Employment Law Blog

Pursuant to Massachusetts law, the word retaliation is defined as; an employer taking and adverse action against an employee as a result of the employee conducting some form of protected activity. Retaliation is a separate claim from discrimination, it can be found in Massachusetts General Laws in chapter 151B. The word retaliation is not actually used in the law however the courts commonly use the word as shorthand for the word antidiscrimination statutes. The laws against retaliation allows for liability against individuals and not just employers.

Under Massachusetts Law 151B there are two different subsections that prohibit unlawful retaliation and they are §4(4) and §4(4A). §4(4) states; “for any person, employer labor organization, or employment agency to discharge, expel or otherwise discriminate against any person because he has opposed any practices forbidden under this chapter or because he has filed a complaint, testified, assisted in any proceeding under section five of MGL 151B §4(4).” MGL 151B §4(4A) states that; “for any person to coerce, intimidate, threaten or interfere with another person in the exercise or enjoyment of any right granted or protected by this chapter, or to coerce, intimidate, threaten or interfere with such other person for having aided or encouraged any other person in the exercise or enjoyment of any such right.”

Under Mass Practice Section 8.30 it states that in order to establish a case of retaliation, the plaintiff must show that he/she engaged in legally protected conduct and that he/she suffered an adverse employment action, and that a causal connection existed between the legally protected conduct and the adverse employment action. In order for one to succeed in a relation claim they must show the following;

1. The plaintiff must prove that he reasonably and in good faith believed that his employer engaged in wrongful discrimination.
2. That he acted reasonably in response to this belief
3. That the employer’s desire to retaliate against was his determinative factor in taking an adverse employment action.

In order for the plaintiff to prove the first prong of their retaliation case they must show that they engaged in an act protected under chapter 151B section 4(4), and those who have opposed any practice forbidden under MGL c. 151B and those who file complaints or assist in any proceedings before the MCAD (Massachusetts Commission Against Discrimination) these are known as the “opposition” and “participation” clauses.

The application of the opposition clause and can prove to be tricky because the employee must allege that the retaliatory conduct was due to the employee’s opposition to practices forbidden under MGL c. 151B.

The participation clause refers to MCAD proceedings and c.151B doesn’t cover participation in internal investigations of discrimination unless the participation amounts to the protected opposition, such as aiding, or encouraging another employee in the exercise of that employee’s rights.

Massachusetts General Laws c. 151 B and 152, speak directly to handicap disability under the worker’s compensation act. Pursuant to M.G.L. Chapter 152, an employee who sustains a work related injury and is capable of performing the essential functions of a job, with or without reasonable accommodation is a “qualified handicapped person” under the Massachusetts discrimination statute. Pursuant to Massachusetts General Laws c. 151 B § 1, a “qualified handicapped person is defined as; a handicapped person who is capable of performing essential functions of a particular job, or who would be capable of performing the essential functions of a particular job with reasonable accommodation to his handicap.

Massachusetts General Laws c. 151 B § 4(16), makes it unlawful for an employer to dismiss from employment or otherwise discriminate any person alleging to be a qualified handicapped person because of that handicap, as long as the person is capable of performing the essential functions of the position involved with the reasonable accommodation, unless the employer can demonstrate that the accommodation required to be made to the physical or mental limitations of the person would impose and undue hardship to the employer’s business. It is the employer’s burden to demonstrate that the accommodation sought is unreasonable because it would impose an undue hardship on the employers business. Yates v. Mass- C.E.O.P.S., 17 MDLR 1503, 1514 (1995).

A reasonable accommodation under Massachusetts law is amodification made in the way a job is conducted to enable handicapped workers to perform specific job functions. The issue of reasonable accommodation is only considered when a handicapped person is not able to perform the essential functions of the job. In areas employees need assistance, employed are obligated to make reasonable accommodation unless the accommodation would impose an undue hardship or require waiving or excusing an inability to perform an essential job function including, productivity requirements.

Employers aren’t required to provide a particular accommodation proposed by a handicapped person if there is an alternative accommodation that is available and that would enable the person to perform the jobs essential functions or if the employer can demonstrate an undue burden on the company. An employer may require proof of the existence of an impairment if a handicapped person requests reasonable accommodation. An employer is only required to accommodate an employee’s condition and isn’t required to accommodate the employee’s misconduct. An example of this is in the case of mental illness an employer doesn’t need to accommodate anti-social behavior.

An accommodation doesn’t have to be independently required by other safety or health regulations in order for said accomadation to be considered reasonable. Examples of reasonable accommodations include; changes in work schedules and assigned tasks, modification of job requirements, and provisions of adaptive equipment, a part-time or flexible schedule, and lastly light duty work.

