Blog Posts

Tip for landlords: Do not discriminate against people with Section 8 vouchers!

November 30, 2018:-

From the MassLandlords newsletter: Massachusetts Attorney General Maura Healey issued a press release relating to the sum of $40,000 that her office acquired from three sets of rental-property owners, property managers, and real-estate agents to settle enforcement actions. The press release outlines cases involving three properties: the first in Taunton, the second in Revere, and the third in Roslindale.  To read the rest of the article, click here.

Fool me once

August 1, 2017:- In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Although the employer denied any wrongdoing, the case settled for $10,000.00.

In 2010, Alberto Rodriguez sued his employer, a freight transportation company, for employment discrimination. Stop me if you’ve heard this one before.

In fact, second time around the outcome was different. By the time of the pay-out from employer 1 (Roadway Express) Alberto Rodriguez was already working for employer 2 (UPS) in Springfield, Western Massachusetts. After 11 months, UPS fired him, and a few days later Mr. Rodriguez filed a complaint with the Massachusetts Commission Against Discrimination (MCAD) alleging employment discrimination. Earlier this year the MCAD dismissed the case. Among the various reasons the MCAD hearing officer gave for ruling against Mr. Rodriguez was this one:

In her deposition in the Roadway Express lawsuit (which, during his deposition in the UPS case, Mr. Rodriguez denied ever having filed), Mrs. Rodriguez stated that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. In her deposition in the UPS case, Mrs. Rodriguez testified that she had overheard a cellphone conversation via Bluetooth in which the employer used ethnic slurs against her husband. The hearing officer found this similarity not only “striking and suspicious” but “so far-fetched as to be wholly implausible.”

Fool me once, shame on me, as the saying goes. Fool me twice? For the second part of that aphorism (the less traditional version) delivered by internationally-acclaimed business guru Michael Scott, click here.

The lessons for employers facing charges of discrimination?  First, consider taking depositions, so that you can compare and contrast the deposition testimony with the deponent’s testimony at the hearing. It is not only discrepancies that can be helpful; so can consistencies, especially those that strike a reasonable objective listener as implausible. Second, even if the MCAD issues a probable-cause finding that paves the way for a public hearing, as happened in the Rodriguez v. UPS case, if the facts are on your side and you can prove them, consider resisting the understandable impulse to settle and, instead, stand firm.

Marijuana: respect for voters trumps supremacy clause

July 17, 2017:- Today the Supreme Judicial Court (SJC) held that where an employer fired an employee for her off-site use of marijuana, the employee may sue for handicap discrimination. The name of the case is Barbuto v. Advantage Sales and Marketing, LLC, and you can read it by clicking here. The decision does not sit easily with the Supremacy Clause of the Constitution of the United States, to put it mildly.

The case involves the Massachusetts anti-discrimination law, chapter 151B. Under 151B an employee who is a “qualified handicapped person” may seek “reasonable accommodations.” In this case, the employee asked for one particular accommodation, namely marijuana use. Faced with this request the employer demurred, arguing that marijuana use is a crime and, therefore, inherently unreasonable.

Certainly, in 2012 Massachusetts enacted the medical marijuana act. But the use of marijuana is illegal under the federal Controlled Substances Act, which Congress enacted and has not repealed. The SJC referred to this contradiction between state and federal law as an “unusual backdrop.” That is one way of putting it, I suppose.

Now, admittedly I am no judge and nobody asked me, but my starting point in resolving the contradiction would have been clause 2 of article VI of the Constitution of the United States, which provides:

This Constitution and the laws of the United States which shall be made in pursuance thereof… shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

The clause means that a law passed by Congress becomes part of “the supreme law of the land.” That is why we call it the Supremacy Clause. Lest there be any doubt, the clause includes the proviso “any thing in the constitution or laws of any state to the contrary notwithstanding.”  If a State does not like a Federal law, the judges of that State may not repeal it.  Nullification is not an option.  I believe we fought a war about this.

However, the SJC held that respect for the supreme law of the land must take second seat to something else, something not referred to in the Constitution of the United States:

“To declare an accommodation for medical marijuana to be per se unreasonable out of respect for the Federal law would not be respectful of the recognition of Massachusetts voters, shared by the legislatures or voters in the vast majority of States, that marijuana has an accepted medical use for some patients suffering from debilitating medical conditions.”

That is a very difficult sentence for me to understand.  Don’t get me wrong: I can read English, so I understand the words. I just do not understand how (with all due respect to the SJC) one can square that sentence with the plain language of the Supremacy Clause or with the body of precedent on the subject of field preemption.

