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Paper, Plastic or Politics? Employers Back Market in Candidate Case

Posted by Andre Mayer on Mar 13, 2014 10:41:00 AM

Almost three quarters of Massachusetts employers believe that supermarkets have the right to prohibit political candidates from collecting signatures on store properties, according to a new Associated Industries of Massachusetts survey.

Supermaket Candidate CaseThe issue was raised last month in a case before the state Supreme Judicial Court. A candidate for governor’s council sued Roche Brothers supermarkets in 2012 claiming he was prohibited from gathering signatures near a Roche market in Westwood. AIM joined other business organizations in supporting the market chain before the SJC since the case could have significant implications for the many commercial property owners who belong to the association.

Seventy-one percent of employers who responded to the AIM survey believe that the market should control use of its private property. Twenty-nine percent said candidates have a right to collect signatures there.

Supporters of the market generally took the line that "property owners should have control over their own property." Opponents held that "democracies need diversity of ideas and candidates."

The majority offered many more comments than the minority, often pointing to customer annoyance or intimidation as a concern; one AIM member noted that "the person in front of the store is not usually the candidate."  Another noted the real-life complexity of the issue, supporting the rights of property owners in principle by adding that "they would be foolish" to ban all candidates, and "even more foolish to allow some and not others." 

The SJC ruled in 1983 that candidates may not be barred from gathering signatures at shopping malls, even if the owner does not want them there. The plaintiff in the current case is asking the court to extend the protection to include places such as supermarkets and some commercial buildings.

AIM and the New England Legal Foundation argued in a legal brief that expanding the right to collect signatures is not warranted and would take away the rights of property owners to decide who should solicit signatures on their property.

 “The Roche Brothers supermarket’s standing invitation to the public is to shop there, and the entrance area is to be used for the utilitarian purposes of entering and exiting the store when shopping, and not for non-commercial purposes. This area, in extent and configuration, is not comparable to the common areas found in many large shopping malls, notably those where the public is regularly encouraged to gather in large numbers, socialize, linger, etc.,” AIM noted in its brief.

The court's decision is pending.

Topics: Litigation, Associated Industries of Massachusetts, Massachusetts Supreme Judicial Court

Groceries Please, Hold the Politics

Posted by Robert Rio on Jan 30, 2014 2:33:00 PM

Associated Industries of Massachusetts and other business groups have filed a legal brief supporting the right of supermarkets to prohibit political candidates from collecting signatures on store properties.

Court CaseThe filing comes in a case before the state Supreme Judicial Court (SJC) in which a candidate for governor’s council sued Roche Brothers supermarkets after he says he was prohibited from gathering signatures near a Roche market in Westwood. The case could have significant implications for the many commercial property owners who belong to AIM.

Steven M. Glovsky, who brought the suit, alleges violation of his constitutional rights. The case was dismissed at the lower court but Glovsky appealed. The case will be argued in front of the court on February 3.

The SJC ruled in 1983 that candidates may not be barred from gathering signatures at shopping malls even if the owner does not want them there. Glovsky is asking the court to extend the protection to include places such as supermarkets and some commercial buildings. These properties, in Glovsky’s view, have taken the place of traditional downtowns and have become public spaces similar to malls.

AIM and the New England Legal Foundation argue in their brief that expanding the right to collect signatures is not warranted and would take away the rights of property owners to decide who should solicit signatures on their property.

“Glovsky even goes so far as to advocate that, for any piece of commercial property that is, allegedly, the best place for a candidate to gather signatures, the Court should apply a standard under which the property owner’s rights would necessarily be subordinated to the rights of the aspiring candidate, unless the owner can prove, in court, that he would suffer unavoidable economic harm,” says the brief, which is also supported by the Greater Boston Real Estate Board, the Massachusetts Food Association, NAIOP Massachusetts and other organizations.

“The Roche Brothers supermarket’s standing invitation to the public is to shop there, and the entrance area is to be used for the utilitarian purposes of entering and exiting the store when shopping, and not for non-commercial purposes. This area, in extent and configuration, is not comparable to the common areas found in many large shopping malls, notably those where the public is regularly encouraged to gather in large numbers, socialize, linger, etc…”

AIM frequently intervenes in court cases with broad implications for Massachusetts employers. Those cases most commonly revolve around contractual interpretations, jurisdictional issues, energy, tax and healthcare disputes. 

