Misclassifying Workers as Independent Contractors

Massachusetts has one of the most employee-friendly independent contractor laws in the United States. Under the Massachusetts Independent Contractor Law, which is also stricter than federal law, Massachusetts General Laws, Chapter 149, Section 148B, a worker will be considered an employee unless the employer can show that all three prongs of the independent contractor test has been satisfied:
1. The worker is free from control and direction with the performance of the service, both under contract, and in fact;
2. The worker provides a service that is performed outside the usual course of business of the employer; and
3. The worker is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

The Attorney General’s office has issued guidelines, including several factors considered to be strong indicators of misclassification which include, workers who provide services for an employer that are not reflected in the employer’s business records, workers paid “under the table”, insufficient or lack of workers’ compensation coverage, workers who do not receive 1099’s or W-2s, workers who do not pay income taxes and employers who fail to contribute to the Division of Unemployment Assistance.

The statute has been construed very narrowly by the courts, and most workers will not meet the test for independent-contractor status. The net result is that it is nearly impossible for Massachusetts employers to classify a worker as anything other than an employee. Why are some employers willing to take the risk to misclassify their workers? For financial gain, and an unfair competitive advantage, of course. Because when they do so, employers avoid paying holiday, vacation, and overtime pay; Social Security and Medicare contributions, unemployment insurance, workers’ compensation; and income tax withholding obligations. Employers who violate the statute are liable for damages, as well as civil and criminal penalties.

So if you have a job but you get paid without taxes being taken out of your paycheck, you probably have a claim for money damages. In fact, if you believe you have been wrongly designated as an independent contractor, you may be eligible to file a claim for treble damages for any lost wages, overtime and other benefits and attorneys’ fees under the Massachusetts Wage Act, by filing a Non-Payment of Wage and Workplace Complaint Form with the Office of the Attorney General. Employers beware: the risks and penalties for misclassifying workers are significant and far reaching.


Have you read the Sunday’s August 7, 2016, Globe Magazine????,

Shame on David A. Gross for his callousness and glaring lack of knowledge!!! Anyone who has been touched by adoption (who hasn’t??? now that the dark days of secrecy are gone) knows that NO ONE GIVES UP A CHILD FOR ADOPTION. THERE IS NO SUCH THING. When a parent makes an adoption plan for his/her child, that parent is giving him/herself the gift of selflessness and courage to recognize that now is not the time for that parent to raise a child. (Shame on social workers and others involved in the placement for not emphasizing these aspects!) No one gives up a gift. That parent is also giving the child a gift with a forever family and the adoptive family the gift of a life. No one gives up a gift!!!!!

David Gross as writer and public radio producer should know better before he sets his words out for others to read and hear. One three page article and he dishonors well thought out decisions, weighed down with pain and sadness.

Bravo for Laura Flanagan for persevering through to learn more about the circumstances of her placement, and assisting others. And, of course, each circumstance is different and the tenor of reunions vary. But one thing is accurate: The truth may hurt, but it will set you free.


Taking Back Your Divorce: Crafting a Parenting Plan That Works for Your Family

Divorce can be a difficult time filled with many transitions and uncertainties. The anxiousness which naturally accompanies this process can be exacerbated when children are involved. The big question often is: how are my spouse and I going to share time with our children when we are no longer living in the same house? How are we going to make this work?
In Massachusetts, the Probate and Family Court has the authority to decide with whom children will live, when children will see their other parent, and how important decisions (i.e. medical and educational) will be made. The Judge can make such decisions on a temporary basis, while the divorce action is pending, and on a permanent basis, from the time of divorce going forward. The standard the Judge must apply in making decisions about when parents will spend time with their children is in the “best interests of the child.” This means that the Judge will decide what is best for the child, and order a parenting schedule that the Judge believes will best meet the children’s needs.
At first blush, it may seem appealing to have the Judge resolve this issue, especially if you are confident that the schedule, or “parenting plan,” that you have in mind is what is best for your children. After all, having the Judge decide would alleviate the necessity of working with your spouse to develop a mutually agreeable plan.
In some cases, it is best to leave this question for the Judge to answer. However, in others, allowing the Judge to set a parenting plan for your family may be to your detriment. Crafting a parenting plan to which you and your spouse can agree allows you to take back control, and tailor your parenting schedule to your children’s needs and your family’s life and responsibilities. Consider the following factors:
1. Who knows your children better than you?
While a Judge may only hear about your children for a few minutes, you and your spouse have raised your children, oftentimes since birth. Working with your spouse to develop a parenting plan allows you to take into consideration your children’s unique needs and desires. This is also a good means to develop a better “no longer married but still caring parents” relationship with your spouse, and gives your children an opportunity to see you and your spouse work together for their benefit.