Lastly an employer doesn’t have to undertake an accommodation if doing so conflicts with the following; contractual rights of other employees, if it causes other employees to work harder or longer hours, or requires the employer to hire new employees. The United States Supreme Court has held that an accommodation is not required under the American with Disabilities Act (ADA) if it conflicts with a company’s seniority rules, unless the employee shows “special circumstances.” http://www.mass.gov/mcad/disability1a.html#1

An example of handicap discrimination that could lead to worker’s compensation benefits is; if an employee who suffered a work-related shoulder injury while operating a truck without power steering, was discharged after being refused future assignments to trucks with power steering, and his injury prevented him from operating such trucks, the employee could state a claim under both the Worker’s Compensation Act and Massachusetts General Laws c. 151 B

The forgoing article was drafted by Ashley for the Law Office of Goldstein and Clegg, a plaintiff’s employment law firm.

A Massachusetts personal injury lawyer Christopher F. Earley, has an informative post over at his Boston injury lawyer blog concerning the requirement to submit to an IME (independent medical exam), when a claimant slips and falls.

Recently, I have had several workers compensation clients ask me if they needed to allow the insurance companies doctor’s to examine them following their conciliation, but prior the workers comp hearing. I believe attorney Earley post sheds some light on this matter as it relates to Rule 35.

He correctly cites that if you are involved in slip and fall litigation in Massachusetts, you should be aware of the right of the defense to conduct an IME (Independent Medical Exam). This right comes from Rule 35 of the Massachusetts Rules of Civil Procedure which states: “When the mental or physical condition …of a party, or of a person …, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control.”

When an employee applies for Worker’s Compensation benefits they should think of whether they want to receive a lump sum settlement or weekly payments. A lump sum settlement is defined as “a settlement or contract between the employee, employer when applicable and the individual’s employer’s worker’s compensation insurer. This is a one time payment that will be made instead of weekly wage compensation check’s, and in some cases certain other benefits. The individuals must decide whether a lump summing their claim is in their best interests.”It’s very important for the employee when deciding whether or not they want to lump sum their case. They must weigh the present value of their lump sum against potential benefits.

If an individual was injured before November 1, 1986, they give up their rights to future weekly benefits to this injury and they will probably lose medical benefits relating to their injury and any right to rehabilitation.

If an individual was injured on or after November 1, 1986, they give up their rights to future weekly benefits. However they must establish liability for their case, meaning the insurer has agreed that it is responsible for payments, or a judge has order the insurer to pay benefits. This will determine eligibility for the individual’s future medical and vocational rehabilitation benefits. If the liability is established the insurer remains liable for future medical and vocational rehabilitation expenses pertaining to the individual’s injury. The insurer does however have the right to dispute future medical bills before, as well as after the lump sum.

By signing a lump sum settlement agreement an employer cannot tell the individual that by signing the agreement they are agreeing not to return to their employer. However signing a lump sum agreement doesn’t prevent the individual from the following; maintaining employment with the employer whose job you were hurt on, gaining employment with any employer, receiving any benefits owed to the individual by their employer, bringing any future worker’s compensation for other work related injury and lastly bringing any future claims of wrongful discharge or breach of contract claims.

When an individual accepts a lump sum settlement, they’re presumed incapable of working for their employer. The presumption continues for one month for every $1,500 included in the lump sum. The individual has no re-employment rights during this period under Massachusetts General Law’s chapter 152.

The Worker’s Compensation reform act effective December 24, 1991, requires in most cases that employers approve lump sum proposals. Where the employer has approval authority and doesn’t approve the lump sum, then the proposal doesn’t proceed and the individual will continue to receive weekly benefits if they were currently receiving them.

An individual can receive vocational training as part of Worker’s Compensation benefits if they are eligible. Vocational rehabilitation consists on non medical services. These services assist the individual who has suffered a work-related injury that results in a permanent functional limitation which doesn’t allow the individual to return to the same type of work performed before the injury. In order to receive vocational rehabilitation, either the insurer may voluntarily provide services or the department’s Office of Education and Vocational Rehabilitation may determine that the individual is suitable for services.

However, if an individual has been approved for vocational rehabilitation then their lump sum can’t be approved unless one of the following requirements are met. First the individual has returned to work for six or more months; they have completed the approved vocational rehabilitation program; they have received express written consent from the Departments Office of Education and Vocational Rehabilitation and lastly if the judge overrides any of the above mentioned requirements after appropriate notice and hearing. The individual has 104 weeks from the date of their lump sum agreement is approved to get into a rehabilitation program. If the injured party does not do so under the specific time then they forfeit the rights to any rehabilitation they may have retained.

