The On-Demand Economy Continues to Grow, but Legal Consequences Abound for Employers and Employees in the U.S. and AbroadPosted: February 2, 2018
by Nancy Cremins
The on-demand economy, which consists of independent and frequently short-term temporary employment arrangements, continues to expand in the United States and around the world. The growth of the on-demand workforce has outpaced overall U.S. workforce growth by a multiple of three since 2014, and freelancers are predicted to become the U.S. workforce majority within the next 10 years. Some surveys suggest that as many as 61% of employers plan to switch a significant portion of their full-time permanent positions to contingent jobs in the near future.
While trends indicate that companies intend to continue to move away from standard employer-employee arrangements, the legal landscape for on-demand workers is far from resolved. The classification of on-demand workers as “independent contractors” means there is a growing class of workers that do not have access to employment benefits such as vacation, sick time, and parental leave. Employers are not paying their share of employment taxes. In addition, these workers do not have access to social safety net programs such as workers’ compensation and are not making social security contributions. As more individuals rely on freelance work as their primary means of income, these workers are left without the protections traditional employment provides. As a result, the courts, legislatures, and companies both in the United States and abroad struggle with how to classify these workers and provide them with some access to benefits. This article summarizes and contrasts some of the different approaches that have been taken since the author first addressed this topic in this journal, and addresses why they matter to businesses in the Commonwealth.
Companies that used independent contractors rather than employees to fuel their global growth, such as Uber, Lyft, and Postmates, continue to face legal challenges to their business practices regarding worker classification. Several worker-misclassification claims have been settled at significant expense. In April 2017, the food-delivery business DoorDash agreed to pay $5 million to settle a 2015 independent contractor misclassification class action involving 33,744 class members. In March 2017, rideshare company Lyft’s $27 million settlement was approved by the court to resolve a misclassification suit brought by approximately 95,000 drivers. Although in both cases the companies agreed to pay money to settle claims, neither company agreed to reclassify independent contractors as employees. Instead, each company agreed to clarify its internal policies and provide additional rights for its independent contractor workforce, including limitations on when Lyft may deactivate drivers and an opportunity to be heard in an arbitration paid for by Lyft to challenge the basis for deactivation.
Given that the settlements did not require these companies to re-classify their independent contractors as employees, they may find themselves facing further litigation on this subject. For example, in another case, delivery company Postmates received judicial approval for its $8.75 million settlement of misclassification claims in September 2017 in Singer et al. v. Postmates Inc., Case No. 4:15cv01284 (N.D. Cal.). However, Postmates is facing a new misclassification action filed in state court in November 2017, meaning that Postmates will need to settle or litigate these same claims anew.
Only one misclassification suit has made it to trial so far. A six-day bench trial in Lawson v. Grubhub, Inc., Case No. 15-cv-05128 JSC (N.D. Cal.) was concluded with closing arguments at the end of October 2017. On February 8, 2017, the court issued its decision finding that the plaintiff was properly classified as an independent contractor. The court applied California’s 11-factor “economic realities” test set forth in S.G. Borello & Sons Inc. v. Dept. of Industrial Relations, 48 Cal.3d 341 (1989), under which the alleged employer bears the burden of proving that the worker in question is not an employee. The court found “While some [of the Borello] factors weigh in favor of an employment relationship, Grubhub’s lack of all necessary control over Mr. Lawson’s work, including how he performed deliveries and even whether or for how long, along with other factors persuade the Court that the contractor classification was appropriate for Mr. Lawson during his brief tenure with Grubhub.”
While the 11-factor Borello test[i] sets forth a different independent contractor test than is applied in Massachusetts,[ii] the results of this case will be felt across the U.S. because most prominent on-demand companies are based in California, and California law will likely apply to much of the worker litigation due to California choice of law and choice of venue provisions in agreements with independent contractors across the U.S.[iii]
Of on-demand businesses, ride-sharing giant Uber continues to reign supreme in both its ability to get press coverage and in the sheer volume of legal action it has faced globally for its classification of workers as independent contractors. On balance, the international results for Uber have been decidedly negative, but it is making some progress in the U.S., which reflects how Europe and the U.S. differ on their approaches to worker protection and Europe’s more skeptical view of the use of independent contractors instead of employees.
In April 2016, Uber attempted to resolve its largest worker misclassification class action in O’Connor v. Uber Technologies, Inc., C13-3826 EMC (N.D. Cal.), for $100 million covering 385,000 drivers. However, the proposed settlement was rejected by the court as not “fair, adequate, and reasonable” and because it did not make a determination of how to classify drivers. This case was complicated by the 9th Circuit’s decision in Mohamed v. Uber Technologies, 836 F.3d 1102, 1008 (9th Cir. 2016), which determined that pursuant to agreements between Uber and the drivers, the drivers’ claims against Uber must be arbitrated. Following the decision in Mohammed¸ Uber managed to persuade an arbitrator in an arbitration with a single California driver that such driver was properly classified under the Borello test as an independent contractor, and was not an employee.
