Category: massachusetts

discrimination, employment law, law, legislative drafting, massachusetts, massachusetts commission against discrimination, mcad

Commission creep: discrimination agency asserts jurisdiction in late-filed cases

July 1, 2016:-  The term “mission creep” refers to a military operation that gradually expands beyond its stated objectives. A new report provides evidence of a government commission repeatedly extending its reach beyond the parameters laid out in its statutory remit, a phenomenon I hereby dub “commission creep.”

The State Auditor has published an official report on the Massachusetts Commission Against Discrimination (MCAD) and in addition to revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency,  and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none. This matters not only to the small business owners who find themselves the target of costly investigations that drag on for years, but to all citizens who expect public servants to abide by one of the bedrock principles of constitutional government, namely the separation of powers (see Article 30 of the Massachusetts Constitution).

Despite clear statutory language confining its jurisdiction to cases filed within 300 days of the last allegedly discriminatory act, the Commission investigates cases filed after the deadline. And it does so on a scale that suggests something more than ineptitude, no mere unfortunate series of oopsy daisy events.

So that readers may judge for themselves, here is the text of the statute (section 5 of chapter 151B of the General Laws) in words as clear and unambiguous as the English language permits:

Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.

The word must falls into the category of words legislative drafters call mandatory, as opposed to precatory or hortatory. In the vernacular, it is hard not mushy.

Nevertheless, the State Auditor’s report (p. 11) reveals that in the three-year period of the audit (2012-2015) the MCAD processed at least  123 separate cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.

I cannot tell whether the auditors independently identified the 123 cases or simply made note of the instances where the MCAD itself had determined that it lacked jurisdiction on the basis of the limitation period. If the latter, then the determination would have come at the end of the MCAD’s investigative phase, the point at which the Commission issues a Lack of Probable Cause (LOPC) finding. On average that point now arrives four years — yes, four years — after the filing of the complaint. In the meantime MCAD investigators will have required the employer to devote hours responding to questions and demands for internal documents and to attending “investigative conferences” at the agency’s offices.

Either way, this is an extraordinary finding on the part of the State Auditor. The 300-day deadline is not some off-the-cuff recommendation or flexible guideline but a statutory limitation. The Legislature decided that the deadline for filing a discrimination complaint with the Massachusetts Commission Against Discrimination (MCAD) is 300 days, and only the Legislature can amend a statute. By flouting the limitation period so often, the MCAD has arrogated to itself the power to legislate, a power the Massachusetts Constitution expressly reserves to the legislative branch.

The report bears out something I have suspected for some years, i.e. that the MCAD investigates cases where it clearly lacks jurisdiction. Because of my experience with the MCAD, after the 2014 gubernatorial election I sent the incoming Baker-Polito administration a proposal that would remedy the problem, and the associated problem of the MCAD improperly asserting jurisdiction over employers with fewer than six employees (another statutory limit on the MCAD’s jurisdiction called the “small-business exemption”). My proposal is this:

If a respondent files a motion to dismiss for lack of jurisdiction, the MCAD shall suspend its investigation until it has adjudicated the motion.

The proposal does not require action on the part of the Legislature. With a nudge from the Governor the Commissioners could make it happen via a simple amendment to the MCAD’s regulations, with proper notice and comment. Under my proposal, the MCAD would have to deal with the threshold matter of jurisdiction before putting the employer to the expense of a full-blown, years-long investigation.

I submitted this suggestion back in January 2015.  In view of the State Auditor’s findings, I shall re-send it.

IMG_7031
Peter Vickery, Esq.
law, massachusetts

Happy birthday, Massachusetts Constitution

June 16, 2016:-  It was on June 16, 1780 (236 years ago today) that the Constitution of the Commonwealth of Massachusetts was deemed and declared ratified. Its principal author, John Adams, produced an operating manual for a self-governing commonwealth of free people that combines practicality with elegance. If you have a minute or two to mark the occasion of our Constitution’s anniversary, you may wish to read the Preamble:

The end of the institution, maintenance, and administration of government, is to secure the existence of the body politic, to protect it, and to furnish the individuals who compose it with the power of enjoying in safety and tranquility their natural rights, and the blessings of life: and whenever these great objects are not obtained, the people have a right to alter the government, and to take measures necessary for their safety, prosperity and happiness.

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

We, therefore, the people of Massachusetts, acknowledging, with grateful hearts, the goodness of the great Legislator of the universe, in affording us, in the course of His providence, an opportunity, deliberately and peaceably, without fraud, violence or surprise, of entering into an original, explicit, and solemn compact with each other; and of forming a new constitution of civil government, for ourselves and posterity; and devoutly imploring His direction in so interesting a design, do agree upon, ordain and establish the following Declaration of Rights, and Frame of Government, as the Constitution of the Commonwealth of Massachusetts.

housing court, law, massachusetts

SJC announces another defense against claims for possession

May 24, 2015:- Today the Supreme Judicial Court (SJC) sent back to the Housing Court a summary process case that started almost four years ago in August 2012. In its decision (in favor of the tenants) the SJC points out the need to promote “the legislative goal of just, speedy, and inexpensive resolution of summary process cases.” But it is not only connoisseurs of irony who will find the decision noteworthy. Although the case concerns an attempted post-foreclosure eviction, it refers to yet another defense against claims for possession (a defense, as opposed to a mere counterclaim) that may have an impact on the more run-of-the-mill landlord-tenant cases as well.

