Snow Removal Required

SJC KILLS LOOPHOLE IN CLEANUP LAW

Denise Lavoie of THE ASSOCIATED PRESS reports in the Worcester Telegram that property owners may be held liable for snow-related injuries whether the accumulations are caused by Mother Nature or by snowplows, the state’s highest court ruled yesterday in a far-reaching decision that lawyers said could result in a wave of personal injury lawsuits.

In its ruling, the Supreme Judicial Court eliminated a long-held distinction in state law between “natural” and “unnatural” accumulations of snow and ice.

For more than a century, case law in Massachusetts held that property owners who failed to remove natural accumulations could not be held liable. But the court found that owners have a duty to keep property reasonably safe.

“The biggest effect is that people who have suffered injuries as a result of the negligence of the landowner will be able to seek compensation, even in cases where the snow or ice accumulated naturally,” said David White, a Boston personal injury lawyer.

“The other effect is that landowners will probably be more cautious now and treat their ice and snow,” White said.

The court ruled in the case of Emanuel Papadopoulos of Peabody, who broke his pelvis in 2002 when he slipped and fell on a patch of ice in the parking lot of the Liberty Tree Mall in Danvers in front of a Target department store.

The parking lot had been cleared, but a pile of snow had been plowed onto a median strip.

After leaving the store to return to his car, Papadopoulos slipped on ice on the pavement.

A judge found that whether it was a chunk of ice that had fallen from the median or a patch of refrozen runoff from the snow pile, the ice that caused his fall was a “natural accumulation.”

The judge granted a motion by Target and Weiss Landscaping Co. Inc., the snow removal contractor, to dismiss the lawsuit, citing Massachusetts case law that found that a property owner cannot be held liable for failing to remove natural accumulations.

The Supreme Judicial Court rejected the rationale behind those earlier court rulings — that a natural accumulation of snow or ice is not a defect that a property owner has a duty to repair.

“We now will apply to hazards arising from snow and ice the same obligation that a property owner owes to lawful visitors as to all other hazards: a duty to ‘act as a reasonable person under all of the circumstances including the likelihood of injury to others, the probable seriousness of such injuries, and the burden of reducing or avoiding the risk,’ ” Justice Ralph Gants wrote in the unanimous ruling.

The court said the new rule will apply retroactively to pending lawsuits. It sent the Papadopoulos case back to the lower court to reconsider its ruling dismissing his lawsuit.

Papadopoulos’ lawyer, Emmanuel Papanickolas, praised the ruling, saying it imposes a responsibility on property owners “to make a reasonable effort to remove the snow and the hazards of freezing snow and ice.”

“The jury decides what’s reasonable,” he said. “It’s a great decision for the state of Massachusetts. It’s in the interest of public safety.”

Read more: Worcester Telegram

Franchisor Retaliation: A thing of the past?

The American Heritage Dictionary defines retaliate as, “To return like for like, especially evil for evil.” In life we are taught that one good turn deserves another. In franchising, many believe there is evil lurking when a franchisor decides it does not agree with the words or actions of one of its franchisees. This is especially so when the actions of the franchisor are based on that franchisee’s membership in or leadership of a franchisee association.

Attorney Eric H. Karp of Witmer, Karp, Warner & Ryan, LLP, a Boston-based law firm where he specializes in the representation of franchisee associations, says retaliation has been declining within most franchise systems for two main reasons.

The first is the growth in existence of franchisee associations. Unlike DDIFO, which was formed in 1989, many franchise associations have begun forming just in the past decade as franchising has become more common. More Franchisors have grown accustomed to the existence of independent franchisee associations this their systems, and the more enlightened ones will take advantage of the opportunity to collaborate with them,

The second reason Karp believes retaliation appears to be waning is traceable to the 2007 Federal Trade Commission (FTC) mandate that the existence of a franchise association be included in Franchise Disclosure Documents. The FTC said franchisors must, “Disclose, to the extent known, the name, address, telephone number, email address, and Web address (to the extent known) of each trademark-specific franchisee organization associated with the franchise system” for all prospective franchisees.