Further arbitration and litigation was stayed in the Uber suits in California pending the outcome of National Labor Relations Board v. Murphy Oil USA, Inc., No 16-307, which on October 2, 2017 was argued before the Supreme Court and concerns the validity of class-action waivers that bar individuals from pursuing work-related claims on a collective or class basis.
In Europe, some courts and legislative bodies take a decidedly more protective approach for workers. In 2016, a United Kingdom employment tribunal ruled that Uber drivers should be classified as workers rather than self-employed contractors, which meant that Uber drivers would be entitled to benefits including holiday pay and minimum wage. The decision was upheld on appeal by the U.K. Employment Appeal Tribunal.
In a separate action, the European Court of Justice (“ECJ”) also found that Uber should be regulated as a transportation company, which undercuts Uber’s position that it simply operates as an intermediary between drivers and passengers.
An additional blow to on-demand companies that rely on independent contractors in Europe was delivered by the ECJ in King v. The Sash Window Workshop Ltd., which ruled that misclassified self-employed contractors who are really workers or employees could claim back holiday pay all the way back to the year that the EU’s Working Time Directive[iv] was introduced. Before this ruling, liability was typically limited to one or two years’ back pay in most EU countries.
So, what is being done in the U.S. and Europe at the legislative level to introduce protections for this growing class on freelance workers? In the U.S., an assortment of legislative efforts seek to provide them access to benefits typically provided in the employment relationship. New York City enacted the “Freelance Isn’t Free Act” to impose penalties on companies that fail to pay their contractors, which the city may enforce. New York State established the Black Car Fund, which administers safety and health programs that benefit for-hire drivers, their passengers, and other New Yorkers on the road, and provides workers’ compensation insurance to black car and luxury limousine drivers. Bills proposed in Washington State, New Jersey, and New York would require companies that rely on independent contractors (such as Uber and Grubhub) to contribute to a portable benefits fund that would provide health insurance, time off, workers’ compensation, and other benefits. On the Federal level, in May 2017, Senator Mark Warner (D-VA) and Representative Suzan DelBene (D-WA) introduced legislation to test and evaluate innovative portable benefit designs for freelance workers to give independent contractors access to benefits that to date have only been available for employees. But where the co-sponsors of this bill are Democrats in a Republican-controlled Congress, it is unlikely that this bill will gain any real traction before the 2018 election cycle.
It appears that additional initiatives in Europe would continue its seemingly more-protective stance. A July 2017 report commissioned by the U.K. Prime Minister on gig economy working practices sets forth a series of recommendations to improve working conditions for on-demand workers, including the proposal to create a new classification for workers on tech platforms, like Lyft and Postmates. In November 2017, the European Pillar of Social Rights, a set of policy priorities, was jointly signed by the European Parliament (the EU’s legislative body), the European Council (which sets EU policies), and the European Commission (the EU’s executive body) which sets forth 20 key principles, structured around three categories: (1) equal opportunities and access to the labor market; (2) fair working conditions; and (3) social protection and inclusion. These key principles will be implemented over time through legislation across the EU member states.
While Massachusetts’ strict “ABC test” to determine whether a worker is an employee or an independent contractor remains one of the toughest in the nation, other states that use similar tests are finding ways to determine that on-demand workers are independent contractors. However, there is presently no evidence Massachusetts courts are currently prepared to move in that direction.
Currently, the only new legislation in Massachusetts that impacts any on-demand companies involves the 2016 regulations on ridesharing companies that imposed a fee on ride-sharing services and established requirements for background checks, inspections, and insurance. Another new development impacting on-demand companies in Massachusetts occurred in 2017, when Uber introduced a pilot program that allows Massachusetts drivers to purchase workers’ compensation coverage that offers $1 million maximum coverage for medical costs and lost earnings due to a work-related accident.
The on-demand economy shows no sign of slowing down. As a result, innovative legislation or company-led initiatives that will protect these workers by providing new worker benefit programs are essential for the growing freelance workforce’s health and stability. Under the Trump administration, the Department of Labor rolled back Obama era guidance of the “economic realities test” leaving more room for independent-contractor classification than the prior administration. However, the outcome of still pending litigations will likely force changes in policies and the practices of on-demand businesses that will result in additional worker protection. As freelance work continues to grow, Massachusetts may follow other states in finding new ways to provide benefits and protections for these workers. Regardless, when guiding your clients in Massachusetts, the safest bet is still providing full employment benefits to all workers they retain.
