February 28, 2018
New England weather can be anything but predictable. We have seen snow fall before Halloween and unexpected blizzards after Easter. The best thing you can do to prepare for a New England winter is to pick up your belongings and catch the next flight to Florida or Aruba, but for those who wish to endure the long winter months at home it is important to understand Massachusetts’ laws about clearing snow and ice from your property.
Slip and Fall Injuries
The statistics regarding injuries due to slipping and falling on ice in the United States are shocking. Each year, over one third of adults in the United States suffer serious injuries due to slipping and falling on ice. Roughly 600,000 adults are hospitalized due to these injuries, and nearly 20,000 adults will die due to these injuries.
To ensure these injuries don’t happen on your property, it is never too early to begin preparation for New England winters. With that in mind, Massachusetts has minimum standards for property owners to bear in mind with respect to clearing snow and ice from their respective properties.
Massachusetts Laws on Clearing Snow
Both landlords and tenants should know their responsibilities when it comes to snow and ice removal. Pursuant to 105 CMR 410. 452, property owners shall maintain all means of egress at all times in a safe, operable condition, and they shall keep all exterior stairways, fire escapes, egress balconies, and bridges free of snow and ice. However, if a dwelling has an independent means of egress, not shared with other occupants, an occupant can be held responsible for keeping that area free of snow and ice, but you need a written agreement outlining the occupant’s responsibilities.
Essentially, an owner or a tenant, dependent on their mutual agreement, must keep the property in reasonably safe conditions when hit with snow and ice conditions.
Liability Concerns for Property Owners
Prior to 2010, Massachusetts’ property owners could only be held liable for injuries in slip and fall cases caused by the “unnatural” accumulation of snow or ice. In the case of Emmanuel Papadopoulos & another vs. Target Corporation & another, the Supreme Judicial Court ruled for the abolishment of the long-standing distinction between “natural” and “unnatural” accumulations of snow and ices in slip and fall cases.
Papadopoulos v. Target 457 Mass. 368 (2010)
In the case of Papadopoulos v. Target, the plaintiff slipped and fell on ice while walking through the parking lot of a Target store. A plow had come through the parking lot previously and piled snow onto a median. The snow dripped off the median and formed the ice puddle that the plaintiff slipped on. The court ruled that the ice had come off the median “naturally,” as snow piles have the tendency to drip.
Papadopoulos’ appeal of the decision spurred the Massachusetts Supreme Judicial Court to reject the long-standing distinction between “natural” and “unnatural” accumulations of snow and ice in slip and fall cases. The Supreme Judicial Court concluded that regardless of the type of accumulation of snow and ice (“natural” or “unnatural”), a landowner owes a duty to maintain its property in a reasonably safe condition given the circumstances, and should treat the condition no differently than he would in any other liability action.
Time Limits for Personal Injury Claims
The statute of limitations for torts in Massachusetts is 3 years. However, an injured party should place the person or Mass. Gen. Laws chapter 84, sections18-20 state a person must notify the county, city, or town of injury or damage from snow or ice on a public way within 30 days. Similarly, Mass. Gen. Laws chapter 84, section 21 states a person must notify the owner of private property of injury or damage from snow or ice on their premises within 30 days.
In each instance, whether public or private, the injured person shall report the said injury within 30 days with notice of a name and place of residence of the person injured, the time, place and cause of said injury or damage; and if the said county, city, town or person does not pay the amount thereof, he may recover the same in an action of tort if brought within three years after the date of such injury or damage.
Understanding Slip and Fall Lawsuits
Whether you are a victim or a potential defendant, it is important to gather as much information as quickly and efficiently as possible. Photographs and witness statements can be essential to proving a case. Just because the statute of limitations for cases is three years does not mean that you should sit idly and wait before filing suit.
Obtaining Legal Help
If you have been involved in a slip and fall accident, contact the Murphy Law Group today at (978) 686-3200. The Murphy Law Group has extensive experience in litigating slip and fall cases in Boston, North Andover and the surrounding Merrimack Valley areas.
