Bringing together practitioners on all sides of issues in arbitration, courts and state and federal agencies

Labor & Employment Judicial Update

By Robert A. Fisher, Foley Hoag LLP

Dixon v. City of Malden, 464 Mass. 446 (2013):  The city of Malden terminated the plaintiff in March 2007.  At the time, the plaintiff had accrued fifty days of unused vacation time.  The city did not pay him the unused vacation time on the date of termination, but continued the plaintiff’s salary and benefits for about three months.  The plaintiff then sued for the unused vacation time under the Wage Act (M.G.L. Ch. 149, §§ 148 & 150).  The trial court found that the city had not acted in compliance with the Wage Act but that the plaintiff received more than what he was owed through salary continuation.  The plaintiff appealed, and the Supreme Judicial Court transferred the case from the Appeals Court.  The Supreme Judicial Court held that the city’s gratuitous payment of continued salary and benefits was not a substitute for unpaid vacation time.  Thus, the plaintiff was entitled to the unpaid vacation time under the Wage Act.  However, the Court held that the plaintiff was not entitled to treble damages, because the city’s conduct was not outrageous.

McAleer v. Prudential Ins. Co., 2013 WL 782600 (D. Mass. Feb. 28, 2013):  The plaintiff sued his former employer, alleging that he was terminated because of his age and that the company failed to pay him sales commissions in violation of the Wage Act.  The district court dismissed the age discrimination claim as untimely because the plaintiff failed to file a charge of discrimination with the EEOC within 300 days of being notified of his termination.  The court denied the defendant’s motion to dismiss as to the Wage Claim.  Although Prudential claimed that the commission plan granted it discretion, the court held that this discretion did not give the company carte blanche to withhold or modify commission payments.

George v. Synkinetics, Inc., 2013 WL 1342265 (Mass. Super. March 19, 2013):  The plaintiff, Kent George, held the position of CEO and Vice Chairman of the Board of defendant Synkinetics.  In September 2011, George was demoted to the position of chief operating officer, and the company named Carl Yankowski as the new CEO and Vice Chairman.  George brought suit against the company, Yankowski and the Chairman of the Board, alleging that he was owed salary and deferred compensation in violation of the Wage Act (M.G.L. Ch. 149, §§ 148 & 150) and the common law.  Yankowski moved to dismiss the Wage Act claim against him, arguing, inter alia, that he could not be personally liable.  The court rejected this argument.  It held that Yankowski has statutory exposure under the Wage Act as president of the company even though George’s allegations preceded Yankowski’s hiring.

Martins v. 3PD, Inc., 2013 WL 1320454 (D. Mass. Mar. 28, 2013):  The plaintiffs, delivery drivers for the defendant, alleged that they had been misclassified as independent contractors and sought to represent a class of similarly situated individuals.  The district court held that Count I of the plaintiffs’ complaint -- a claim that they were employees of the defendant under M.G.L. Ch. 149, §148B -- was appropriate for classwide treatment because it was based entirely on common questions and common evidence.  However, the court refused to certify plaintiffs’ claims under the Wage Act or for unjust enrichment because no common form of proof existed to prove the elements of these claims.  On defendant’s motion for summary judgment, the court concluded that the plaintiffs were employees as a matter of law because the defendant could not overcome the presumption that the drivers were employees rather than independent contractors.

Mansfield v. Pitney Bowes, Inc., 2013 WL947191 (D. Mass. Mar. 12, 2013):  The plaintiff sued his former employer under the Wage Act (M.G.L. Ch. 149, §§ 148 & 150) and the common law, alleging that the company failed to pay him sales commissions that he had earned.  The company moved to dismiss the common law claims as preempted by the Wage Act.  The district court denied the motion, explaining that the Wage Act does not state an intent to supplant common law causes of action or remedies.      

Domenichetti v. The Salter School, LLC, 2013 WL 1748402 (D. Mass. Apr. 19, 2013):  The plaintiff sued her former employer for interfering with her request for maternity leave under the Family and Medical Leave Act and then retaliating against her by passing her over for a promotion and then demoting her.  The defendants moved to compel arbitration based on a dispute resolution provision of the employee handbook.  Although the plaintiff was required to sign an acknowledgment form relating to the handbook, the district court concluded that the mandatory arbitration provision was unenforceable because the handbook stated it was not a contract and the employer maintained the right to alter its terms without notice.