- Whether the person performing services is engaged in an occupation or business distinct from that of the principal;
- Whether or not the work is a part of the regular business of the principal or alleged employer;
- Whether the principal or the worker supplies the instrumentalities, tools, and the place for the person doing the work;
- The alleged employee’s investment in the equipment or materials required by his or her task or his or her employment of helpers;
- Whether the service rendered requires a special skill;
- The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision;
- The alleged employee’s opportunity for profit or loss depending on his or her managerial skill;
- The length of time for which the services are to be performed;
- The degree of permanence of the working relationship;
- The method of payment, whether by time or by the job; and
- Whether or not the parties believe they are creating an employer-employee relationship may have some bearing on the question, but is not determinative since this is a question of law based on objective tests.
[ii] Massachusetts applies a strict “ABC test” for properly classifying an independent contractor. Specifically, “[a]n employer who wants to treat someone as an independent contractor rather than an employee has to show that the work:
- is done without the direction and control of the employer; and
- is performed outside the usual course of the employer’s business; and
- is done by someone who has their own, independent business or trade doing that kind of work.” Massachusetts Attorney General’s Fair Labor Division on M.G.L. c. 149, s.148B
[iii] The long-standing Borello test is also undergoing scrutiny in California. Currently, in Dynamex Operations West, Inc. v. Superior Court of Los Angeles County, the California high court is considering whether to adopt a revised test to determine whether an individual is an employee or independent contractor. The California Supreme Court requested briefs addressing whether California law should use an “ABC” test similar to the one used in Massachusetts. Plaintiff’s counsel in the Grubhub case filed a Notice of Supplemental Authority with the District Court regarding the Dynamex matter, however, the court did not delay its decision in Gruhub instead opting to apply the current Borello test in its decision.
[iv] The EU’s Working Time Directive (2003/88/EC) requires EU countries to guarantee the certain minimum rights for all workers and regulates the amount of time people can spend at work in order to protect the health and safety of the European workforce.
Nancy Cremins is the Chief Administrative Officer & General Counsel of Globalization Partners, an International Professional Employer Organization helping companies expand in 150+ countries without the pain of setting up an entity.
This article was updated on March 8, 2018 to reflect the latest development in the case ofaweson v. Grubhub.
by Kevin O’Flaherty, Alana Rusin, and David Zucker
On November 13, 2017, the Supreme Judicial Court (“SJC”) held in 135 Wells Avenue, LLC v. Housing Appeals Committee, 478 Mass 346 (2017) (“135 Wells”), that, although a local zoning board of appeals (“ZBA”) has broad powers to grant “permits or approvals” under G.L. c. 40B, it does not have the authority to modify municipal property rights, including restrictive covenants.
Sections 20 to 23 of G.L. c. 40B (“Chapter 40B”), the Anti-Snob Zoning Act, were enacted in 1969 to “ensure that the local municipalities did not make use of their zoning powers to ‘exclude low and moderate income groups.’” 135 Wells, supra, at 351. Chapter 40B allows developers of projects that contain at least 25% “affordable housing” (defined as housing for those earning 80% or less of the area median income) to apply for all local approvals in a single “comprehensive permit,” and gives the ZBA the “authority to . . . override local requirements or regulations, and to issue ‘permits or approvals’” for all aspects of the development. Id. The override provision empowers ZBAs to approve projects that are higher, denser, or larger than otherwise allowable under existing regulations, and even to allow residential uses in non-residential zones. See, e.g., Eisai, Inc. et al. v. Housing Appeals Committee & Hanover R.S. LP, 89 Mass. App. Ct. 604 (2016). When a town is below certain Chapter 40B thresholds (e.g., less than 10% of the town’s housing stock is affordable), it is very challenging for a town to deny a comprehensive permit. See G.L. c. 40B, § 20; 760 C.M.R. § 56.03(1); DHCD Guidelines (rev. Dec. 2014). Finally, an applicant for a comprehensive permit aggrieved by a ZBA’s decision may appeal to the Housing Appeals Committee (“HAC”) in the Department of Housing and Community Development. G.L. c. 40B, § 22.
In May 2014, 135 Wells Avenue, LLC applied for a comprehensive permit to construct a 334-unit 40B development on land in Newton. The site was zoned for limited manufacturing use and also was subject to restrictive covenants granted to Newton that, among other things, prohibited residential use and required a portion of the site to remain open space. The developer concurrently filed with Newton’s legislative body (“Aldermen”) a petition to amend the restrictive covenants to allow residential use and to permit construction in the open space area. The petition was denied in November 2014. The ZBA also denied the developer’s comprehensive permit application on the grounds that Chapter 40B does not allow the ZBA to amend or waive restrictive covenants that constitute city-owned interests in land which can be amended or released only by the Aldermen.