November 9, 2017
For residential landlords, security deposits might not be worth the hassle.
It may sound like backwards logic, but a landlord who takes the seemingly prudent step of holding a security deposit from their residential tenant may ultimately regret their decision. While holding a security deposit can protect a landlord from damages and spare the hassle of chasing a tenant for damages after a lease has ended, the risk of mishandling a security deposit is significant. There are many different ways to violate the laws in Massachusetts that protect residential tenants and punish landlords for mishandling a security deposit in their possession.
Security Deposit Statutes
To better understand the risks of holding the security deposit, here are just a few of the basic principles set forth in the Massachusetts security deposit statute (G.L. c.186, §15B) that landlords must be aware of:
- Although a tenant may hand over a security deposit at the inception of a lease, that money remains the tenant’s. It must be held in a bank within the Commonwealth of Massachusetts, and separate from the landlord’s personal funds.
- A residential landlord cannot demand or accept a security deposit that is greater than the amount of one month’s rent.
- Security deposits can only be applied for damage to the apartment caused by the tenant or unpaid rent. A security deposit cannot be used for any other reason. So, if you the landlord let your tenant use your car and he/she breaks a side mirror, you can’t use funds from the security deposit to repair the car.
- A landlord must be detailed and meticulous when applying a security deposit to repair damaged property. First, a landlord should have provided his/her tenant with a statement of damages when the lease began. This ensures that the damages being repaired were not already existing prior to the tenant’s moving in. Additionally, the landlord must provide a written itemized breakdown of the repair costs to the tenant.
- The penalties for violating the Massachusetts security deposit statute are harsh. The slightest missteps can lead to treble damages, costs and attorney’s fees being awarded to the tenant. For example, a tenant who wrongfully retains a $1000 security deposit can ultimately find themselves on the wrong end of a judgment for much more. With multiple damages, interest, costs, and attorney’s fees, a landlord can ultimately owe well over 5 times the amount of the security deposit that was withheld. This does not even take into account the landlord’s own legal fees.
- Good faith or mistakes are not usually viable defenses for landlords who violate the security deposit laws. This means that a landlord who makes an honest mistake can still find themselves facing steep penalties.
- A security deposit violation can be a defense to eviction. Evicting a residential tenant can be a difficult and lengthy process. Adding security deposit issues only complicates matters further. In 2016, the Massachusetts Supreme Judicial Court held that a landlord’s violation of G.L. c.186, §15B provided his tenant with a viable defense to the landlord’s claim for possession of the premises.
Is It Worth Holding A Security Deposit?
With these in mind, is it really worth it for a landlord to hold a security deposit that cannot even exceed the amount of one month’s rent? Like many legal issues it depends on the circumstances. Consider the following scenarios: (1) A landlord holding a $3000 security deposit just found out that their tenant has destroyed the brand new refrigerator. The costs to repair the damage exceed $3000; and (2) A landlord wishes to deduct $600 from an $1800 security deposit to repair stains to the carpet and clean the oven. Although they would still need to be diligent in providing evidence of the damage and repairs, a landlord in scenario 1 would be fortunate to have held a security deposit to cover such significant damage. The benefit of a security deposit is less apparent in scenario 2. While it may be nice to cover the $600 in repairs, it is a relatively small amount and likely not worth the risk of litigating over.
It is important to remember that a security deposit is not the only remedy available to a landlord. A landlord damaged by the actions of a tenant can always bring an action in small claims or district court to recover for damages incurred. While this remedy involves a bit more effort on the landlord’s part, the risk of exposure is far less.
The Murphy Law Group has experience representing residential and commercial landlords and tenants in Massachusetts Housing Court, District Court and Superior Court. Contact our North Andover office today at (978) 686-3200.
October 20, 2017
Massachusetts General Laws sets forth several requirements for the keeping and maintaining of employee personnel files. Personnel files are useful from both the employer and employees perspective.