2. You live a busy life.
Perhaps you and your spouse work, your children are involved in school and extracurricular activities, and there are a lot of schedules to coordinate on a daily basis. Working with your spouse to draft an individualized parenting plan can provide your family with the flexibility it needs; flexibility that a Judge may be hesitant to order based on time limitations or enforcement concerns.

3. You want the plan to work.
A parenting plan which assesses and addresses parents’ and children’s needs is more likely to be followed. If you are able to plan for the unique needs of your family ahead of time, there is less need to deviate from the plan as incidents arise.
If it is possible, and it’s not always possible, working with your spouse to craft your own parenting plan is something to consider. In the right circumstances, taking control of your family’s schedule could be the key to successful co-parenting going forward.


Contract law and Texting

There is a new twist on Crosby, Still Nash and Young’s “Teach your children well” is now “Children teach your parents well!”
R U K? This type of expression has become very familiar to us. Welcome to the world of texting. Until recently, I understood it to be a great and quick way to stay in touch with family and friends. However, a recent Massachusetts Land Court Judge in ST. JOHN’S HOLDINGS, LLC v. TWO ELECTRONICS, LLC. has ruled that: “a text message…can constitute a writing sufficient…to create an enforceable contract for the sale of land.” In this case, the Buyer and Seller, over the course of several months, were in negotiations concerning the purchase and sale of a commercial building. During this time period, the parties used several methods of communications: meetings, telephone calls, emails and text messaging, including exchanging several emails containing various documents and, specifically, a “Binding Letter of Intent (“LOI”). Finally the prospective Buyer’s agent sent a text to the prospective Seller’s agent, in compliance with the Seller’s request, “…I have the LOI and check…where can I meet you?” The prospective Seller, during this final exchange, accepted another offer from a different buyer.

Thus, the ultimate questions for the Court to decide: “Is whether the parties merely engaged in negotiations or whether their dealings, carried out through electronic communications, gave rise to a binding and enforceable contract for the purchase and sale of the real estate? Was there an offer, acceptance of that offer, consideration, and agreement on sufficient terms laying out the rights and obligations of the parties?

Contracts for the sale of land, whether by oral promise or written agreement, are enforceable only if they are supported by a writing that includes the agreement’s essential terms and is signed by the party against whom enforcement is sought. Writings of relative informality and brevity can satisfy this requirement. The communications between the parties before the text message evidenced a meticulous attention to provisions that would govern their agreement.

Multiple writings relating to the subject matter of an agreement may be read together as long as the writings, when considered as a single instrument, contain all the material terms of a contract and are authenticated by the signature of the party to be charged. The Court concluded that the “typed name at the end of an email is indicative of a party’s intent to authenticate because the sender of an email types and sends the message on his own accord and types his own name as he so chooses.” The sender of an email by his deliberate choice to type his name at the conclusion of his text message intended for it to be authenticated.

The use of electronic communications, particularly in the legal field, has advanced immensely and become commonplace. Thus, the lesson is very clear; these informal text messages when used in the context of other forms of communications can be construed as a binding agreement.