In December 2014, the developer appealed the ZBA’s decision to the HAC; a year later, the HAC affirmed the ZBA’s decision, holding that the restriction and requested amendments are not within the sort of “conditions or regulations” or “permit or approvals” that are subject to Chapter 40B. The developer then sought judicial review by the Land Court. In August 2016, the Land Court determined that Chapter 40B does not allow either the ZBA or the HAC to require the city to amend the deed restriction to allow for residential use. The Land Court also held that the fact that the site was never used for limited manufacturing as envisioned when the property interests were granted did not change the validity of those interests. The developer sought direct appellate review. The SJC affirmed the Land Court’s rulings and reasoning in full.
The key to understanding 135 Wells is to recognize that, although Chapter 40B grants a ZBA broad authority to grant “permits or approvals,” it does not include “authority . . . to order the city to relinquish its property interest.” 135 Wells, supra, at 348. Also key is the fact that the SJC had previously decided that the deed restrictions at issue are property interests of Newton, id. at 353 (citing to Sylvania Elec. Prods. Inc. v. Newton, 344 Mass. 428, 430 (1962)), and that “both affirmative and negative easements [such as restrictive covenants] are to be treated equally” as property interests. Id. at 357.
In reaching this conclusion, the SJC rejected the developer-appellant’s attempt to distinguish this case from Zoning Bd. of Appeals of Groton v. Housing Appeals Committee, 451 Mass. 35 (2008) (“Groton”), in which the SJC reversed a decision that “order[ed Groton] to grant an easement over town land pursuant to the board’s power to grant permits or approvals under Chapter 40B” on the basis that there is a “fundamental distinction between the disposition or creation of a property right and the allowance of a permit or approval.” 135 Wells at 356 (citing Groton, supra, at 40-41). In 135 Wells, the SJC extended Groton’s logic, holding that the fundamental distinction between a property right and a permit or approval applies equally to affirmative easements (at issue in Groton) as it does to restrictive covenants (at issue in 135 Wells). In doing so, the SJC rejected the developer’s attempt to characterize the restrictive covenants at issue as the “functional equivalent of a ‘permit [ ] or approval[ ]’” that the ZBA or HAC could override under Chapter 40B. Id. at 353. The SJC distinguished the Aldermen’s allowance of prior amendments to the same restrictive covenant as acts of a legislative body instead of a local permit authority, and explained that Chapter 40B does not authorize a ZBA to modify restrictive covenants because these are interests in land, not land use permits or approvals. Id.
135 Wells addressed a heretofore unsettled question under Chapter 40B: if a project is on land subject to a deed restriction held by a municipality, may a local ZBA modify or eliminate the restrictive covenant? In 135 Wells, the SJC held that Chapter 40B does not give a ZBA this power. Accordingly, developers seeking relief from deed restrictions running in favor of a municipality must seek their removal or modification from the local municipal legislative body.
Kevin P. O’Flaherty is a Director at Goulston & Storrs PC and a member of the firm’s litigation group. The focus of his practice is real estate litigation of all types. Over the course of his 25-year career he has represented private developers, individuals, institutions and public agencies in zoning and permitting matters, eminent domain cases, commercial landlord/tenant disputes, purchase and sale cases and a wide array of other real estate related matters. Alana Rusin and David Zucker are Associates at Goulston & Storrs PC where they practice real estate litigation.
The Family Resolutions Specialty Court: A Community-Based Problem-Solving Court For Families in Conflict in Hampshire CountyPosted: October 26, 2017
by Hon. Linda S. Fidnick
Voice of the Judiciary
Traditional adversarial litigation can be ineffective in meeting the needs of families who are experiencing divorce or separation. Litigation may be an ultimately productive method for resolving conflicts between strangers — someone wins, someone loses, and the parties never see one another again. How profoundly different family cases with children are! Parents usually come to court at a complicated and painful time. Anger, mistrust, fear, grief — powerful emotions grip them. Yet, despite the demise of their personal relationship, parents must (and should) continue as parents. The more effectively they can work together, the easier it is for their children. Typically parents will need to continue to address one of the many unanticipated, yet inevitable, changes to their lives or the lives of their children after the case has concluded. Unfortunately, the traditional court process gives them no tools to resolve their disputes on their own.
The Hampshire Division of the Probate and Family Court is committed to finding better ways to help families through the court process. Our initiatives include a parent education program for divorcing parents that was expanded to include “For the Children” for never-married parents; “Only One Childhood,” an educational program for mid-conflict parents; a mediation program; and a program that provides attorneys for children. These programs have inestimably benefited the many families of Hampshire County. In this article I discuss a recent program developed by the Hampshire Probate and Family Court that has shown much promise: the Family Resolutions Specialty Court.
