May 18, 2012

Transgendered Persons and Non-discrimination in Massachusetts

What It Means to the Business Owner

In late 2011, Massachusetts passed “An Act relative to gender identity” (“the Act”). The Act, which will take effect on July 1, 2012, defines “gender identity” and adds it as a protected characteristic under various parts of the law. Once enacted, the law prohibits discrimination on the basis of gender identity in schools and in hiring, and classifies a crime based upon a person’s gender identity as a hate crime. Discrimination on the basis of gender identity will also be subject to investigation by the Massachusetts Commission Against Discrimination.

Under the Act, “gender identity” means a person’s chosen gender-related identity, as shown by their medical history, consistent assertion of that gender identity, or “any other evidence that the gender-related identity is sincerely held.” This language is fairly broad and does not provide a bright-line test for when a person has the protection of the law and when they do not. [Read more...]

A Summary of Summary Process

Summary Process is the legal procedure landlords must use to evict tenants from residential and commercial properties. It is one of the most abbreviated court procedures in the Commonwealth, yet it requires careful adherence to Massachusetts law and the rules that govern terminations of tenancies and evictions. Below is a summary of the steps involved in the process.

1. Termination of A Tenancy – A landlord must terminate a tenant’s tenancy before commencing a summary process action. Tenancies that are subject to a lease automatically expire at the end of the lease term. When a tenant fails to pay rent or engages in some other type of lease violation, a landlord must send the tenant a “Notice to Quit.” This notice informs the tenant of the failure to pay rent or other lease violation and demands that the tenant move out of the premises. [Read more...]

Massachusetts Data Security: One Year After The New Law

On March 1, 2011, the Massachusetts data security law, M.G.L. c. 93H, came into effect. The purpose of the law was to (1) ensure the security and confidentiality of personal information; (2) protect personal information against threats or hazards and (3) protect personal information against unauthorized access or use that could create a substantial risk of identity theft or fraud.   This new law placed Massachusetts as one of the most aggressive states in the country to protect personal data following the epidemic of corporate data breaches and identity theft in the state including the 2006 theft of 45 million credit card numbers from Framingham, MA based TJX and the debit card servers owned by Hannaford Supermarket chain.   [Read more...]

New Foreclosure Bill May Spur Purchases of Foreclosed Properties in Massachusetts

The Massachusetts Supreme Judicial Court’s ruling last year in U.S. Bank v. Ibanez dramatically altered how foreclosures are conducted in the Commonwealth and created title clouds on many titles in the state where a foreclosure had taken place somewhere in the chain of title, even if it was several owners before the current owner.  The SJC affirmed a lower court ruling, which held that the practice by foreclosing lenders of completing a foreclosure and then obtaining and subsequently recording an Assignment of the foreclosed mortgage from the holder of record to the foreclosing lender, was improper and that such foreclosures were invalid, because only the holder of record of the foreclosed mortgage had the right to complete foreclosure proceedings.  The impact of this decision was far reaching.  Property owners who thought they acquired their property with clear title, now found that if there had been a foreclosure in their chain of title, even several owners before, their title was now suspect.  Such suspect titles posed such a problem that at least one major lender decided it would no longer underwrite loans in Massachusetts because it felt it could not foreclose on its collateral if necessary, and title insurance companies became very reluctant to insure these titles, making refinancing or selling the properties virtually impossible. [Read more...]

The dangers of misclassifying employees as independent contractors under Massachusetts law

The failure to properly classify workers as employees in Massachusetts can cause employers to incur tax penalties, increase their insurance liability, receive civil and criminal fines and become subject to litigation.

One potential area of liability for misclassification is of wages.  Classification as an employee affords a worker various protections including minimum wage and overtime pay.  Massachusetts courts have awarded a misclassified worker the wages he would have earned as an employee regardless of the fact that he was actually paid more as an independent contractor than as an employee. [Read more...]

Make Note: Hold onto the Note!

It seems logical enough.  A lender makes a loan and requires the borrower to execute a promissory note and secures the note with a lien on collateral.  The lender tucks the promissory note away in a file, and moves on to the next deal.  The borrower is not going to go into default, right?

Then a default occurs, and the lender scurries, looking for the original note.  But notes are misfiled or files are mislaid.  A recent decision of the Massachusetts Appeals Court raises questions about faulty record keeping and the ability of the lender to realize upon its collateral or even collect on the note.

In J.P. Morgan Chase v. Carlo, the Appeals Court was asked to decide whether the holder of a mortgage, who was unable to locate either the original note or a copy of it, had a valid lien.  The Court declined to find the debt enforceable, instead finding that “[t]he terms of the …..mortgage, now the only documentary evidence, are insufficient as a matter of law to demonstrate the existence, much less the amount, of a current debt.”  Without an enforceable note, the Court concluded, the mortgage was not enforceable.

