What? I Can’t Talk to My Own Employees? A Cautionary Class Action Tale

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by Adam Shafran

Class action wage and hour and other similar employment class action lawsuits are more prevalent than ever, particularly in Massachusetts, which has some of the strongest pro-employee laws in the country. A decision from the Massachusetts Business Litigation Session demonstrates that employers faced with a class action lawsuit must be careful how and when they communicate with their employees.

In this case, a restaurant owner met personally with current and former employees to try to resolve unpaid wage claims and provided each employee with a disclosure letter about the pending class action lawsuit. When the plaintiff’s attorney learned about this, he filed a motion to prohibit the owner from engaging in such communications. The Massachusetts Superior Court agreed, ruling that a restaurant chain could be prohibited from communicating with its current and former employees about resolving unpaid wage claims against the company while a class action lawsuit is pending.

Critically, the judge found serious problems with the method, manner and content of the communication. First, the judge determined the disclosure letter provided to each employee was disingenuous because it stated the plaintiff was “not likely to win at trial.” Second, the judge found the disclosure letter contained release language that was substantially overbroad inasmuch as any employee who signed the letter would release the restaurant from not only wage and hour claims, but from any and all claims of any nature the employee had or may have had. Finally, the judge determined it was inappropriate for the restaurant owner to present the disclosure letter in person to each employee because employees may have felt pressured to sign the letter on the spot so as not to jeopardize their employment.

So what lessons can be learned? If your company faces a class action employment lawsuit, any proposed communications with employees to resolve claims should likely first be presented to the court to obtain the judge’s approval. To the extent any such communication contains a release, the release should be appropriately tailored to the dispute in question. For example, if the employer is being sued for a tip violation, the release should not also release discrimination claims. Finally, all communications regarding an existing class action lawsuit should be sent to employees via certified mail unless there are compelling reasons not to do so.

Of course, the first step every employer should take is to have their employment policies and practices reviewed so that there is no class action exposure, but in the event a class action arises, Rudolph Friedmann LLP can ensure the company is properly communicating with its employees.

Watch Out for Self-Extending Leases – Acts Can Satisfy Notice Provision

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by George Georgountzos

A lease functions as the basis of the contractual agreement between the landlord and tenant, outlining the parties’ obligations to each other. When disputes arise, parties, counsel and courts look to the lease as the starting point in determining what the parties agreed to and whether there has been a breach. Peculiar or extraordinary provisions in leases are generally upheld where both parties are sophisticated and understand the expectations from the outset.

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Does This Ad Violate Massachusetts Law?

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by Amy B. Welch

The ABC Store in Anytown is hiring!! Immediate opening for part-time mother’s hours, M-F 8:30am-2:30pm with some Saturdays (as needed). Individual should have good customer service skills, some computer skills, ability to multi-task and handle packages up to 30-40 lbs. Call John Doe at 781-224-2500 or come in to the store @ 15 Lincoln St. Thank you!

Recently, the above ad for part-time help sparked a brouhaha on a local Facebook page. A person took offense to the term “mother’s hours” sparking a debate over whether the term was discriminatory or political correctness had run amok. The aggrieved party claimed that “it sounds discriminatory as in, no consideration for full-time hours for a mother, no seniors, etc. We should be beyond this.”

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Residential Leases in Post-Legal Marijuana Era

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by George Georgountzos

Landlords who lease residential units face new challenges in dealing with legalized marijuana use. Legal use of medicinal marijuana has been around for a while and Massachusetts courts have addressed issues about offering reasonable accommodations for individuals who are prescribed marijuana under a doctor’s care. Now that Massachusetts has legalized recreational use of marijuana, landlords would be best served by addressing the new reality in their leases to minimize nuisance claims and limit the potential harm that could come from tenants growing cannabis in their units.

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Security Deposits: Could They Be More Harmful Than Helpful?

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by Robert P. Rudolph

According to the US Census Bureau, there are nearly one million renter-occupied housing units in the Commonwealth of Massachusetts. It is estimated that 75 percent of rental units are owned by small property owners who do their own management instead of contracting it out. When a new tenant moves in, it is customary for a landlord to collect a security deposit to be used to repair any damage caused by the tenant during the lease. However, many landlords fail to comply with the Massachusetts Security Deposit Law, General Law Chapter 186, Section 15B. In doing so, these landlords put themselves in danger of significant exposure, well in excess of the value of the security deposit.

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