In May 2012, a mortgage company recorded the foreclosure deed  for home of Edward and Emanuela Rego. At the foreclosure sale, the Federal National Mortgage Association (Fannie Mae) took title. In August it started a summary process action in Housing Court to evict the Regos. In October 2012, the Regos filed their Answer, replete with 25 affirmative defenses and one counterclaim alleging that the mortgage company had violated the Consumer Protection Act, G.L. c. 93A.  According to the Regos’ counterclaim, the company had violated 93A by charging excessive late fees and sending deceptive notices about their eligibility for loan modifications.

Fannie Mae filed a motion for summary judgment in February 2014, almost two years after it had purchased the house. The Housing Court awarded it possession and dismissed the Regos’ counterclaim. In July 2014, the Housing Court entered final judgment in favor of Fannie Mae. But the judge did not expressly state whether he agreed with Fannie Mae’s argument that because he had awarded possession he now lacked jurisdiction to decide the 93A counterclaim. The judge scheduled a separate hearing this particular question, and dismissed the 93A counterclaim, but did not state why. This bit is important, by the way.

When Fannie Mae prevailed on its motion for summary judgment and the Housing Court awarded it possession, its lawyers may well have thought they could discern the proverbial light at the end of the tunnel. When the judge entered final judgment, the light may have shone a little more brightly. But today the SJC — which had reached down to transfer the matter to itself from the Appeals Court — vacated the summary judgment and reinstated the tenants’ counterclaims, thereby snuffing out the light and turning Fannie Mae back into the tunnel of Housing Court.

On appeal, the Regos argued that the mortgage company had failed to comply with the writing-under-seal requirement of the foreclosure statute, focusing on a statutory amendment enacted in 1906. The SJC’s decision goes into laudable detail explaining why this argument must fail. But the 93A counterclaim is another matter, the SJC held. Please note: The Regos raised 93A as a counterclaim, not a defense.

Fannie Mae argued that even if the 93A counterclaim was successful, it would not entitle the Regos to possession, only to monetary damages. Not so, contended the Regos: The court could deploy the equitable remedy of rescinding the foreclosure sale.

One of the organizations that responded to the SJC’s request for amicus briefs was Community Legal Aid, which stated that:

In certain cases, the equitable rescission of a foreclosure sale might not be the trial court’s remedy for violations of G.L.c. 93A. Nevertheless, the adjudication of different claims arising from the same facts supports both judicial economy and access to justice for low-income and elderly litigants who may be unable to advance claims independently.

Even if rescission is not on the cards and no right to possession is at issue any more, the Housing Court should retain jurisdiction, in other words. Of like mind, the SJC held:

“[U]nable to determine whether, in the context of the summary process action, the judge determined that the Regos’ G.L.c. 93A counterclaims and defenses did not entitle them to equitable relief affecting the right to possession, or whether he intended to consider that form of equitable relief, along with all other potential forms of equitable and monetary relief in the separate proceeding but erroneously concluded that he lacked the jurisdiction to do it.” (Emphasis added).

Of course, the Housing Court judge did, in fact, rule on the counterclaim, which tends to suggest that he had concluded that he had the jurisdiction to do so. Had he “erroneously concluded that he lacked the jurisdiction” he could have chosen a different course. But this absence of an express ruling on Fannie Mae’s jurisdictional argument led the SJC to sent the case back.

“All very interesting, I’m sure,” I hear you think, “but how does this affect me?”  Here’s how:

Landlords seeking possession should bear in mind that a tenant’s 93A counterclaim is an equitable defense.

Justin Sargent 6
Peter Vickery, Esq.

 

 

law, legislative drafting, massachusetts, supreme judicial court

Issue more regulations, court tells agency

May 17, 2016:- Today the Supreme Judicial Court (SJC) told the Massachusetts Department of Environmental Protection (DEP) that it has to issue more regulations in order to comply with the Global Warming Solutions Act, which the Legislature enacted in 2008. In Kain v DEP, the SJC ruled in favor of the Conservation Law Foundation and held that the DEP’s current regulations do not comply with the statute’s requirement of “declining aggregate [greenhouse gas] emissions limits.”

More to follow. In the meantime, two questions for diligent readers:

(1) By how much have our commonwealth’s greenhouse gas emissions declined since 2008?

(2) For bonus points, what is the main reason for the decline?

Justin Sargent 6
Peter Vickery, Esq.
housing court, law, massachusetts, supreme judicial court

Boom! Security deposits get the full Alderaan

April 29, 2016:- Security deposits are supposed to help cover the cost of damage to the landlord’s property. Yesterday, security deposits themselves sustained damage on an Alderaan scale.

