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Nothing in the following newsletters should be relied upon as legal advice in any particular matter.

2-8-2018

APPEALS COURT VICTORY

We were very pleased to win an important victory in the Appeals Court on December 21 in a case involving the Massachusetts Civil Rights Act (MCRA), a family’s right to build a home and the Anti-Slapp law which we discussed in our newsletter on August 3rd.

The case involved a family, our clients, who sued their neighbors for substantial damages and injunctive relief, alleging that the adjacent land owners waged a year’s long campaign to prevent or delay their building a new home “through threats, intimidation and coercion” in violation of the MCRA. The Complaint alleged conduct which involved both “petitioning activity” (seeking relief or protection from the government) and non-petitioning activity. The MCRA protects a person’s right to possess, develop and enjoy their property, free of harassment. In this case, the defendants were alleged to have attempted to landlock our clients’ (plaintiffs) property, forced the removal of utilities, appealed plaintiffs’ building permit to the Zoning Board of Appeals, appealed their Order of Conditions from the Conservation Commission at multiple levels, challenged their septic system application at the Board of Health, appealed a favorable ruling about minor work changes through multiple levels at the MaDEP and to the Superior among other tactics. At no time did the proposed house require one variance or waiver. It was at all times in complete compliance with every law and regulation of the state and Town of Dartmouth. The complaint also alleged that defendants engaged in unlawful non-petitioning behavior, including threats to cost plaintiffs a huge amount of time and money in permitting, damage to their reputation in the community, constant interference with and threats to the construction workers, false imprisonment of workers and vendors, removal of boundary line markers, trespass, constant interruptions of the project, and constant, intrusive photographic and personal surveillance.

Our August 3rd newsletter explained that a defendant can ask the court to dismiss a complaint against him or her if it is brought to “chill” (reduce or stop) their petitioning activity which is constitutionally protected. It also explained that there are three prongs to determine whether a case should be dismissed under the Anti-Slapp law: 1. Does the complaint allege any substantial non-petitioning behavior, in which case the complaint will not be dismissed. 2. If it does not, then the question is whether the petitioning behavior is frivolous (lacking in a reasonable factual basis or lacking in an arguable basis in the law). If the defendants’ petitioning activity was wholly frivolous, the case will not be dismissed; in some cases (described below) non-frivolous components can be deleted 3. Even if the petitioning activity was not frivolous, the motion to dismiss will be denied if the trial court determines that the plaintiffs did not file the complaint “primarily to chill” the defendant’s petitioning activity.

In our case, the trial court had ruled that each and every one of the defendants’ petitioning activities was “sham petitioning” i.e., frivolous and had therefore rejected the defendants’ attempt to dismiss the complaint or remove components of the complaint. The defendants appealed that ruling to the Appeals Court.

Our August newsletter also reported that the Supreme Judicial Court broke new ground in the Blanchard v Stewart Hospital case, holding that components of a complaint could be “parsed” (i.e., separately considered) and removed if they comprised non-frivolous petitioning activity-but only if the conduct involved could stand on its own as a separate complaint and was not inextricably intertwined with the non-petitioning activity.

In our case, the defendants had argued that the complaint should have been dismissed or, in the alternative, that the separate components should be should be removed from the complaint. The Appeals Court disagreed. It ruled that the trial court erred and that it should have denied the motion because the complaint alleged both petitioning activity and substantial non-petitioning activity, in other words, because the defendants had failed the first prong of the three prongs Anti-Slapp test.

Importantly, the Appeals Court further refined the Anti-Slapp law by stating:

“…where a course of conduct is the basis of the claim, then the acts should not be parsed one from the other; where the individual acts can stand alone to support the cause of action (as in the individual statements underlying the defamation claim in Blanchard), they should be examined one by one. The analysis depends on the nature of the cause of action alleged and the theory of the case. The cause of action at issue here is violation of the MCRA on a theory that the defendants’ behavior (considered in its totality) constituted threats, intimidation, or coercion.

