Archives for September 2013

Can Real Estate Agents Work as Independent Contractors?

The common practice of paying real estate agents as independent contractors and denying them the benefits of employment is under legal fire. A class action lawsuit now awaiting decision at the Massachusetts Court of Appeals tests whether the real estate industry can continue to ignore a law that effectively bans the use of contractors in Massachusetts.

In a rather surprising decision in July, a superior court judge decided that they can. He relied on a Massachusetts statute that permits brokers to employ their real estate agents “either as an employee or as an independent contractor.” Noting a conflict between this language and the terms of the Independent Contractor Statute (Mass. Gen. L. ch. 149, §148B ), the court opted to ignore the latter law. The state legislature, it concluded, intended that agents be contractors despite provisions to the contrary in the Independent Contractor Statute. [Read more…]

Limits Quickly Placed on Associational Discrimination Lawsuits

Not so fast, says the Massachusetts Court of Appeals. On the heels of the state’s highest court’s ruling that employees can sue their employers for discrimination against them based on their association with handicapped people, it promptly noted that not all associations are created equally. In Lashgari v. ZOLL Medical, which was decided a mere 3 weeks after the SJC affirmed that associational discrimination claims can be brought under the Massachusetts anti-discrimination statute, the Court of Appeals affirmed a lower court’s dismissal of a suit brought on the same basis.

Dismissals of lawsuits generally occur immediately after a suit is filed and help employers avoid the costs of defending them. The Lashgari case is significant in this respect as it begins to distinguish the factual patterns that will and will not state valid associational discrimination causes of action. The employee here asserted that his ability to work extra hours was proscribed by his son’s autism, which required constant care. He was demoted as a result and, he claimed, consequently suffered severe emotional distress. Eventually, the employee quit his job, claiming he’d been constructively discharged by his employer’s discriminatory behavior. Calling the allegations “conclusory and speculative,” the Court of Appeals found they were not sufficient to plausibly state a case of associational discrimination. The court was, of course, mindful of the SJC’s prior decision. It nonetheless held that employees must connect alleged discriminatory conduct to the particular association concerning which they complain.