In its decision in Meikle v. Nurse (see my earlier post) the Supreme Judicial Court held that a landlord’s violation of the security deposit statute provides the tenant not only with a counterclaim but provides a defense to possession. In plain English, a defense to possession means the tenant gets to stay.

For many years, Massachusetts landlords wise to the ways of the law have known that any mistake handling the security deposit (e.g. failing to give the tenant a piece of paper stating the name of the bank holding the deposit  and the account number) could result in them paying the tenant multiple damages plus the tenant’s attorney’s fees. But yesterday’s decision means that a mistake gives the tenant the right not just to money but to remain in the landlord’s property. Not forever, of course: The tenant “does not enjoy that right in perpetuity,” the SJC states reassuringly. To avoid a tenancy in perpetuity the landlord need only bring “a second summary process action for possession after he or she has remedied the violation of the security deposit statute.”

So what does bringing a summary process action for possession ordinarily involve? Serving a new notice to quit; waiting either two weeks or a full rental period depending on the nature of the notice; completing the new summons and complaint and making sure it aligns perfectly with the notice to quit (on pain of dismissal if it does not); serving a new summons and complaint (with the attendant sheriff’s fees) at the right time, not too early and not too late (on pain of dismissal for premature or tardy filing); filing the summons and complaint (again, not too early and not too late on pain of dismissal); paying the court’s filing fee; appearing in court; being presented with the tenant’s list of interrogatories, which automatically postpones the trial for 10 days; prevailing at trial (if the stars are aligned); seeking a writ of execution; watching the judge grant the tenant a stay of execution; and then, when the first stay has expired, watching the judge grant another stay of execution, and so on. Not quite perpetuity, perhaps, but close. The line between ad nauseam and ad infinitum starts to get a bit blurry after a year or so.

Will this new decision discourage landlords from taking security deposits? One would think so, those who fall into the rational-economic-actor category at any rate. Without security deposits, how will these rational economic actors insure themselves against the risk of tenants damaging their property (bearing in mind that an increase in the risk involved in renting increases the cost of renting)? Applying some basic economics, perhaps landlords will respond to an increase in the cost by raising the [fill in the blank].

Justin Sargent 6
Peter Vickery, Esq.
campaign finance, free speech, law, legislative drafting, massachusetts

Another campaign finance rule. KA CHING!

As if they needed it this presidential-campaign season, here’s some good news for political consultants. The Massachusetts Office of Campaign and Political Finance (OCPF) is generating more business for them.

The latest state regulation aimed at controlling the funding of political speech  means that candidate committees and independent expenditure political action committees (IE PACs) will face penalties if they share consultants. How will they likely avoid that? By employing separate consultants, of course.

Massachusetts law prohibits IE PACS from coordinating with candidate committees. But proving coordination can be difficult, so the regulations create presumptions that put the onus on the PACs and candidate committees to prove they did not coordinate. Readers with backgrounds in criminal law, constitutional law, high-school civics, or cop shows may be familiar with the presumption of innocence: These presumptions are not like that presumption.

Under the new state regulation, there will be a presumption that the IE PAC and the candidate committee are coordinating expenditures if they use the same “political, media, or legal consultant, or polling firm.” They can rebut the presumption, i.e. prove their innocence, by demonstrating that they adhered to a written firewall policy, the sort of document lawyers and political consultants are good at drafting. Those who would prefer to avoid any entanglements in the first place should bear in mind the words of Han Solo on the subject: “That’s the real trick, isn’t it. And it’s gonna cost you something extra.” An extra consultant, that is.

Another provision states that there will be a presumption of coordination if an IE PAC republishes in whole or in part “a communication relating to a candidate that is posted on the candidate’s Internet or social media site.” So no mere copying from now on. This rule should encourage even greater creativity (a billable quality) by requiring IE PAC consultants to make their clients’ communications look and sound distinct from those on the candidates’ site. Whoever said red tape stifles business?

Somewhere in the Caribbean, I suspect, there floats a yacht named OCPF.

Peter Vickery_2012_focus
Peter Vickery, Esq.
housing court, law, massachusetts

Lopsided landlord law (plus quiz)

Lopsided laws are annoying. But here in Massachusetts we have the right to require that our legislators observe the principles of justice and moderation in formulating our laws. It says so in the Massachusetts Declaration of Rights (article 18, to be precise). So immoderate, unjust laws do more than annoy; they flout some fundamental constitutional principles.

Which prompts me to ask, Why do we put up with the dramatically different burdens that the law places on landlords who hold security deposits vis-à-vis tenants who withhold rent?

If you are a Massachusetts landlord you are free to ask for a security deposit to insure against the tenants damaging your property. But if you do, you had better comply with every jot and tittle of the security-deposit law, M.G.L. c. 186, §15B. The amount of the security deposit must not exceed one month’s rent (not by so much as a dollar), you have to place the deposit it in a separate, interest-bearing account in a Massachusetts bank — not a New Hampshire bank or a Connecticut bank — and give the tenant (1) a detailed receipt within 30 days, and (2) annual statements showing the interest that the deposit has earned. The law goes into great detail about what you must and must not do with the security deposit at the end of the tenancy. Innocent mistakes can prove as costly as deliberate violations. Landlords who are curious about the kind of oversights that could trigger multiple damages and attorney’s fees should watch this short slide-show video by tenants’ lawyer Arthur Hardy-Doubleday, Esq.  If pushed for time start watching at the 3:45-minute mark.