“A MCRA claim is often based on multiple or repeated acts that if taken individually would be insufficient to make out the claim but if taken collectively are sufficient to constitute threats, intimidation, or coercion…. The claim is based on the fact pattern as a whole, not on isolated incidents, any one or more of which might be considered insufficient to support a civil rights claim when separated from the rest. Thus, although the alleged behavior includes petitioning activities, the plaintiff’s claim is not based solely on petitioning activities and asserts a substantial basis beyond petitioning.”

The Appeals Court made crystal clear that in a case involving a “course of conduct” like a consumer protection action or civil rights case, a complaint will not be “parsed” and dissected piece by piece. The complaint will not be dismissed even if legitimate petitioning activity and non-petitioning activity are both part of the allegedly unlawful course of conduct for which the plaintiff seeks damages.

It’s great to win one for the good guys!

I would like to acknowledge the excellent assistance of Heidi Nadel in this matter.

1/30/2018

Employment Discrimination Based on Sexual Orientation/Preference

As sexual preferences are becoming more apparent and variable, the issue of discrimination based on a person’s sexual orientation and preference is more relevant than ever. In 1999, the U.S. Court of Appeals for the First Circuit ruled that federal law does not necessarily protect people from employment discrimination based on their sexual orientation.  Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252, 258-59 (1st Cir. 1999). The rational was that the statute only spoke to discrimination based on the victim’s sex ( i.e., gender) and did not say anything about sexual preferences.

The 1st Circuit Court of Appeals (for New England and the Virgin Islands) ruled on January 25, that a person who claims to have been discriminated against for his or her sexual orientation/preference will be protected-if the claim is at least in part based on the claimant’s gender. In Franchina v. City of Providence the Court said:

“In sex-plus claims brought under Title VII ‘the simple question posed … is whether the employer took an adverse employment action at least in part because of an employee’s sex.’ Chadwick v. WellPoint, Inc., 561 F.3d 38, 43 (1st Cir. 2009)] (emphasis in original). And we see no reason why claims where the ‘plus-factor’ is sexual orientation would not be viable if the gay or lesbian plaintiff asserting the claim also demonstrates that he or she was discriminated at least in part because of his or her gender.”

The Plaintiff was an exemplary firefighter and, as a lesbian, experienced enormous harassment by certain firefighters and superiors. The evidence against them was both outrageous and overwhelming. Those in authority did not act to stop the misconduct. Her claim included acts of harassment based on both her orientation and her gender.

In its decision, the Court quoted the guidelines stated earlier as to the tests used to determine whether harassment is to be deemed a “hostile work environment” as follows:

(1) that [the plaintiff] is a member of a protected class; (2) that [she] was subjected to unwelcome sexual harassment; (3) that the harassment was based upon sex; (4) that the harassment was sufficiently severe or pervasive so as to alter the conditions of [her] employment and create an abusive work environment; (5) that sexually objectionable conduct was both objectively and subjectively offensive, such that a reasonable person would find it hostile or abusive and that [s]he in fact did perceive it to be so; and (6) that some basis for employer liability has been demonstrated. Pérez-Cordero v. Wal-Mart P.R., Inc., 656 F.3d 19.

The important “takeaway” from this precedent setting case is that gay, lesbian and transgender plaintiffs will likely be protected by the Federal Courts in Massachusetts on the same basis as others if they claim that the discrimination they experience was at least in part based on their gender. The Court has extended the Federal laws against discrimination to make that happen.

This is a new area of employment law. If you need any assistance in this area, please give us a call.

1/3/2018

TAX LAW CHANGES AND ESTATE PLANNING

We at RBF&A hope you have had a great holiday season with your family and friends. Having two three day weekends in a row certainly has helped by giving us that extra time to enjoy our families, friends and our special interests. We work for a reason and this is it!

