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To Take or Not To Take the Breathalyzer? What you should know about refusing to take a breathalyzer.

You have been out with your friends, on a date, or coming home from a sporting event and while there you indulged in a few alcoholic drinks. You can function, but have no clue if you are close to the .08 blood alcohol level. On your way home, your heart leaps into your throat as you look in the rear view mirror at the sight of the blue lights. You know that you may have to make a choice, to take the breathalyzer or not.
If you elect to take the breathalyzer and blow a .08 or higher the penalties are different if it is your first offense. For a first time offender that blows a .08 or higher you are facing no more than a license suspension of 30 days after the conclusion of the criminal charge if you elect to take a plea bargain. You are also immediately eligible, upon completion of the charge, to apply and receive a hardship license. Melanies’ Law also allows extends the ability to receive a hardship license to second time offenders as well.
You may be asking yourself at this point why anybody would elect not to take the breathalyzer. The answer to this question is, without the breathalyzer results it is more difficult for the prosecution to prove that you were driving under the influence. Massachusetts Law allows the prosecution to prove that you drove under the influence in two different ways. The first way is the “per se” violation, this is where the prosecution proves that you drove under the influence by showing that your blood alcohol level was a .08 or higher. If the prosecution has a breathalyzer test with a result of a blood […]

By |July 13th, 2015|Operating Under the Influence, Uncategorized|Comments Off on To Take or Not To Take the Breathalyzer? What you should know about refusing to take a breathalyzer.|

Probating an Estate in Massachusetts

In 2012, Massachusetts adopted the Uniform Probate Code.  This new code changed the way the Commonwealth probates estates.  The process has been changed to allow more leeway based on the complexity of the estate.  Estates with smaller proceeds may be able to probate through the “Informal” process by which the Court has minimal supervision.  Estates with more substantial assets may need to proceed through the “Formal” probate process.

The complexity of an Estate depends on many factors such as the value of the assets of personal property involved, whether there is real property to be distributed, the number of potential heirs, whether or not there is a valid will, and whether or not the distribution of the estate may be contested.  This list, however, is not an all-inclusive list of potential factors to consider.

The Informal Probate process allows minimal oversight by the Courts and is less costly to the Estate.  Estates with or without valid wills may file for informal probate.  In addition, it is advisable to have an agreed upon Personal Representative (formerly “Executor/trix”).  The Personal Representative is the person who will ensure the proceeds from the estate are distributed per the wishes of the decedent.  If there is no will or the decedent died “Intestate”, a Personal Representative needs to be appointed to ensure the distributions occur per the laws regarding distribution.  There are instances; however, where the informal process may not be used.  Such instances include but are not limited to: unknown heirs, minors as heirs, an original will cannot be produced, or there is not available death certificate.

The Formal Probate process becomes necessary when there are issues such as the ones listed above, as well as when there are contested issues […]

The New Massachusetts Sick Time Law: Earned Sick Time for Employees— What does it mean for you as an employee?

On Election Day, Massachusetts voters decisively voted for a ballot referendum to require employers in the Commonwealth to allow employees to earn sick time. This citizen lead initiative bypassed years of frustration as similar legislation failed to garner enough support on Beacon Hill to become law. While this initiative is a huge step forward for Massachusetts employees, especially those working jobs that only pay minimum wage to just above minimum wage, there are still several unresolved issues. These issues will remain unresolved until Attorney General Elect Maura Healey takes office and has the opportunity to review the initiative and make recommendations on it. She will have time to do so as the new Earned Sick Time law does not go into effect in the Commonwealth until July 1, 2015. This blog post aims to provide a basic overview of what you, the employee, can expect to see under the new law.
Who does it apply to?
The common misconception of the new Earned Sick Time law is that it only applies to larger employers, employers with eleven or more employees. The law applies to all employers in Massachusetts, however, the requirements are different for employers with eleven or more employees.

The law takes into account full and part time, as well as temporary and seasonal, employees to reach the total number of employees. While the new law covers employees that work in both the private and public sectors, the law does exempt certain municipalities from following the new law. Nonetheless, these municipalities will be required to abide by the law if the state constitution requires it to, a local or state legislative vote makes the law applicable to the municipality, or the municipality appropriates sufficient funds to […]

Representation at My Unemployment Appeal Hearing

Every year thousands of people in Massachusetts find themselves in a situation where they have lost their employment. Like most other states, Massachusetts provides the ability to apply for unemployment benefits to assist persons who have lost their job. Eligibility for unemployment benefits can depend on a number of factors.

Many individuals are under the impression that it is the employer who makes the determination whether or not a former employee will receive unemployment benefits. This, however, is not the case. Often times employers will inform their employees they will not “contest” their unemployment request but it is important to realize that the Division of Unemployment Assistance (hereinafter referred to as DUA) has the sole discretion to decide if an individual is qualified to receive unemployment benefits. That decision is made by the DUA based largely off the information the claimant provides on their application and any information provided by the employer. The applicant will usually receive notice on whether their claim was approved or denied within a few weeks.

If a claim is approved, employers are generally provided with the opportunity to appeal that determination and oppose the former employee’s claim for unemployment benefits. On the other hand, if a claim for unemployment benefits is denied the claimant has a short window of 10 days to file an appeal. Once the appeal has been filed, the claimant will be given notice of a DUA hearing to determine if the initial decision should be upheld or reversed. It is important for claimants whose claim for unemployment benefits has been denied to continue to claim their benefits while their appeal is pending. In considering whether a claimant or applicant is eligible for unemployment benefits the DUA considers […]

The Benefits of Hiring a Lawyer

There are many reasons for hiring an attorney.  The law can be complex and confusing and it may be difficult to ascertain your rights amidst the barrage of advice from well meaning friends and family. The need for a lawyer can arise out of discrimination in the workplace, modification of a child support order, personal injuries, and assistance in securing unemployment benefits among other matters. In these and other situations there are distinct advantages to having an attorney who will fight for your rights.