In contrast, if you are a Massachusetts tenant and you wish to withhold rent from the landlord (i.e. go on rent strike) the list of legal formalities you have to comply with is considerably shorter. Here is a short video on the subject.

Rent withholding has a reasonable purpose. Tenants are allowed to withhold rent if the conditions in the dwelling are unsanitary, which encourages landlords to make repairs promptly upon request. Fair enough. Mind you, just try that rationale in the realm of workplace relations.

Employer: “Your performance is inadequate.”

Employee: “Are you going to fire me?”

Employer: “No, and you can’t quit either. You have to keep working for us. But we’re going to stop paying you.”

Any employers desiring an insightful predictive analysis of the likely outcome of such an interaction should click here.

If tenants withhold rent, do they have to set the money aside?  After all, if — many months, or even years, after the rent strike started — the Housing Court judge decides that the landlord is entitled to some or all of the bank-rent, it could be difficult for the tenants to come up with money. It takes above-average self discipline to save the money rather than spend it on all the other pressing day-to-day demands, especially in a culture that actively discourages thrift (have you looked at interest rates lately?).

But no, the law does not require that tenants place the withheld rent in escrow, so nor do tenants have to provide the landlord with documentary evidence stating the name of the bank and the number of the account.

To recap, landlords holding security deposits have to comply with a long list of legal requirements whereas tenants withholding rent have to comply with none. Landlords who fail to give tenants a detailed statement within 30 days face the prospect of paying treble damages and the tenants’ legal fees. Tenants who withhold rent even if a judge concludes that the withholding was not justified do not have to pay a penalty of any kind.

If you think of tenants as wards of the state and your image of landlords conforms to popular Dickensian stereotypes, or this, or this, this imbalance in the law may not bother you much. If so, I urge to watch a real landlord, Garth Meikle, argue a real case in front of the Supreme Judicial Court. To see and hear Mr. Meikle click here, and start at minute 18:38.  Mr. Meikle simply wanted his apartment back so that one of his children could move in, but the tenant alleged that Mr. Meikle had made a mistake with the security deposit.  By the way, the tenant received pro bono representation from a Harvard Law School clinic; the landlord had to represent himself.

On the other hand, if you think that the provision of affordable homes is a social good that we should encourage or at least not discourage, and that it might be time to restore some balance to landlord-tenant law, there is hope. Recently I went to the State House to listen to testimony about a proposal to amend the rent-withholding law  by requiring tenants to deposit the withheld rent into escrow. Will it pass? I shall keep you posted.

Now for the quiz that I promised in the headline.

If I had to choose one word to describe the current security-deposit law it would be persnickety, an adjective (possibly related to the Scottish pernickety or pernicky) that boasts the highest jurisprudential imprimatur available on this side of the Atlantic, namely a 2011 decision of the Supreme Court of the United States.

Question: Which justice penned the opinion?

Email your answer to peter@petervickery.com with the word persnickety in the subject line. There will be a prize for the first correct answer.* But, please, no pre-quiz use of Google, LexisNexis, etc. We use the honor system around here.

* A warm glow.**

** Subject to availability, satisfaction not guaranteed, and no warranties as to fitness for general or particular purpose. Some glow-feelers may experience side effects so before winning this quiz talk to your primary care physician, pharmacist, and faith-community leader.

Justin Sargent 6
Peter Vickery, Esq.
anti-SLAPP, appeals court, law, massachusetts

Petition by press release? Protected.

February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.”  Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.

The case is Blanchard v. Steward Carney Hospital, Inc., and others.  The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.  

What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,

Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.

This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”

The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.

Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.

Justin Sargent 6
Peter Vickery, Esq.
appeals court, employment law, law, massachusetts

Churchill victorious in 1945 after all

In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”

But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .

The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.

The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.

The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.

This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.

Peter Vickery July 2012
Peter Vickery, Esq.
discrimination, employment law, massachusetts

Boston’s $11 million payout: mission accomplished

I see that the declared mission of City of Boston’s treasury department is “to collect and transfer all funds due to the City.” Well, as a result of a generous jury decision, the treasury department is going to have to transfer funds in the amount of $11 million to one of its own employees, senior administrative assistant Chantal Charles. Congratulations to all concerned — parties, counsel, and jury — for demonstrating that whatever happens in Washington, D.C., at least local government can accomplish its mission.

mission accomplished

On a completely different subject, here’s a guide to public choice theory.

discrimination, employment law, massachusetts, massachusetts commission against discrimination

ZAP! That’ll be a quarter million bucks

In the business of intimate hair removal, it turns out that in Massachusetts it is not only unkind but costly for employees to joke about zapping a client in the scrotum with a laser.  By “costly” I refer to a figure north of one quarter of a million dollars ($260,000.00, in fact), which is the sum of money that a respondent in a discrimination suit is going to have to part with following a decision from the Massachusetts Commission Against Discrimination (MCAD), namely Barnes v. Sleek, Inc., et al.