Starting in 2014, a group of Hampshire County-based professionals, including among others, Mike Carey, the Register of Probate, Pam Eldridge, Chief Probation Officer, Noelle Stern, Judicial Case Manager, Hon. Gail Perlman, former First Justice, Kathy Townsend, mediator, and Marsha Kline Pruett, Professor at the Smith College School for Social Work, began to meet and talk about ways to provide families with an alternative to the traditional court process within the court itself. The Family Resolutions Specialty Court (“FRSC”) is the result. Loosely based on a process that was developed in Australia’s family court, the FRSC has the following goals: to reduce conflict in cases involving children, to keep court proceedings child-focused, to give parents tools via mediation and the assistance of a clinically trained child specialist to address the problems facing their own family, and finally, to increase all parties’ satisfaction with the court process. We hoped that the FRSC would be more humane and more efficient than traditional family litigation, and ultimately give parents the ability to communicate well enough to obviate the need for repeated returns to court. We also created an FRSC Advisory Board comprised of a wide variety of professionals in the community. FRSC is available in most cases involving children. It has been used in initial divorces, complaints for modification, and complaints for contempt, whether the parents have counsel or are self-represented.
FRSC serves traditional and non-traditional families of all socio-economic backgrounds with children of all ages. FRSC is voluntary. Initially, both parents must opt in to the program. Either parent may opt out at any time. If a parent opts out, the case returns to the traditional court process and a different judge is assigned. Once the parties opt in, a probation officer completes an intake and screening. This initial assessment includes meeting with the parties and counsel to explain how FRSC works. If a significant history of domestic violence exists or one or both parents do not have the capacity to participate meaningfully, the family will be screened out. Once the family is screened in, its members are assigned a support team consisting of the family consultant (a mental health professional who remains involved with the case until resolution), an attorney for the children, a probation officer, and a mediator.
The family consultant conducts a guided interview to assess the family’s strengths and challenges and discusses various parenting arrangements. What is unique about this step is that the first in-depth conversation about the parenting plan comes to the parents from a mental health and developmental perspective, rather than a legal one. The parents are then referred to mediation. During this confidential process, issues requiring resolution are identified and parents are provided with tools to resolve future conflicts informally.
Next, a court conference is held. The parents, their counsel, the children’s attorney, the family consultant, the probation officer, and I attend. We sit at a table with the parents near me and facing each other. The parents bring photographs of the children. I ask each parent what his or her hope is for the outcome for themselves, for the children, and, importantly, for the other parent. Although parents are encouraged to speak directly to me, rather than by representations of counsel, attorneys are critical to the FRSC. Lawyers help participants understand their rights and obligations, identify relevant issues, ensure complete disclosures, and counsel clients to participate in a meaningful way. We use a problem-solving approach. The rules of evidence are suspended. Information is shared freely. The process is open and transparent. If a participant raises a concern that information is being withheld or misrepresented, he or she can request that the case be transferred back to the traditional court process.
At the court conference, we identify the resolved and contested issues, the information needed to determine the outcome of the contested issues, and outline the next steps. As a community-based court, we discuss whether referrals to parent education, substance abuse treatment, family counseling, or early childhood intervention may be helpful to the family. If so, the probation officer is key in referring members of the family to appropriate community agencies. The FRSC team members work with the family between conferences. The parents may choose to meet with the mediator, the family consultant, the probation officer, or attorney for the child in any combination and as often as needed. Court conferences are scheduled at appropriate intervals until all issues are resolved. The goal is resolution by agreement. However, if necessary, I will make a decision, either on a temporary basis or as a final judgment, if the parents are unable to agree.
Because of the attention to the case by all professionals involved from the very beginning, even the most complex case concluded in seven months, half of the time standard in the traditional track. This has been one of the unexpected, but greatly appreciated by the litigants, benefits of participating in FRSC.
The following are some comments of parents from their exit surveys:
“I now have much more contact with my children than when we began. . . . We have been able to agree on many issues that we did not agree on before.”
“FRSC helped ensure my child was enrolled in a high-quality pre- [kindergarten] program which has transformed our entire family’s quality of life and gave our child a strong foundation at a time when he was most vulnerable to instability.”
“This process was very beneficial to myself as a parent and was minimally stressful. . . . It has helped me to learn to never speak poorly of her dad in front of her . . . We fight almost never now and seem to be more understanding towards each other. . . . I would STRONGLY recommend this process to anyone getting divorced who have children. I hope this becomes the standard.”
“I have learned a tremendous amount through the programs associated with FRSC both as a parent and individual. . . . [FRSC] has helped to make me the best father I can possibly be. . . . We still have a long way to go but I am hopeful that in eliminating much of the negativity that typically surrounds divorce, it will allow us to become great co-parents. Truly life changing. I hope this continues and that all divorces with children can be done in this manner.”
