In a recent decision by the Berkshire Superior Court, the Law Offices of Sherwood Guernsey obtained judgment for its client against a home contractor under the MA consumer-protection statute.

 

The Law Offices of Sherwood Guernsey represented the homeowner who alleged that a contractor he hired to perform multiple projects at his house caused damage and abandoned the projects before their completion.  The judgment included multiple damages and attorneys’ fees.

 

The Law Offices of Sherwood Guernsey is very familiar with litigating home-contractor cases, as well as other claims brought pursuant to M.G.L. c. 93A, the MA consumer-protection statute.  Please contact Attorney Ethan S. Klepetar for further information: ethan@sglawoffice.com

 

With Facebook, Twitter, YouTube, and every other forum for speech on the world wide web, employers and employees are forced to consider what is appropriate to say about the workplace on social media. 

 

But what kind of social media speech about the workplace is protected, and what kind is not?

 

The National Labor Relations Board (the “NLRB”) has taken on this cutting edge issue in a number of recent decisions, providing extremely useful and importance guidance. 

 

In short, the NLRB has found that speech among and between employees concerning things like wages and working conditions are protected as “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under 29 U.S.C. § 157.

 

For example, the NLRB found that the termination of five caseworkers from Hispanics United of Buffalo (“Hispanics United”), a non-profit social services provider for low-income clients, was illegal. 

 

In that case, one caseworker, Mariana Cole-Rivera (“Ms. Cole-Rivera”) made a Facebook post saying that she felt her co-workers did not work hard enough, even mentioning one by name.  Ms. Cole-Rivera also asked posted “My fellow co-workers, how do you feel?”

 

The post generated responses from four other caseworkers who defended their job performance and criticized their working conditions.  Specifically, they opined that Hispanics United was understaffed and that their case load was too arduous.

Hispanics United discharged the five employees who participated, claiming that their comments constituted harassment of the employee originally mentioned in the post.

A complaint was issued by Rhonda Ley, NLRB Regional Director in Buffalo, New York and it was heard by Administrative Law Judge Arthur Amchan in July, 2011.  Judge Amchan found that the employees’ Facebook discussion was protected concerted activity within the meaning of 29 U.S.C. § 157. 

He reasoned that the Facebook discussion involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels.  Judge Amchan therefore ordered that Hispanics United reinstate the five employees and awarded them back pay.

Significantly, Judge Amchan also found that the employees did not engage in any conduct that forfeited their protection under the Act.  If an employee simply makes harassing or offensive comments, even if they are related to working conditions, the speech is not protected. 

For instance, the NLRB affirmed the firing of a bartender in Illinois because of a Facebook post he made.  In response to a question about how his night at work had gone, the bartender complained that he hadn’t had a raise in five years and that he was doing the wait staffs’ work without tips. 

The substance of this post certainly had to do with the bartender’s wages and working conditions.  However, the NLRB found that it didn’t constitute “concerted activities” because the conversation was with a friend, and not a co-worker.

Even more troublesome, was the rest of the bartender’s post.  The bartender went on to call the employer’s customers “rednecks” and said that he hoped they choked on glass as they drove home drunk.   Needless to say, this comment does not constitute “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under 29 U.S.C. § 157.

If you have questions about what speech on social media is protected, or would like to discuss your workplace social media policy to make sure it is compliant with 29 U.S.C. § 157, please feel free to contact Ethan S. Klepetar at (413) 499-3520 or ethan@sglawoffice.com.

In a recent decision by the Berkshire Superior Court, the Law Offices of Sherwood Guernsey obtained judgment for its client for the wrongful demolition of its property by the City of Pittsfield.

 The Law Offices of Sherwood Guernsey represents a corporation in a suit against the City of Pittsfield (“Pittsfield”).  Pittsfield had demolished the corporation’s property, ostensibly because of violations of the State Sanitary Code.

The Law Offices of Sherwood Guernsey argued that the demolition was illegal as a matter of law, and violated its client’s state and federal Constitutional rights, because Pittsfield failed to follow its strict statutory requirements.

 The Law Offices of Sherwood Guernsey was successful in obtaining judgment for its client.  The Law Offices of Sherwood Guernsey is very familiar with litigation, as well as Constitutional, Municipal, and real estate issues.  Please contact Mr. Klepetar for further information: ethan@sglawoffice.com

In Massachusetts Commission Against Discrimination and Janice Switzer v. Office Max, Inc. Docket Number 07-BEM-00737, the MCAD awarded the Complainant, Janice Switzer (“Ms. Switzer”), over $1.5 Million.

The MCAD found Ms. Switzer’s position with Office Max, Inc. was eliminated “to punish her for complaining about gender disparities and for not quietly accepting less remuneration than her male colleagues.”  Id. at P. 34.