It would be hard to live in America and not know that our tax code has undergone a major change. I am including in this newsletter a summary of the major changes prepared by U.S. Trust. Tax 2017-9

I have been pondering the implications of the increase of the federal estate tax exemption. Your estate plan probably contains a large section containing three trusts designed to take advantage of the federal and state estate tax exemptions. Not many people can read, much less understand this highly technical stuff. Now that the Federal estate tax exemption has been raised to $22 million for a married couple (half that for a single filer), the question is whether all that obscure language should be taken out of your estate plan, if you are not fortunate enough to have an estate worth $22 million. That is not an easy question to answer. Doesn’t it make sense to remove unnecessary language which could complicate things and create unintended consequences? But the state estate tax exemption remains at $1 million so many folks still need the special language designed to take advantage of that exemption. And the state estate tax requires the applicant to use federal tax forms and calculations to take advantage of that exemption. So does eliminating the Federal language, which to some extent controls the State calculation, negatively impact the state exemption we have been provided? The federal limit ends in eight years, so does it make sense to leave things the way they are in case the federal exemption reverts to the current or even lower limit? (Remember, not to long ago it was $3.5 million per person.)

It has only been one week since the new law was passed and the “mavens” have yet to fully analyze all of the many implications and permutations of the possible solutions and strategies going forward. But the following quote from the US Trust Tax Bulletin copied below begins to answer the problem:

“Testamentary planning. It is common for wills and other testamentary documents (such as revocable trusts) to contain dispositions which reference the estate (and GST) exemptions which are in effect at death. These so-called “formula” provisions would automatically adjust for changes in the exemption amounts. While this may achieve a beneficial tax result, the temporary doubling of the exemptions may also cause unintended consequences to the dispositive plan. For example, a common plan is to leave the estate exemption to a bypass trust, and the balance for the surviving spouse, either outright or in a marital trust. For a hypothetical $10 million estate, if death occurs in 2017 that would result in roughly half to the bypass trust and half to the spouse. However, if death occurs in 2018 to 2025, that would result in the entire estate being left to the bypass trust. Complications could further arise for individuals living in certain states which impose their own estate tax. Wills and other testamentary documents should be reviewed to make certain they accurately reflect the testator’s wishes. As always, documents should be drafted with flexible provisions that can be adjusted for future changes.”

It has already occurred to us that leaving the trust provisions as written might result in unnecessary capital gains taxes. We will be studying the implications of this change for our Massachusetts estate planning clients.

There are many important other reasons to include in your 2018 Resolutions a review of your estate plan. Significant changes in our lives warrant frequent reviews of our estate plans – purchase or sale of a business, remarriage, divorce, the passing of a person who was to receive a bequest and especially, the unavailability or inappropriateness of your selection of a person previously selected as trustee, administrator, health care proxy or attorney-in-fact under a Power of Attorney, and to state the obvious, feelings may have changed about the distributions that will be made when you and your spouse pass. Most people put their estate planning documents on a shelf where they gather dust while their lives change in important ways. The 2017 tax law change is just the most obvious reason to revisit your estate plan. Life moves on. An estate plan that has gathered too much dust can create problems for your family that you would want very much to avoid.

8-21-2017

Pregnant Worker’s Fairness Act

I am forwarding portions of an article published in last week’s Lawyer’s Weekly newspaper summarizing a new law establishing new workplace standards to be followed regarding pregnant employees and women who have recently had a baby. This is an important law for workers and employers alike. It is a very sensitive area for all concerned and needs to be handled accordingly.

As always, we are available to assist you in addressing the many questions you may have on this groundbreaking law.

______________________________________________________________

On July 27, the governor signed into law the Pregnant Workers Fairness Act, strengthening rights for pregnant employees and imposing additional accommodation obligations on employers. Twenty-one states had passed comparable laws in recent years, and similar federal legislation has been pending since the spring. The act amends Massachusetts’ existing anti-discrimination law, Chapter 151B, so that it now includes pregnancy and related conditions, including breastfeeding and pumping milk, as protected categories.