Thus far, FRSC has succeeded in every aspect of its purpose. Children have a voice from the very beginning, which focuses their parents on the primacy of continuing to raise healthy children despite the marital or relationship dissolution. For those separating and divorcing parents who choose the process, they were able to come to closure in half the time (or less) than allotted for cases under our time standards. The families who have benefited from FRSC have been from all walks of life in our county: people from all manner of socio-economic, religious, health status, gender-identified, and educational backgrounds have benefited from it. Our hope is that the FRSC model will be the default process for all families experiencing divorce and separation throughout the Commonwealth.
Judge Fidnick is the First Justice of the Hampshire Probate and Family Court.
by Hon. Linda E. Giles
Voice of the Judiciary
Age-based criteria are entrenched in Massachusetts law. I have found over two dozen statutes providing for sixty-or-over age classifications, on matters ranging, inter alia, from the Department of Elder Affairs’ definition of “elderly person” as an individual sixty years of age or over, G. L. c. 19A, § 14; to the Department of Labor Standards’ provision of an extra day of family and medical leave to care for an “elderly relative,” i.e., one at least sixty years of age, G. L. c. 149, § 52D; to the right to a speedy civil trial for sixty-five-year-olds,
G. L. c. 231, § 59F; to enhanced penalties for various crimes against the person of victims sixty or sixty-five years of age and older, G. L. c. 265, §§ 13K, 15A, 15B, 18, and 19 and G. L. c. 266, §§ 25 and 30; to the right of tenants aged sixty or more to a six-month stay in summary process proceedings, G. L. c. 239, § 9; and to the entitlement of “aged” persons sixty-five years or older to receive state supplementary payments from the Department of Transitional Assistance, G. L. c. 118A, § 1.
Perhaps I am not the most impartial arbiter on the subject of age-based legislation. As a sexagenarian fast approaching mandatory retirement age and acutely aware that Vermont judges do not need to retire until ninety (and federal judges not at all), I confess to being a reluctant “elder.” Moreover, some may argue that any attack on ageism in the law may be a “Trojan Horse” that could open the floodgates to subverting age-based benefits and entitlements. Nevertheless, I question the arbitrariness and effectiveness of many older-age-specific laws and issue a clarion call for the legislature to re-examine them. (Youth age classifications, e.g., the Juvenile Court cut-off age of eighteen when compared to the drinking age of twenty-one, G. L. c. 119, § 58; G. L. c. 138, § 34A, also are worthy of scrutiny but beyond the scope of this article.)
The battle for this not yet over-the-hill individual seems uphill at first. Some forms of age discrimination are undeniably necessary and reasonable, e.g., compelling children but not adults to be educated, or allowing adults but not children to vote. Age-based laws also are well-settled and plentiful. The federal Age Discrimination in Employment Act of 1967 (ADEA), which prevents age discrimination against persons forty years of age or older, is celebrating its fiftieth anniversary this year. Over forty years ago, the constitutionality of age-based classifications was enshrined in the United States Supreme Court’s holding in a Massachusetts case, Massachusetts Board of Retirement v. Murgia, 427 U.S. 307 (1976); in Murgia, the Court concluded that uniformed state police troopers facing mandatory retirement at fifty did not constitute a suspect class for purposes of equal protection analysis. Over the past several decades, there has been a proliferation of legislation aimed at protecting “elders,” commonly defined as sixty-five or older, from abuse, neglect, and discrimination.
To be sure, protecting vulnerable senior citizens from abusive or unfair treatment is a laudable government interest. Furthermore, “[t]he problems of government are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be, and unscientific.” McGinnis v. Royster, 410 U.S. 263, 270 (1973), quoting Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 69-70 (1913). Even so, chronological age has served as an arbitrary, overbroad, and expedient proxy for more relevant but difficult-to-quantify characteristics, such as frailty, vulnerability, or need. Older adults are subjected to disparate treatment on the basis of stereotyped assumptions about their abilities and disabilities; and protections for “elders” are premised on the inaccurate pigeon hole that they are impaired cognitively or are physically- or decisionally-challenged. Policy-makers lump older individuals into age-based, monolithic categories (e.g., middle-old, old, the oldest) without account for very real differences among the age cohorts. Cf. Kenneth F. Ferraro, “The Evolution of Gerontology as a Scientific Field of Inquiry,” Gerontology: Perspectives and Issues 13, 13-33 (3rd ed. 2007). As the average life expectancy has increased to 78.8 years, Centers for Disease Control and Prevention FastStats – Deaths and Mortality, and one in five over age sixty-five in Massachusetts is still working, “1 in 5 over 65 still on the job,” Boston Globe, June 12, 2017, elderly status, widely assumed to start at age sixty-five, has become an increasingly poor predictor of physical and mental limitations. Centers for Disease Control and Prevention, Quickstats: Estimated Percentage of Adults with Daily Activity Limitations by Age Group and Type of Limitation – National Health Survey, United States. Accordingly, fixed age thresholds for classifying people as old, which do not take into account improvements in health and longevity, seem increasingly anachronistic.