The award is notable because it included over $650,000 in front pay and $300,000 in emotional distress damages.

Janice Switzer (“Ms. Switzer”) was employed by Office Max, Inc. (“Office Max”) as a District Sales Manager.  Ms. Switzer complained that Office Max created a culture that she described as an “old boy’s network.”  For example, Ms. Switzer testified that she was not included in male golf outings and lunches, was not sent to Chicago headquarters for meetings with high-level executives, and was not chosen to attend national sales meetings. 

Ms. Switzer also alleged that her pay was unequal to her male counterparts, despite the fact that she had more experience and superior qualifications.  Ms. Switzer complained to her superiors about these issues in 2006 and, later that year, Office Max instituted a restructuring of its sales organization and eliminated Ms. Switzer’s position.

Office Max argued that it terminated Ms. Switzer because it decided to eliminate one of three sales manager positions in her district.  It claimed that it chose which of the three positions to eliminate based on factors such as, “quota attainment and adherence to company values, in particular, ‘teamwork and trust.’”  Id. at P. 14.

The MCAD hearing officer, Eugenia M. Guastagerri, disagreed.  She found that Ms. Switzer “is an extremely intelligent and capable business woman who repeatedly sought fair remuneration and professional advancement and did not shrink from vocalizing her concerns to management.”  Id. at P. 31.

 She further held that Office Max’s “assessment of [Ms. Switzer’s] character promotes an unflattering stereotype of females who seek to advance their professional interests as overly aggressive and selfish, whereas male professionals who exhibit similar behavior are viewed as confident, hard-charging and successful…In the end, I am left to conclude that the real reason for Complainant’s termination was that she was a strong and persistent female who did not conform to the standards of behavior expected of a woman in the workplace.”  Id. at P. 32-33.

If you feel you’ve been treated unfairly in the workplace because of your gender, or for any other reason, call the Law Offices of Sherwood Guernsey today and ask for Ethan Klepetar: (413) 499-3520.  You may be entitled to damages, too.

In a recent decision by the Berkshire Superior Court, the Law Offices of Sherwood Guernsey obtained judgment for its clients on all counts in a complex, multi-year, dispute over a family Limited Partnership.

 The Law Offices of Sherwood Guernsey represented the Limited Partnership, as well as the General Partner, in a complex case involving estate planning, limited partnership law, contract law, trust law, fiduciary law, and other areas of law.

 The Law Offices of Sherwood Guernsey was successful in obtaining judgment for its clients on all counts, allowing the General Partner of the Limited Partnership to retain his property interests.

 The Law Offices of Sherwood Guernsey is very familiar with complex estate planning, litigation, as well as business and partnership issues.  Please contact Mr. Klepetar for further information: ethan@sglawoffice.com

Did you know that you can be found liable for disability discrimination against an employee who is not disabled?

The 1^st U.S. Circuit Court of Appeals (the “Court of Appeals”) recently reminded us of this somewhat counter-intuitive concept in its decision in Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., Docket Number 09-1503.

Even if an employee is not technically disabled under the Americans with Disabilities Act (the “ADA”), an employer may be liable if it discriminates against the employee because the employer perceives the employee as disabled.

In Roman-Oliveras, et. al. v. Puerto Rico Electric Power Authority (PREPA), et. al., the Plaintiff, Hector Luis Roman-Oliveras (“Roman”) worked for the Puerto Rico Electric Power Authority (“PREPA”) for 22 years, despite having received a diagnosis of schizophrenia some 30 years earlier, and had received excellent evaluations.

However, after he had a conflict with his supervisors, PREPA barred Roman from working on March 1, 2006.  PREPA would not allow Roman to return to work until he was evaluated by a psychiatrist.

Roman complied, had a psychiatric evaluation and, on April 24, PREPA’s social worker received the psychiatric report.  The psychiatric report indicated that Roman was fully capable of working.  Roman, however, was not allowed to return to work.

Roman repeatedly asked to return to work and PREPA’s physicians even recommended that Roman return to work on October 17.  Nonetheless, his supervisors requested additional medical evaluations and referred Roman for an involuntary medical leave on November 13.

In January, 2007, Roman submitted medical certification from his psychiatrist, yet, despite findings by all of his doctors that he was capable of working, PREPA took Roman off of its payroll in February, 2007.  PREPA has kept Roman on medical leave, without pay, since February 10, 2007.

Under the ADA, a person is considered disabled if he or she is substantially limited in any major life activities.  The trial court dismissed Roman’s claims under the ADA on the grounds that he “did not allege that schizophrenia substantially limited any aspect of his life, including his ability to work” and therefore was not disabled under the ADA definition.