“One of reasons disclosure is so important is that they are a legitimate source of information about a system for a potential franchise owner. They teach you about the culture of a system,” said Karp. “The FTC’s regulation was fought by the franchisor community because it provides a stamp of approval on the existence of franchisee associations.”

Yet, many franchisees who organize new associations feel they are targeted by their franchisors—even if they can’t prove it. As Karp points out, there is still a minority of systems which believe in what he calls “power franchising”—another name for strong-arm tactics.  On the other hand, in 2004 Karp presented to the American Bar Association Forum on Franchising a study of the six known court decisions in which franchisees claimed to have been terminated, harassed, intimidated and/or retaliated against by reason of their affiliation with a franchisee association. The score was six wins for the franchisees; three substantial verdicts in their favor and three franchisor motions for summary judgment denied. 

Karp is quick to point out that in the Dunkin’ system, fear of retaliation seemed to diminish after former Chief Legal Officer Steve Horn resigned.

“Horn represented unenlightened leadership. System governance through litigation is not a recipe that motivates franchisees to reinvest in the system,” said Karp.

Today 13 states, not including Massachusetts where Dunkin’ Brands is incorporated, have laws that formally protect the rights of franchise owners to freely associate. In addition, several state courts have reaffirmed that right.  The oldest relevant case dates to 1979 where owners of AAMCO Transmission franchises in Michigan were found, “like all other persons in the United States [to] enjoy the right pursuant to the First Amendment of the United States Constitution to assemble, subject only to those exceptions specifically provided by the statute.”

According to Karp, franchise owners who choose to belong to an association—whether it is formally recognized by the franchisor or not—are part of a protected class, based on the actions of state and federal court judges and juries.

Karp says instances when organizers of new franchise associations have been sued, harassed or discriminated against are rare and don’t fit the maturing business culture surrounding franchising, which rewards long-term growth.

And, because there is often greater change among system owners and mangers than among franchise owners, companies that purchase franchise systems are increasingly recognizing the need to tap the institutional knowledge of the franchisees.

“There’s a growing realization that the only way to deal with competition in the marketplace is to establish a cooperative, collaborative and mutually respectful relationship with the independent franchisee association.”

Employment Law Updates

This Employment Law Update was furnished by Masterman, Culbert & Tully LLP, One Lewis Wharf, Boston 02110, (617) 722-8100, www.mctlaw.com and addresses a range of issues from statutory amendments to recent cases to help keep you informed of relevant changes in the employment law field and to assist you in managing your workforce.

Statutory amendments

• Nursing Mothers Entitled to Reasonable Break Time.  The federal health care reform legislation enacted by President Obama on March 23, 2010 contains an amendment to the federal Fair Labor Standards Act requiring employers to provide nursing mothers with reasonable break time, as needed, to express breast milk during the first year after her child’s birth.  Covered employers are also required to provide their employees with a private place, other than a bathroom, in which to take these breaks.  Employers are exempt from these requirements if they have fewer than 50 employees and if providing the breaks would constitute an undue hardship by causing significant difficulty or expense.  Pursuant to this amendment, employees need not be compensated during this break time; however, employers should note that the Fair Labor Standards Act regulations provide that short breaks between 5 and 20 minutes must be counted as time worked (and paid), but based on the language of the amendment, it appears that Congress intended that these breaks be an exception to these general regulations and that the time need not be counted as time worked or paid.  In addition, with respect to the exemption based on undue hardship, the amendment does not state who is to make the determination whether providing the breaks would constitute an undue hardship.  Regardless of this particular amendment, in light of a 2007 Massachusetts Appeals Court decision in which the Court acknowledged that “any condition premised on a pregnancy-related condition constitutes sex discrimination,” and identified breastfeeding as a “post-pregnancy condition,” employers should carefully consider any request for accommodation by breastfeeding employees because failure to comply with the amendment my trigger a claim of gender discrimination.