Furthermore, some protections for “elderly” persons, albeit well-intentioned, may not be so benign. For example, a mandatory reporting system in Massachusetts requires individuals in nineteen specified occupations, including physicians and nurses, to report suspected abuse of “elderly persons” sixty years of age or over to the Department of Elder Affairs. G. L. c. 19A, §§ 14, 15. Mandated disclosures under the law may implicate the release of the alleged victim’s privileged medical information, which, if done without that “elder’s” consent, would undermine his/her right to informational privacy. At least one legal scholar has argued that age-specific legislation may violate the civil rights of older adults and has called for expanding the scrutiny of age-based classifications from rational basis to intermediate. See Nina A. Kohn, “Rethinking the Constitutionality of Age Discrimination: A Challenge to a Decades-Old Consensus,” 44 U.C.Davis L.Rev. 213 (2010); Nina A. Kohn, “Outliving Civil Rights,” 86 Wash.U.L.Rev. 1053, 1058-59 (2009). In yet another context, health care systems sometimes rely on age-based classifications to deny older adults the right to obtain certain medical procedures regardless of need. Although doctors routinely tell patients over sixty-five that they are not good candidates for organ transplants, Johns Hopkins’ investigators have found that older adults can enjoy excellent transplant outcomes in this day and age. See Dorry L. Segev, M.D., Ph.D., et al., “Candidacy for Kidney Transplantation of Older Adults,” Journal of the American Geriatrics Society, Vol. 60, Issue 1 (January 12, 2012).
Maybe it is time to rethink the cavalier use of imperfect age-based criteria in our laws, starting with our very definition of “old age.” After all, population experts have concluded that sixty really is the new fifty. See, e.g., W. Sanderson, S. Scherbov, “Faster Increases in Human Life Expectancy Could Lead to Slower Population Aging,” PLOS ONE (April 2015). A number of research demographers have suggested that policymakers focus less on chronological age and embrace measures based on prospective age, i.e., the expected remaining years of life for a given age range. See W. Sanderson, S. Scherbov, “Rethinking Age and Aging,” Population Bulletin vol. 63, no. 4, Population Research Bureau (December 2008). Prospective age is a population-based concept that takes into account improvements in health and life expectancy which the static concept of chronological age does not. Id. Perhaps Oliver Wendell Holmes, Jr., one of Massachusetts’ greatest native sons, had the notion of prospective age in mind when, at the age of sixty-three, he quipped, “[o]ld age is fifteen years older than I am.” In the humble opinion of this purported “old ager,” truer words were never spoken.
 The opinions I express are my own and do not reflect the view of the Massachusetts Superior Court. Though I recommend legislative reform, I of course will continue to follow the law as it exists.
Judge Linda Giles has served as an Associate Justice of the Superior Court since 1998. She is an adjunct professor of law at Suffolk University Law School and a member of the Board of Editors of the Boston Bar Journal. Judge Giles is a graduate of McGill University and New England School of Law.
by Jonathan S. Williams
Voice of the Judiciary Guest Contributor
The members of the Boston Bar Association know that Massachusetts is in the midst of dramatic change in the administration of justice. Both necessity and opportunity are playing a part. Leaders in all three branches of government are looking more imaginatively at the forms and substance of justice than at any time since the days of Gideon and of the demurrer. An animating principle in the Trial Court’s thought is a strategic focus on the “user experience.” Looking through the public’s eyes demands that we reduce barriers to access, reduce unnecessary delays, and ensure that court action seeks to address underlying causes of legal conflict where possible. Specialty courts, alternative dispute resolution, opioid response, and justice reinvestment reforms are engaging everyone. Technology offers new kinds of opportunities to make court more accessible and efficient. It has dramatically changed law practice, and the public’s appetite for new technologies to engage their justice system electronically has never been greater.
My predecessor Harry Spence wrote last winter about the strength of the unique Massachusetts court governance model put in place in 2012. It pairs Trial Court leadership in myself and Chief Justice of the Trial Court, Paula Carey. She brings deep judicial knowledge and experience leading on matters of judicial policy and innovation. My job is to maintain and increase our administrative capacity to manage change. My varied preparation in North Carolina includes years of private law practice and years of state government administration in the justice field. It is a familiar challenge to take responsibility for finance, human resources and technology at a judicial system’s statewide scale. And over the past two years I was deeply engaged at looking at the future of North Carolina’s courts—and realized that state courts across the nation face the same necessities and opportunities. What drew me here is that the Massachusetts Trial Court today is action-oriented and is already deeply engaged in change.