ZAPThe bare facts are these: The respondents hired the complainant, Mr. Barnes, to manage a spa in the Burlington mall, where patrons could pay for certain hair removal procedures, such as bikini waxing. Mr. Barnes was only there a week, however. He was fired after complaining to his boss about the employees’ habit of laughing and joking about what the MCAD describes as “clients’ genitals and private parts” (emphasis added; until today I had thought that genitals were private parts, not something separate and additional to them). As an example, the decision refers to a “discussion about intentionally ‘zapping’ a male client in the scrotum with a laser.”

To make matters worse, at least so far as Mr. Barnes was concerned, “the outgoing manager of the spa flashed her breasts to a web-camera.” She expressed the hope that the owner was watching. And all of this going on in the Burlington mall, just a few doors down from Pretzel Twister and the Cheesecake Factory.

Perhaps it is my British school-boyishness, but given the nature of the work, i.e. pubic topiary, I would have considered ribaldry to be a what lawyers call a BFOQ, or a bona fide occupational qualification. Not so the MCAD, which awarded Mr. Barnes $41,641.67 for lost wages and $150,000.00 for emotional distress. In addition, the Commission imposed a civil penalty of $50,000.00 and ordered the respondents to pay a hair over $18,000.00 in legal fees, with interest running at 12%. Altogether that comes to more than a quarter of a million dollars, which is at least as eye-watering as the prospect of a laser zap to the private parts, including but not limited to the genitals.

Readers should note that the respondents did not mount a defense. They did not submit an answer and position statement nor did they, in the words of the decision, “cooperate in the Commission’s investigation.” Although it may not have made any difference to the finding of retaliation — and I am speculating here — the lack of a robust defense may have affected the size of the damage award. With a bit of care and attention, the respondents might have been able to shave off a few thousand dollars.

employment law, massachusetts, supreme judicial court

Court to rule on freedom of political speech in Massachusetts

Should politicians be allowed to use the harassment-prevention laws to silence their opponents? That is one way to frame the question that the Supreme Judicial Court (SJC) will consider in December. Here is the way the SJC frames the political-speech question presented by Van Liew v. Stansfield:

Whether statements made by the plaintiff, allegedly in the context of “political discourse,” could have qualified as acts of harassment for purposes of G. L. c. 258E; whether a request by the defendant, an elected official, for a harassment prevention order under c. 258E “was devoid of any reasonable factual support or any arguable basis in law” for purposes of the anti-SLAPP statute, G. L. c. 231, § 59H, where the plaintiff’s statements on which the request was based allegedly were “political speech” and made to express the plaintiff’s “version of what was happening in the town.”

In a nutshell, during a municipal election campaign in Chelmsford one local politician (Stansfield) obtained a court order banning another local politician (Van Liew) from using Stansfield’s name “in any email, blog, twitter, or any document through the internet, television show, ad, or otherwise.” In an ex parte hearing (i.e. without the opposing party) Stansfield alleged that Van Liew’s conduct amounted to harassment under M.G.L. c. 258E. The court later decided not to extend the order. Van Liew then sued Stansfield for malicious prosecution and abuse of process. After the district court dismissed his complaint and the appellate division re-instated it, the matter ended up on docket of the commonwealth’s high court.

Given the case’s implications for freedom of speech, it is not surprising that the SJC has requested amicus briefs. But with oral arguments scheduled for December, there is very little time for interested parties to weigh in.

If you would like to see and hear the litigants, click here for Ms. Stansfield (from minute 12:25) and here for Mr. Van Liew (from minute 19:40).

chelmsford PB with caption
Colleen Stansfield: seated, left
roland van liew
Roland Van Liew

The question before the court is whether the statements that Mr. Van Liew made to Ms. Stansfield could constitute harassment, which the statute (chapter 258E) defines as “three or more acts of willful and malicious conduct aimed at a specific person committed with the intent to cause fear, intimidation, abuse or damage to property and that does in fact cause fear, intimidation, abuse or damage to property.”  I shall write more on that question in a later post. In the meantime, an equally important question is one that the SJC has not articulated in its request for amicus briefs, namely whether  a judge issuing a harassment-prevention order should engage in such sweeping prior restraint as the judge in this case.

At Ms. Stansfield’s request, the judge prohibited Mr. Van Liew from using Ms. Stansfield’s name in any TV appearance, advertisement, email, blog, or tweet. Because of this, according to his brief, Mr. Van Liew cancelled a Meet the Candidate show that had been going to run online and on TV.  By way of the anti-harassment law Ms. Stansfield achieved a result that she probably could not have obtained via defamation law.