• COBRA Premium Reduction Period Extended.  On April 15, 2010, President Obama signed into law a further extension of the COBRA premium subsidy legislation to extend the time period for a qualifying event through May 31, 2010 (e.g. an involuntary termination occurring up through May 31, 2010).  As a result, employees who are otherwise eligible for COBRA continuation coverage as a result of their losing their group health insurance coverage as a result of an involuntary termination between March 2, 2010 and May 31, 2010, will be eligible to elect COBRA continuation coverage and  pay just 35% of the COBRA premium for up to 15 months.  This extension does not affect the maximum periods of COBRA continuation coverage nor does it extend beyond the 15-month maximum period for the premium subsidy.  President Obama has urged lawmakers to pass legislation to extend the COBRA premium subsidies to employees laid off through the end of the year, which is currently pending.

• Updated Identity Theft Regulations Tailored to Small Employers.  In response to the concerns of small businesses regarding the Massachusetts identity theft regulations, the Office of Consumer Affairs and Business Regulation has released updated regulations that took effect March 1, 2010.  The regulations make clear that the approach to data security is a risk-based approach.  Under this risk-based approach, a business, in developing a written security program, should take into account its size, nature of its business, the kinds of records it maintains, and the risk of identity theft posed by its operations.

• Misclassification is on the federal DOL radar screen.  As we in Massachusetts are aware, misclassification of workers as independent contractors can have a significant and potentially expensive impact upon employers and their officers and managers.  This is because of the Massachusetts statute creating a presumption that workers are employees and setting out strict factors to be proven by the employer where it seeks to classify a worker as an independent contractor.  In addition, liability for misclassification includes mandatory triple damages and mandatory attorney’s fees, as well as individual exposure with respect to the employer’s officers and managers, even where the employer is a corporation (as a result of which, typically, its officers and managers have no personal liability for acts of the corporate entity).  The federal Department of Labor (“DOL”) is now focused on the misclassification issue, emphasizing it as an important item in its ongoing 2010 enforcement strategy.  Among other things, the DOL strongly supports legislation recently introduced at the federal level regarding the issue of misclassification.  In a recent statement, the DOL’s Secretary of Labor identified that one of her goals in supporting the misclassification legislation is to secure minimum and overtime wages and to help middle class families remain in the middle class, with the issue of misclassification being key to attaining those goals because misclassification of employees as independent contractors deprives employees of critical workplace protections and employment benefits to which they are legally entitled.  Now, more than ever, employers must analyze their workforce and the classifications of their workers to insure compliance with the Massachusetts law and protect against potentially costly, personal liability.

Case Law Updates

• Suit for Failure to Hire Based on Applicant’s Nicotine Use Dismissed.  Last summer, the District Court of Massachusetts granted summary judgment for an employer dismissing the claim of an applicant who was not hired after he tested positive for nicotine.  Rodrigues v. EG Systems raises two important issues.  Firstly, where an employer makes the job offer contingent upon a satisfactory drug screening, even if the individual begins work, he or she will not necessarily be considered an employee.  Rodrigues’s ERISA claim failed because the employer’s health plan included carefully defined eligibility requirements which excluded those to whom only a conditional job offer had been made.  The second issue raised by this case was whether the employer’s discovery of nicotine in the applicant’s system constitutes an invasion of privacy.  Here, Rodrigues smoked in public and made his use of nicotine known to his employer by having a pack of cigarettes visible in his car, thereby defeating his invasion of privacy claim.  Remarkably, Rodrigues did not challenge the test itself as being an invasion of privacy so there was no determination as to whether the testing for nicotine use (lawful, off-the-job behavior which arguably does not affect job performance) constitutes an invasion of privacy.  This case demonstrates that employers conducting drug screening should (1) carefully review their benefit plans to ensure that the eligibility criteria are clearly defined and (2) be mindful that the circumstances under which Massachusetts courts have found that drug testing constitutes an invasion of privacy is very fact specific and still developing.