Personnel Files — for Employers
From an employer standpoint, it is important to keep a record of employee activity. Instances of employee misconduct should always be recorded and placed in the employee’s personnel file. Maintaining these records can prove to be crucial to an employer who finds themselves defending allegations of wrongful termination.
Personnel Files — for Employees
As an employee, you have the right to know what is being placed in your personnel file. Additionally, you have the right to a copy of your personnel file after making a written request. If you believe that you have grounds to bring a claim for discrimination, harassment, or other wrongful termination, obtaining your personnel file can be an important first step in this process. For example, if an employee claims that poor job performance was the reason for your firing, then positive performance evaluations from your personnel file can be extremely helpful in rebutting those claims.
About Personnel Records
Mass. Gen. Laws chapter 149, section 52C states the appropriate definition of personnel record is as follows:
“Personnel record” — a record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualification for employment, promotion, transfer, additional compensation or disciplinary action. A personnel record shall include a record in the possession of a person, corporation, partnership or other association that has a contractual agreement with the employer to keep or supply a personnel record.
A business of twenty or more employees must include the following in an employee personnel file:
- Employee’s name
- Date of birth
- Job title and description
- Rate of pay and any other compensation paid to the employee
- Starting date of employment
- The job application of the employee
- Resumes or other forms of employment inquiry submitted to the employer in response to his advertisement by the employee
- All employee performance evaluations: (employee evaluation documents, written warnings of substandard performance, lists of probationary periods, waivers signed by the employee, copies of dated termination notices, and any other documents relating to disciplinary action regarding the employee)
Mass. G.L. c. 149, section 52C also requires an employer to notify an employee within ten days of placing any information in his personnel record that is, has been or may be used, to negatively effect the employee’s qualification for employment, promotion, transfer, additional compensation or the possibility that the employee will be subject to disciplinary action. If an employee requests to review the updated personnel file, an employer is subject to respond to the request within 5 business days. Similarly, if an employee requests a copy of his personnel record, an employer is subject to deliver the copy within 5 business days. All transactions between the employee and employer you should happen at the place of business during normal work hours.
Personnel File Disagreements
If there is a disagreement with any information contained in a personnel record, the removal or correction of such information may be mutually agreed upon by the employer and employee. If an agreement cannot be reached, the employee may submit a written statement explaining his position which will then be included as part of the employee’s personnel record. The statement shall be included when said information is transmitted to a third party as long as the original information is retained as part of the file.
An employer that violates the provisions of Mass. Gen. Laws chapter 149, section 52C regarding personnel records shall be punished by a fine of not less than $500.00 nor more than $2,500.00. However, this fine does not go to the employee.
The Murphy Law Group is experienced in a wide range of employment disputes and has obtained successful results representing both employees and employers. If you would like to speak with an attorney or set up a meeting at our North Andover office, call the Murphy Law Group at (978) 686-3200. With a history of success in employment cases, we can remedy your employment issues so that finding a job can become an enjoyable experience rather than a stressful one.
October 3, 2017
Eight-hour workdays can be especially taxing if you do not work a desk job and are required to stay on your feet all day long. Employees are assured certain breaks from work with an appropriated compensation. Employees should be rewarded for their hard work with suitable break time, travel time, minimum wage, etc. Massachusetts has provisions in place to make sure all employees are treated with the proper care and attention.
The Massachusetts Court System through the Mass.gov website has compiled a list with the most frequently asked questions regarding employment law in Massachusetts:
Does my employer have to give me two 15-minute breaks per day?
Any employee who works for a period more than 6 hours must be given one 30- minute break for lunch. This one half-hour meal break is unpaid. An employer is not required to give any other breaks throughout the day other than a single meal break.