Adamson v. Walgreens Co., 2013 WL 1456315 (D. Mass. Apr. 10, 2013):  The plaintiff Robert Adamson alleged that Walgreens terminated his employment because of his age in violation of state and federal law.  The district court granted summary judgment to Walgreens because it established that Adamson left the store unattended and Adamson failed to establish pretext.  While Adamson alleged that the store manager once said, “you’re that old!” upon learning the plaintiff’s age, the court found this isolated comment to be insufficient to establish an inference of age discrimination.

Brookins v. Staples Contract & Commercial, Inc., 2013 WL 500874 (D. Mass. Feb. 12, 2013):  The plaintiff alleged that she was fired for taking time off for medical appointments in violation of the Family and Medical Leave Act (“FMLA”) and state law.  The district court granted summary judgment for the employer because the plaintiff failed to provide a certificate of a health care provider in support of her request for FMLA leave within 15 days of the request.  Although the plaintiff claimed that it was not practical for her to meet the 15-day requirement, the court explained that she had not been diligent in obtaining the form.  Further, the employer did not rigidly enforce the 15-day requirement, but that did not mean that the plaintiff was legally entitled to submit the certification late.  The court explained that the employer properly terminated her employment for unexcused absences.     

Labor & Employment Law Committees

  • Employment Law Committee
  • Labor & Employment Communications Committee
    This committee publishes information relevant to the labor & employment bar. If you are interested in an editorial position or publishing an article, please contact us.

    Contact Information

    Robert Alan Fisher

    Foley Hoag LLP

    (617) 832-1000

    Brian J MacDonough

    Shilepsky Hartley Robb Casey Michon LLP

    (617) 4472809

    Vanessa K. Hackett

    Littler Mendelson, PC

    (617) 780-7427

  • Labor & Employment Education Committee
    Help develop relevant and innovative educational sessions led by a diverse group of talented speakers who cover labor and employment law issues.

    Contact Information

    Carolina Avellaneda

    Fisher College

    (617) 2368859

    James S. Weliky

    Messing, Rudavsky & Weliky, PC

    (617) 742-0004

    William E. Hannum

    Schwartz Hannum PC

    (978) 623-0900

    Elizabeth A. Rodgers

    Rodgers, Powers & Schwartz LLP

    (617) 742-7010

  • Labor & Employment Public Policy Committee
    The BBA is very active in legislative and regulatory changes. Labor & employment attorneys are often asked to lend their expertise.

    Contact Information

    Rachel Reingold Mandel

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

    (617) 994-5700

    Katherine J. Michon

    Shilepsky Hartley Robb Casey Michon LLP

    (617) 723-8000

  • Labor & Employment Public Service Committee
    This committee focuses on practice are specific pro bono trainings and brown bag programming.

    Contact Information

    Nicole Corvini

    Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

    (617) 994-5700

  • Labor Law Committee
    This committee is composed of lawyers for management, unions and individuals. It focuses on traditional labor issues in the private and public sector, and is responsible for monitoring legal developments in the area of labor law and presenting educational programs in this area.

    Contact Information

    Justin F. Keith

    Greenberg Traurig, LLP

    (617) 310-6230

    Ingrid Nava

    SEIU Local 615

    (617) 878-7445

  • Non-Compete & Trade Secrets
    The Non-Compete &Trade Secrets Committee works to ensure that attorneys are kept apprised of developments in this constantly evolving area of business and employment law, whether in the form of judicial precedent, legislative mandate or business practice.

    Contact Information

    Jennifer Catlin Davis

    Kotin, Crabtree & Strong, LLP

    (617) 227-7031

    Christopher J. Perry

    Morse, Barnes-Brown & Pendleton, PC

    (781) 622-5930

  • Steering Committee
    The leadership committee of the Section organizes programs and discusses policy. To inquire about opportunities, please contact the Section Co-Chairs.
  • Wage & Hour Committee
    This committee keeps the community up to date on wage and hour developments and trends.

    Contact Information

    Julie McCarthy

    Novartis Institute for Biomedical Research

    (617) 871-4142

    Jocelyn Jones

    Massachusetts Office of the Attorney General