If Ms. Stansfield had been suing Mr. Van Liew for libel, and sought a preliminary injunction to prevent Mr. Van Liew from publishing further defamatory statements about her, I suspect the judge would have looked at her request through First Amendment lenses and denied the request.

So I have a question, particularly for any of my Legislative Drafting students who are reading this: Is this something best left to the discretion of a trial judge, or should the Legislature amend chapter 258E to make clear that it must not be used to chill freedom of speech? If you think a legislative fix is necessary, what would your proposed amendment say?

employment law, law, massachusetts

Tips & Taxis

Tips and taxis (or taxi drivers, to be precise) provide the subject matter for my latest employment-law article in Business West magazine.

Does the law allow a restaurateur to establish a no-tipping policy? And are Boston taxi drivers really employees even if their lease agreements describe them as independent contractors?

To find out, just click here.

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Attorney Peter Vickery
employment law, massachusetts

Tipping Point

Is an employer free to establish a no-tipping policy? Yes, said the Supreme Judicial Court (SJC), rejecting the argument of a group of current and former Dunkin’ Donuts employees who contended that Massachusetts law prohibits no-tipping policies. You can read the decision by clicking here.

When it enacted the Tips Act (M.G.L. c. 149, S. 152A) the Legislature barred employers from deducting or retaining tips that customers had given to the wait staff.  Counsel for the plaintiffs (the employees) argued that the words “deducting” and “retaining” are flexible enough to mean “prohibiting.” Not so, said the SJC. Making it unlawful for restaurant/bar-owners to keep or skim tips that customers have left for servers is not the same as forbidding them from trying to prevent customers from tipping in the first place. A no-tipping policy simply does not violate the Tips Act.

And so long as the owner clearly communicates the policy to customers, if customers still leave money behind, the servers do not have the right to claim that money as theirs. The employer is not breaking the law by keeping it or giving it away.

So employers: If you have a no-tipping policy, make sure that you get the message across to your customer clearly. That’s my tip for the day.

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Peter Vickery, Esq.
employment law, massachusetts

Emergency Regulation on Crowdfunding: Public Hearing

If you are thinking of using crowd-funding to help your business take wing, please note:  Massachusetts is considering a regulation that would define how much money you can raise, over what period, and from whom. Earlier this year the Commonwealth’s securities division adopted an emergency regulation on this subject, and — with an eye to crafting a more permanent version — is currently accepting comments. In addition to the temporal, geographic, and dollar-amount limits, the regulation requires that entrepreneurs publish certain “risk disclosures.”

To its credit, the division’s official request for public comment poses questions about the relationship of the state regulation to its federal equivalents and the potential for Massachusetts collaborating with other states. Given the fact that the emergency regulation is already on the books and that the state securities division is on the verge of promulgating the updated version, I suppose it’s too late to call the whole thing off. But small-business owners may well wonder, do we really need state-level rules and an interstate compact to further regulate (and hamper) this particular online activity?

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Peter Vickery, Esq.

A pubic hearing is scheduled for Tuesday, March 24, at 10:00 a.m. in Boston.  In the meantime, if you have an interest in building businesses through crowd-funding, I recommend that you (1) take a look at the mandatory Small Business Impact Statement (scroll down past the public hearing notice) which states that the regulation’s purpose is to “foster job creation by helping small and early-stage Massachusetts companies find investors and gain greater access to capital with fewer restrictions; (2) read the regulation; and then (3) ponder the compatibility of points (1) and (2).

law, massachusetts, Uncategorized

Doctoring the definition

Is a physical therapist a physician? Yes, said the Supreme Judicial Court, so long as we are talking about “physician” in the context of motor-vehicle insurance law.

In Ortiz v. Examworks, Inc., the Court looked at Massachusetts General Laws chapter 90, section 34M, paragraph three, which requires that people applying for personal injury protection (PIP) benefits have to submit to “physical examination by physicians selected by the insurer.” It held that the term “physician” includes physical therapists.  This is a case where the Court arrived at the right destination by an unfortunate route, using statutory construction to solve a problem that was the Legislature’s to fix.

When the plaintiff, Flor Ortiz, applied for PIP benefits the insurer, Progressive, asked Examworks to provide an independent medical examination (IME). The IME that Examworks set up for Mr. Ortiz was with a physical therapist, not a medical doctor. Although the physical therapist’s report did not become part of the court record, on the basis of what happened next it seems fair to surmise that Mr. Ortiz deemed it a disappointment.

Mr. Ortiz sued, alleging that by submitting him to an exam with a physical therapist not a medical doctor Examworks had violated, among other things, the Consumer Protection Act (which provides for multiple damages and attorney’s fees). Examworks filed a motion to dismiss, which the Superior Court granted, and Mr. Ortiz appealed. The case ended up before the Supreme Judicial Court. Ruling that the court below was correct to dismiss the case — a just outcome, I believe — the SJC chose to imbue the word “physician” with more elasticity than modern custom and usage would seem to allow.