This case serves as an important reminder to all lenders to maintain proper record keeping.  For questions about any secured lending or transactional matters, contact Craig A. Ciechanowski, Esq. or one of the real estate or business attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C.

Changing Terms of Employment Agreement Voids NonCompete

A recent Massachusetts Superior Court case reinforced the importance of an employer honoring its contractual obligations with employees if it hopes to enforce a noncompete agreement.  The facts involved a company that sold its assets to a new owner.  The new owner changed the employee’s compensation structure by reducing the employee’s salary and instituting a new compensation structure by which the employee could possibly earn as much or more money under a bonus structure.  The Court agreed with former employee that the new employer could not enforce the noncompete agreement, which the employee had signed before the company was sold, finding that the new owner’s change to the employee’s salary was “a material change” in the employment relationship which voided the preexisting noncompete agreement.

This case underscores the importance of a purchaser of a business understanding that if it wishes to maintain noncompete agreements with the employees of the company it purchased, it cannot make a material change to the employment relationship or should negotiate new noncompete agreements with the employees.  All employers should understand that if they make other changes in the employment relationship, a review of existing noncompete agreements should be conducted and new noncompete agreements should be considered.  For example, when an employee receives a promotion, a new noncompete agreement should be considered.  If you have questions regarding noncompetition agreements or any other matter, please do not hesitate to contact one of our employment or business lawyers.

Failure to issue 1099s: What You Don’t Know Can Cost You

Over the course of a year, a corporation makes many payments – rent to the real estate limited liability company that owns your office space, professional fees to your attorneys and accountants, payments to the estate of an employee who passed away, service fees to subcontractors who operate as sole proprietorships, and many others.

Under the IRS requirements beginning in the 2011 tax year, if a corporation paid any one of the above more than $600 in a year, that corporation has an obligation to issue a 1099 for the payments.  The rules state that a 1099 form must be sent to any eligible recipient who was paid at least $600 during the tax year.  Eligible recipients include limited liability companies (“LLCs”), partnerships, estates, trusts and, only for payments for medical, health care, legal or fishing activities, corporations.

The 1099s must be provided to the eligible recipient by January 31st .  There are financial penalties related to failure to file and such penalties are assessed per 1099 not issued, so these penalties can accumulate quickly.  The penalties are on an escalating scale, from $30 to $100 per 1099 not issued, depending upon when or if you do issue one.

[Read more...]

Businesses Need to Keep Their Goggles Focused on Google Places

The New York Times has reportedly recently that businesses listed on Google Places can easily be erroneously listed as “reportedly closed” or “permanently closed” without the knowledge of the owner of the business. This can be done by just a few customers who may reach a business and find it closed. They don’t bother to note that they are making their report to Google at 8:00 p.m. and the sign on the front shows that the business closes at 7:00 p.m. This can also be done by an unsatisfied customer, or even worse by a competitor.

This problem is particularly difficult for retail businesses who count on walk in traffic, such as a restaurant, coffee shop or hotel. Customers will often locate these businesses via a Google search and if the customer thinks the business is closed, they’ll move right on to the next business.

Owners whose businesses are listed in Google Places should be alert. They should check Google Places at least a couple of times per day and click on “not true” if they see that their business has been listed as closed improperly. If the problem persists, business owners should contact Google directly. Google has indicated that they are aware of the problem and they are working on ways to reduce the errors.

If you have questions regarding Massachusetts business law or would like to learn more about how our firm may help advance your business, please contact us directly to speak with one of our business attorneys.

Attorneys in Franklin Massachusetts and Medfield MA lawyers

The Massachusetts attorneys of Doherty, Ciechanowski, Dugan & Cannon provide legal services to Massachusetts businesses, families, and individuals in the practice areas of business law, criminal defense, divorce and family law, employment law, estate planning, personal injury, real estate, and litigation matters.

Our attorneys represent clients throughout Massachusetts and in every county of Massachusetts including Norfolk County, Suffolk County, Worcester County, Bristol County, Middlesex County, Plymouth County, Hamden County, Essex County and Barnstable County. Our attorneys represent clients in Massachusetts’ largest communities including the cities of Boston, Worcester, Springfield, Lowell, Cambridge, Brockton, New Bedford, Fall River, Lynn, and Quincy.

Our law offices are located in Franklin and Medfield and serve the Greater Boston MetroWest region and the neighboring towns of Bellingham, Milford, Upton, Hopedale, Holliston, Medway, Millis, Medfield, Norwood, Walpole, Sharon, Foxborough, Wrentham, Easton, Mansfield, North Attleboro, Norton, Plainville, Raynham, Taunton, Attleboro, Seekonk, Rehoboth, Uxbridge, Whittensville, and Worcester.