The following information is not intended to provide legal advice on the various subjects, but to provide readers insight into the law and legal developments. The information throughout this site should not be used as a substitute for legal counsel.

Employment Issues Worker's Compensation Act Discrimination Massachusetts Maternity Law Americans With Disability Act Family Leave Act Personal Injury Business & Property Issues Business Issues Estate Planning Real Estate (including Landlord/Tenant Law)

Worker's Compensation Act

I am an owner of a very small business with only a few employees. Do I need Workers' Compensation Insurance?
All employers in Massachusetts are required by state law to carry workers' compensation insurance covering their employees, including themselves if they are an employee of their company. This requirement applies regardless of the number of hours worked in any given week, except that domestic service employees must work a minimum of 16 hours per week in order to require coverage

What happens if I get injured at work?
When you have been injured at work, the law provides for only three things:
First: The Law provides for sixty (60%) percent of your Average Weekly Wage (AWW) for temporary total disability (less, if you are only partially disabled or working part time.) Your AWW is defined as your average pay over the course of your employment, up to 52 weeks before your injury, including any bonuses or overtime. Nonetheless, it does not include other benefits such as health insurance. The maximum time you can receive benefits under total disability is three years and the maximum time you can receive partial disability benefits is five years. However, the maximum time you can receive benefits under both types of disabilities is seven years.
Second: The Law also provides for medical treatment that is necessary, reasonable and related to your injury.
Third: The Law provides for any permanent loss of function and scarring. Scarring is limited to your hands, neck and face only, regardless of severity.

How does the Workers' Compensation Law define an employee?
The workers' compensation statute states that an employee is "every person in the service of another under any contract of hire, express or implied, oral or written". Exceptions include but are not limited to:
Seamen engaged in interstate/foreign commerce;
Salesmen of real estate or consumer goods who work on a commission, or buy/sell basis, other than in a retail establishment, (with a written contract stating they are not treated as an employee under federal tax law);
Taxi drivers who lease their cabs on a fee basis not related to fares collected (and who are not treated as an employee under federal tax law);
Persons engaged in interstate/foreign commerce who are covered by federal law for compensation for injury or death.

I am self-employed, the sole-proprietor of my company which is not incorporated. Do I need to get worker's compensation insurance for myself?
No, as the sole proprietor of an unincorporated business you would not need to insure yourself, and you would not be able to obtain workers' compensation insurance. In order to be able to get coverage you would be required to incorporate your company.

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Discrimination

What is sexual harassment?
Sexual harassment is a form of sex discrimination that violates Title VII of the Civil Rights Act of 1964. Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitutes sexual harassment when submission to or rejection of this conduct explicitly or implicitly affects an individual's employment, unreasonably interferes with an individual's work performance or creates an intimidating, hostile or offensive work environment.

Sexual harassment can occur in a variety of circumstances, including but not limited to the following:
-The victim as well as the harasser may be a woman or a man. The victim does not have to be of the opposite sex.
-The harasser can be the victim's supervisor, an agent of the employer, a supervisor in another area, a coworker, or a non-employee.
-The victim does not have to be the person harassed but could be anyone affected by the offensive conduct.
-Unlawful sexual harassment may occur without economic injury to or discharge of the victim.
-The harasser's conduct must be unwelcome.

How should an employer handle a situation where all their employees speak English, but two employees insist on speaking to each other in another language and their coworkers complain about it?
Implementing language restrictions in the workplace isn't patently illegal. However, depending on how restrictive the rule is and your reasons for implementing it, an English-only or similar rule could be seen by a court as discriminatory.

Before implementing an English-only rule, play the part of the devil's advocate...before you get burned in court. Consider these factors.
1. Examine carefully the reasons why you want to implement such a rule. Does it solve or fulfill a legitimate business need?
2. Look at how broad-reaching the rule is. Is it unduly restrictive on employees?
3. Consider potential effects of the rule. Could it ultimately cause more harm than good? In agreeing with the EEOC, some courts consider English-only rules discriminatory if the employee can't speak English and is put at a disadvantage in the workplace.

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Massachusetts Maternity Law

What are my rights under the Massachusetts Maternity Law?
The Massachusetts Maternity Leave Statute (MMLS) allows maternity leave to a female employee, who has completed a probationary period set by the terms of the employment (not to exceed six months), or who has completed three consecutive months of full time employment where there is no prescribed probationary period. Such leave however cannot exceed eight weeks and must be for the purpose of giving birth, or for adopting a child under the age of eighteen or for adopting a child under the age of twenty-three if the child is mentally or physically disabled.

