Governor Patrick has signed into law “An Act Further Regulating Workers’ Compensation,” also known as the Workers’ Comp Private Right of Action Bill (“PRA Bill”).

The PRA Bill creates a private right of action for employees and business competitors against employers that fail to pay their workers’ compensation insurance premiums. 

As was previously the case, the Massachusetts Department of Industrial Accidents has the authority to issue stop work orders and assess civil and criminal penalties for violations of the workers’ compensation statute.  But now employees, and business competitors, may bring a private right of action against offending employers as well. 

Employers must be particularly careful in regard to misclassifying individuals as independent contractors.  Such individuals are rarely covered by the employer’s workers’ compensation insurance.  However, if they are misclassified, they may be able to bring a suit under the PRA Bill.

So the best way for an employer to avoid liability is to make certain that is has properly classified all of its employees and independent contractors, and to make certain it pays its workers’ compensation insurance premiums properly. 

That being said, the employer does have an opportunity to correct any errors after learning of a potential suit.  The law only permits a case to be filed against an employer 90 days after it and its insurer are notified of the complaint and intent to file.  The suit may only go forward if the insurance carrier does not attempt to collect what is owed during that 90-day notice period.

Plaintiffs who can show that an employer violated the workers’ compensation statute are entitled to recover 25% of the full value of what is owed, up to a maximum of $25,000.  They are also entitled to liquidated damages, which would increase their recovery by whichever of the following is less: (1) another 25% of the full value of what is owed; or, (2) $25,000.

The rest of the recovered funds will go to the Massachusetts workers’ compensation Trust Fund for injured workers whose companies failed to pay workers’ compensation insurance.

It is with great pleasure that the Law Offices of Sherwood Guernsey, P.C. announces a new homebuyers program.

 The economy has still not recovered and the real estate market reflects that fact.  In light of this difficulty, our office wants to give your clients some added value when they purchase a home.

 Therefore, in the spirit of our “Helping Hand” program, our office will offer Carr Hardware $50 gift certificates to any homebuyer who chooses to have us represent them in the purchase of a single family home now through June 30, 2011.

The Carr Hardware certificate will be in addition to our competitive closing fees.We are proud to offer this added value to our clients and look forward to working with you 

Our real estate specialist, Ed Buckley has years of experience.  As always, he is exclusively dedicated to serving your real estate client needs speedily and efficiently.

There are five recent changes to employment law that employers should know about and may require some changes to the way you conduct business. 

 Two of these changes were made by the Massachusetts legislature: the Massachusetts Revision to the Personnel Records Statute and Criminal Offender Records Information statue.  Another one is Executive Order 13496, which is better known as the Notification of Employee Rights Under Federal Labor Laws.  Finally, there are two major pieces of federal legislation that you should be aware of: The Dodd-Frank Wall Street Reform and Consumer Protection Act and the Patient Protection and Affordable Care Act.  The major changes from each are discussed below.

Revision of the Personnel Records Statute

The Act Relative to Economic Development Organization signed into law by Governor Patrick on August 5, includes an important amendment to the Massachusetts Personnel Records Statute, Mass. Gen. L. c. 149, sec. 52C.  The amendment has an immediate impact on when, and under what circumstances, employers must notify employees about information being placed in their personnel record.

Before the amendment, employers were simply required to (1) provide employees with access to their record within five business days of an employee’s requesting it, and (2) allow employees to dispute any negative information in their record with a written statement articulating the basis of the dispute. 

Under the amendment, however, employees are entitled to notice whenever any information that “is used, has been used, or may be used, to negatively affect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action” becomes part of their personnel record.  Employers must provide this notice within 10 days of when the information is placed in their record.

It is important for employers to know how broadly the statute defines “personnel record.”  All records that have, or could have, an impact on an employee’s “employment, promotion, transfer, additional compensation or disciplinary action” are considered to be part of the record.    So, under a literal reading of the statute, a supervisor’s e-mails negatively discussing an employee’s performance that are retained anywhere on the employer’s system would be considered part of the employee’s record. 

It remains to be seen how courts will interpret the amended statute, but employers should proceed with caution.  It is possible, for example, that employers failing to comply will be prohibited from admitting records showing an employee’s poor performance at trial to show it had a legitimate reason for terminating the employee. 