A takeaway from Prince’s death: Do not die without a will

Prince is the latest celebrity to die without a will. To many of us it was shocking that this music legend did not leave instructions on how to administer his vast fortune. When celebrities die without a will it makes headline news. Despite the fact that about 50% of Americans die every year without a will, it is not newsworthy and yet it can be equally as difficult and traumatic for family members left behind.
When a person dies without a will, there are no instructions for the distribution of assets, leaving the state to make the decision through laws known as intestacy laws. Although the specifics vary by state, generally the laws provide that surviving spouses, parents, children and other blood relatives inherit designated amounts and or percentages of the estate. This means that couples who never married, friends or charitable institutions will not receive an inheritance, regardless of what the deceased wanted or intended to do.
Under Massachusetts intestate law, for example, a surviving spouse inherits the entire estate if there are no surviving parents or children or if the surviving children are also the children of the surviving spouse. If a person dies leaving a surviving spouse and a surviving parent but no children, then the surviving spouse receives the first $200,000, plus 75% of the balance of the estate, with the parent receiving the remaining 25%. If a person dies without a surviving spouse or children, then the estate is left to the surviving parent or parents.
In Prince’s case, he was not married, had no children, and his parents are deceased. Under Minnesota law his sister and his half-siblings will likely inherit his assets including property, music, unreleased music, and control of his image, legacy and other intellectual property. However, as recently as last week, several additional people have come forward claiming to be heirs to his estimated $300 million fortune. So suffice to say the special administrator appointed by the probate and family court in Minnesota to oversee Prince’s estate faces significant challenges to determine the legal heirs and years of court battles.
Of course, leaving the management and distribution of your estate to the state and probate court is easily avoidable by simply leaving a will with instructions. Naming a person to distribute your assets in accordance with your wishes and also naming a guardian to care for any minor children, is your prerogative. The choice is yours to control how your estate is handled or leave it to the state to decide on your behalf.


Equal Access to Original Birth Certificates

Did you know that not all persons over the age of 18 who were adopted in the Commonwealth of Massachusetts may access their original birth certificates without court intervention, or going on a “search?” Why? Currently, 46 s. 2B prevents those adoptees that were born between July 17, 1974 and December 31, 2007 from accessing their original birth certificates, which was on record prior to the finalization of their adoption. However, this could change soon.

Pending before our legislative bodies are two bills, a Senate version and a House version, reproduced below. Each seeks to expand birth certificate access for all adoptees over the age of 18 who were born in the Commonwealth.

Bill S. 1144
An Act relative to equal access to original birth certificates.
Section 2B of chapter 46 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking out, in line 3, the words “on or before July 17, 1974 or on or after January 1, 2008” and by striking out in lines 4 and 5, the words “on or after January 1, 2008.”

Bill H. 2045
An Act granting equal access to original birth certificates to all persons born in Massachusetts.
SECTION 1. Section 2B of chapter 46 of the General Laws, as appearing in the 2008 Official Edition, is hereby amended by striking, in line 3, the words “on or before July 17, 1974 or after January 1, 2008” and by striking in lines 4 and 5, the words “on or after January 1, 2008.”

Opponents of the Bills claim that birth mothers who gave birth in Massachusetts between July 17, 1974 and January 1, 2008 were promised confidentiality, and the passage of these bills would break that promise. That premise is false. For example, any adoptee over the age of 18 may petition the Probate and Family Court to access his original birth certificate. Second, the Adoption Surrender is silent as to any confidentiality. And third, hundreds of birth parents have found by their children by way of the internet.

Why must 46 s. 2B be amended? Notwithstanding that the statute violates the 14th Amendment to the U.S. Constitution, the Equal Protection Clause; there are many diseases and conditions linked to genetics. Biological family medical history is critical to prevention, early diagnosis and treatment. Denial of adult adopted persons’ access to information related to their births and adoptions has potential disastrous consequences.

What can you do to help?!blog/c1y6e


What’s A Grandparent To Do?

If it seems as though Grandparent Issues have been on my mind as of late, it is true. Becoming a grandparent myself was like looking into a kaleidoscope: with just an ever-so-slight twist, the landscape is different and perhaps more complicated. One would think that on becoming a grandparent, all of the fun and indulging begins, and the responsibilities of parenting are left to our children, parents of our grandchildren.

However, one only need to be lawyer of the day, in one county, to realize how many grandparents have been instructed by the Department of Children and Families (“DFC/the Department”) to file for emergency temporary guardianship, lest the grandchild(ren) be placed in the care and custody of the Department. Regardless of the circumstances that resulted in the upset of that family unit, grandparents are now pitted against their children for the safety and well-being of their grandchildren.

Many grandparents find it hard to come to terms with their children’s challenges, be it substance abuse, or violent, criminal or negligent behavior. And most grandparents would state that they never imagined they would again be parenting young children.