This employment law is specified in Mass. Gen. Laws chapter 149, section 100 which states, “No person shall be required to work for more than six hours during a calendar day without an interval of at least thirty minutes for a meal. Any employer, superintendent, overseer or agent who violates this section shall be punished by a fine of not less than three hundred nor more than six hundred dollars.”
Must I be paid for time that I am “on call”?
According to the Massachusetts regulation 454 CMR 27.04(2), “all on-call time is compensable working time unless the employee is not required to be at the work site or another location, and is effectively free to use his or her time for his or her own purposes.”
The U.S. Department of Labor’s Fact sheet #22 reports that any employee that is on-call while at a work site or on employer’s premises is compensable. If an employee is on-call at his home or is allowed to leave messages where he can be reached, he is not considered compensable in most cases, with exceptions.
Must I be paid for time I spend traveling to work?
According to the Massachusetts regulation 454 CMR 27.04(4),
(4) Travel Time
- Ordinary travel time to and from work is not compensable working time.
- An employee that works at a fixed site and is traveling to anywhere different than his regular fixed site, will be compensated for all travel time and be reimbursed for associated travel expenses. All traveling is covered if it is outside the employee’s typical commute to and from work.
- If an employer requires an employee to report to a site that is not his typical site and to take transportation, the employee is compensated for all subsequent time after his report time begins and includes any subsequent travel to and from the work site.
- An employee that is directed to travel from one place to another after the beginning of or before the end of the work day will be compensated for all travel time and be reimbursed for all traveling expenses.
- If an employee’s travel requires he be away from home overnight he will be compensated according to Massachusetts regulation 29 C.F.R. 785.39.
How old must a child be to babysit in Massachusetts?
According to the Fair Labor Division under the Office of the Attorney General, minors under the age of 14 cannot work. However there are exceptions, such as babysitting, working as a news carrier, working on farms, or working in entertainment with a permit. Minors from ages 14 to 17 in Massachusetts need a work permit to be able to work. After 8:00 PM all minors under the age of 18 must be under the supervision of an adult or supervisor while working.
Must employees be given time off work to vote?
Employers are required to give an employee two hours leave after the time the polls open in their respective town or city to vote. It is in the discretion of the employer is he compensates the employee’s leave to vote.
This employment law is specified in Mass. Gen. Laws chapter 149, section 178 which states, “no owner, superintendent or overseer in any manufacturing, mechanical or mercantile establishment shall employ or permit to be employed therein any person entitled to vote at an election, during the period of two hours after the opening of the polls in the voting precinct, ward or town in which such person is entitled to vote, if he shall make application for leave of absence during such period.”
Must employees be paid time and a half for Sunday work?
An employer must pay overtime for an employee working on Sunday if the employee works more than 40-hour weeks or if the respective union requires overtime pay for work on Sunday.
Retail stores may not require its employees to work on Sundays and may not punish any employee that refuses to work on Sundays. Non-managerial employees must be paid time and one-half while working on Sundays. Employees may not work seven consecutive days. Violations of this provision are punishable by a fine of up to $1,000.
Mass. Gen. Laws chapter 136, section 6 under articles 1-55, specifies the extent of operation of all businesses on Sunday.
Can tipped employees be paid less than minimum wage?
As of July 1, 2017, employees may be paid less than minimum wage at a rate of $3.75 per hour if they receive more than $20 a month in tips. Any employer who chooses to pay its employees $3.75 per hour must notify the employee first, and the employee must receive at least minimum wage when tips and wages are pooled. If wages and tips do not combine to be validly assessed as minimum wage, the employer is required to pay the difference. Tips must be distributed through a valid tip pool.
This Massachusetts employment law is specified in Mass. Gen. Laws chapter 151, section 7 which states, “In determining wage an employer is required to pay a tipped employee, the amount paid to such employee by the employer shall be an amount equal to: (1) the cash wage paid such employee which for purposes of such determination shall not be less than $3.75; and (2) an additional amount on account of the tips received by such employee which amount is equal to the difference between the wage specified in clause one ($11/hour).”