Employers now will be required to grant employees reasonable accommodations for these conditions as long as the accommodations do not cause the employer undue hardship.

According to the act, examples of reasonable accommodations include the following: “(i) more frequent or longer paid or unpaid breaks; (ii) time off to recover from childbirth with or without pay; (iii) acquisition or modification of equipment or seating; (iv) temporary transfer to a less strenuous or hazardous position; (v) job restructuring; (vi) light duty; (vii) private non-bathroom space for expressing breast milk; (viii) assistance with manual labor; or (ix) modified work schedules.”

Further, the act provides that employers may not do any of the following:

  • take adverse action against an employee who requests or uses a reasonable accommodation;
  • deny an employment opportunity to an employee based on the need to make a reasonable accommodation;
  • require an employee to accept an accommodation that is not necessary to enable the employee to perform the essential functions of the job;
  • require an employee to take a leave if another reasonable accommodation may be provided; or
  • refuse to hire a person who is pregnant because of the pregnancy or a related condi

The act also addresses burden of proof. Employers have the burden of proving that a reasonable accommodation would cause “undue hardship” (defined as “an action requiring significant difficulty or expense”). And upon an employee request for accommodation, the employer and employee must “engage in a timely, good faith and interactive process” to determine an appropriate reasonable accommodation.

Moreover, while an employer may generally require medical documentation about the need for a reasonable accommodation, the employer may not require documentation for “(1) more frequent restroom, food and water breaks; (2) seating; and (3) limits on lifting over 20 pounds.”

Enforcement of the act’s provisions will be through an existing enforcement framework. Because the act is incorporated into Chapter 151B, claims of discrimination based on pregnancy or related conditions will receive the same treatment as other claims of discrimination under Massachusetts law. In other words, a claimant must first file a complaint with the Massachusetts Commission Against Discrimination within 300 days of the discrimination, and upon receipt of a “right to sue” letter may bring a claim in court. Employers found to be in violation face substantial penalties including monetary damages, injunctive relief, and attorneys’ fees and costs.

Act’s Integration Into Federal, State Law

Prior to the enactment of the Pregnant Workers Fairness Act, federal and state laws provided piecemeal protection for pregnant workers. It already was the case that the federal Pregnancy Discrimination Act and Massachusetts law prohibited discrimination based on pregnancy in any aspect of employment, but the extent to which they require pregnancy accommodations has been less than crystal-clear.

Likewise, the federal Americans with Disabilities Act and Massachusetts law already required employers to provide reasonable accommodations for disabilities related to pregnancy. But as suggested above, an ordinary, healthy pregnancy is not considered a disability under the law.

Finally, the Affordable Care Act also requires employers to provide reasonable break time for certain employees to express breastmilk for one year following the birth of a child in a private place other than a bathroom. But that portion of the statute applies only to non-exempt employees and does not cover employers with fewer than 50 employees if the requirement would impose undue hardship. And by contrast, Massachusetts had no law addressing mothers’ rights to breastfeed or pump milk at work.

The Pregnant Workers Fairness Act thus covers significant gaps in earlier laws by making women experiencing ordinary, healthy pregnancies a protected class and requiring employers to provide reasonable accommodations, including breaks for breastfeeding or pumping milk.

Finally, one other point is notable. The act explicitly provides that it “shall not be construed to preempt, limit, diminish or otherwise affect any other law relating to sex discrimination or pregnancy,” including but not limited to the Massachusetts Parental Leave Law.

Action Items For Employers

The act will not go into effect until April 1, 2018. And many employers already provide accommodations to pregnant workers. All Massachusetts employers nevertheless should be aware of their new obligations and the potentially steep penalties for any noncompliance. Also, all employers must provide written notice to employees of their rights under the act by April 1.

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