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.

Employees who have a gender identity different from their assigned sex at birth should consistently be referred to by the name and pronoun preferred. This includes email addresses, business cards, employee identification cards or badges, and verbal communication.

If an employee wishes to transition to his or her preferred gender identity at work, and brings this to the attention of the company, the company should work with the employee to develop a plan for that transition and then to implement the transition. Common issues that should be addressed in such a plan include an announcement of the coming transition, education of management and employees at the company, setting a date for the transition, updating email addresses, business cards, employee identification cards or badges effective the first day on which the employee reports to work in his or her new gender role, determining how future concerns will be addressed.

In anticipation of the effective date of the law, companies should have employee handbooks and written policies reviewed for compliance with the Act, as well as other state and federal law, and to confirm the handbook and policies are being implemented and enforced appropriately.

For questions about implementing the non-discrimination rules relative to gender identity at your company, or any other business questions, contact one of the Massachusetts business attorneys at the Franklin, Massachusetts law firm of Doherty, Ciechanowski, Dugan & Cannon, P.C.

Please join us! On June 12th at 6p, Attorney Jennifer D. Taddeo will be presenting “Estate Planning Basics,” a free seminar at HarborOneU.  For more information and to sign up, please visit the HarborOneU website here.

As of May 1st, Facebook is allowing its members to share their organ donor status and share their reasons for becoming an organ donor. Additionally, if you are in the United States or the United Kingdom, once you tell Facebook that you are an organ donor, you are directed to online registries to formalize your status. Of course, you should continue through and complete the donation. However, simply stating that you wish to be an organ donor on your Facebook timeline sends a powerful message to the family members who will have to give final approval for the donations.

If you do wish to have your organs donated, take the time today to register with the donor registries, consider sharing your organ donor status on Facebook and, of course, engage your loved ones in a discussion about your wishes.

We are proud to announce that Michael P. Doherty and Edward Cannon were selected as among the Boston area’s “Top Rated Lawyers” in the 2012 Edition of AV Preeminent Listing of Attorneys.  This recognition is the culmination of confidential surveys of judges and attorneys conducted by the venerable Martindale-Hubbell guide, the long-standing authority on the legal proffers.  The rating indicates the highest level of ethical and professional standards.

What if the officer has an attitude? 

There is an old saying; the best way to take a chip off of someone’s shoulder is to let them take a bow.  If you get pulled over by a police officer and he or she seems to be unpleasant at first, unless you have been driving really badly, you are probably not the reason for the bad attitude.  More than likely, someone has been “kicking the officer’s cat” that particular day and then you happen to come along.  One thing you should never do is act like a wronged taxpayer and remind the officer who pays his or her salary.  Be polite, cooperative and respectful. Addressing an officer in this manner will make you stand out from the majority of the public that the officer will encounter during the shift and may result in a verbal or written warning instead of a financial penalty, which may also translate into an insurance surcharge.

I am criminal defense attorney Peter Paulousky. In later blogs, I will take you through some various stop scenarios with tips based upon real life experience of 37 years during which I have been a full time police officer, a prosecutor and private attorney.

For now, remember that

1. how you act at a stop goes into a police report;
2. what you say gets repeated at a hearing; and
3. the police do talk about their day in the locker room, so don’t give the officer any reason to take out his or her bad day on you.

Determining the value of an interest in a closely held corporation is one of the most difficult financial issues that a couple can face in a divorce. It often requires the services of an accountant or business valuation appraiser, with expertise in the field of business valuation. These experts generally apply one or more of several commonly accepted valuation methods to determine the value of the business. These methods include the adjusted net-income approach, the adjusted net-asset approach, and the comparable sales or market approach. 

Until 2007, business valuation experts in Massachusetts applied a “fair market value standard” in determining the value of shares in a closely held corporation. The “fair market value standard” was defined by the Internal Revenue Service as “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or sell and both having reasonable knowledge of the relevant facts.” After valuing the business itself, experts would often apply sharp discounts to the value of individual shares due to the lack of an accessible market to sell the shares, and/or due to the lack of control the owner of a minority interest could exert over the business. These discounts, known as “marketability” and “minority” discounts often reduced the value of the shares by as much as 40% to 50%.

In 2007, the Massachusetts Supreme Judicial Court decided the case of Bernier v. Bernier, 449 Mass. 774, 785 (2007), which involved the value of a family owned chain of supermarkets. In Bernier, the husband testified that he had no intention of selling his interest in the supermarkets. As a result, the Courts applied a “fair value” standard in determining the value of the parties’ shares. The fair value standard is different than the fair market value standard. The fair value recognizes that the value of a small, private business is often greater to its shareholders than it is to outsiders looking to buy the business. The Court also explained that where an owner has no intention of liquidating his interest, the application of a marketability or minority discount unfairly deflates the value of the interest.

The application of a fair value standard dramatically changed business valuation practices in Massachusetts in ways that continue to play out in the courts. Recently, in Caveney v. Caveney, 81 Mass.App.Ct. 102 (2012), the Massachusetts Appeals Court refused to apply either a marketability or minority discount to the value of a wife’s shares in three family businesses, which she owned, but had no intention of selling. In so doing, the Appeals Court followed the principle articulated by the Supreme Judicial Court – no sale, no discount.