Another important aspect of the amendment concerns how often employers are required to provide employees copies their personnel record.  Generally, employers are only required to provide the record twice a year.  But that limitation does not apply when employees request their record after being notified of negative information being added to their personnel record. 

CORI Reform

Another new piece of legislation that employers need to be aware of is the Criminal Offender Records Information statute. 

Prior to the legislation, employers were allowed to include a section on their applications inquiring into the applicant’s felony convictions and certain misdemeanors.  But the new legislation includes a “Ban the Box” provision prohibiting most employers from including any questions about prior criminal convictions on their applications.  However, employers are still permitted to ask questions about certain prior convictions during interviews.    

Also, if an employer receives CORI information on any candidate, the employer must provide the candidate with a copy of the information before an interview.  The employer also must provide a candidate with his CORI information if an it basis its decision to not hire the applicant on the CORI information.

On a related note, the Equal Employment Opportunity Commissions (“EEOC”) recently announced that it will take a closer look at employers’ use of criminal background checks and credit checks for making hiring decisions.  The EEOC is concerned that these checks result in a disparate impact for minority candidates. 

The EEOC has stated that it will pay especially close attention to employers with a blanket policy against hiring candidates with a criminal background or poor credit history.  The EEOC will also pay close attention to employers using these checks without regard to whether there is a relationship between the particular position at issue and the results of the background check. 

Notification of Employee Rights Under Federal Labor Laws

Executive Order 13496, which is better known as the Notification of Employee Rights Under Federal Labor Laws, places new posting and contractual provision requirements for employers with annual contracts in excess of $100,000 or subcontracts in excess of $10,000.

The new posting provisions require affected contractors and subcontractors to post notices in “conspicuous places in and about” the workplace informing employees of their rights under the National Labor Relations Act, including their right to join or form a union.  Posters with all of the required information are available on the Department of Labor’s website.

Employers who customarily send notices to their employees by e-mail, are also required to notify employees of their labor rights by e-mail.  The e-mail does not obviate the need for the poster – notice must be sent by e-mail AND notice must be posted in a conspicuous location in the workplace.

Furthermore, contractors are required to include the posting provisions in all of their subcontracts.  This way the subcontractors have to agree to the posting requirements.

The penalties for noncompliance with the executive order are severe.  For example, employers that violate the order may have all of their existing federal contracts terminated and may be debarred from bidding on future government work.

Dodd-Frank Wall Street Reform and Consumer Protection Act

The Dodd-Frank Wall Street Reform and Consumer Protection Act affects employers in publicly traded companies.  It significantly expands the protections afforded to whistleblowers and the potential benefits to whistleblowers. 

For example, a successful whistleblower may recover double back-pay awards and a percentage of monies recovered by the government as a result of the provided information.  There is also a prohibition on pre-dispute arbitration agreements if the agreements do not carve out claims brought under Sarbanes-Oxley.  

The new legislation also expands the statute of limitation within which whistleblower claims may be brought and extends whistleblower protections to all employees working in the consumer financial services sector who report violations of any of the laws to be administered by the newly created Consumer Financial Protection Bureau. 

Patient Protection and Affordable Care Act

The Patient Protection and Affordable Care Act has special mandates for covered employers regarding break time for employees who are expressing breast milk for their nursing child.

Employers must provide “reasonable break time for an employee to express breast milk for her nursing child for one year after the child’s birth each time such employee has need to express milk.”  Employers also must provide nursing mothers a private location free from intrusion that may be used by the employee to express milk.  The Department of Labor has made it clear that a bathroom is NOT an acceptable location for such breaks.

While there is no specific requirement in the statute that the break time be compensated, the Department of Labor has indicated that it should be compensated where employees are permitted to take other compensated breaks.

The Department of Labor has recently issued a fact sheet providing information about employers’ obligations to provide breaks and suitable space for nursing mothers to express milk.

It is important to know that this legislation may not affect you.  Employers with fewer than 50 employees that can prove compliance would pose and “undue hardship” are exempt from the requirements of the new Health Care legislation. 

Conclusion

Compliance with these recent changes to employment law are essential to avoiding unnecessary litigation and reducing your liability.  Make sure that you are up to date on all of these changes and have taken all appropriate steps to protect your business.