After all, the Supremacy Clause is a straightforward answer to this simple question: Where there is a clear conflict between a federal law and a subsequent state law, which prevails? Federal law, says he Supremacy Clause. State law, says the SJC.  Why? Because it is better to ignore the federal law than fail to be “respectful” of the voters.

Perhaps this is one of those instances where the framers and ratifiers tacked on an exception using invisible ink, so that to the cognoscenti the Supremacy Clause actually concludes with the words “and the judges in every State shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding, except when they decide not to be.” Hold your copy of the Constitution up close, then at arms’ length. If that doesn’t work, try holding it up to the light.

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Peter Vickery, Esq.

Paid Leave Bill

June 15, 2017:- Massachusetts state government is in debt to the tune of approximately $130 billion. Paying that down will require, I think, a fairly large number of people gainfully employed — providing goods and services that other people want — and paying taxes. So (and please forgive the sarcasm here) what could be better for Massachusetts than a new state government program that allows private-sector employees to take half the year off while getting paid up to $1,000.00 per week? Only one thing could be better than that: a new state government agency to administer the program. The new agency will need staff, of course. So at least somebody will be working.

Last session, this proposed item of legislation (titled An Act Establishing the Family and Medical Leave Insurance Program) passed the Senate. The re-filed bill had a hearing in the State House recently. For the bill text click here. To read the testimony of John Regan, Executive VP for Government Affairs for Associated Industries of Massachusetts, click here.

For the sake of balance I also direct you to the website of the bill’s proponents, the Coalition for Social Justice, Inc. (CSJ). Just click here. Needless to say, CSJ (2015 revenue $164,456.00) and CSJ Education Fund, Inc., (2015 revenue $394,811.00) are 501(c) non-profits, which means that they do not pay taxes.

For the bill’s progress, stay tuned.

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Peter Vickery, Esq.

 

Another win for free speech

May 24, 2017:- If someone tells a Boston Globe reporter something about you that you consider defamatory, and the Globe publishes it, you could sue for defamation. But what if that certain someone expresses the same message through the same medium as a way to reach to those Globe readers who happen to be state government officials? Should a judge throw the case out right away because of the speaker’s intended audience?

Because of the broad language of the Massachusetts law barring “strategic lawsuits against public participation” (the anti-SLAPP statute) this is a question that comes before the courts from time to time. The statute bars claims and counterclaims “based on” a party’s constitutional right of petition. This casts too wide a net, one that catches (and thereby prohibits) claims that people bring in good faith, not out of any desire to chill the other side’s petitioning rights.

Fortunately, yesterday the Supreme Judicial Court (SJC) narrowed the statute’s reach via the case of Blanchard v. Steward Carney Hospital. For my post on the Appeals Court’s decision on the same case last year click here.

In a nutshell: The action will survive if the person suing can show that they did not sue primarily to chill the other side’s legitimate exercise of their right to petition.

This is the right decision, but what a shame that the Legislature left it to the judicial branch to remedy its own poor drafting.

 

Court corrects MCAD

April 18, 2017:- If an employer believes that an employee’s disability poses a safety threat, may it re-assign or terminate that employee?

Until today, the answer to that question was this: only if the employer can prove an affirmative defense by demonstrating a “reasonable probability of substantial harm.” That is the standard set by the Massachusetts Commission Against Discrimination (MCAD) in its guidelines. Today the Supreme Judicial Court (SJC) decided that the MCAD guidelines are wrong. For the text of the decision in Gannon v. City of Boston click here. It involves a concussed MMA fighter/police officer, by the way.

After explaining why the MCAD is wrong to place the burden of proof on the employer (e.g. lack of statutory authority), the SJC stated that what the employer bears is the burden of production. So in a case where the employer’s decision is based on the employee’s disability, in order to avoid liability for discrimination the employer must show “specific evidence that the employee would pose an unacceptably significant risk of serious injury to the employee or others.” Then, when the employer has met this burden of production, the employee must prove that s/he is “capable of performing the essential functions of the job without posing an unacceptably significant risk of serious injury to the employee or others.”

The distinction between the burden of proof and the burden of production is important. The burden of proof must remain with the plaintiff employee, said the SJC. Contrary to the MCAD’s guidelines, employers do not have to raise the affirmative defense and then prove by the preponderance of the evidence the existence of “reasonable probability of substantial harm.” Rather, after the employer has shown an “unacceptably significant risk of injury” the onus is on the employee to prove that she or he can, in fact, do the job without posing such a risk.

In a nutshell: This decision delivers a subtle but important victory for employers.

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Peter Vickery, Esq.