Tip distributing is specified in Mass. Gen. Laws chapter 149, section 152A which states, “(c) . . . an employer may administer a valid tip pool and may keep a record of the amounts received for bookkeeping or tax reporting purposes.”
What is the minimum number of hours for which an employee must be paid on a given work day?
An employee must be paid for at least 3 hours of work if he was scheduled for three hours of work or more. According to the Massachusetts regulation 454 CMR 27.04(1), “when an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage.
I’m an employer. What posters do I need and how do I get them?
Posters required to be in a place of business by Federal Law can be found at the Department of Labor site. The DOL’s site has a Posters page with links to all of the required posters. https://www.dol.gov/general/topics/posters/
Posters required to be in a place of business by State Law can be found at Mass.gov. Mass.gov has a Poster Requirements page with links to all of the required posters. http://www.mass.gov/lwd/labor-standards/dls/massachusetts-workplace-poster-requirements.html
Employee-employer relationships work smoothly if both parties follow the regulations laid out for them under state and federal laws. Should you have any questions regarding your employment or Massachusetts employment laws, do not hesitate to contact attorneys at the Murphy Law Group at (978) 686-3200.
August 10, 2017
August and September are busy months for residential leases, particularly in college towns. Massachusetts General Laws chapter 186, §15B provides specific and detailed guidelines with respect to security deposits for landlords and tenants. It is important for both landlords and tenants to familiarize themselves with some of the basic procedures that are in place regarding security deposits. For landlords, even the slightest mishandling of a tenant’s security deposit can lead to severely punitive consequences. As a tenant, it is important to understand your rights and how your deposit is being handled. Below is a summary of some of the most important issues that are covered under the Massachusetts Security Deposit Statute:
Summary of the Massachusetts Security Deposit Rules
- Although a tenant may hand over a security deposit at the start of the lease, that deposit remains the property of the tenant during the lease. In order to protect the deposit, the landlord must place the security deposit in a separate, interest bearing bank account in Massachusetts that cannot be comingled with the landlord’s other assets.
- Within thirty days after receiving the security deposit, a landlord is required to provide a tenant with a receipt indicating the name and location of the bank in which the deposit has been deposited, as well as the amount and account number of the deposit.
- A landlord that accepts a security deposit must provide its tenant with a written statement of condition for the premises. The statement of condition should list all damage to the property that existed prior to the lease. If the tenant agrees with the statement, they should sign and return the statement to the landlord. If the tenant disagrees with anything in the statement of condition they must also make a separate written list of damages and provide it to their landlord. Failing to note previously existing damages in a statement of condition can lead to a dispute over the security deposit at the end of the lease.
- A security deposit can only be applied to three things: unpaid rent, unpaid real estate taxes, or damages to the dwelling caused by the tenant or a person under the tenant’s control.
- If a landlord deducts from a security deposit due to damage, the landlord must provide the tenant with an itemized list of damages that describes in detail the damages and the repairs that were made to such damages. This itemized list must be signed by the landlord or his/her agent and sworn under the pains and penalties of perjury.
- If a landlord fails to comply with the strict provisions of the Security Deposit Statute, they forfeit their rights to the security deposit. Moreover, a landlord could be liable for damages in excess of the amount of the security deposit. Pursuant to the statute, certain violations provide for damages in an amount equal to three times the amount of the security deposit, plus interest, court costs and reasonable attorney’s fees.
What To Do If You Have a Security Deposit Dispute
These are only a few highlights of the complicated Massachusetts Security Deposit Statute. If you are a landlord, you should speak with an attorney before potentially mishandling your tenant’s security deposit. If you are a tenant, you may want to contact a real estate attorney to find out whether your security deposit is being handled properly. The Murphy Law Group has successfully represented tenants and landlords in security deposit disputes. If you would like to discuss this matter with a real estate lawyer at our North Andover office, give us a call at (978) 686-3200 or (617) 350-7700.