However, as the Court of Appeals found, an employee may bring a case under the ADA if he is discriminated against because he is “regarded as” disabled by his employer.  42 U.S.C. § 12102 (2) (2008).  This is true regardless of whether the employee is, in fact, disabled.

In this case, the Court of Appeals noted that “Roman was removed from his position and forced to undergo multiple medical evaluations at the behest of the defendants, and also was required to submit a medical certification from his treating psychiatrist. Despite favorable test results each time, defendants persisted in refusing to allow Roman to work.”

Therefore, the Court of Appeals found that Roman was being “regarded as” disabled, even though he did not allege that he was substantially limited in any major life activities.  As such, he was entitled to bring his claims forward.

As an employer, you need to make sure you are treating your employees properly; whether they have a disability or not.  While it may seem easier to place an employee on unpaid medical leave, instead of terminating him, you must be aware of unseen pitfalls.

Undocumented Immigrants Are Entitled to Unpaid Wages

Under the Federal Minimum Wage and Overtime Laws

In a question of first impression in the 1^st Circuit, Justice O’Toole of the Federal District Court in the District of Massachusetts, held that “the plaintiffs’ immigration status is irrelevant to their FLSA claim.”  That means that even undocumented immigrants, often called by the less flattering name “illegal aliens”, are entitled to protection under federal minimum wage and overtime laws.

Justice O’Toole reached his holding in an “Opinion and Order” concerning cross-motions to compel discovery in the case Jin-Ming Lin and Ch-Wai Chao v. Chinatown Restaurant Corp., et. al., Docket Number 09-11519-GAO.  The defendants had moved to compel the plaintiffs’ responses to written discovery seeking information about their immigration status.  The court denied the defendants’ motion on the grounds that their discovery requests were irrelevant.

Courts from other circuits have considered the same question and reached the same conclusion, relying on a variety of reasons.  For example, some point to the fact that the U.S.  Department of Labor has taken the position that undocumented immigrants can recover under the FLSA.  See Zavala v. Wal-Mart Stores, Inc., 393 F. Supp. 2d 295, 324 (D.N.J. 2005), Flores v. Amigon, 233 F.Supp. 2d 462, 464 n.1 (E.D.N.Y. 2002).  Others have found that working undocumented immigrants are “employees” within the meaning of the FLSA and thus entitled to its remedies.  See Villareal v. El Chile, Inc., 266 F.R.D. 207, 212-14 (N.D. Ill. 2010); Motoya v. S.C.C.P. Painting Contrators, Inc., 589 F. Supp. 2d 569, 577 (D. Md. 2008).  Still others, rely on the theory that permitting recovery under the FLSA supports federal immigration policy.  See Flores v. Amigon, 233 F. Supp. 2d 462. 464 n. 1 (E.D.N.Y 2002) and Singh v. Jutla & C.D. & R’s Oil, Inc., 214 F. Supp. 2d 1056, 1061-62 (N.D. Cal. 2002).

Of course, immigration is a complicated issue, and, as Justice O’Toole noted, “the economic incentive underpinning federal labor and immigration policy are in tension.”  In short, remedies provided for undocumented workers provide an incentive for those workers to come to the U.S.  On the other hand, limiting the scope of the FLSA to those legally authorized to work in the U.S. creates an incentive for employers to hire undocumented immigrants.  See Singh, 214 F. Supp. 2d at 1062.

But whatever your opinion about immigration policy, there is an undeniable equitable appeal to enforcing the wage statutes against employers who hire undocumented immigrants, instead of those legally authorized to work in the U.S., in order to avoid paying minimum wages and overtime. 

After all, doesn’t it make sense to penalize those who exploit workers, as opposed to those who have come to this country seeking the liberties and opportunities that make up the core of our American values?

Lessons from Diaz v. Jiten Hotel Management, Inc.; an Age Discrimination Case

Do your employees know that they should not tell other employees that they are “getting old”? 

In a recent Massachusetts case, a supervisor called other employees things like an “old pumpkin”, an “old shoe”, or an “old hankie”? 

These are some of the things the plaintiff, Ms. Carmen Llerena Diaz, alleged her direct manager said to her while she was employed as the head housekeeper at a Holiday Inn Express in an age-discrimination suit she filed with the U.S. District Court, Diaz v. Jiten Hotel Management, Inc., (Civil Action No. 08-CV-10143). 

She also alleged that, when she was hired, her direct manager told her “You’re going to convert this hotel into a nursing home.”  Another manager allegedly told her that she was too old for the job and that “old people should remain home.”

