On December 9, partner Dahlia Rudavsky make a presentation at MCLE’s Annual Employment Law Conference. Ms. Rudavsky’s session was entitled “Hot Topics in Employment Law – Emerging Issues.” The session was webcast by MCLE. In connection with the session, Ms. Rudavsky prepared an article, “New Developments in Anti-Discrimination Law 2011: Expansion of Protection from Retaliation.” A shorter version of the article will be published in the Massachusetts Bar Association Section Review, which will be published in early 2012.
Ellen Messing Quoted in Boston Herald
Ellen Messing was recently quoted in a Boston Herald article on the role of social media in the workplace. The article reported on a recent incident where the CEO of Boloco restaurants publicly fired an employee via Twitter after the employee criticized Boloco in a Twitter post. The text of the article can be found here.
Ms. Messing has previously addressed the role of social media in the workplace as an expert panelist at programs for the Boston Bar Association and American Bar Association.
Massachusetts Enacts the Transgender Equal Rights Law
MR&W applauds the passage of the Transgender Equal Rights Bill by the Massachusetts legislature last week on November 15 (House) and November 16, 2011 (Senate). Now signed into law by Governor Patrick, once the law takes effect, transgender people will be afforded the same protections from discrimination as their fellow Massachusetts citizens, including in employment, housing, credit, and education. The law will also extend the protections of the hate crimes law to transgender people. In the employment context, this means that transgender employees of employers with six or more employees who suffer discrimination in the workplace may file a charge of discrimination with the Massachusetts Commission Against Discrimination and receive the same remedies as other complainants at the Commission. As with all discrimination claims brought before the Commission, the charge must be filed within 300 days of the wrongful act. The law will take effect on July 1, 2012.
We are proud that Massachusetts is once again leading the way with respect to equal rights and justice for all. Congratulations in particular to those individuals and organizations who worked so hard to make this law a reality.
Firm’s Partners Again Recognized in Super Lawyers
MRW is pleased to announce that all three of its partners have been recognized in the 2011 New England edition of Super Lawyers. Dahlia Rudavsky and James Weliky have been recognized under the “Employment & Labor” practice area, while Ellen Messing has been recognized under the “Employment Litigation: Plaintiff” practice area.
Additionally, Ms. Rudavsky and Ms. Messing have been recognized in the Top 50 Women Massachusetts Super Lawyers. Ms. Rudavsky has also been recognized in the Top 50 Women New England Super Lawyers.
Massachusetts – High Court Clarifies Wage Law
There’s some recent good news for employees from the state’s highest court. The Massachusetts Supreme Judicial Court has clarified that employers may not reduce employees’ wages by charging the employees for the company’s insurance premiums, “franchise fees,” and the like. The case, Awuah, et al. v. Coverall North American, Inc., involved an employer that had improperly categorized its janitorial employees as “independent contractors,” then charged them for the company’s workers’ compensation insurance, janitorial bonding costs, and liability insurance. The company also charged the employees “franchise fees,” and withheld their pay until the customers (who used the janitorial services) had paid their bills.
The Supreme Judicial Court declared that all these practices violate the Massachusetts Wage Act. Even though the employees in question had agreed to Coverall’s “franchise fee” repayment arrangement, the SJC explained that these comprise illegal “special contracts,” and violate public policy.
This case comes on the heels of another important SJC case under the Massachusetts Wage Act, Camara v. Attorney General, where the Court voided an employer’s practice of reducing trucking employees’ wages by deducting the cost of damage to company property that the employer determined was caused by the employee. In that earlier case, the Court declared such deductions unfair, where the employer served as prosecutor, judge and jury, and the employee had no chance to demonstrate to an independent judge that he was not to blame for damage to the truck.
This pair of cases makes clear that employers may not legally shift the burden of a variety of company expenses to employees, even if the employers have forced their employees to sign away their rights as a condition of employment. Massachusetts courts will not tolerate employers using subterfuges like “independent contractor” or “franchise” arrangements to avoid their responsibilities.
Watch this space for news of other important legal developments in the employment arena.
Firm’s Partners Recognized
MRW is delighted to announce that all three of its partners will be listed in the 2012 edition of Best Lawyers in America. Best Lawyers makes its selections following an exhaustive, rigorous peer-review survey comprising nearly four million confidential evaluations by the top attorneys in the country.
In the 2012 edition, Jim Weliky will be listed in the “Employment Law – Individual” category. Ellen Messing and Dahlia Rudavsky will be listed in the “Litigation – Labor and Employment” category. The firm is proud of this recognition of its efforts to render excellent service to its individual-employee clients.
Dahlia Rudavsky Named Chair of the Massachusetts Bar Association Labor and Employment Section Council
Messing, Rudavsky & Weliky, PC is pleased to announce that partner Dahlia C. Rudavsky has been named Chair of the Massachusetts Bar Association’s Labor and Employment Section Council for 2011-2012. This will be Ms. Rudavsky’s third year in a leadership a role in the Section Council (she served two years as co-chair/vice chair with Tom Gallitano), and her fifth year on the Section Council overall. She and Tom previously co-chaired two MBA Section Council Annual Conferences, with large attendance from the bar.
The MBA Section Council brings together employees’, and employers’ attorneys, as well as those with union labor-management practices, to discuss legal developments and practice issues. The Section Council also regularly considers legislative initiatives and promotes pro bono bar activities. Congratulations, Dahlia!
Jim Weliky Speaks!
Jim Weliky will be speaking tomorrow on a panel with prominent management- and employee-side attorneys at a Massachusetts Continuing Legal Education program entitled “What Every Lawyer Needs to Know About Employment Law.”
