA for the Spring/Fall, if you're an attorney in the area and have an interest in participating or specific areas you'd like to covered, please contact me.

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

It's not uncommon for death and probate cases in Mass to involve people who are suffering a loss and experiencing grief. As their lawyer in a wrongful death case or in a Massachusetts probate estate matter, I'm often directly discussing what caused the death of their loved one or the final wishes of a spouse, parent, child, or friend. Some of our discussions can be difficult and quite emotional

It seems whenever someone begins to cry or need a moment, they almost instinctively need to apologize afterward and then offer a reason for why they shouldn't be getting emotional. I've heard person after person explain how they "should" be experiencing their grief. I've never quite understood this -- many times their loss moves me too.

While I'm no psychologist, I've never found there to be any set rules here. While it's somewhat slanted in its origin (and in a couple of places maybe), I came across this article discussing the Ten Common Myths and Realities About Grief. I'm listing an excerpt of some of the myths below to give you the general idea.

• "It has been a year since your spouse died. Don't you think you should be dating by now?"
• "You look so well!"
• "The best thing we can do (for the griever) is to avoid discussing the loss."
• "It has been six (or nine or 12) months now.
• "Don't you think you should be over it?"
• "You need to be more active and get out more!"
• "You are young, and you can get married again."
• "Your loved one is no longer in pain now. Be thankful for that."
• "She cries a lot. I'm concerned she is going to have a nervous breakdown."
• "Grief support groups are too depressing and not helpful."

Again, I'm no psychologist, but I'm guessing the list (on myths about grieving) could be expanded quite a bit and, like me, many lawyers in Mass and elsewhere have seen it firsthand.

Some bereavement support resources (these may change but a search for "bereavement support group" and then your area may offer some local results) are below. Also check with your local hospice, hospital, funeral home, city/town hall, or attorney for local options if you are interested.

Some links from today...

• Massachusetts Center for Sudden Infant Death Syndrome

• MGH Bereavement Support Group

• The Good Grief Program

• The Good Grief Program Family Resources Page

• Hospice of the South Shore Bereavement Care: 781-794-7803

• Quincy Hospital Bereavement Support Group: 617-376-5502

• Grief and Loss Resources from website of Help Starts Here also see their article on Grief and Loss - Your Options: Bereavement Support Groups -- An Effective Tool for Healing.

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