It is important that your employees know that ageist, and other discriminatory comments, are unacceptable in the workplace.  Your managers also need to know that they cannot make any employment decisions based on an individual’s advanced age.  After all, you want the best people for the job; not appropriately aged people for the job.

Despite the plaintiff’s allegations of ageist comments from her direct supervisor, the defendant in Diaz v. Jiten Hotel Management, Inc., brought a motion for summary judgment seeking to dismiss the case. 

The motion was brought principally on two grounds: (1) the plaintiff’s claims were directed at her direct manager, not the Jiten Hotel Management, Inc.; and (2) the manager’s discriminatory statements were merely “stray remarks”, not indicative of a discriminatory animus or the employment environment as a whole.

The court was unconvinced.  Judge Gertner wrote:

“I fundamentally disagree…[D]iscrimination…is about concepts like bias and motivation… discrimination must be inferred not only from the statements of the relevant actors, but also from the context in which they were made, including the relationships between the various actors, the speaker and those around him.”

On March 16, 2011 changes to the Homestead Act (M.G.L. C188 §1) will take effect, offering sweeping new changes to benefit homeowners, protecting them against creditors, (other than their mortgage lender).

Some of the new changes for the protection of your home can be summarized as follows:

1.   New Automatic Protection.       All Massachusetts homeowners will receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence without having to file any additional paperwork. By simply buying a home as your principal residence, the $125,000 protection applies.

Exceptions to the law are as follows:          

a. sale for taxes;

      b. for a debt contracted prior to the acquisition of said estate of homestead;

      c. for a debt contracted for the purchase of said home;

d. upon an execution issued from the probate court to enforce its judgment that a spouse pay a certain amount weekly or otherwise for the support of a spouse or minor children;

e. where buildings on land not owned by the owner of a homestead estate are attached, levied upon or sold for the ground rent of the lot whereon they stand;

2.   Declaring a Homestead provides $500,000 protection.       All Mass. residents are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds. For married couples, both spouses will now have to sign the form which will be a change from current practice.

3.   2-4 Family Homes Eligible.       Homesteads are now available on 2-4 family owner occupied homes.

4.   Trust Beneficiaries Protected.         The beneficiary of a Trust will now be able to hold a Homestead in a home, although giving up the anonymity of holding a home in Trust. The Homestead must be declared by the Trustee of the Trust.

5.   Elderly and Disabled Protected.            The existing “elderly and disabled” homestead will remain available at $500,000.

6.   New Spouse protected.            If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse.

7.   Surviving Spouse Protected.     Homesteads now pass on to the surviving spouse and children who live in the home.

8.   Intra-Family Transfers Protected.               Transfers between family members will not terminate a previously declared homestead.

9.   Lenders Prohibited from Waiver of Homestead.            Under the new law, homesteads are automatically subordinate to mortgages, and lenders are specifically prohibited from having borrowers waive or release a homestead.

Protecting your home in the event of financial problems other than non-payment of your mortgage loan, is a very important family protection. 

For example, should you be subjected to a judgment against you, the creditor cannot attach a lien to your home and sell it to recover the judgment if the lien is for less than $500,000 for a “declared” homestead, and up to $125,000 for an “automatic” homestead (see above).

For answers to any question you may have about this important homestead protection, or to secure the necessary forms for a “declared” homestead exemption, please contact us at 413-499-3520.

Certain provisions of the Medicare, Medicaid and SCHIP Extension Act of 2007 came into effect with the New Year.  Beginning on January 1, 2011, insurers must report any loss payment that is made to a Medicare beneficiary that “does or could” include compensation for medical treatment and ongoing responsibility for medical treatment. 

The report must include the identity of the beneficiary of the settlement, along with detailed information relating to the settlement and judgment, or other payment that minimizes any portion of the beneficiary’s health costs.

It is important for employers to be aware of these reporting requirements, because they may be required to report judgments or settlements of employment claims to Medicare.  In fact, in those claims where the employee alleges that he or she suffered a physical or emotional injury with related medical expenses, then a judgment or settlement must be reported to Medicare. 

So, for example, the report could be required for judgments or settlements in claims of discrimination, harassment, assault, battery, and infliction of emotional distress.

If an employer pays a portion of the judgment or settlement, then the employer is responsible for making the report.  If the employer is fully-insured and the insurer pays the entire settlement or judgment, then the insurer is required to make the report.

Of course, these requirements only apply if the employee is a Medicare beneficiary.  Medicare beneficiaries include persons 65 or older and persons of any age who (a) have end stage renal disease (kidney disease/dialysis patients), and (b) apply or will potentially apply for Social Security Disability Insurance (“SSDI”).  Employees who receive, or will potentially apply for, SSDI may include worker’s compensation claimants who are permanently and totally disabled.