A few other things that an individual should take into account when deciding whether or not to file for a lump sum settlement is that a lump sum settlement means that the individuals case is closed forever and the lump sum replaces future payments for the specific injury. Another thing to consider is a lump sum settlement doesn’t affect any other action or proceeding on any other separate and distinct injury whether the injury precedes or arises after their settlement date, and regardless of who the insurer and employer are. If the individual has a third party claim as part of their worker’s compensation claim, they should ask their attorney how it will affect their lump sum.

If an individual has engaged with an attorney, the attorney is entitled to 20% of the total lump sum amount if the insurer has accepted liability or has been assigned liability by the DIA. If the insurer hasn’t accepted liability and hasn’t been assigned liability then the attorney fee is 15% of the total amount. The fee for the attorney is lowered if the individual’s lump sum agreement includes money for a permanent loss of function and/ or scarring, an attorney cannot collect a fee on these benefits.

Another thing to consider is that by accepting a lump sum settlement it is the agreement of all parties that the individual is physically unable to return to work with the employer. Every $1,500 of the lump sum amount will equal one month for which the individual is presumed incapable of working for the employer. For example if the lump sum settlement is settled for $6,000 then the individual in incapable of returning to work for four months. However if the individual is not returning to the employer where they suffered their injury they may return to work immediately.

Lastly an individual should consider the following questions when deciding whether or not they want to settle with a lump sum settlement. First, are you able to return to work, do you still have unresolved medical problems resulting from the injury, will you be able to prove your injury is work-related, what is your income now, what are your expenses and lastly how will this affect your retirement and pension rights if you don’t return to work.

Only the individual can make the decision about whether the settlement is in their best interests. The Department of Industrial Accidents (DIA) is available to answer any questions and make sure the individual understand the proposed agreement however the DIA cannot make recommendations to the individual or negotiate on their behalf. The public information office in Boston can be contacted at 617-727-4900, or toll free at 1-800-323-3249, lastly the TTD number for the deaf and hard of hearing is 1-800-224-6196.

This article was written by Ashley

When an individual is disabled or incapable of earning full wages for five or more calendar days due to an occupational/ injury/ illness or death, the employer is required to file a form 101 with the Department of Industrial Accidents and their insurance carrier. The form must be sent within seven business days from the fifth day of disability. An insurer is required by a judgment of a court to pay to an employee any damages on account of personal injury sustained by such employee during the period covered by insurance, the insurer shall pay to the insured the full amount of such judgment and the cost assessed therewith Massachusetts General Laws C. 152 § 25.Once the insurer receives the form 101, they have fourteen days to pay the benefits or to notify the employee and the Department of Industrial Accidents (DIA), that they are contesting the claim. The insurance company can pay on a claim for up to 180 days without prejudice, during which time they can stop or modify the payments after giving a seven day notice of termination or reduction to the injured individual and the DIA, in which they must give reasons for taking such actions. After the 180 day pay without prejudice period has passed, the insurer can stop or reduce the payment only for reasons specified by the workers compensation act and regulation. After 180 days if the insurer decides to continue paying the individual past the period they must have permission from the individual and a judge to stop or reduce payments at that time.

The 180 day “Pay without Prejudice” period can be increased by the insurer to one year with the individuals written consent and on a form 105 titled “Agreement to Extend 180 Day Payment without Prejudice” The DIA must approve the form 105. The individual must make sure that they are aware of all their rights before giving consent or signing any other document. http://www.mass.gov/dia/DESKSCAN/eeguide.pdf

All orders or decisions issued in accordance with workers compensation matters shall be enforceable unless and until reversed by a decision of a member of the DIA board or a reviewing board, or a judgement or decision of a court of the commonwealth; and payment of compensation, when ordered, shall commence immediately, with the first payment to be received by the employee within fourteen days of the issuance of any such order or decision, and shall cover all periods for which compensation is due under this chapter. Massachusetts General Laws C. 152 § 17. Moreover, pursuant to Massachusetts law, if an insurance agency fails to provide compensation due to an employee ordered by the commission or an administrative law judge, the insurance company can be enjoined from issuing workers compensation policies in Massachusetts thereafter.

If the insurer decides that they are going to deny the initial claim for benefits they must notify the individual by certified mail of the denial, they must give reasons for denying the claim and also advise the individual that they are entitled to appeal the denial by filing a claim with the DIA.

The claim of the injured individual must be submitted on a form 110 titled “Employees Claim Form.” This form must be filled out completely and accurately. The form is available online at www.mass.gov/dia or available at any DIA office. Form 110 is the same form that is filed when the insurer began to pay the individual their benefits but then later notified the individuals that they are going to stop or reduce their benefits.