• Maximum Age Restriction Deemed Unconstitutional.  The Montana Supreme Court held that a statute requiring that firefighters not be more than 34 years of age at the time of their initial appointment was unconstitutional.  Although this decision is not controlling in Massachusetts, it is interesting as generally age claims are brought under federal and/or state anti-discrimination laws which, under the Massachusetts age discrimination statute and the federal Age Discrimination in Employment Act, protect only those age 40 and older.  In finding that the age requirement was wholly arbitrary because there was no factual or empirical basis, the Montana Supreme Court ruled that the state had violated the Montana equal protection clause.  The Massachusetts Constitution’s equal protection clause is not drafted identically to that of Montana; however, employers should carefully consider whether an age restriction is a bona fide occupational qualification with a rational basis.

• Employee Manual Deemed an Implied Contract.  The Appellate Division of the Massachusetts District Court recently upheld a decision that serves to remind employers that an employee manual will, in certain circumstances, be treated as an implied contract between the employer and the employees.  In Buttrick v. Intercity Alarms, LLC, the lengthy employee manual included a progressive discipline policy which Intercity Alarms failed to follow when terminating Buttrick’s employment (resulting in a $41,888 award to Buttrick).  During the trial, Buttrick testified that he was required to sign the non-competition agreement in the manual, and he believed he was bound by the manual.  Before issuing or amending an employee manual, employers should consult with employment counsel to minimize the risk that it will be deemed to be an implied contract.

If you have any questions about these topics, please do not hesitate to contact Mary E. O’Neal at meo@mctlaw.com, Patricia A. Granger at pag@mctlaw.com or Angela L. Rapko at alr@mctlaw.com.  You may also reach us by telephone at (617) 722-8100.  We also welcome your inquiries regarding other employment-related issues you may be facing in your business.

Boston’s Coffee Sales Grind to Just a Trickle

An estimated 2 million Greater Boston residents are without clean drinking water and under a boil water order following the breaching of a 10-foot pipe that supplies clean water to the region.

The Boston Globe reports that as a result of the massive pipe leak that cut off clean water to two million Eastern Massachusetts residents also sharply curtailed the availability of another critical beverage: coffee.

Dunkin’ Donuts, one of the largest coffee retailers in the country, stopped serving coffee in areas affected by the water break yesterday. Customers were greeted by signs on the entrances that said: “We are not offering hot or cold coffee products until further notice.’’ Dunkin’ Donuts was pushing Coolattas, a frozen coffee drink.

And many independent retailers also cut off the flow of joe, leaving groggy brunchers yesterday searching for other sources of caffeine.

At Flour Bakery and Café in Boston’s South End, a sign on the door warned diners that no coffee was available because of the water crisis. Across Washington Street, at Code Ten, salads and coffee were both off the menu.

Amrita Bajwa, a medical student from Boston, sat outside Code Ten with a friend, sipping from a bottle of water.

“I tried to get an iced chai tea from Flour, but had to settle for something else,’’ she said.

Judith Connelly, of Malden, was staring at the sign outside the Dunkin’ Donuts on Summer Street, in downtown Boston, and said she had been “looking all day for her daily cup of coffee,’’ and had not yet found one. Her preferred shop, Starbucks, had also shut down its coffee sales in affected stores, and only offered bottled drinks and food.

There were options to be found, and different stores reached different conclusions about whether coffee is hot enough to qualify as drinkable. It is not; water must be boiled for a minute, which does not happen in a coffeemaker.

A 7-Eleven on Morrissey Boulevard in Dorchester was not selling fountain drinks, but was offering coffee. “It is already hot,’’ a clerk argued. But a 7-Eleven in Downtown Crossing decided otherwise, and cut off its coffee.

Aroa Fine Chocolate in the South End kept coffee on the menu. An employee said the shop used prepackaged ice and spring water for iced coffee, and relied on the fact that the hot coffee was heated.

Some consumers were taking no chances. “I think I will pass on the boiled tap water,’’ Connelly said. And Edgar Galicia, a gas station worker in Dorchester, said he skipped his morning cup of coffee because he was “worried about getting sick.’’

The coffee conundrum has become a challenge for many retailers and businesses. Roger Berkowitz, chief executive of Legal Sea Foods, said making coffee in bulk has been “the most challenging’’ issue for the chain’s restaurants, because not all prepare the drink at boiling temperatures.

