Newsletter - Winter 2008

This newsletter is designed to keep you up-to-date with changes in the law. For help with these or any other legal issues, please call today. The information in this newsletter is intended solely for your information. It does not constitute legal advice, and it should not be relied on without a discussion of your specific situation with an attorney.


Employees who work at tiny companies can sue for sex discrimination, the Massachusetts high court recently ruled.

In the past, it was widely believed that a company couldn't be sued for sex discrimination if it had fewer than six employees. That's because the state sex discrimination law says that it only applies to companies with six or more workers.

But the court said that an employee at

a tiny company could sue under another law – the Massachusetts Equal Rights Act.

This is an important decision because almost 60% of Massachusetts businesses have five or fewer employees.

The employee in this case claimed that when she told her boss she was pregnant, the boss became upset and demanded she take an unpaid leave of absence.

It's no surprise that divorce is unpleasant, and many spouses want to tell the world about how awful their ex-partner is.

In the past, a spouse's ability to do this was limited. They might want to tell the whole world, but in practice they usually just told a few friends over a drink or two.

But today, it's easy to publish a blog that can be read by anyone with Internet access. And a growing number of spouses are taking out their frustrations by putting the intimate details of their failed relationships online for everyone to see.

laptop_womanThis can be extremely unpleasant and offensive to the other spouse. But is it legal?

The law in Massachusetts is not entirely clear, but the issue came up recently in Vermont, when William Krasnansky and Maria Garrido ended their nine-year marriage. Krasnansky published a blog that included what he described as a work of fiction, but which appeared to be an account of the break-up in which he blamed Garrido for the failure of the marriage. He also scanned and published excerpts from Garrido's diary.

Here's what the court said:

• Krasnansky had a First Amendment right to publish the blog. He couldn't be muzzled in advance as long as he wasn't directly harassing Garrido or making any threats against her.

• However, he did not have the right to reproduce Garrido's diary, since it was her property and she had a copyright in its contents.

• Third, if Krasnansky defamed Garrido, she could sue him in court for damages. (To prove defamation, Garrido would have to show that Krasnansky made false statements, as well as meeting other requirements.)

In general, while it might be tempting to go online and talk about an ex, it's not a good idea. You might end up being sued for defamation, and your comments might come back to haunt you in a divorce case or in other ways. You might feel frustrated, but you're much better off finding more constructive ways to channel your anger.

vacation2You might think it's easy to leave a vacation home to your children in your will. But there are many issues that can arise. For instance, over time children might squabble over whether to sell the property or who will pay for major repairs or renovations, especially if some children use the home more than others. And there are tax, liability and asset protection issues to consider as well.

Here's a look at some of your options:

First, you can sell the home to your children if you reach a point where you no longer want the responsibility of ownership. However, this could result in hefty capital gains taxes.

You can also leave the home in equal shares to your children in your will. But this can lead to disagreements between the children over handling major expenses that come up in connection with the property, particularly if some children are financially better off than others.

In many cases, it's a good idea to leave the home to a trust. This can be smart because you can create rules for the children's use of the property, contributions to maintenance and expenses, etc. Another advantage of a trust is that it can help shield the property from creditors if one child runs into financial difficulties.

Or, you could put the home into a limited-liability company or a limited-liability partnership. This can help limit the children's legal responsibility – for instance, if a child brings a friend to the property and the friend slips and falls and has a serious injury, the child's liability might be limited to the value of the property.

If your children are very enthusiastic about using the home, you might want to place a limit on how much time any one child can spend there. You might want to require that a child give notice, such as two weeks or one month, before using the property, so other children get a fair chance to use it as well. You might even want to specify who gets to use the home at different holidays.

You can also specify what will happen if one child wants to sell his or her share to the others, so as to prevent disputes about the price.

You can also help your children by creating a fund to pay for taxes, insurance and repairs. This fund could be a trust that receives the proceeds of a life insurance policy.

