Massachusetts Lawyer Blog

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.

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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?

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.

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

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.

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.

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

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.

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.

The Massachusetts Supreme Judicial Court's (SJC) ruling in Commonwealth v. Donohue upholds MA Sheriffs' powers to release inmates wearing a GPS tracking device rather than serving the full sentence imposed on them by the courts.

There are interesting arguments to consider here: balance of powers, executive vs. judicial vs. legislative, prison overcrowding, reintergration with society, activism vs. legal realism... With another seat on the court opening, Governor Patrick has another opportunity to direct which way those debates lean for the years to come.

"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.

This post follows Part One and involves an email exchange with someone moving out of Massachusetts who had a question about Title V Tax Credits. Real estate issues for MA buyers or sellers can be tough enough and can be even more complicated when dealing with a Title V issue.

Here's what was asked of me next...

EMAIL QUESTION #2

Thank you - that is quite helpful - on a Friday night, no less!

Unfortunately, if I am understanding you correctly, it’s not great news. Do I understand correctly that unless I owe, say, $1500 in taxes a year for some work I do in MA after we leave, this credit is going to do me no good?

What if I somehow owe $500 in a coming year? Would I receive a refund of $1000?
…

RESPONSE 2

Sorry, but it appears you are right about the news not being so great for you. After your first $1,500 you would have $4,500 ($6,000 - $1,500) in a theoretical credit bank (which can be used to a maximum of $1,500 per year). If the credit exceeds the tax due, the excess credit may be carried forward for up to five succeeding tax years (this was the result of a change in the law as it used to be 3 years).

To answer your question, if you only owed $500 in a tax year, then you would not receive a refund of $1,000. You would use the $500 credit, but you would need to carry the remaining credit forward for the next five years. Additionally, unlike other credits which can be sold or transferred, this one can’t.

….

DOR discusses the Title V Tax Credit at their site and offers the following Bulletin on Septic Systems as well as TIR 99-5: The Title 5 Credit and Federally Mandated Sewer Connections and TIR 97-12: Personal Income Tax Credit for Failed Cesspool or Septic System Title 5 Expenditures. These resources may help place the issues in context.

From DOR:

Repair or Replacement of Failed Cesspool or Septic System Credit (Title V)

Any owner of residential property located in Massachusetts who is not a dependent of another taxpayer and who occupies the property as his or her principal residence is allowed a credit for the expenses incurred to:

• repair or replace a failed cesspool or septic system in compliance with the sewer system requirements of the State Environmental Code Tile V as promulgated in 310 CMR 15.000 et seq., by the Department of Environmental Protection in 1995; or
• connect to a municipal sewer systems pursuant to a federal court order, administrative consent order, state court order, consent decree, or similar mandate.

Qualified expenses incurred to bring a failed system into full compliance may include one or more of the following:

• an upgraded system;
• an alternative system;
• a shared system; or
• a connector to a sewer system.

A reader here of the Massachusetts Lawyer Blog recently emailed me with a Title V real estate tax credit question. Below are excerpts from our exchange and some links to additional resources at the bottom of the page.

Email Question:

I read your blog about MA Septic replacement credit and am looking for clarification on one issue. We are selling our house, and replaced the septic system due to a failed title V. We spent approximately $15k on the system. I understand that 40% can be recouped. However, my wife and I are moving out of state after the property is sold, and will no longer be MA residents. Will we be able to continue to receive the $1500/year credit even if we are non-residents?

My first response:

Generally speaking (assuming you meet the criteria for the credit...), former Massachusetts residents who are required to file Massachusetts nonresident returns may claim their unused prior year credit carryovers. A part-year resident qualifies for the full credit if the property is an owner occupied principal residence. When the credit exceeds the tax due, the excess credit may be carried forward for up to five succeeding tax years. So, in the event you return to MA, are required to file a MA nonresident return, or if you are in MA for an additional partial taxable year, you may be in luck, but probably not otherwise. Of course this is just a general assessment and shouldn't be relied upon for tax or legal advice. For more information about the tax credit, you may want to contact the Massachusetts Department of Revenue at 1-800-392-6089.

…

In order to qualify for the credit:

1. the amount of credit cannot exceed $6,000. The computation of the credit is 40 percent (.40) of available actual costs, not to exceed $15,000 ($15,000 x .40 = $6,000);
2. the maximum amount of the computed credit claimed in any tax year cannot exceed $1,500;
3. in the computation of the credit, any interest subsidy received from the Commonwealth must be subtracted;
4. the credit may be claimed beginning in the tax year in which the repair or replacement work is completed; and
5. the owner completes Massachusetts Schedule SC and retains it for his or her records along with the Certificate of Compliance.

Carryover of the Credit:
If the credit exceeds the tax due, the excess credit may be carried forward for up to five succeeding tax years.

Nonresidents do not qualify for this credit since the property must be an owner occupied principal residence located in Massachusetts. However, former Massachusetts residents who are required to file Massachusetts nonresident returns may claim their unused prior year credit carryovers.