 

Topics: Litigation, Elections, Associated Industries of Massachusetts, Massachusetts Supreme Judicial Court

Court: Treble Damages Law Does Not Cover Claims Before July 2008

Posted by Brad MacDougall on Sep 7, 2011 10:30:00 AM

The Massachusetts Supreme Judicial Court (SJC) has affirmed that employees may not seek mandatory treble damages for violations of the Massachusetts Wage Act that took place before the Legislature changed the treble-damages law in 2008.

Treble DamagesThe SJC ruled in a compensation dispute between two lawyers that the treble-damages law applied “only prospectively, to claims arising on or after the amendment's effective date of July 12, 2008.” The ruling supported the position of Associated Industries of Massachusetts and the New England Legal Foundation, which argued in a joint brief that applying treble damages retrospectively to cases filed before 2008 would unleash a torrent of unproductive litigation.

“The SJC confirmed the idea that laws operate prospectively. AIM still opposes mandatory treble damages, but appreciates the court’s ruling that employers cannot violate a law that did not exist at the time,” said John Regan, Executive Vice President of Government Affairs.

Writing for the SJC in the case of Elena Rosnov versus John Molloy, Justice Margot Botsford said:

"In the absence of an express legislative directive, this court has usually applied '[t]he general rule of interpretation . . . that all statutes are prospective in their operation, unless an intention that they shall be retrospective appears by necessary implication from their words, context or objects when considered in the light of the subject matter, the pre-existing state of the law and the effect upon existent rights, remedies and obligations.

“Doubtless all legislation commonly looks to the future, not to the past, and has no retroactive effect unless such effect manifestly is required by unequivocal terms. It is only statutes regulating practice, procedure and evidence, in short, those relating to remedies and not affecting substantive rights, that commonly are treated as operating retroactively, and as applying to pending actions or causes of action."

Lawyer Elena Rosnov brought the case against her former employer, Attorney John Molloy, in an attempt to collect 40 percent of a $432,500 legal settlement she claims to have been promised for referring the case to Molloy. A jury found in 2009 that an oral contract for the division of fees existed between Rosnov and Molloy, and that Molloy had breached the contract by not providing Rosnov a referral fee.

The SJC ruled only on the question of whether Rosnov could seek treble damages under the 2008 law. The high court decision means that Rosnov’s claim for treble damages is now under the discretion of the Superior Court rather than the mandate of the 2008 law.

AIM believes that the awarding of treble damages should be at the discretion of the court, not an automatic award.  The current law rejects that notion and sends a message that all employers act in willful disregard for the wellbeing of their employees.

Representative Martha Walz filed legislation this year, H.1411, on behalf of AIM that would limit treble damages to “willful” violations of the wage and hour statute.  The proposal would remove the threat of punitive damages for employers who make honest mistakes understanding the complex state wage laws or who are involved in good-faith compensation disputes.  Lawmakers considered the legislation during the Fiscal Year 2012 budget process, but did not include it in the final compromise bill.

A public hearing on the bill is expected in late September.

Please contact me at bmacdougall@aimnet.org if you would like to receive updates on this issue.

Topics: Associated Industries of Massachusetts, Employment Law, Treble Damages Law, Massachusetts Supreme Judicial Court

State, Federal Courts Rule for Employers in Workplace-Law Cases

Posted by Christopher Geehern on Jun 20, 2011 2:56:00 PM

The Massachusetts Supreme Judicial Court (SJC) and the U.S. Supreme Court have come down on the side of employers in two key employment-law issues during the past week.

Employment LawThe state SJC affirmed last Thursday that employees who accept a company’s voluntary separation offer are not entitled to unemployment benefits.  The ruling upheld decisions by a lower court and by the unemployment assistance Board of Review that plaintiff Kristen Connolly was not eligible for benefits because she left her customer-service job at Verizon in part for personal reasons and did not believe her job was in jeopardy.

AIM filed a friend-of-the-court brief supporting the commonwealth’s decision to deny benefits.

The United State Supreme Court, meanwhile, threw out potentially the largest employment discrimination case in the nation’s history today when it ruled that as many as 1.5 million women may not proceed with a class action against Wal-Mart for allegedly discriminating against them in pay and promotion decisions.  The high court issued a unanimous opinion that plaintiffs’ lawyers had improperly sued under a part of the class action rules that was not primarily concerned with monetary claims.