Imagine a woman who has been mentally and possibly physically abused for years, shaking with fear while presenting her case to the Court.  On the other side, the husband is represented by an attorney who is able to verbalize the issues without emotion and present the facts in the light most favorable to the husband.  The wife, however, may be nervous and unable to verbalize her thoughts to properly convey her story and request the relief she is seeking.  The wife wants to explain how the husband has refused to get a job, managed to isolate her from her friends, filled the house with garbage, and convinced her that he would take her children away from her if she ever tried to leave.  While the situation may appear clear that information must be clearly conveyed to the judge who will make a decision based only on the information and evidence presented.  After losing some ground in an unsuccessful initial hearing, the woman was able to borrow money from a family member and secure her own counsel.

The attorney became the voice that this woman could not find. With the help of her newly hired counsel, the parties settled out of court and […]

What is the difference between an “employee at- will” and a “contract employee”?

Contract Employee vs. Employee At-Will
Identifying the type of employment agreement you have is a vital step to understanding what your legal rights are if you are terminated from your employment.

It could be argued that all employees are contract employees, insofar as there was an offer of employment, acceptance of the employment duties and consideration – a promise of work for the promise of payment. In some instances these components can create a legally binding contract. Massachusetts, however, recognizes two distinct categories of employment relationships: (1) “contract employees”, and (2) “at-will” employees.

Contract Employees

Those employees who are not “at-will” employees are more than likely “contract employees.” This contract may have been entered into in writing, orally, or be implied by actions of the employer.

In Massachusetts, a written employment contract is generally enforceable according to the terms of the contract. This means that if a contract has specific terms outlining compensation, benefits, or how and why an employee can be terminated, the employer is legally obligated to adhere to the terms of the contract. If the employer does not adhere to these terms and provisions, the employee may be able to seek damages as a result of the breach of the employment contract. This also means however, that an employer may be able to sue the employee for damages as well if the employee is the one who breaches the agreement.

Oral contracts and implied contracts are two other examples of ways that an employee may not be considered an employee “at-will.” Massachusetts case law has held that oral employment contracts which may arise “from various representations and negotiations between the parties” may be enforceable. See, Frederick v. ConAgra, Inc. ,713 F. Supp. 41, 44 (D. Mass. 1989). […]

What types of comments and conduct constitutes sexual harassment in the workplace?

Sexual Harassment in the Workplace
There are two basic categories of sexual harassment under Federal and Massachusetts law. The various types of sexual comments and sexual conduct should be considered with respect to these two categories of sexual harassment.

The two basic categories of sexual harassment are as follows:

1) “Quid Pro Quo” sexual harassment, and

2) “Hostile Work Environment” sexual harassment.

Quid Pro Quo Sexual Harassment

Massachusetts General Law, Chapter 151B defines “quid pro quo” sexual harassment as: “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . submission to or rejection of such advances, requests or conduct is made either explicitly or implicitly a term or condition of employment or as a basis for employment decisions.”

In other words, quid pro quo sexual harassment occurs when an employee with authority or control over another employee, offers that employee an employment benefit or advantage in exchange for sexual favors or sexual gratification. Quid pro quo sexual harassment also occurs if an employee is denied an employment benefit or advantage after refusing or rejecting a request for sexual favors or sexual acts. Examples of employment benefits or advantages include continued employment/termination, demotion/promotion, alteration of job duties, transfer of job location, changes to hours or compensation, warnings, and inaccurate job performance evaluations and reviews.

Hostile Work Environment Sexual Harassment

Massachusetts General Law, Chapter 151B defines “hostile work environment” sexual harassment as: “sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when . . . such advances, requests or conduct have the purpose or effect of unreasonably interfering with an individual’s work performance by creating an intimidating, hostile, humiliating or sexually offensive work environment.”

In other words, hostile work […]

Coming soon – A List of topics we will cover

The following is a list of topics we will cover:
1. What types of comments and conduct constitutes sexual harassment in the workplace?
2. Can unwelcome sexual comments or conduct from a person of the same gender form the basis for sexual harassment?
3. May an employer discriminate on the basis of race, color, national origin, religious creed, gender, sex, sexual orientation, disability, pregnancy, or military status?
4. Are employers allowed to discriminate against an employee based on alcoholism or drug addiction?
5. May an employer retaliate against an employee for complaining about sexual harassment, discrimination, unpaid wages or other categories protected by law?
6. Are Massachusetts employers required to provide medical leave, disability accommodations, or leave pursuant to the Family Medical Leave Act (FMLA)?
7. If I am fired from my job for unfair reasons do I have a cause of action for “wrongful termination” in Massachusetts?;
8. What is the difference between an independent contractor and an employee?
9. What is the difference between an “employee at will” and a “contract employee”?
10. What recourse do I have if my employer has failed to provide payment of wages, overtime, or vacation pay in Massachusetts?
11. What are the rights and remedies for Massachusetts employees who have been misclassified as an “independent contractor”?
12. What is a “whistleblower” and are there special protections given to whistleblowers?
13. What are the […]

Cohen Cleary, P.C.

Cohen Cleary, P.C.