Improving advocacy and trial skills for litigators who practice in state court, federal court and alternative-dispute venues

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.     

Litigation Committees

  • Alternative Dispute Resolution Committee
    This committee hosts speakers on a wide variety of issues relating to arbitration, mediation and other dispute resolution processes. It strives to offer programs that are of value to individuals who serve as mediators and arbitrators, as well as advocates representing clients in dispute resolution processes, both domestic and international.

    Contact Information

    James B. Peloquin

    Conn Kavanaugh Rosenthal Peisch & Ford, LLP

    (617) 482-8200

    William McClare Dunham

    Locke Lord, LLP

    (617) 239-0248

  • Antitrust & Business Litigation Committee
    This committee provides a means of dialogue and learning for members who share an interest in business litigation.

    Contact Information

    Stephen D. Riden

    Beck Reed Riden LLP

    (617) 500-8660

    Rachel M. Brown

    City of Lowell Law Department

    (978) 674-4050

    David B. Mack

    O'Connor, Carnathan, and Mack LLC

    (781) 359-9005

  • Class Actions Committee
    This committee explores the ever-changing landscape of class action practice and procedure in federal and state courts in a wide variety of areas, including mass torts, environmental law, securities and consumer fraud.

    Contact Information

    Lauren Guth Barnes

    Hagens Berman Sobol Shapiro LLP

    (617) 482-3700

    Matthew G. Lindenbaum

    Nelson Mullins Riley & Scarborough LLP

    (617) 202-4632

  • Construction Law Committee
    This committee addresses all aspects of construction law, including contract documents and alternative project delivery systems; construction litigation, arbitration and ADR; public contract law and other legal issues of interest to practitioners who handle matters relating to construction.

    Contact Information

    Carolyn Marie Francisco

    Corwin & Corwin LLP

    (617) 742-3420

    Jeff D. Bernarducci

    Holland & Knight LLP

    (617) 854-1408

  • Environmental Litigation Committee
    This committee focuses on Chapter 21E, CERCLA, insurance, clean air and clean water litigation.

    Contact Information

    Seth Schofield

    Office of the Massachusetts Attorney General

    (617) 727-2200

    Katherine Kimball

    Morgan Lewis

    (617) 341-7700

  • Federal Practice and Procedure Committee
    This committee concentrates on developments in federal civil procedure and practical issues affecting practice in federal court. Areas covered include changes and proposed changes to the Federal Rules of Civil Procedure and the District of Massachusetts' Local Rules; reports of new and significant decisions interpreting the Federal Rules of Civil Procedure and the Federal Rules of Evidence; and presentations concerning such practical matters as the District of Massachusetts' mediation program and the use of technology in the courtroom.

    Contact Information

    Matthew N. Kane

    Donnelly, Conroy & Gelhaar, LLP

    (617) 720-2880

    Benjamin M. Stern

    Holland & Knight LLP

    (617) 305-2022

  • Intellectual Property Litigation Committee
    This is a joint committee between the Intellectual Property and Litigation Sections. This committee provides education concerning the enforcement of patent, trademark, copyright and trade secrets rights as well as the defense of those accused of infringing on such rights, in federal and state courts and before the International Trade Commission.

    Contact Information

    Kelli Powell

    Wilmer Cutler Pickering Hale and Dorr LLP

    (617) 526-6819

    Dalila Wendlandt

    Ropes & Gray LLP

    (617) 951-7884

    Christina M Licursi

    Wolf Greenfield

    (617) 646-8384

  • Litigation Membership Committee
    This committee aims to increase participation in the Section through outreach activities.

    Contact Information

    Carla Reeves

    Manion Gaynor & Manning LLP

    (617) 670 8800

  • Litigation Public Policy Committee
    The BBA is very active in legislative and regulatory changes. Attorneys are often asked to lend their expertise.

    Contact Information

    Christopher D. Strang

    Strang, Scott, Giroux & Young, LLP

    (857) 233-5534

    Alexandra M. Gorman

    Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates

    (617) 573-4852

  • Litigation Public Service Committee
    Each year in recognition of Pro Bono Month, this committee, along with the Rappaport Center for Law and Public Service at Suffolk University Law School holds a pro bono opportunities fair for attorneys and law students. The committee also focuses on pro bono trainings and brown bag programming.

    Contact Information

    Jonathan Hayden

    McCormack Firm, LLC

    (617) 951 2929

  • Massachusetts Practice and Procedure Committee
    This committee concentrates on developments in Massachusetts civil procedure and practical issues affecting practice in Massachusetts courts.

    Contact Information

    R. Victoria Fuller

    White and Williams LLP

    Nigel Long

    Liberty Mutual Group

  • Professional Liability Committee
    This committee covers issues involving the liability of accountants, lawyers, physicians, architects and other professionals for malpractice, including liability under federal statutes and consumer protection laws.

    Contact Information

    Gary M. Ronan

    Goulston & Storrs PC

    (617) 574-3593

    Debra A. Squires-Lee

    Sherin and Lodgen LLP

    (617) 646-2036

  • Securities Enforcement and Litigation Committee
    This committee aims to foster dialogue among the legal and investigatory staff of securities regulators, lawyers who represent companies and persons involved in regulatory investigations/enforcement proceedings and lawyers who represent plaintiffs in private securities litigation and shareholder derivative actions.

    Contact Information

    Sarah G. Kim

    Massachusetts Department of the State Treasurer

    (617) 367-9333

    Richard Rosensweig

    Goulston & Storrs PC

    (617) 482-1776

    Kathryn Alessi

    Sidley Austin LLP

    (617) 223-0364

  • Steering Committee
    The leadership committee of the Section organizes programs and discusses policy. To inquire about opportunities, please contact the Section Co-Chairs.
  • Tort Committee
    This committee addresses all matters relating to injury and damage to persons and property.

    Contact Information

    Steven J. Bolotin

    Morrison Mahoney LLP

    (617) 439-7500

    Eric Asquith

    Todd & Weld LLP

    (617) 624-4769