Last week, the Supreme Judicial Court in Papadopoulos v. Target Corporation abolished the so-called “natural accumulation” rule that had controlled Massachusetts slip-and-fall cases involving snow and ice since 1883.

The “natural accumulation” rule meant that Massachusetts property owners were not liable for injuries resulting from the natural accumulation of snow and ice on their properties. For example, if a snowstorm dropped a foot of ice and snow on a Massachusetts property, the property owner could not be held liable if a visitor slipped and fell on that snow because it was a “natural accumulation.”

Despite over 100 years of litigation, determining what was natural accumulation and what was some artificial alteration of the natural accumulation was difficult. Indeed, in the Target case, the Court explained that the distinction between natural and unnatural accumulation, “has proved difficult to apply because virgin snow that falls on a heavily trafficked walkway, driveway, or parking area is soon changed by the tramping of feet, the rolling of tires and the passage of time.”

The natural accumulation rule was such an outlier that, in other jurisdictions, it was referred to as the “Massachusetts rule.” All of the other courts in New England had rejected it and imposed a duty of reasonable care on property owners.

In Papadopoulos, Massachusetts finally joined those other jurisdictions.  Now, a property owner owes the same duty of reasonable care regarding dangers arising from snow and ice on his property that he owes for all other hazards to lawful visitors on his property.  What is reasonable depends on the circumstances of each case, but the Court described the duty of reasonable care in this way:  “The snow removal reasonably expected of a property owner will depend on the amount of foot traffic to be anticipated on the property, the magnitude of the risk reasonably feared, and the burden and expense of snow and ice removal. Therefore, while an owner of a single-family home, an apartment house owner, a store owner and a nursing home operator each owe lawful visitors to their property a duty of reasonable care, what constitutes reasonable snow removal may vary among them.”

The new reasonable care standard is a much clearer rule than the old “natural accumulation” rule. The natural accumulation rule was unclear and therefore difficult and expensive to apply. Furthermore, property owners seldom did not rely on it, given the requirements of the State Building Code, and the consensus that one should keep one’s property accessible to visitors.

Now, property owners and homeowners must take care to keep their properties reasonably accessible to all visitors under all weather conditions – and not treat snow and ice differently from other hazards on their property.

 In a recent decision from the Federal District Court in Manhattan, District Court Judge Shira Scheindlin dismissed a multimillion dollar False Claims Act complaint a purported whistleblower brought against Glenn Gardens Associates, a residential apartment complex located in Manhattan’s Upper West Side.

Attorney Sherwood Guernsey represent Glenn Gardens Associates, and together with local counsel , attorneys Peter Neger and Gillian Epstein from Bingham McCutchen in New York, they were successful in convincing the Federal Court that the whistleblower’s complaint should be dismissed. 

The whistleblower sought over $10 million dollars from Glenn Gardens, claiming that it had improperly obtained housing voucher payments from the Department of Housing and Urban Development (“HUD”).  Agreeing with Glenn Gardens’ arguments, the court threw out the complaint, concluding that the false claims act barred the whistleblower’s claims, and that the whistleblower was not an “original source” under the False Claims Act.

The Guernsey firm has represented Glenn Gardens since 2002  and  is very familiar with the issues facing landlords of major residential real estate.  Please contact Mr. Guernsey for further information: <sherwood@sglawoffice.com>.

 

Recently, the Supreme Court unanimously ruled that a California police department did not violate the fourth amendment privacy rights of an employee when the police department audited the content of text messages stored on a pager the city had issued him.  This decision could affect the manner in which employers monitor the digital communications of their employees.  Here’s a link to the decision: http://documents.nytimes.com/supreme-court-decision-ontario-v-quon?ref=us

Attached is an article from the New York Times, detailing the story of Dan L. Duncan, a Texas billionaire, who died in March 2010.  Because the federal estate tax has been repealed, effective this year and not renewed, Mr. Duncan will be able to pass his multi-billion dollar fortune to his family without paying an estate tax.  Mr. Duncan’s example may generate a strong enough reaction in Congress to pass new estate tax legislation, and possible make it retroactive.  Click here to read article.