The program will be from 1:30 pm to 5:30 pm at the MCLE Conference Center, Ten Winter Place, Boston. For more details, and to register, click here.
Messing, Rudavsky & Weliky, P.C. Wins Important Victory in Supreme Judicial Court
On May 12 of this year, Messing, Rudavsky & Weliky, P.C. (“MR&W”) won a major victory in Massachusetts’s highest court. The Supreme Judicial Court of Massachusetts ruled for MR&W’s client, Kimberly Schive, in a decision that expands the coverage of the state’s law prohibiting retaliation against employees who have claimed employment discrimination.
Until the Court decided our case, many Massachusetts lower court judges had ruled that retaliation claims could succeed only where the employer changed an employee’s situation for the worse at the workplace, while the individual was still employed. This case, Psy-Ed Corp. v. Klein and Schive, changed that understanding. The Court held that acts of retaliation outside the workplace setting, against former employees, are also forbidden by the law.
Our client, who lost her hearing as a teenager, was an associate editor for Exceptional Parent Magazine, published by Psy-Ed Corporation. In 1996, Psy-Ed terminated her employment in the context of a corporate move. A few months later, Ms. Schive filed a discrimination complaint at the Massachusetts Commission Against Discrimination (“MCAD”), alleging that during her employment, she had faced a hostile environment including having to attend meetings without the assistance of a sign language interpreter. She also claimed that the employer terminated her because of bias.
The MCAD process took years. In the fall of 1999, Ms. Schive tried to settle her claims against Psy-Ed through mediation. The effort failed after Ms. Schive revealed to Psy-Ed an affidavit submitted to the MCAD on her behalf by Dr. Stanley Klein, the magazine’s editor and her former boss. Then, in December 1999, the MCAD made a finding of “probable cause” in Ms. Schive’s favor.
Just two weeks later, Psy-Ed sued both Ms. Schive and Dr. Klein, claiming that they both had defamed Psy-Ed and conspired to interfere with its business. Ms. Schive denied all Psy‑Ed’s claims, and told the court she believed Psy-Ed had sued her to retaliate for her discrimination claims. She eventually won on all her claims in the trial court, which awarded her $125,000 in emotional distress damages in 2007.
Psy-Ed appealed, arguing that since Ms. Schive left Psy‑Ed’s employ in 1996, a lawsuit brought in 1999 could not be considered “retaliation,” since it had nothing to do with her job. Moreover, Psy-Ed pointed out that the MCAD had dismissed Ms. Schive’s case (which it had, for technical reasons, without a hearing).
This May, more than fourteen years after Ms. Schive began her case at the MCAD, and twelve years after her employer sued her in retaliation, the state’s highest court handed Ms. Schive a victory. It affirmed the lower court decision in favor of Ms. Schive on her claim of retaliation. Perhaps most significant, the Supreme Judicial Court established several important new points of law, which will help other individuals who find themselves in Ms. Schive’s situation in the future. The Court ruled that:
- An employer’s acts of retaliation against a former employee (who at some point made a claim of discrimination) are unlawful, even if the acts of retaliation do not involve work or workplace conditions;
- Bringing a baseless lawsuit, or a lawsuit that is not “genuine,” against a former employee who had previously complained about discrimination, constitutes unlawful retaliation by the former employer;
- An MCAD finding of “probable cause” in favor of a former employee may provide the link showing that an employer took action against a former employee to retaliate for the employee’s MCAD complaint.
To read the entire decision, click here.
To watch the oral argument at the Supreme Judicial Court, click here, go to “archives” for January 2011, and click on SJC No. 10722. Dahlia Rudavsky is the last lawyer to argue.
The victory was especially sweet since it was so long in coming – nearly fifteen years from when the case began. We hope that future cases can be resolved more quickly, now that the law of retaliation has been interpreted in an expansive way.
Welcome
“Labor is prior to, and independent of, capital. Capital is only the fruit of labor, and could never have existed if labor had not first existed. Labor is the superior of capital, and deserves much the higher consideration.” –Abraham Lincoln
Of the hours adults spend during the time they are awake, the largest percentage of their time is devoted to work. http://www.bls.gov/news.release/atus.t01.htm. Unless you are among the 10% of the population who is independently wealthy, work is a necessity, a fact, an inescapable fabric of our lives.
We here at Messing, Rudavsky & Weliky believe that if we’re going to spend so much of our time at work, that time should be fulfilling (or at least not unnecessarily painful). We want to help you remove some of the barriers you may encounter at work that prevent you from achieving that goal. For example, nothing is more antithetical to that goal than working in an environment where your employer sees only the color of your skin, or your gender, or your disability, or your age, or your sexual orientation, rather than your contributions and creativity. Very little in life can be more dehumanizing than this.
Discrimination, of course, is only one of the many ways in which employers construct barriers to achieving success at work. Retaliation, wage theft, contract violations – all are obstacles to success. We want to help you reclaim your workplace from such conditions.
Since we are lawyers, the primary way we can help you is through legal representation and providing you with legal advice. Since the circumstances of every case are unique, we can give legal advice only one-on-one. We can’t provide legal advice through this blog. What we can do, however, is discuss with you the general rules and principles that affect your rights in the workplace, share with you news of developments that affect those rights, and give you our thoughts on what those developments mean. We hope this is useful to you, and we invite you to comment or ask (general) questions if you feel so inclined.
–Jim Weliky, Ellen Messing, Dahlia Rudavsky