What did the Legislature mean when it used the word “physician,” asked the SJC? The relevant provision became law in 1970, so the Court decided to consult the 1969 edition of the American Heritage Dictionary, which states that the word “physician” includes “any person who heals or exerts a healing influence.” Bingo and ergo. Exerting a healing influence is something a physical therapist does, therefore a physical therapist is a physician. Of course, so is Barney, by that standard.

Should the Legislature not have been more precise when it created the PIP system? Not at all, said the Court, quoting dicta from a 1978 decision: “In so large a legislative enterprise… there are likely to be casual overstatements and understatements, half-answers and gaps in the statutory provisions.”

The bigger and more complicated the law, in other words, the greater the degree of carelessness we should expect from lawmakers. Ask them to enact a law establishing the official state folk dance, and they will do themselves proud. But give them something as complex as, say, health care and insurance, and they will inevitably descend to a level of slap-dashery that would embarrass even the drafters of the ACA. What a dismally low standard for the judicial branch to apply to the legislative branch.

Should the law require a PIP applicant to submit to examination by a medical doctor, dentist, or physical therapist of the insurance company’s choosing? Perhaps. But does it? Not as currently written. Rewriting the statute so that it does is a task for the Legislature alone, not for the courts.

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Peter Vickery, Esq.

 

employment law, massachusetts, Uncategorized

Will Massachusetts Ban Employers from Googling?

In my online column for Business West last month, I wondered whether Massachusetts lawmakers might enact a law in 2015 that would prohibit employers from perusing a job applicant’s online writings unless those writings are in the public domain (i.e. not subject to copyright). If the proposed bill became law an employer could not lawfully look at an applicant’s blog without the applicant’s express prior permission.  To find out why this is even a possibility, scroll down to the third item, titled “State Level Developments.”

With the next session of the Legislature poised for kick-off, it is time to do more than wonder. After reviewing the newly-filed bills I shall post an update, so stay tuned.

If you are curious about when, if ever, a social-media diatribe can serve as the basis for terminating employment, you might want to read the rest of the article.

Justin Sargent 1
Peter Vickery, Esq.

 

discrimination, employment law, massachusetts

Two Reasons to Worry About the New Domestic Worker Law

At a recent conference on employment law, I heard a panelist say that the new Massachusetts law on domestic workers will leave people who hire housecleaners vulnerable to lawsuits in the Massachusetts Commission Against Discrimination (MCAD). And those people need not be employers of six or more workers: Even individual homeowners will be open to suit in the MCAD. My first thought was that housecleaners have a hard enough time as it is, without having their potential clients scared away by politicians. After all, who in their right mind would engage the services of a cleaner if the deal included a possible sojourn in the MCAD? My second thought was that the panelist had to be mistaken and that I must go back to the office and read the whole statute for myself. So I did, and now I am slightly more worried than before.

The statute in question is M.G.L. c.149, s. 190 and s. 191, which you can read here and here. Its proponents (the National Domestic Workers Alliance) gave it the moniker the Domestic Workers Bill of Rights, and in their FAQs they claim that it covers “housekeepers, housecleaners, nannies, and those who care for the sick, convalescing or elderly.” Some provisions are already in force, and the law in its entirety comes into effect on April 1, 2015. I suspect that by May 1, 2015, the MCAD will have screened in at least one case of a disgruntled housecleaner suing a homeowner for harassment on the basis of sex, sexual orientation, gender identity, race, color, age, religion, national origin, disability, or some combination thereof. Of course, this will depend on how the MCAD construes the statutory definition of “domestic worker.”

So who is a “domestic worker” under the Domestic Workers Bill of Rights?  Before I tell you who is one, let me tell you who is not one. There are three categories of workers who, although they would qualify as domestic workers in ordinary common parlance, fall outside the statute’s definition of the term. First, personal care attendants. Second, people whose services “primarily consist of childcare on a casual, intermittent and irregular basis,” i.e. babysitters. Third, “an individual whose vocation is not childcare.”

Yes, according to the text of the new law, and contrary to the assertion of the National Domestic Workers Alliance, the term “domestic worker” does not include “an individual whose vocation is not childcare.” The two negatives can trip the reader up, so the exclusion merits some time and attention. Bear with me while I re-state it: The term “domestic worker” does not include “an individual whose vocation is not childcare.”

If my powers of reasoning and grasp of English are up to snuff, a domestic worker must be an individual whose vocation is childcare. In other words, if you are an individual whose vocation is childcare, you are a domestic worker; if your vocation is not childcare, you are not a domestic worker. Either the Legislature consciously and deliberately chose to limit the Domestic Workers Bill of Rights to childcare workers, or did so by accident. I am not sure which is worse.

The exemption within the definition defies one of the elementary principles of draftsmanship and rule-making, one that has been around since antiquity. I am no Latin scholar, but I feel confident that when Cicero said exceptio probat regulam in casibus non exceptis he meant that the exception confirms the rule in the cases not excepted, not that the exception should swallow the rule. Accordingly, if one of my Legislative Drafting students had submitted a draft bill containing such a poorly crafted definition, she or he would have to try again.

