Pierce & Mandell, P.C.

11 Beacon Street, Suite 800
Boston, Massachusetts 02108-3002

Phone: (617) 720-2444
Fax: (617) 720-3693

Pierce and Mandell PC Blog

RSS Grab PAM RSS

Pierce & Mandell Lawyers Secure Landmark Supreme Judicial Court Victory

Wednesday, October 25, 2017

Pierce and Mandell LawyersBy Robert L. Kirby, Jr. and Thomas E. Kenney

The Massachusetts Supreme Judicial Court (“SJC”) recently issued a landmark ruling in a case of first impression, overturning a probate court judgment against Pierce & Mandell’s clients. Robert L. Kirby, Jr. argued the case before the six-justice panel, and Thomas E. Kenney assisted in preparing the appellate briefs.

The case concerned the efforts by Pierce & Mandell’s clients, personal representatives of their deceased brother’s estate, to secure access to the content of their brother’s email account with Yahoo! Yahoo! refused to provide the email content to the personal representatives asserting, among other defenses, that the federal Stored Communications Act (“SCA”) prohibited it from disclosing the email communications. The Norfolk County Probate Court entered summary judgment in Yahoo!’s favor, ruling that the SCA did prohibit such disclosure.

After Pierce & Mandell filed an appeal on its clients’ behalf, the SJC on its own initiative granted direct appellate review. Following oral argument, the SJC reversed the decision of the Norfolk Probate Court and vacated the judgment entered against Pierce & Mandell’s clients, unanimously holding that the SCA did not prohibit Yahoo! from disclosing the email communications to the personal representatives.

The issue before the SJC was whether any of the statutory exceptions to the SCA’s prohibition of disclosure of the email communications applied. Acknowledging that the issue was one of first impression – no appellate court had previously decided whether the SCA barred disclosure of the decedent’s email communications to estate representatives – the SJC held that the SCA’s exception for disclosure “with the lawful consent of the originator or an addressee or intended recipient” of the electronic communications applied to permit Yahoo! to disclose the contents of the email communications to the personal representatives.

In so holding, the SJC rejected Yahoo!’s argument that “lawful consent” under the SCA must be the actual consent of the user of the email account. The Court reasoned that “interpreting lawful consent in such a manner would preclude personal representatives from accessing a decedent’s stored communications and thereby result in the preemption of State probate and common law.” Because nothing in the statutory language or legislative history of the SCA indicates Congress’ intent to preempt state probate law, and because there is a presumption against preemption in areas of traditional state regulation such as family law, the SJC ruled that the only reasonable interpretation of the “lawful consent” exception is that it permits personal representatives to consent to disclosure on behalf of the decedent in connection with their duties to the probate estate.

The SJC further stated that requiring the actual consent to disclosure of the account user “would significantly curtail the ability of personal representatives to perform their duties under State probate and common law.” Additionally, and “[m]ost significantly, this interpretation would result in the creation of a class of digital assets – stored communications –that could not be marshalled.” Thus, “since e-mail accounts often contain billing and other financial information, which was once readily available in paper form, an inability to access e-mail accounts could interfere with the management of a decedent’s estate.”

As a result of its decision, the SJC remanded the case to the Norfolk County Probate Court for a determination as to whether Yahoo!’s terms of service are binding on the personal representatives and, if so, whether those terms of service would permit Yahoo! to delete the contents of the email account rather than turn it over to the personal representatives.

Pierce & Mandell attorneys Robert L. Kirby, Jr., and Thomas E. Kenney regularly litigate in state and federal courts throughout Massachusetts. They handle a variety of cases including probate court litigation, business disputes and intellectual property matters.

A full copy of the opinion can be found here.

The New Massachusetts Pregnant Workers Fairness Act

Tuesday, October 03, 2017

Pierce & Mandell, P.C.By: Lena J. Finnerty

On July 27, 2017, Governor Baker signed into law the Massachusetts Pregnant Workers Fairness Act (the “MPWFA”) which extends the protections afforded pregnant workers in Massachusetts beyond those currently provided under federal law. The Act, which will go into effect April 1, 2018, will amend the current anti-discrimination statute in Massachusetts, to prohibit workplace and hiring discrimination related to pregnancy, nursing, and other pregnancy-related conditions.

Current federal law protects pregnant and new mothers from discrimination in the workplace under the Americans with Disabilities Act and Title VII of the Civil Rights Act, as amended by the Pregnancy Discrimination Act. If an employee is temporarily unable to perform their job due to a medical condition related to pregnancy or childbirth, the employer must treat that employee in the same way it treats other temporarily disabled employees. However, the ADA does not consider pregnancy itself a “disability.” Rather, only conditions or impairments resulting from pregnancy may be considered covered disabilities.

Massachusetts has expanded these protections under the new MPWFA to provide all pregnant and nursing employees with reasonable accommodations without having to establish that they have a covered medical condition. The language of the MPWFA will be codified with the current Massachusetts anti-discrimination statute, M.G.L. c. 151B, stating that it is an unlawful practice for employers to discriminate based on “pregnancy or a condition related to said pregnancy, including, but not limited to, lactation, or the need to express breast milk for a nursing child . . .”, and to deny a reasonable accommodation for an employee’s pregnancy or any condition related to the employee’s pregnancy, unless the employer can show that the accommodation would impose an undue hardship that requires significant difficulty or expense on the employer’s program, enterprise or business.

Requirements under the MPWFA

(1.) Engage in the Interactive Process

The employer and employee must engage in a timely and good-faith interactive process to determine effective reasonable accommodations to enable the employee to perform the essential functions of their job.

(2.) Reasonable Accommodation

Examples of reasonable accommodation under the MPWFA include:

  • More frequent or longer paid or unpaid breaks;
  • Time off to recover from childbirth with or without pay;
  • Acquisition or modification of equipment or seating;
  • Temporary transfer to a less strenuous or hazardous position; and
  • Private non-bathroom space for expressing breast milk.

(3.) Documentation

An employer may request documentation from an appropriate health care or rehabilitation professional about the need for a reasonable accommodation, unless the request is for the following pregnancy accommodations: (1) more frequent restroom, food or water breaks; (2) seating; (3) limits on lifting over 20 pounds; and (4) private non-bathroom space for expressing breast milk.

(4.) Notice

Covered employers must provide written notice to all employees of their rights under the MPWFA in the form of a handbook, pamphlet, or other written means, including the right to be free from discrimination based on pregnancy and related conditions, and the right to reasonable accommodations. Written notice must be provided to:

  • New employees at or prior to the start of employment;
  • Existing employees by April 1, 2018; and
  • Within ten (10) days of the date an employee informs the employer of their pregnancy or related condition.

Who is Covered

  • Employers with six (6) or more employees; and
  • All employees, regardless of sex or gender.

What Employers Should do Now

  • Provide written notice to all current employees by April 1, 2018; to new hires upon the date of hire; and within ten (10) days to any employee who informs employer of pregnancy or related condition;
  • Review and amend employee handbooks and policies to reflect compliance with requirements of MPWFA;
  • Train human resources personnel, managers, and staff about the requirements of the MPWFA; and
  • Consult counsel with any legal compliance questions regarding the MPWFA.

If you are an employer with questions on how to best comply with the new MPWFA and other statutory obligations, or an employee that believes their employment rights have been violated, contact the experienced employment law attorneys at Pierce & Mandell.


Enter your e-mail address below to receive updates on new blog posts!


Recent Posts


Archive


Tags