The court did not decide whether Wal-Mart discriminated against the women, only that they could not proceed as a class. The New York Times reports that the court’s decision will almost certainly affect all sorts of other class-action suits, including ones asserting antitrust, securities and product liability violations.

The Massachusetts unemployment-benefits case turned on the Supreme Judicial Court’s finding that Connolly left her job “without good cause attributable to Verizon.”

Connolly was a customer-service representative for Verizon in 2008 when the company offered union employees the opportunity to participate in a voluntary separation agreement that provided certain benefits in exchange for their termination. Court documents indicate that Connolly applied for, and accepted, the package.

“At the time, the claimant was neither compelled to apply, nor did she believe that her job was in jeopardy, nor was there a surplus of employees in her department. The claimant's decision to accept the package was influenced by her dislike of the job, the length of her commute, and a concern that she would be transferred to the Verizon facility in Andover,” the court wrote.

“There were no layoffs in her department after the claimant left Verizon.”

The commonwealth initially approved Connolly to collect unemployment benefits, but the board of review later denied her application. She claimed in court that she should be able collect UI benefits because Verizon initiated a workforce reduction and took the final step in the process by terminating her, making her termination involuntary within the meaning of the statute. The court rejected that argument.

AIM intervened in the case, along with the New England Legal Foundation, because awarding benefits to an employee who accepts a voluntary separation offer, would create dangerous precedent for the unemployment insurance system.

“The novel approach (Connolly) advocates would abandon the kind of fact-sensitive inquiries presently undertaken by this court and the Appeals Court in unemployment-benefits cases. As a result, virtually all employees who participate voluntarily in any form of ‘workforce reduction’ would qualify for benefits,” AIM and the Legal Foundation wrote.

“This would unnecessarily burden the commonwealth’s unemployment benefit system and is simply not justified by statute or case law. “  

Topics: Associated Industries of Massachusetts, Employment Law, Massachusetts Supreme Judicial Court

Court Decisions Leave Companies Treading Carefully with Employees

Posted by Erica Murphy on Jan 26, 2011 1:37:00 PM

Separate rulings this week from the United States Supreme Court and the Massachusetts Supreme Judicial Court will significantly limit the actions that employers may take when addressing conflicts with employees.

Employment lawThe U.S. Supreme Court ruled unanimously on Monday that an employee who was terminated shortly after his fiancée filed a discrimination charge against their mutual employer may sue under Title VII of the Civil Rights Act of 1964 for third-party retaliation.

In Massachusetts, the Supreme Judicial Court ruled on Tuesday that a company may not dock a worker’s pay after unilaterally determining that the worker was responsible for damaging property.

The decision about third-party retaliation came in Thompson vs. North American Stainless LP. Eric Thompson and his fiancée, Miriam Regalado, were employees of North American Stainless, LP (NAS).  Three weeks after Regalado filed a sex discrimination charge against NAS with the Equal Employment Opportunity Commission (EEOC), the company fired Thompson.  Thompson filed suit against NAS under Title VII claiming that the company fired him to retaliate against Regalado for filing her EEOC charge. 

The Supreme Court ruled that “injuring [Thompson] was the employer's intended means of harming Regalado…In those circumstances, we think Thompson well within the zone of interests sought to be protected by Title VII.”

According to the Court, Title VII’s anti-retaliation provision covers conduct that “might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”  The Court unanimously concluded that it is “obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiancé would be fired.” 

Bu the Court refused to identify a class of relationships for which third-party retaliation would be unlawful. So while this decision will likely result in more lawsuits being filed by spouses and significant others, the Court’s reluctance to define “zone of interests,” makes the practical implications of the decision somewhat difficult to predict.

For now, employers should tread carefully before terminating a spouse or close relative of an employee who filed a discrimination charge or lawsuit.  Employers should also re-examine policies and procedures for dealing with internal complaints in an effort to minimize the risk of a retaliation complaint.

According to EEOC statistics, retaliation became the most frequently cited form of on-the-job discrimination in 2009 (33,613 charges), overtaking race discrimination (33,579 charges) by a slim margin.  Given this decision, those numbers are likely to increase further. 

The Massachusetts ruling came in the case of ABC Disposal Service Inc., a New Bedford-based trash and recycling pickup company that wanted to cut down on damage by their workers to the company trucks and other people’s property.