“It is terrible for business,’’ said Lauren Krakauskas, an employee at Espresso Royale Caffe on Newbury Street, which shut down its espresso machines yesterday. “All we have to sell is orange juice.’’

See also: Boston Herald Customers Steaming about hard-to-find coffee

IFA Says Ruling Threatens Viability of Franchise Businesses in Massachusetts

The International Franchise Association says that a recent ruling by U.S. District Court of Massachusetts Judge William G. Young will severely impact the ability of franchise businesses to operate, create jobs and provide millions in economic output in the Commonwealth, the International Franchise Association said today.

“Franchising is a significant source of small business activity in the Commonwealth and has greatly increased small business ownership, particularly among women and minorities,” said IFA Vice President of Government Relations David French.  ”We feel the judge did not take fully into account the unique attributes of franchising and the federal regulatory oversight of the franchise business model.  Wrongfully defining franchisees as employees of the franchisors instead of business owners, as the ruling does, threatens the viability of franchising as a business model in Massachusetts and will likely lead to franchise companies ceasing operations.”

French said that because of the 16,000 franchise businesses in Massachusetts 300,000 jobs are created and $37 million in economic output is provided.  

The judge granted summary judgment to plaintiffs based on his conclusion that under Massachusetts’ Independent Contractor Statute, Massachusetts franchisees of the defendant Coverall North America were actually employees misclassified as independent contractors.  Under the statute, individuals providing a service are considered employees if they meet one of three prongs of the “ABC test” of employee misclassification.  The judge based his decision on prong two (“the service provided by the worker is outside the employer’s usual course of business”), asserting there is no distinction between the defendant’s business and that of its franchisees.  In what amounts to a threat to the entire franchise business model, Judge Young brings into question the legitimacy of every business that relies on contractually related firms as sources of revenue.

This ruling is the latest in a series of adverse actions relative to the independent contractor statutes in Massachusetts.  IFA is supporting legislation filed in Massachusetts that would stipulate that all three prongs of the ABC test must be violated in order for an independent contractor to be deemed a misclassified worker.  

About the International Franchise Association

The International Franchise Association is the world’s oldest and largest organization representing franchising worldwide. Celebrating 50 years of excellence, education and advocacy, IFA protects, enhances and promotes franchising through government relations, public relations and educational programs.  Through its awareness campaign highlighting the theme, Franchising: Building Local Businesses, One Opportunity at a Time, IFA promotes the 21 million jobs and $2.3 trillion of economic activity generated by franchising. IFA members include franchise companies in over 90 different business format categories, individual franchisees and companies that support the industry in marketing, law and business development.

SOURCE International Franchise Association

State of Massachusetts Institutes a Tax Amnesty Program for a Limited Time

The Massachusetts Commissioner of Revenue has established a 2-month amnesty period starting April 1, 2010 until June 1, 2010 applicable for tax periods ending on or before December 31, 2009 that is limited to sales-use taxes, withholding taxes, and certain business tax liabilities. ( Massachusetts Technical Information Release 10-5, 03/12/2010 .)

Eligible tax types. The amnesty program is limited to taxpayers with the following existing business tax liabilities: sales-use tax, sales tax on telecommunications services, meals tax, meals tax local option, materialman sales tax, withholding income, performer withholding, pass-through entity withholding, lottery annuity withholding, room occupancy excise, room occupancy excise local option, convention center financing fees on room occupancy in Boston, Cambridge, Chicopee, Springfield, West Springfield, and Worcester, convention center financing surcharge for sight-seeing tours, convention center financing surcharge on vehicle rentals in Boston, convention center financing surcharge on parking in Boston, Springfield, and Worcester, deeds excise, cigarette excise, cigars and smoking tobacco excise, club alcohol beverage excise, gasoline excise, special fuels excise, special fuels excise local option, and boat/recreational vehicles sales tax.