There are documents that need to be attached with form 110 when filing an appeal, a list of documents that need to be enclosed with the form is available at www.mass.gov/dia. It is recommended that the individual retain a copy of form 110 for themselves and their records. After the form is complete it must be sent to the DIA’s Boston office they cannot be sent to a regional office.

A letter of the appeal must also be sent to the insurer, the individual’s employer is required by law to provide the name of the insurance company and their address. If the employer refuses to give such information, or they don’t carry workers compensation insurance than the DIA needs to be notified immediately.

Lastly, when an individual comes to any DIA office for a proceeding it is recommended that they bring all paperwork they have filed and any paperwork they received from the DIA or the insurer.

If an individual is injured during the course of employment or suffers from work-related mental or emotional disabilities, as well as occupational diseases, they’re eligible for worker’s compensation benefits. http://www.mass.gov/wcac/wc-over.html Benefits that an individual can receive for worker’s compensation are; weekly compensation for lost income during the period the employee cannot work. Indemnity payments for individuals vary depending on their average weekly wage (AWW) and the degree of incapacitation. The Massachusetts Worker’s Compensation statute, http://www.mass.gov/legis/laws/mgl/gl-152-toc.htm dictates that the maximum benefit not exceed 100% of the State Average Weekly Wage (SAWW) and the minimum benefit of at least 20% of the SAWW. Also in addition to benefits, the insurer is required to provide medical and hospital services, and medicines if needed. Moreover, the insurer must pay for vocational rehabilitation services if the employee is determined to be suitable by the Department of Industrial Accidents (DIA).

There are five various forms of indemnity and supplemental benefits that individuals may receive depending on their average weekly wage, state average weekly wage and their degree of disability.

The first form is Temporary Total Disability (section 34). Compensation will be 60% of the individuals average weekly wage prior to their injury, while remaining above the minimum and below the maximum payments that are set for each form of compensation. The maximum weekly compensation rate is 100% of the state average weekly wage ($1,000.43), while the minimum state average weekly wage is $209.09. If claims involve injuries occurring on or after October 1, 2006, the limit for temporary benefits is 156 weeks.

The second form of benefits is Partial Disability (section 35). Compensation is 60% of the difference between the individuals average weekly wage prior to the injury and the weekly wage earning capacity after the injury. The amount cannot exceed 75% of temporary benefits under section 34, if an injured party is to receive those benefits. The maximum benefits period is 260 weeks but may be extended to 520 weeks.

The third form is Permanent and Total Incapacity (section 34A). In this form the payments will be 2/3 of the individuals average weekly wage following the exhaustion of temporary (section 34) and partial (section 35) payments. The maximum compensation rate is 100% of the state average weekly wage ($1,000.43) and the minimum is 20% of the state average weekly wage ($209.09). If the claims involve injuries that occurred on or after October 1, 2006, the payments must be adjusted each year for the cost of living allowances (COLA).

The fourth form is Death Benefits for Dependents (section 31). The widow or widower that remains unmarried shall receive 2/3 of the individual’s average weekly wage, but not more than the states average weekly wage and no less than $110 per week. They should also receive $6 per week for each child and this is not to exceed $150 in additional compensation. There are also benefits for other dependents. Benefits paid to dependents cannot exceed 250 times the state average weekly wage plus any cost of living increases. (COLA) Children under 18, may however continue to receive payments even if the maximum has been reached. Burial expenses may not exceed $4000.

The fifth form is Subsequent injury (section 35B). An individual who has been receiving compensation and has returned to work for two or more months and is subsequently re-injured will receive compensation at the rate in effect at the time of the new injury unless the old injury was paid in a lump sum. In the old injury was settled with a lump sum settlement will only the individual will be compensated only if the new claim can be determined to be a new injury. http://www.mass.gov/wcac/ben-i-s.html

When an individual is disabled or incapable of earning full wages for five or more calendar days or dies as the result of a work related injury or disease , the employer must file a First Report of Injury. The form must be sent to the Office of Claims Administration at the DIA, http://www.mass.gov/dia, the insurer and the individual within seven days of notice of the injury. If the employer doesn’t file a First Report of Injury form it may be subject to fines.

This article was drafted by Ashley

The Social Security Administration pays disability benefits in two different ways. The first way is through the Social Security disability insurance and the second one is through the Supplemental Security Income (SSI) Program.For information about disabilities programs for children please refer to http://www.socialsecurity.gov/pubs/10026.html.