The company instituted a policy saying that if it determined that an employee was at fault, the workers could either agree to pay for the damage through a deduction from their wages or be disciplined. The company said that the program led to a substantial reduction in damage. But the SJC said that under the Massachusetts Wage Act, employers are prohibited from making such deductions.

“The statutory language and the interplay of §§148 and 150 of the Wage Act reflect that employee deduction agreements of the type at issue in this case constitute special contracts that §148 prohibits unless the deductions are valid setoffs for clear and established debts within the meaning of §150,” Judge Margot Botsford wrote for the SJC.

Stay tuned to the HR Edge and the AIM Business Insider blog for additional detailed information and updates. 

Topics: AIM, Employment Law, U.S. Supreme Court, Massachusetts Supreme Judicial Court

Court Affirms Eight-Week Limit on Massachusetts Maternity Leave

Posted by Christopher Geehern on Aug 9, 2010 3:53:00 PM

The Massachusetts Supreme Judicial Court today affirmed that employees are entitled to no more than eight weeks of unpaid leave under the Massachusetts Maternity Leave Act (MMLA).

Employers who promise more than eight weeks of leave and subsequently terminate an employee may face actions for breach of contract, but cannot be sued for violating MMLA.

Lynda Slevoski, Vice President of the AIM Employer's Resource Group, said the decision underscores the need for employers to maintain consistent leave policies and to be cautious when making verbal representations to workers.

The 4-3 decision came in a malpractice lawsuit filed by a telecommunications company called Global NAPs, Inc. against its lawyers in connection with a $1.3 million award to a housekeeper who was fired after she took about 11 weeks of maternity leave.

Justice Francis X. Spina, writing for the majority, said:

“The language of the MMLA is clear and unambiguous. Female employees who satisfy certain preliminary conditions (not challenged here) are afforded rights under the MMLA when they are absent from employment 'for a period not exceeding eight weeks for the purpose of giving birth.'

“Once a female employee is absent from employment for more than eight weeks, she is no longer within the purview of the MMLA and, consequently, is not afforded the protections conferred by the statute.”

Justice Spina acknowledges that an employer may allow a female employee to be absent from work for more than eight weeks when giving birth to or adopting a child, typically through a bargaining agreement, company policy, or an oral representation from employer to employee.

“Where an employer provides such additional benefits to a female employee and subsequently takes an adverse employment action, the employee's recourse is the initiation of a common-law action for breach of contract, breach of oral representations, detrimental reliance, or the like.”

Employers governed by the federal Family and Medical Leave Act (FMLA) are not affected by the decision.

Topics: Associated Industries of Massachusetts, AIM, Employment Law, Massachusetts Supreme Judicial Court

Massachusetts Court Affirms Tax Break for Manufacturing Equipment

Posted by Andre Mayer on Jul 30, 2010 1:12:00 PM

The Massachusetts Supreme Judicial Court ruled today that start-up companies that buy expensive manufacturing equipment don't have to pay tax on it - even if they have not yet actually started widespread manufacturing with it.

Tax treatment of manufacturing equipmentThe commonwealth has long tried to encourage manufacturers to expand by waiving "personal" property taxes on purchases of equipment used to manufacture things. The state Department of Revenue had argued that a start-up company called Onex Communications hadn't actually made "a finished product" with its $2.7-million chip-making equipment and so owed $179,838.54 in taxes and penalties.

But the state's highest court says that's just silly because the company was, in fact, actively engaged in preparing to build its chips and had built some prototypes:

"[W]hen a company performs some type of transformative process on raw materials, we have concluded that the company was engaged in manufacturing," the court said.

The court added the revenue department's position would go against the rationale behind the tax break, by making Massachusetts more costly for new manufacturing concerns to start here - and would even allow for abuse:

"Indeed, such a policy, which would place new companies in a disadvantageous tax position compared to existing companies, would tend to discourage the location of start-up companies in Massachusetts. In addition, imposing a finished product rule would allow the commissioner to set audit periods arbitrarily so that the period reviewed could exclude, even by one day, the time at which the final product was distributed and sold. Such arbitrary enforcement periods would create the possibility of abuse of discretion and unequal treatment of individual taxpayers."

 

Topics: Associated Industries of Massachusetts, AIM, Manufacturing, Taxes, Massachusetts Supreme Judicial Court

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