Eligibility. The program is open to taxpayers who have been issued a Tax Amnesty Notice and have an unpaid and previously self-assessed tax liability for an eligible tax type, or have been previously assessed a tax liability for an eligible tax type are properly disputing the unpaid liability, or are delinquent in paying the liability. Those who have entered into a payment agreement before the start of the amnesty period are eligible. Those with pending appeals qualify if they receive a Tax Amnesty Notice and timely pays all taxes and interest owed in full. Payment of the outstanding liability does not constitute a forfeiture of statutory rights of appeal or an admission of liability for the disputed assessment.

Not eligible. Taxpayers that are the subject of a tax-related criminal prosecution or investigation, prior to April 1, 2010, are not eligible. Those that have signed a settlement agreement are not eligible for amnesty for the tax periods covered by the settlement agreement including any settlement reached through the Department’s Litigation Bureau, Office of Appeals or Offer-in-Settlement Unit. Those who have paid all tax and interest due relating to any outstanding assessment but who, at the start of the amnesty period, still owe or are properly disputing penalties regarding that assessment are not eligible.

Amnesty. If a taxpayer pays the full amount of tax and interest as shown on the Tax Amnesty Notice, the Commissioner is authorized to waive all unpaid penalties and the interest directly attributable to those penalties for those imposed for failure to timely file a return; failure to file a proper return; failure to timely pay a tax liability; failure to file, report or pay electronically; and failure to pay the proper amount of any estimated tax payment for such period. When an eligible taxpayer pays the full outstanding balance of tax and interest with respect to previously filed returns or assessments, the Commissioner will waive the unpaid penalties as to that taxpayer for those tax periods. Penalties that have been assessed or that could be assessed by the Commissioner against a taxpayer for liabilities relating to any other tax types are not eligible for waiver under the amnesty program.

Amnesty payment and penalty. Required payments must be received by 5:00 p.m. EDT, June 1, 2010. If a payment is delivered by U.S. mail or a recognized commercial delivery service, payment will be considered timely if the date of postmark is on or before June 1, 2010 even if the mail is delivered after such date. If an eligible taxpayer fails to make a full payment of all tax and interest due under the amnesty program for each tax period for which the taxpayer receives a bill, the Commissioner may impose an additional amnesty penalty of up to $500 per taxpayer, to be added to and become part of the outstanding balance due.

Submitted by Jim Ventriglia of James P. Ventriglia, CPA, Inc. or Cranston, RI.  James P Ventriglia, MST, CPA, is DDIFO’s CPA and has been servicing the accounting needs of  Dunkin’ Donuts franchisees for decades. For more information contact him at  jimv@jpvcpa.com or at 401-942-0008.

Brewing Up Campaign Cash

Livia Gershon writes in the Worcester Business Journal that in 2004, the state passed a law that kept restaurant staff with managerial responsibilities from being part of any tip pool.

According to Jim Coen, president of Bellingham-based Dunkin’ Donuts Independent Franchise Owners Inc., it was a good idea, but the specific legal language has caused problems for his members. He said crew leaders at Dunkin’ stores have minimal managerial responsibilities, but the law still appears to keep them from sharing in tip jars. To avoid conflicts around the issue, Coen said, many franchise owners have eliminated tip jars altogether.

To help address political questions like the tip law, Dunkin’ franchise owners have formed the

Dunkin’ Donuts Franchise Owners Massachusetts Political Action Committee. DDIFO, which already uses a lobbyist on Beacon Hill, is legally a separate entity from the PAC, but Coen said it helped set the fund up and is encouraging its members to contribute.

For The Little Guy

Coen said one purpose of the PAC is simply to help elect politicians who support small businesses in general, but it will also look out for the specific interests of Dunkin’ franchise owners. He said the PAC could contribute to other PACs that work for small businesses or restaurant owners, or make direct contributions to politicians.

“Certainly there are times when our needs align with other organizations, but there are other times when our needs don’t align,” Coen said.

The new PAC isn’t the only one representing franchise owners. Coen said the most prominent franchisee PAC is the International Pizza Hut Franchise Holders Association PAC.

