October 28, 2016:- If you are one of the 139,000+ people employed by state or local government in Massachusetts, today’s decision about speech-rights at work might be of interest.
The case involves an erstwhile employee of the Worcester County Sheriff’s Office, Jude Cristo, who complained about a colleague’s use of official time and facilities while campaigning for Scott Bove, a candidate running for Sheriff (unsuccessfully, as it turned out). After the election the new Sheriff, Lew Evangelidis, fired Cristo, who brought an action under federal law for violation of his civil rights, namely his right to freedom of speech guaranteed by the First Amendment.
Cristo lost. The Appeals Court applied the federal test, which protects the speech of public employees only if they are speaking as citizens and not “pursuant to their official duties.” Cristo’s complaints were pursuant to his duties, said the Appeal Court.
But in a footnote, the court left open the possibility that public employees’ speech rights under the Massachusetts Declaration of Rights might be greater than under the First Amendment. If the speech that triggered the firing was whistle-blowing, the court hinted, then the fact that it was job-related whistle-blowing would not necessarily prove fatal. In other words, the employee might have a viable free-speech claim. Click here to read the case, Cristo v. Evangelidis. The footnote in question is number 6 on page 15.
February 24, 2016:- The anti-SLAPP law (M.G.L. c. 231, §59H) allows defendants to file a special motion to dismiss if they are being sued based on their petitioning activities. The statute defines the term “petitioning”as including “any written or oral statement made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other governmental proceeding.” Today the Appeals Court issued a decision that expands the scope of the anti-SLAPP law and contracts the reach of defamation law.
The case is Blanchard v. Steward Carney Hospital, Inc., and others. The plaintiff sued for defamation over statements that one of the defendants — William Walczak, the president of a hospital being investigated by several regulatory agencies — made to the Boston Globe. The defendant filed an anti-SLAPP motion arguing that his comments constituted “petitioning activity.” The Appeals Court agreed, and dismissed the defamation claim regarding the statements to the newspaper.
What makes the case noteworthy is one of the two reasons the Court gave for its decision (to keep this post short I won’t go into the other one). The Court held that in the context of the public pressure on the Department of Mental Health (DMH) to close a unit in the hospital,
Walczak’s comments… qualify as protected activity because the investigation was ongoing, and it is clear that DMH, which was regularly on site at the hospital, would be paying attention, or at least would have access to the [Globe] articles. If Walczak did not respond, there would have been a serious risk that the situation would be reported in a manner that did not take into account the [the hospital’s] perspective.
This is not an altogether novel interpretation of the anti-SLAPP law. In 2005 the Appeals Court held that “petitioning activity” included statements to the media where the speaker, the widow of a firefighter, was lobbying the Legislature to pass special legislation granting her survivor’s benefits. Wynne v. Creigle, 63 Mass. App. Ct. 246 (2005). Her anti-SLAPP motion to dismiss a defamation claim succeeded because her public statements were “sufficiently tied to and in advancement of her petition.”
The rationale in Wynne v. Creigle seemed to be that the defendant was lobbying the Legislature (a petitioning activity) via the media. Legislators, after all, are supposed to be democratically accountable and responsive to the voters.
Today’s decision goes further. It means that the anti-SLAPP law now insulates from suit statements a speaker makes to the media where the initial target audience is the public but the ultimate audience is an unelected government agency, on the apparent rationale that the agency is amenable to public pressure. In short, this case places a new hurdle in the way of actions for defamation where the speaker who gave the media an allegedly defamatory statement (e.g. by issuing a press release) was using the media as a conduit to a regulatory agency.
February 23, 2016:- A case that started in the Western Division Housing Court in 2009, Clark v. Leisure Woods Estates, Inc., has provided some clarity as to how much money a tenant can get from a landlord under M.G.L. c. 186, S. 14. Judge Robert G. Fields found that the landlord violated the quiet-enjoyment provision in two different ways and awarded triple damages for each violation, i.e. two separate triple-damage awards. The Appeals Court vacated one of the two triple-damages awards as duplicative, holding that
only one triple rent award is available in a single proceeding under S. 14, no matter how many ways the landlord interferes with the tenant’s quiet enjoyment.
In a footnote, the Court noted that the statute “prohibits five separate categories of landlord misconduct” of which the Leisure Woods case involved just one (interference with quiet enjoyment). The decision “does not address a situation in which the landlord violated two or more categories.” So if landlords violate the right of quiet enjoyment and violate S. 14 in other ways as well (e.g. cross-metering, failing to provide adequate heat) they still face the threat of having to pay multiple damages for those other violations in addition to the quiet-enjoyment violation. But at least they are only liable for one triple-damage award per category.
In a nutshell, the decision limits the exposure of landlords somewhat, and reduces the leverage of tenants’ counsel concomitantly. Tenants who show 57 varieties of violation of their right to quiet enjoyment should not expect 57 separate awards of triple damages.