The meaning of the exemption is plain. Like personal care attendants and babysitters, people whose vocation is not childcare are not “domestic workers” and not, therefore, entitled to the statute’s protection. From the statutory-construction standpoint that should be an end of it. Interpretatio cessat in claris as the maxim says (interpretation comes to an end when the text is clear). But is this what the Legislature meant? I doubt it, given that the Legislature defined the term “domestic worker” to include caring for the elderly, a task not synonymous with — in fact, quite distinct from — caring for children.

What will happen when Mr. Wooster, facing the need to retrench, decides, as part of his belt-tightening, to let go of old Jeeves, his long-suffering English factotum? If Jeeves files a complaint against Wooster in the MCAD alleging harassment on the basis of — picking a couple of categories at random — age and national origin, what will the MCAD intake staffer tell him: Sorry, you lack standing to sue under Chapter 149, Section 191, because you are an individual whose vocation is not childcare? “Is that so?” Jeeves might say, eyebrow raised.

To summarize, my two reasons for worrying about this new law are (1) what it tries to do, (2) that its failure to do what it tries to do will make no difference to the construction the MCAD will put on it. The Legislature’s unintentional limitation of the law to childcare workers will not prevent the MCAD from construing the law as if the limitation did not exist. The MCAD will pretend that the Legislature had drafted it competently, and the courts will defer to the MCAD’s interpretation.

For housecleaners looking for work in Massachusetts, life may become just that bit harder in 2015.

Peter Vickery, Esq.
Peter Vickery, Esq.
law, massachusetts

Will Legislature Pass Cosby’s Law?

bill-cosby
Bill Cosby

Bill Cosby wants Massachusetts to grant his image remunerative life after death by amending the commonwealth’s right-of-publicity law. If his bill becomes law, the right to commercially exploit the Cosby image will outlive Mr. Cosby himself by 70 years (the earliest point by which, to be snide, I predict the brand might recover some monetary value).

Until the scandalous allegations about Mr. Cosby returned to the headlines, the media having lost interest for a few years, it looked as if he was going to get his way. The State Senate had, back in 2012, already approved his proposal, “An Act Protecting the Commercial Value of Artists, Entertainers, and Other Notable Personalities,” to give the measure its full title. It did so again in 2014, and this time the bill made it as far as the Ways and Means Committee, where it lingered at the close of the official legislative session.

I think it unlikely that the Massachusetts Legislature will use its unofficial sessions to pass the bill, but can claim no inside knowledge. Leading the charge for the Cosby Law was Senate-President-in-Waiting, Stan Rosenberg. When the Legislature reassembles in January, the newly-elevated Senator Rosenberg will no longer be in the bill-sponsoring business and, with the putative Cosby Law about as popular as its eponym, a new lead sponsor may be hard to find. Let us hope so.

There are several reasons to oppose the bill. First, it grants special rights to one particular class of Bay Staters. At present, we residents of Massachusetts all have the statutory right to control the commercial exploitation of our names and likenesses. You can read the relevant statute here, and if you read only the first two words you will learn something important, namely that the current law protects “any person.” That is not some fancy legalistic term of art, by the way: It means any person. The Cosby Law, in contrast, would protect you only if you happen to be a “personality,” which the bill defines as “an individual whose identity has commercial value.” It would not merely amend the current law but repeal and replace it. Ordinary residents would no longer enjoy the right of publicity. That right would belong only to celebrities, not we the hoi polloi.

My second reason for hoping the proposed Cosby Law fades away is its potential chilling effect. At the risk of making a sweeping generalization, I have noticed that powerful people rarely welcome criticism. If there is a plausibly legitimate method for muzzling their critics, they will use it. Although the Cosby bill expressly allows the use of a “personality’s identity” for purposes of “news report or commentary” as well as in artistic and expressive works, some lawyers to the rich and famous have a tendency to send threatening letters to awkward writers and artists anyway. Those on the receiving end may know that they are within their rights but fear the cost of proving it. So they give in without a fight. When there is no downside to sending baseless cease-and-desist letters, the consiglieri will send them.

Third, the bill creates the right to control the commercial use of a personality’s “image,” an ambiguous term that the bill does not define. In fact, the word “image” does not appear in the bill’s relatively clear definition of “identity,” i.e. “a personality’s name, likeness, voice, or signature that uniquely identifies that particular personality.” Injecting the undefined word “image” into the bill creates just the kind of ambiguity that lawyers to the rich and famous could exploit for their nefarious, speech-chilling ends (see above).

My fourth and final reason is this. The bill contains the following: “A personality shall have a property interest in such personality’s identity and shall have the exclusive right to control the commercial use of the personality’s identity during the personality’s life and for 70 years after the date of the personality’s death.” What the bill aims to achieve here is not so much a legal impossibility as an ontological and biological one. The dead cannot control anything. That is just one of the many features that make death so unappealing.

Now, I think I know what the drafters meant to write — that the right should endure for 70 years after death, if vested in a transferee — but what they wrote does not embody that meaning. So they should tear up this draft and try again. Or, better still, just tear up this draft and leave it at that.