Regional Appeal

DDIFO represents the owners of more than 2,000 Dunkin’ shops both in Massachusetts and elsewhere, Coen said. He said most members are connected to a Dunkin’ distribution center in Bellingham that is cooperatively owned by franchisees, mainly in Massachusetts and upstate New York.

Coen said the new PAC is specifically focused on Massachusetts, but he’s already received inquiries from franchise owners in other states about the possibility of forming equivalent groups elsewhere.

Besides revisiting the tip pool issue, Coen said another issue for Dunkin’ franchises is the push for chain restaurants to post nutrition information.

He said the DDIFO sees the idea as inevitable on the national level but worries about the way it’s being implemented by individual cities and states.

Right now, he said, New York City and parts of upstate New York have their own posting rules, while Massachusetts and New Jersey are considering slightly different ones. That makes things more complicated, and more expensive, for franchisees who own stores in multiple locations.

Dunkin’ Donuts parent corporation is based in Canton and was founded in Quincy in 1950. Its first franchise was licensed in 1955.

There were 8,835 Dunkin’ Donuts stores worldwide at the end of 2008, according to the Dunkin’ Donuts web site.

Massachusetts Bill Would Force Paid Sick Leave for Everyone

Amanda Fakhreddine of the Patriot Ledger writes that in order to stay in business in the current economic climate, Richard Meier, owner of Meier & Associates, has had to make drastic cutbacks.

Now, Meier, whose company is based in Abington, has another worry – the Paid Sick Leave Act that’s being considered by the state Legislature.

“I like to give employees everything I can and keep them employed,” Meier said. “The Paid Sick Leave Act will make it that much more difficult.”

However, Mary Tillman, a Mattapan personal-care assistant, recalled a time when she was sick with pneumonia and still had to go to work. “By the time I got her bathed and dressed, I just had to lie on the floor and rest,” Tillman said of her patient.

The bill, which is being considered in the Legislature’s labor committee, would require that all employers offer paid sick leave to their employees. Employees would be able to earn one hour of paid sick leave for every 30 hours of work. The committee’s members are being polled this week to determine the level of support for the bill.

Sen. Patricia Jehlen and Rep. Kay Khan introduced the bill for the first time in 2005. The legislation died both that year and in 2007. However, the Massachusetts Paid Leave Coalition, which is made up of 60 organizations, is optimistic that it will be passed this time around.

Dan Gilbarg, a spokesman for the Brockton-based Coalition for Social Justice, said that more than half of Massachusetts workers do not get paid sick leave. “Working people recognize that it’s a benefit that should be part of any civilized society,” he said.

However, some small-business owners oppose the bill.

Bill Vernon, director of the Massachusetts chapter of the National Federation of Independent Business, said most small businesses have sick leave benefits that are tailored to their company. State mandates could require companies to cut their own benefits.

“I think the danger is the idea that the Massachusetts Legislature can determine what the benefits are for an employee,” said Vernon, who lives in Mansfield, “The employees will find out the hard way that because of this legislation, employers can’t afford to provide these other benefits.” Vernon said that the bill was “anti-business,” and that would make it difficult for small businesses to grow.

Philip Johnston, former chairman of the state’s Democratic Party and the president of the Johnston Associates public affairs firm in Boston, said that as a small business owner he thought the bill was much needed.

“It’s an outrage that working people are not covered when they are sick,” said Johnston, who conceded that the bill would impose a small extra cost to employers.

However, Meier, the business owner from Abington, is worried that the legislation might force him to close.

“I’m at the point where I don’t want to retire, but right now my expenses are slightly more than I’m taking in, and I’m only going to do be able to do it for a little while longer,” Meier said. “But when you add this all together, it’s a killer.”

Judges: Massachusetts’ ‘Tip Law’ not Retroactive: Defense bar hail

David E. Frank writes at Massachusetts Lawyers Weekly via Dolan Media Newswire rulings by two influential trial judges have found that the treble damages provision of the tip statute does not apply retroactively, an issue that courts in Massachusetts have been split on for nearly two years.