Finally, if you want to reduce your estate and gift taxes, one option is a "Qualified Personal Residence Trust," or QPRT. You give the home to your children, but retain the right to use it for a set term. Although you are making a gift of the home to your children during your lifetime, for tax purposes the value of the gift isn't the full value of the home – it's the value of the home minus the value of your right to live there for whatever the term is. So the amount of taxes that are owed will usually be considerably less.

Homebuyers, businesses, and residential and commercial tenants are all showing interest in "green" buildings these days – those designed to save energy, use sustainable materials and have less of an impact on the environment.

Many buyers and renters are willing to pay a little more for a green building – especially if they can recoup their money through energy savings.

Green features can include:

• Energy-efficient appliances.

• Extra insulation to reduce heating costs.

• Solar panels or shingles.

• Thicker or double-pane windows, or windows with a metallic coating to block the sun's heat.

• A rainwater-capture system.

• Low-flow toilets.

• Building materials that are recycled,or are produced locally to reduce transport costs.

greenhouse-1If you're serious about going green, think carefully about the legal aspects. You'll want to make sure the building really is as green as it claims, and that you get what you pay for. You should include the details of any specific promises about materials or energy savings in any contract with a seller or builder.

It's easier to sue a bar or a store for selling alcohol to a minor, under a recent decision from the Massachusetts Appeals Court.

In this case a teenage boy went to a store and bought a 30-pack of beer. He shared it with some friends. One of the friends then drove away and struck another car, severely injuring someone. The injured person sued the store.

Ordinarily, a store can be sued for selling alcohol to a minor who then injures someone. But the store argued that it wasn't responsible in this case, because the minor who bought the beer wasn't the same person who caused the accident.

However, the court said the store could be sued anyway. If the store sold the beer to a minor, then it was responsible for all the foreseeable consequences of its actions, the court said. And it could be foreseen that a minor who bought alcohol would share it with his friends.

credit_lockMany Massachusetts businesses will have to adopt new procedures to prevent the theft of sensitive customer information, as a result of new state regulations that take effect on May 1.

The new rules put Massachusetts in the forefront of protecting consumers' private data and preventing identity theft. However, they also create many new hurdles for some businesses at a time when those businesses are facing larger economic challenges.

The requirements are a response to the news that thieves stole some 45 million credit and debit card numbers from TJX Companies, the parent of the T.J. Maxx chain, back in 2007.

Under the rules, companies that hold personal information on Massachusetts residents are now required to:

• Establish a comprehensive information security program that uses up-to-date firewall protection;

• Inventory all systems that hold personal information; and

• Encrypt all data that are wirelessly transmitted, sent over the Internet, or saved on laptops or flash drives.

The regulations say that in deciding how far a company has to go to comply, it's necessary to take into account the size of the company, the resources it has available, and how much data it stores.

Disabled workers in Massachusetts have more rights to request workplace accommodations and to sue for discrimination, as a result of a new federal law.

The law amends the Americans With Disabilities Act (ADA) so that it covers more workers. It applies after January 1, 2009.

wheelchair_bizmanThe original ADA protected people with disabilities, and defined a "disability" as a physical or mental impairment that substantially limits one or more major life activities.

But that left open a question – suppose a worker could treat an impairment with a drug or a medical device, such that with the drug or medical device he or she was no longer limited in a major life activity. Was that worker still "disabled"?

Under the old law, some employees claimed they were caught in a "catch-22," because although they suffered from serious conditions, such as epilepsy or diabetes, they weren't covered by the ADA because their medical treatment protected them from being limited in their life activities.

That meant that an employer could legally discriminate against these employees. It also meant that an employer had no obligation to reasonably accommodate their condition in the workplace.

The new law changes this situation by saying that whether an employee has a disability generally has to be determined without considering any medications or devices that the employee uses.

The law also says that in some cases, workers may be covered by the ADA even if their disability poses only a minor interference with performing their job.

As a result of the law, many companies are expecting an uptick in the number of requests for accommodations.