To me, what is most difficult is when a parent must confront his/her child in the public forum of a court of law. Wishing, and perhaps praying, that his/her child will somehow learn to heal the wounds which caused the child to turn to such behavior, the parent is forced to underscore the child’s challenges to prevail for the sake of the grandchild. Nevertheless, in almost every parent’s mind must be the fear of further alienating his/her child, and exacerbating the situation.

It may be easy to say that everything happens for a reason, or you play the hand you are dealt, but the loss left in the wake of taking such a stand impacts each of the players in this nightmare. If the grandparent succeeds in getting guardianship of the grandchild, presumably the grandchild will be in a more nurturing and safer environment, but what about the future? What about the child’s relationship with the parent and the parent’s relationship with his/her child?

Should there be some sort of built-in system to assist those caught in such high conflict cases to mend the unhealthy discord between family members over the care and custody of a child? Often times it is the DCF, and then the court who becomes aware of the problems. Yet, neither system is designed to lend assistance on this level, regrettably.


Let’s Face It

Person to person, face to face, person to person, one to one, just you and me. . . person to person, that’s just how it gets done.” These lyrics from an old 70’s funk band, Average White Band, remind me of the value of face-to-face communication. Why face-to-face versus all of the wonders that technology today has provided? The introduction of e-mail, instant messaging, social networking and other means of exchanging written messages has created additional alternatives to face-to-face communications. While modern technology has its place, nothing can match the power of face-to-face meetings with clients, colleagues and opposing counsel.

When you have a face-to-face meeting, you have the opportunity to observe. We tend to forget that body language plays a major part in our communication. It is not only just how you say something, but also your facial expressions and body posture. This is lost in a phone conversation, and can never be a part of an email. There is also the engagement. Who knows what people are doing while on conference calls. (You might not want to know.) However, face-to-face contact leads to engagement. It ensures that people are “in the conversation.” When you are all in the same room, it forces people to participate, to be engaged. You can’t turn your back to the meeting. Yet, this is exactly what many people do on conference calls. Although written, telephone and face-to-face communication all rely on words, only the latter provides the ability to both observe body language and hear tone of voice. These additional communication cues or signals can provide insights that are critical in gaining an understanding of others’ perspectives.

One simple face-to-face could eliminate many back and forth emails, especially when you are pandering to your client with a “bcc.” When you are in a meeting, there’s more energy and, of course, more opportunities to participate and contribute. Oftentimes there’s also a synergy that ignites discussion and innovative thinking. You can brainstorm more easily. Understand reactions to information being presented.

There is a personal touch: Plain and simple, it’s just nice. We’re better able to socialize and interact with one another. We quickly build a bond that can set the foundation for trust. Face-to-face communication provides opportunities to observe others reactions, adjust behavior, and clarify intent. As a result, the discussions can increase the likelihood of positive outcomes in preventing and resolving conflicts. Without verbal and non-verbal cues, using e-mails or other written communications there is an increased probability of miscommunication.

Conference calls can lead to misunderstandings either due to lack of communication or simply because the medium is not conducive to individuals asking for better meaning. It’s much harder to “raise your hand” on a call than it is in person. Communication in person allows you to interact with the listener in a back-and-forth discussion. It also allows you to utilize nonverbal gestures, facial expressions and personal charisma to enhance the message.

Face-to-face discussions also allow those involved to establish parameters and determine an appropriate process for sharing confidential information. In situations of this nature, the use of e-mail normally is not an acceptable alternative. Confidentiality can be lost once an e-mail is sent, as it can be forwarded again and again. Face-to-face discussions can create an opportunity for those involved to examine their understanding of the information provided and to brainstorm pluses and minuses associated with alternative courses of action.

Whether it’s gaining the trust of a new client, or finding a solution to resolve a conflict, face-to face communication: “that’s just how it gets done.


Avoiding Family Feuds Over Inheritance

When it comes to inheritance, family feuds are real. Regardless of the amount of inheritance at stake, it is a far too common occurrence for family disputes to arise over an inheritance after a parent dies. Otherwise rational people can quickly act like children fighting in the school yard over a perceived slight or unfair distribution of a parent’s estate.

Let’s be honest. Talking about death and money is difficult for some and awkward for most of us. Most estate plan clients I encounter struggle with how and whether to talk to their children about their estate plan. There are several ways to prevent or to minimize a family feud and it all comes down to being as prepared, open and transparent
as possible.