On Feb. 8, Superior Court Judge Margaret R. Hinkle, who heads the Business Litigation Session, determined in Hernandez, et al. v. Hyatt Corp. that a 2008 amendment to the state’s controversial tip law – G.L.c.149, §150 – was intended to be applied prospectively only.

Two months earlier, U.S. District Court Judge William G. Young, who served as chief of the court from 1997 to 2005, came to the same conclusion in DiFiore, et al. v. American Airlines, Inc.

“There was a point in time [when] the plaintiffs’ bar had some authority on their side that made them feel they had leverage over us during settlement discussions,” said Brigitte M. Duffy, the Boston lawyer who represented the defendants in Hernandez. “There’s no question that now having the chief of the [BLS] and a former presiding judge of the federal court saying what they’ve said here carries some extra weight.”

Duffy, who practices at Seyfarth Shaw, added that DiFiore and Hernandez are “evidence of a definite trend which swings the pendulum back in our direction. It’s been a good couple of months for defense attorneys in Massachusetts – and we don’t always get good months in wage and hour litigation.”

‘Confused’ judges

Scott E. Adams of Groveland, who represented the plaintiffs in Hernandez, said the uncertainty on retroactivity started in 2005 when the Supreme Judicial Court held in Weidmann v. The Bradford Group that treble damages could be awarded only on a finding that an employer had willfully committed an infraction.

That test was struck down by Chapter 80 of the Acts of 2008, which made Massachusetts the first state in the country to impose automatic treble damages for wage and hour law violations. What remained unclear was whether the Legislature intended for damages to apply to cases that pre-dated the passage of the bill.

Adams said judges across the state have been split on the question ever since. For example, he said, Superior Court Judges Raymond J. Brassard and Leila R. Kern have ruled opposite of Hinkle and Young.

“These are significant matters of law that have some important philosophical questions underlying them, and there is clearly a problem with the implementation and enforcement of them,” Adams said. “There are a number of judges in Massachusetts who seem to be very confused about why these laws were developed in the first place and what they were intended to do.”

Adams also criticized the Hernandez ruling for dismissing his clients’ breach of contract claims on grounds that the statute, which has a three-year statute of limitations, preempts any common law remedies. The common law claims, which were based on the premise that the tip statute creates an implied contract between employers and employees, carry a six-year statute of limitations, he said.   

Read more at: Dolan Media Newswire

State Builds an Express Lane for New Businesses

Sarah Shemkus of the Cape Cod Times writes if you are looking to start a business in Massachusetts? You could start at the Web site of the state’s office of Housing and Economic Development. A few clicks could take you to a page describing the regions of the commonwealth and the possible advantages of doing business in each.

Back up a few pages, and choose between links for venture capital, business financing, start-up funding and loans. Each of these choices offer a page with yet more choices: state programs, outside agencies, federal sites.

And you still haven’t even begun to investigate permitting or tax laws.

“It’s very confusing to figure out where you can go for help,” said state Senate President Therese Murray, D-Plymouth. “We need one-stop shopping for business in the commonwealth.”

So Murray and Sen. Karen Spilka, D-Framingham, have filed a bill that would create just such a system. And on the Cape, local stakeholders last week expressed optimism about the impact the proposed changes could have in the region.

“The approach they are taking makes a lot of sense,” said Spyro Mitrokostas, executive director of the Dennis Chamber of Commerce.

The bill will be discussed at a committee hearing in Boston on Tuesday.

The central element of the proposed legislation is a major reorganization of the complex network of offices, departments and agencies — 31 in all, Murray said — that currently provide business development and financing services in the state.

In the long-term, the proposed law would save money by eliminating redundant spending in agencies with overlapping mandates, Murray said. And it would increase both state and municipal revenues by bringing new businesses and jobs to Massachusetts.

The bill would create a system of regional economic development centers, which would each act as a central resource for advice and information about locating, financing and developing a business in the area. These centers would generally be independent nonprofit or private organizations which would contract with the state to provide business development services.

A regional agency, Murray said, would “know better what’s in their own region and what they can find for” prospective businesses.

Read more at: Cape Cod Times

Next Page »