Should you have any questions regarding a domestic relations matter, please contact one of the experienced family law and divorce attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C., including Steven D. Weil, Michelle Raymond or Maria Rockwell.

If there is no one who can legally speak for the patient, the law requires that a guardian be appointed by the court. The court will authorize the guardian to make treatment decisions, sometimes adding instructions or limitations as to how the guardian may act. Guardianship can be a time-consuming and expensive procedure, but the court will expedite the process if there is a medical emergency.

A simple alternative to guardianship is a health care proxy. The person creating the proxy (“Principal”) appoints another person (“Agent”) to make medical and health-care decisions, if the Principal becomes unable to do so. The Principal can also designate an alternate Agent, in case the primary Agent is not available. 

Whether by guardianship or proxy, the decision maker is required to use “substituted judgment”, which means that the decision-maker must decide as the Principal would want, based on the Principal’s own feelings and beliefs. The law requires this standard, in observation of every individual’s rights of privacy and self-determination. The law requires that the Principal understand the nature and effect of the proxy at time of signing the document.

Everyone should have a health care proxy. It enables you to decide who the decision-maker will be, and to indicate your own feelings and beliefs about treatment.

Yes, Massachusetts’ Rules of Domestic Procedure, Supplemental Rule 410, requires a disclosure of financial information by both parties to a divorce action.  After the service of the complaint for divorce and summons, the court requires each party to a divorce action to produce three years of financial information to the other spouse within forty-five days.  This financial information includes, but is not limited to, tax returns with supporting documents, bank statements, retirement statements, pension statements, loan applications and stock accounts.  Additionally, each spouse must produce their four most recent pay stubs, as well as health insurance information regarding the cost and nature of the insurance which is available to them.  If a spouse fails to produce the required documentation after a request for the same, then the spouse seeking the information may request an order from the court to require the production of the required financial information.

If you have questions regarding the mandatory disclosure of financial information after service of the complaint for divorce in Massachusetts, contact us at Doherty, Ciechanowski, Dugan & Cannon, P.C.

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.

2. Commencing a Summary Process Action – Next, the landlord must prepare and serve a Summary Process Summons and Complaint. The complaint is a special form issued by the court which states that the landlord seeks to recover possession of the premises as well as any monies owed. The complaint also notifies the tenant as to the date and time he must appear in court for a hearing.

3. Tenant Answers and Defenses – A tenant has the right to file a response to the complaint known as an Answer. Massachusetts is a state that provides tenants with many legal protections. A tenant may raise legal defenses, counterclaims and/or requests that the landlord provide information about his case. Requests for information are known as discovery.

4. The Court Hearing – A hearing is usually scheduled for 10 days after the entry of the complaint, however, the filing of discovery automatically postpones the hearing for 14 days. Additional delays also may occur. Most, but not all, Summary Process actions resolve on the day of the court hearing. Some courts, including the state Housing Courts, encourage the parties to mediate their disputes before proceeding to trial and have specialists available to assist the parties with their negotiations. If the parties cannot resolve their dispute, the case proceeds to trial and gets decided by a judge.

5. Judgments – Once decided, the court issues a judgment that states the outcome of the case, or incorporates the terms of the parties’ agreement. Landlords who win their cases are granted possession of the premises and may request an execution to evict a tenant who still refuses to move out. A landlord may not resort to self-help, such as changing the locks or physically ejecting a tenant. The eviction process must be completed by a constable using the execution to enforce the judgment.

Should you have any questions regarding a landlord/tenant matter, please contact one of the experienced landlord/tenant attorneys at Doherty, Ciechanowski, Dugan & Cannon, P.C., including Steven D. Weil, Lori Atkins or Glenn Kramer.

Is your business in compliance with the new law?

• You must have a comprehensive written information security program (“WISP”) that reflects (1) the size, scope and type of business; (2) the amount of resources available to the business; (3) the amount of stored information maintained by the business; and (4) the sensitivity of the information.

• The WISP should protect personal information in both paper and electronic forms.

• There needs to be protocols in place to evaluate the WISP, to discipline employees who violate the WISP and to ensure that terminated employees are prevented from accessing personal information.

• Reasonable steps must be taken to ensure that all third party vendors associated with your business are protecting personal information.

Are their any penalties for failing to comply?

If your business is not in compliance with the new regulations and a breach occurs, the company could be susceptible to fines ranging from $5,000 to $50,000. Additionally, Chapter 93H authorizes the Massachusetts Attorney General to remedy a violation of the statute by bringing an action under M.G.L.ch.93A which prohibits unfair and deceptive business practices.  Chapter 93A provides for civil penalties, awards of multiple damages and attorneys’ fees.  Therefore, failure to comply with the new regulation could have serious consequences.

Conclusion

As many experts projected, most companies survived the new regulation unscathed since many of the provisions of the data security law are basic industry standards that have long been required.  However, this does not mean that you can ignore the new regulation. Companies need to make sure that they have taken all steps necessary to come into compliance.