First and foremost, you need to have an estate plan that reflects your wishes. At a minimum this includes a will, a trust if appropriate, a durable power of attorney, health care proxy, and living will. The will must name a personal representative and successor to administer your estate, as well as a guardian and conservator, and successors, for minor children. Once an estate plan is in place it is imperative to update these documents as family circumstances change such as births, deaths and divorce, changes in family dynamics and income.

Second, it is important to recognize that not all assets are controlled by a will or trust. For example, assets held jointly with rights of survivorship are not disposed of by your will, nor are assets that have named beneficiaries such as life insurance policies, individual retirement accounts, 401(k) plans and annuities. Keeping track of these assets and the beneficiaries named as they relate to your overall inheritance plan will minimize potential conflicts and disparities in the distribution of assets to your heirs.

Third, schedule a family meeting long before you are at death’s door to talk openly about how you plan to dispose of your assets. But a word of advice: be fair. While it isn’t always possible to treat each child equally, it is prudent to treat each child fairly as each has different needs and financial abilities. If your children know what to expect and understand the underlying reasons behind your decisions, they are less likely to dispute the inheritance after you’re gone. It is the shock and disappointment that leads to inheritance litigation, tearing families apart. If there is already tension among family members, consider asking your estate attorney to facilitate the meeting, diffuse the tension and be available to answer questions. I have found these meetings to be both productive and therapeutic for the families involved.

When families feud, nobody wins and everyone suffers. To avoid family friction over inheritance, be proactive and take action while you can.


How An Expert Can Help Your Divorce Case: Insights from the 2016 Family Law Financial Forum

Recently, Attorney Karen Greenberg and I had the opportunity to attend the 2016 Family Law Financial Forum, an event hosted by Massachusetts Continuing Legal Education. This program featured a panel of experts in the financial aspects of divorce, and included attorneys, business valuators, and accountants with varying certifications and specialties. The all-day presentation allowed me, as a new lawyer, to learn from seasoned practitioners. Because the panelists have tested creative solutions in divorce cases, they could weigh in on the viability of innovative approaches; because the presenters had seen mistakes made in practice, they could impart lessons learned; and because the speakers have worked with many experts in the family law community, they could identify helpful resources. While there was a lot to learn at this event, the biggest takeaway for me was that, in some cases, retaining a financial expert can be critical.

Over time, families have become increasingly complex. Not only has family structure and division of caretaking responsibilities changed dramatically, but the financial supports for many families have also become more complicated. For example, a spouse may earn bonus income or receive stock options from his or her employer rather than simply receiving a regular salary. A couple may own assets that are more difficult to value than cars and bank accounts, such as trust interests or a closely held business. The need for a financial expert is heightened by such complex financial arrangements.

In cases such as these, proceeding without an expert means taking risks. A spouse risks receiving an inappropriate child support order because income has not been properly accounted for. There may be unforeseen tax consequences because the proper analysis was not undertaken. A party risks “overpaying” alimony to an ex-spouse because his or her income is misunderstood. Assets may be divided inequitably because their true value is unknown, and not presented to the court. This is especially dangerous given that orders of property division cannot be changed. These risks, however, can be mitigated by utilizing a financial expert.

There are several types of financial experts. For example, real estate appraisers, business valuators, forensic accountants, and CPAs would all fall under the general “financial expert” umbrella. Once employed, the expert could fill one of two roles. The expert could be what is called a testifying expert. Testifying experts analyze relevant information and communicate their opinion to the judge. Alternatively, an expert could be a consulting expert. A consulting expert works with the lawyer to better understand certain information and guide the attorney’s inquiry. The type and role of the expert is determined by the needs of the particular case.

Many clients may wonder whether hiring an expert is really necessary; after all, they have already hired an attorney to handle this problem for them. In complex cases an expert may be the only means to obtain an accurate accounting of the marital assets. Of course, the additional cost of retaining a financial expert may be financially burdensome but there are ways to minimize the extra cost. For example, parties may agree to jointly retain an expert to value a marital asset or hire an expert to take preliminary steps and evaluate the need for further work as the engagement proceeds.

At the end of the day, an expert can minimize uncertainty and risk, and help to ensure that a party receives all that is coming to them. And that is priceless.

Older posts «