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Americans With Disabilities Act (ADA)

If an employee has a medical condition that is correctable with medication, eyeglasses, etc., is he/she considered disabled under the ADA?
The U.S. Supreme Court has weighed in on this issue with three ADA-related rulings at the end of its 1998-99 term. In an interesting twist, the Court has taken the opposite stance of most federal circuit courts and the EEOC: Employers may take mitigating measures (e.g., glasses, medication) into consideration when evaluating whether an individual has a disability within the meaning of the ADA.

The High Court's reasoning: The ADA requires that such determinations be made on a case-by-case basis; to use a person's uncorrected state is not an analysis of his/her actual condition, and completely disregards any negative effects of mitigating measures.

This isn't to say that an individual who say, uses medication, will automatically be excluded from ADA coverage. Rather, you must assess each situation separately, and determine whether: 1) the individual is substantially limited in one or more major life activities; and 2) he/she can perform the essential functions of the job with or without reasonable accommodation.

Does the Americans with Disabilities Act (ADA) require requests for accommodation for depression to be made by a doctor or psychologist? Or is it sufficient for the employee to make the request him/herself?
According to the EEOC's Enforcement Guidance on the ADA and Psychiatric Disabilities, it's enough for an employee to make an accommodation request. When an individual with a disability requests reasonable accommodation, the request may be made "in plain English" and need not mention the ADA or use the phrase "reasonable accommodation." However, an employer may ask for reasonable documentation about the employee's disability and functional limitations if the need for accommodation is not obvious. The EEOC guidelines also explain that a family member, friend, health professional, or other representative may request a reasonable accommodation on behalf of an individual with a disability.

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Family Medical Leave Act

Is there a minimum increment of time in which employees may take intermittent leave under the FMLA? Also, can I request documentation from the employee's health care provider for each instance of intermittent leave?
The FMLA allows employees to take intermittent leave or leave on a reduced schedule for a family member's or their own serious health condition. Intermittent leave may be taken in the smallest interval of time an employer uses in its payroll system to track absences or leaves. That can be an hour (or less), depending on your system. The law requires that employees on an intermittent or reduced leave schedule provide reasonable notice to the company when the need for leave is foreseeable (for scheduled doctors' appointments, for example).

As for whether you can request certification from their health care providers for each instance of intermittent leave, the answer is yes. For example, say an employee needs to take intermittent leave for the next two months in order to receive chemotherapy. You may require certification from his/her health care provider to prove that the two months of intermittent leave is needed. Suppose that six months later, the employee has a relapse and needs to take another intermittent leave for treatment. You can again request certification from the health care provider.

When it comes to the Family and Medical Leave Act (FMLA), how long do I have to hold an employee's job open for his/her return? At what point can I hold open a similar position, or just any position?
The FMLA guarantees job protection. In other words, employees returning from leave must be restored to their same or an equivalent position. Although you don't have to hold an employee's job open during the 12 weeks he/she is gone, you must reinstate the employee upon return from leave -- even if doing so means transferring or terminating the employee who filled in during leave. If the employee fails to return at the end of the 12 weeks, the FMLA job protections no longer apply. As far as when it changes to holding open a similar position or just any position, the answer is it doesn't. You cannot permanently replace an employee who takes FMLA leave or restructure a position and then refuse to reinstate the returning employee on the ground that no position exists. To be considered "equivalent," the position must be one with the same pay, benefits, and working conditions, including privileges, perquisites and status, as well as one that involves the same or substantially similar duties and responsibilities, which must entail substantially equivalent skill, effort, responsibility, and authority.

Personal Injury

What if you have a bad knee, which makes one leg a bit unsteady? Or if your eyesight, even with glasses, is not very strong? If you fall on a broken stair, are you still entitled to compensation even though someone with stronger legs or better eyesight might not have fallen?
Absolutely. All people, regardless of physical ability, have a legal right to make their way through the world without unnecessary danger. Owners and occupants of property must permit no unnecessary danger to any person who might reasonably be expected to be on the property. The same goes for drivers and everyone else--they must not create unnecessary danger to anyone whose path they might cross.

How do insurance companies decide how much they'll pay?
Insurance companies and lawyers use a formula to calculate a range of compensation for an injury. The final payment figure, though, is the result of negotiations with the injured person.

The formula is no secret. In general, an injured person will be reimbursed for:
-medical care
-lost income
-temporary and permanent pain and other physical discomfort, and
-loss of family, social and educational experiences.

A claims adjuster begins with the medical expenses. Then the intangibles--pain and other noneconomic losses--are added in by multiplying the medical expenses by 1.5 to 2 times if the injuries are relatively minor, and up to 5 times if the injuries are more significant. The multiplier can go still higher--sometimes as 10 times medical expenses--if the injuries are particularly painful, serious, or long-lasting. Finally, lost income is added to that amount. Several factors raise the damages formula from the 1.5-times end toward the 5-times end:
-more painful, serious or long-lasting injuries
-more invasive or long-lasting medical treatment
-clearer medical evidence of extent of injuries
-more obvious evidence of the other person's fault, and less of your fault.