Part-year residents qualify for the full credit if the property is an owner occupied principal residence.

See Part II next.

Posted by Kevin P. Whitaker | Permalink | Email This Post

Posted In: General , Municipal Law , Real Estate & Real Property

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The Massachusetts Trial Court Law Libraries site offers a helpful list with links of Massachusetts City and Town Bylaws available online.  Their blog post on August 8, 2008 states:

Today we've added links to bylaws from twenty more Massachusetts towns to our list of city and town bylaws available on the web, bringing the total to over 250.

This is a great resource for lawyer or anyone looking for a starting point on local laws.  Remember though, many times there will a disclaimer stating the online version is not the "official" version and that you have to obtain the "official" version from the clerk's office.  Regardless, most don't change too often and this a great compilation for easy and free research.

See the extended entry for the list and links provided.

Continue reading "Directory and Links to MA City and Town Ordinances and Laws Available Online" »

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.

The Plymouth County Registry of Deeds lists the following Assessors Contact Information:

Town/City, Telephone Number

Abington (781) 982-2107
Bridgewater (508) 697-0928
Brockton (508) 580-7194
Carver (508) 866-3410
Duxbury (781) 934-1109
East Bridgewater (508) 378-1609
Halifax (781) 293-5960
Hanover (781) 826-6401
Hanson (781) 293-5259
Hingham (781) 741-1455
Hull (781) 925-2205
Kingston (781) 585-0509
Lakeville (508) 947-4428
Marion (508) 748-3510
Marshfield (781) 834-5585
Mattapoisett (508) 758-4106
Middleborough (508) 946-2410
Norwell (781) 659-8014
Pembroke (781) 293-2393
Plymouth (508) 747-1620×152
Plympton (781) 585-3227
Rockland (781) 871-0137×360
Rochester (508) 763-5250
Scituate (781) 545-8713
Wareham (508) 291-3100 x 3160
West Bridgewater (508) 894-1212
Whitman (781) 618-9761

This list is helpful for those dealing with a real estate sale, municipal lien certificate (MLC), tax abatement, or tax issues in each of these cities or towns in Plymouth County.

115 Weymouth condominium unit owners seeking real estate tax abatements failed to prove an overvaluation and their real estate tax abatement request was denied. In sum, conclusions regarding the highest and best use of the properties was found to lack any supportive evidence, thus serving no utility in establishing the properties fair cash value.

This decision shows the importance of having a strong basis for filing for a Massachusetts real estate tax abatement. Recently, in Sunset Realty Group of the Berkshires v. Board of Assessors of Town of Peru, the presiding commissioner commented:

...a taxpayer ‘may present persuasive evidence of overvaluation either by exposing flaws or errors in the assessors' method of valuation, or by introducing affirmative evidence of value which undermines the assessors' valuation.' ...

... At any hearing relative to the assessed fair cash valuation ... of property, evidence as to the fair cash valuation ... at which assessors have assessed other property of a comparable nature ... shall be admissible.'

For deeper coverage, see Massachusetts Lawyers Weekly reviews of the Peru case and Weymouth case - the two sources for this blog entry.

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.

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.

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.

James Vaznis of the Boston Globe reports,

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

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

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

Age Discrimination

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

Racial Discrimination

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

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

Me Too Evidence

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

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

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

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

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

They authors concluded,

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Massachusetts affordable housing projects under M.G.L. Ch. 40B are often criticized for limiting a local board’s powers to regulate development in a city or town. Proponents, on the other hand, argue the law helps promote new affordable housing developments. It is not uncommon for 40B projects to make headlines in local papers and for developers, municipalities, residents, and interest groups to be outspoken on this issue.

Regardless of one’s position on 40B, there are fundamental questions of power and legal authority that arise. Local boards and authorities are likely to applaud a recent SJC opinion concerning 40B and easements.

The Massachusetts Supreme Judicial Court (SJC) ruled the Housing Appeals Committee (Committee) of the Department of Housing and Community Development exceeded its authority under G.L. c. 40B (Affordable Housing Act) by ordering conveyance of a sight line easement on a town's property. This case establishes the Committee has the power to grant permits or approvals like a local board, but not the power to order the conveyance of an easement.

The opinion reasons, an easement is an interest in land which grants to one person the right to use or enjoy land owned by another; the grant of an easement constitutes the transfer of an interest in land; the fact that an easement may encumber only a small portion of an owner's land does not change its legal significance; and the Act does not authorize the Committee to order the conveyance of an easement over land abutting the project site of a proposed affordable housing development.

The SJC distinguished this decision from Board of Appeals of Maynard v. Housing Appeals Comm., 370 Mass. 64 (1976)>. The Maynard case involved the extension of a sewer line (under G.L. c. 83), for which the developer, and not the public, agreed to bear all costs – it did not involve, nor authorize, the transfer of an interest in municipal land in the form of a mandated easement.

See Slip Opinion: SJC-10028 until published, Zoning Board of Appeals of Groton & others vs. Housing Appeals Committee and another.