Social Security pays benefits to people who can’t work because they have a medical condition that is expected to last at least one year or result in death. The federal law requires such strict definition of disability, while some other programs give individuals benefits who have a partial-disability or have short-term disability, Social Security doesn’t. An individual must meet certain earnings requirements in order to be eligible for benefits. Individuals must meet two different earnings tests to be eligible for disability benefits. The first test is a “recent work” test which is based on the individual’s age at the time they became disabled and the second test a “duration of work” test to show that they worked long enough under Social Security. An individual should apply for disability benefits as soon as they become disabled because it can take a long time to process the application for disability benefits. It typically takes about 3 to 5 months. After the application is sent the Social Security Administration will review their application and make sure they meet some basic requirements for benefits such as whether they worked long enough to qualify and they will evaluate any current work activities. If these requirements are met then they will then send your application to the Disability Determination Services office in their state. This agency makes the decision for the SSA, they use their doctors and disability specialists to ask their doctor information about their condition, all facts in their case will be considered. They will also use evidence from any hospital, doctor’s office, clinics or institutions that the individual has been treated in order to obtain all other information. http://www.socialsecurity.gov/pubs/10029.html#part1 this link will provide information pertaining to the rules for the “recent work test” and also examples of work need for the “duration of work” test. Lastly individuals will also be able to find out what questions are considered in order to make the decision in which whether or not an individual receives disability benefits.

The Supplemental Security Income program http://www.socialsecurity.gov/pubs/11000.html makes monthly payments for individuals with low income and few resources who are also disabled. They also make monthly payments for individuals who are 65 and older and individuals who are blind. In order to be eligible to obtain SSI benefits, the eligibility is based on income and resources which are the things an individual owns. According to the Social Security Administrations income is defined as money you receive such as wages, Social Security benefits, and pensions. Income can also include such things as food and shelter. The amount of income an individual can receive each month and still get SSI depends partly on where the individual lives. In order to obtain information pertaining to how much an individual will receive based on the state they live in, they should call the Social Security Administration at 1-800-772-1213. Social Security doesn’t count all of an individual’s income when deciding whether or not they qualify for SSI benefits. Things that Social Security doesn’t count are; the first $20 a month of most income an individual receives, the first $65 a month an individual earns from working, and half the amount over $65, food stamps, shelter they receive from a nonprofit organization(s) and lastly most home energy assistance. If an individual is married the Social Security Administration also includes a part of their spouse’s income and resources when deciding whether they qualify for SSI, and if an individual is under the age of 18 the SSA includes part of their parent’s income and resources and if an individual is a sponsored noncitizen they may include their sponsor’s income and resources. If the individual is a student then some of the wages or scholarships they receive may not count. If an individual is disabled but works Social Security doesn’t count wages an individual uses to pay for items or services that may help them work, for example if an individual buys a wheelchair to be able to work, Social Security doesn’t count those expenses when deciding whether they qualify for SSI benefits. Social Security also doesn’t count any wages a blind individual uses for work expenses, for example transportation to and from work are not included in determining eligibility for SSI. Lastly, if an individual is disabled or blind some of the income they use or save for training or to buy things they need to work may not be counted. Resources that are counted in determining eligibility for SSI benefits are; real estate, bank accounts, cash, stocks and bonds. An individual may be able to get SSI benefits if their resources are worth no more than $2000, and a couple may get benefits if their resources are worth no more than $3000. Also if an individual owns property that they are trying to sell, they may be able to get SSI while they are trying to sell it. Social Security does not count the following in determining an individual’s eligibility for benefits. First the home they live in and the land it’s on, life insurance policies with a face value of $1,500 or less, an individuals car (usually), burial plots for an individual and members of their immediate family and lastly up to $1,500 in burial funds for the individual and up to $1,500 in burial funds for their spouse. Other rules that an individual must meet for eligibility are; to obtain SSI they must live in the U.S. or the Northern Mariana Islands and be a U.S. citizen or national. In some cases, noncitizen residents can qualify for SSI. For more information on qualifications for noncitizens please visit the website http://www.socialsecurity.gov/pubs/10026.html . For the rest of the rules an individual must meet in order to be eligible for SSI benefits please visit http://www.socialsecurity.gov/pubs/11000.html#part2 .

It should be noted that the basic SSI amount is the same nationwide however many states add to the basic benefit. In order to find out whether an individuals state adds extra benefits call the Social Security Administration. Lastly the Social Security Administration manages the SSI program however even though Social Security manages the program, SSI is not paid for by Social Security taxes. SSI benefits are paid for by the U.S. Treasury general funds, not the Social Security trust funds.

This article as written by Ashley Gurdon, a Suffolk University student and intern for the employment lawyers at Goldstein and Clegg, LLC