In 1945, when it became clear that Winston Churchill and the Conservative Party had lost the general election, Churchill’s wife suggested that the loss might be a blessing in disguise. Churchill replied, “At the moment it seems quite effectively disguised.”
But there is no disguising the blessing in a recent Rule 1:28 summary decision by a panel of the Appeals Court with the fortuitous docket number 1945, in which a lawyer named Churchill won a noteworthy victory. The panel affirmed a jury award of $424,000.00 in favor of Attorney Churchill’s client, Dennis Craig, and — as icing on the blessed cake –granted Mr. Craig the costs and fees he incurred in defending the appeal .
The case is Craig v. Sterling Lion, LLC, and it concerned the Wage Act. The employee, Mr. Craig, sued his former employer for unpaid wages, and the jury found in his favor, awarding him treble damages and attorney’s fees.
The employer, Sterling Lion, LLC, appealed, arguing that (1) before starting his lawsuit Mr. Craig had failed to file a Wage Act complaint with the Attorney General, and (2) the trial judge had not given the jury an instruction about joint ventures. Sterling Lion hoped to characterize Mr. Craig as a joint venturer (similar to a partner) not an employee and, therefore, not entitled to the protection of the Wage Act.
The three-justice panel of the Appeals Court disposed of the first point by noting that during the trial the employer’s attorney told the judge that Sterling Lion would not be raising the issue as a defense and stipulated that the Attorney General had issued Mr. Craig with a right-to-sue letter. As for the second point regarding joint venture, when he gave evidence at trial Sterling Lion’s principal testified that Mr. Craig had not been a joint venturer or partner. In view of that testimony, the justices decided that the trial judge was correct in not giving the joint-venture instruction.
This Churchillian success story should remind Massachusetts employers of the dangers both of misclassifying employees and failing to pay owed wages.
In November 2010, while digging up a street to repair water and sewer pipes in Boston’s Hyde Park neighborhood, DeFelice Corporation damaged a gas line. The resulting explosion destroyed a single family home on Danny Road. Today the Appeals Court upheld the decision of the Department of Public Utilities (DPU) to fine the company for violating the Dig Safe law, chapter 82, sections 40–40E.
DeFelice had appealed the DPU decision on the basis that it told the Dig Safe call center that it would be digging at “all intersections” around Danny Road. But under the terms of the statute that was not accurate enough, the Appeals Court held. Originally the law required only that an excavator describe the location “reasonably accurately.” But when the Legislature amended the law in 1998, it deleted the word “reasonably.” That deletion, reasoned the court, meant that “excavators became legally required to identify excavation locations with precision.”
Students of legislative drafting take note: Sometimes what matters is not the words that the legislature uses, but the words it loses.
If I had an award to give for unambiguous judicial writing, it would go to Associate Justice Janis M. Berry whose opinion in Ellis v. DIA is well worth reading. It is as clear as something large seen from very close up by a person with perfect vision.
The plaintiff, James Ellis, represents workers compensation claimants. To help injured workers find lawyers to steer them through the workers compensation system, the law allows claimants to collect their legal fees in addition to compensation. Before signing off on lawyers’ fees, the administrative judges at the Department of Industrial Accidents (DIA) have to review the bills. The reasons for this requirement are too obvious to state. But Attorney Ellis claimed that DIA judges have no right to scrutinize his bills.
Attorney Ellis has visited the Court of Appeals quite often, it seems, but his latest sashay was too much for Justice Berry, who described it as “just one small part of a pattern of Ellis’s frivolous litigation in advancing legally unfounded claims on appeal.” With regard to the law’s provision of legal fees for claimants, she wrote that although important it is “not carte blanche to an open credit line for an attorney to draw upon without validity.”
The decision ends by calling the appeal “frivolous and worthy of sanctions” followed by words that no attorney ever wants to read: “[W]e refer this case to the Board of Bar Overseers.”
August 5, 2015:– How much could an employer end up paying for violating the anti-retaliation provisions of the Wage Act, M.G.L. c. 149, §§148A and 150? Much more than you might expect.
Today’s decision from the Appeals Court says that “an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination… [which] may include earnings from the date of termination up to trial.” That means the employer is liable not only for what it should have paid prior to termination but also for everything the employee would have earned during the years between termination and trial, minus whatever the employee actually earned elsewhere in the meantime. That could be a sizable sum.
And then, of course, the court can treble that amount, which is what happened in Wessel v. Mink Brook Associates. At the time of firing, the employer owed the employee $3,750.00 for lost wages and unused vacation time. The final damage award, factoring in the termination-trial period: $187,111.38.
In a nutshell, if an employee rightfully complains about owed wages, and the employer responds by firing her, the employer better hope that the fired employee finds another (highly paid) job, and fast. Even better, at the risk of stating the obvious, employers should refrain from retaliating against employees to whom they owe wages.