You, too, can easily use this formula as the starting point for negotiations. Once the insurance adjuster knows that you understand the range of compensation for your injuries, negotiating a final settlement is usually fast and easy.

Business Issues

What is a non-compete agreement and is one necessary?
A non-compete agreement is designed to protect an employer's assets that make it successful, including goodwill with its customers. Such an agreement is legally enforceable in Massachusetts if it is reasonable as to duration, scope and geography.
Without any employer-employee agreement, an employee may properly plan to go into competition with his employer and may take active steps to do so while still employed. Such an employee has no general duty to disclose his plans to his employer, and generally he may secretly join other employees in the endeavor without violating any duty to his employer.

What are the advantages and disadvantages of incorporation?
The advantages of incorporation are limited liability, separate and continuing existence apart from its owners, and centralized management. The disadvantages include the need to observe corporate formalities such as stockholders' and directors' meetings, increased regulatory requirements, the filing of annual reports and other documents, and possible tax disadvantages.

If I use my car for business, how much of the expense can I write off?
You must keep track of how much you use your car for business in order to figure out your deduction. (You'll also need to produce your records if you are audited.) Start by keeping a log showing the miles for each business use, always noting the purpose of the trip. At the end of the year, figure your deduction by using either the "mileage" method (you deduct a certain dollar amount, usually 30 cents for each business-related mile you drive) or the "actual expense" method (you can take the total you pay for gas, repairs plus depreciation according to a tax code schedule, multiplied by the percentage of business use). Figure it both ways and take the method that benefits you more.

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Estate Planning

What is a health care proxy and do I need one?
A Health Care Proxy is a legal document that allows you to name someone you know and trust to make health care decisions for you if, for any reason and at any time, you become unable to make or communicate those decisions. Under the Health Care Proxy Law (M.G.L. c. 201D), any competent adult 18 years of age or over may appoint a Health Care Agent although some minor exceptions apply.

Do I need a will?
A will allows you to determine, well in advance of your death, on how you wish your property to be distributed. Your will can specifically exclude those individuals you do not wish to leave property. Your will can direct that your property be held in trust until the person you want to receive it reaches a specified age, or you can give property from your estate to a specific charity.

What happens if I die without a will?
If you don't make a will or use some other legal method to transfer your property when you die, state law will determine what happens to your property. This process is called "intestate succession." Your property will be distributed to your spouse and children or, if you have neither, to other relatives according to a statutory formula. If no relatives can be found to inherit your property, it will go into your state's coffers. Also, in the absence of a will, a court will determine who will care for your young children and their property if the other parent is unavailable or unfit.

What is homestead protection?
Under Massachusetts's law, a householder who has a family is entitled to obtain what's called an estate of homestead. This allows an owner one-hundred thousand dollars worth of protection in the in the equity of the property in the event the owner is sued. As such, an owner of a home who occupies the home as his or her principal residence may obtain one-hundred thousand dollars in "homestead protection" simply by filing a homestead at the local registry of deeds. As such, an estate of homestead is something you should consider to protect yourself and your family in the equity of your home in the event you are sued and have no insurance or are sued in an amount greater than your insurance policy limits.

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Real Estate (including Landlord/Tenant Law)

Is an offer to purchase real estate a binding contract?
Where the parties intend to be bound by the preliminary agreement (the Offer to Purchase) and the Offer to Purchase has the substance of a contract there is a strong likelihood that the parties will be bound by that Offer to Purchase despite the fact a Purchase and Sale Agreement has not been executed.

I am planning to rent an apartment that has a few "flaws". How do I make sure the landlord knows there were there before I moved in?
The landlord or agent that takes a security deposit must give you a signed, separate statement of the present condition of your apartment including a comprehensive list of any existing damage. The landlord/agent must provide you with this statement upon receipt of the deposit or within 10 days after the tenancy begins, whichever is later. If you do not agree with the contents of the statement, you must return a corrected copy to the landlord within 15 days after you receive the list or 15 days after you move in, whichever is later. If you fail to return the list and later sue to recover your security deposit, a court may view your failure to do so as your agreement that the list is complete and correct. If you submit a separate list of damages, the landlord must return it within 15 days of receipt with a clear written response of agreement or disagreement.

The signed statement and the original condition statement are the basis upon which future deductions for damage will be made. If the landlord does not give you a Statement of Condition, you should write your own and send a copy to the landlord or agent.

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©2000-2006 Gary P. Howayeck, P.C. All rights reserved.