If you are the managing partner of a large law firm, or manage your own solo practice, you know that few decisions weigh more heavily than workforce and technology investments. Likewise for the courts our workforce and our technology are fundamental to our success.
The work of every court employee is becoming more interesting and more demanding. One reason is the growing diversity of the communities we serve. To meet that need we are recruiting to broaden the diversity of our workforce, and helping new and current employees to expand their cultural appreciation and competency. This is a natural and necessary element of our strategies to reduce the influence of bias—implicit or explicit, whether based in race, ethnicity, religion or gender—in administering justice.
We not only need to do it, but talented potential employees expect us to model and support our core value of equal justice under the law. Today 23% of our employees are from minority groups compared to 24% of the state’s population in the last census. We need to continue targeted outreach in our recruiting so that talented minority candidates don’t overlook the justice system as a personally and professionally rewarding career in public service, and know that no avenue within the justice system is closed to them.
The nature of work in the courts is changing too, meaning we need to recruit for higher skills than ever. Technology will free our employees from much of the drudgery of managing the tide of paper, and allow more time to interact with and serve the public. Our facilities staff supports advanced energy management and other technologies, and maintains both historic and modern architectural properties. Professionalizing Court Security to counter contemporary risks has involved creating a formal academy that graduated its seventh class this summer, and recently achieved national accreditation as a law enforcement training program. We are supporting our workforce overall with more and more training. Working with our unions, we have made continuing education a core piece of Trial Court employment, almost doubling the number of attendees in the past four years.
Caring for our current employees and urgency in recruiting and hiring a talented new generation of employees are both critical to the strength of our justice system.
We all recognize the gap that has opened between court technology and the consumer technology demonstrated in the experiences of retail, finance, and health care. We are playing catchup but have made some wise strategic choices in technology that are beginning to pay off.
The creation and implementation of MassCourts retired 14 separate systems built in-house, designed with different philosophies and architectures dating back to the 1980’s. This change required two tough strategic choices. The first tough choice: stop hiring and retaining staff for continuous custom software development, and instead outsource the new IT case management system to a vendor specialized in court applications. Our in-house staff is focused on the infrastructure, service delivery, and better understanding the evolving needs of the courts. The second tough choice: close down the old systems completely and move all the old data into a completely modern database and middleware platform. Massachusetts chose this harder course and completed the major turn just 20 months ago. MassCourts will continually evolve not only to help manage the work of the courts now but to enable new ways for the courts to get their business done.
E-filing has just begun racing forward toward this future. On the criminal side tens of thousands of Electronic Applications for Criminal Complaint are being e-filed by police this calendar year. Civil e-filing is now rolling out, this year receiving thousands of pleadings and attachments, and more than 4,500 attorneys have enrolled. More and more the bar will be able to save time and client money by e-filing without running to the courthouse and managing snail mail, following the lead of our appellate courts. Inside the courthouse we will look to use e-filings to reduce reliance on paper, and enable judges and litigants to access and work with their documents both remotely and online.
The ability to pay many obligations online is being added to MassCourts over the next few months. It might sound odd at first, but we don’t want you or your clients coming to court to pay an outstanding fine or probation charge. Or more exactly, we want you to pay from wherever is most convenient. We do want you coming to court to accomplish something meaningful to advance your case or issue to resolution. We don’t want you or the public to spend time and money away from work, arranging child or parent care, finding transportation, and standing in security and cashier lines just to make a payment.
Digital recording of court proceedings has been in place for years in all but Superior Court criminal sessions; we have now finished installing or upgrading this technology in almost 300 of 429 courtrooms throughout the Commonwealth in all court departments. This latest generation technology supports two great changes for the bench and the bar: audio recordings can be streamed the next day remotely online, and production of official transcripts for most cases is being cut from 90 days to 30 days.
And over the past several years we have added more and more video connectivity. In the first six months of this year there were approximately 3,000 video events including jail-to-court arraignments, court-to-court probation hearings and emergency protection hearings, and even law office-to-court civil motions hearings to save counsel driving across the state for brief matters.
My confidence in our ability to do these things is immense. I have been visiting courthouses and meeting employees who are eager to share the initiatives they have undertaken. I have met scores of our new employees across all job types, and we are attracting great young people and mid-career movers. I have reviewed workforce diversity statistics and workshop reports that show our employees gaining capacity to work with diverse communities. I have visited a District Court that runs every small claims calendar with no paper files in the courtroom, and I have sat in on a Superior Court session where a judge in one county held court by video for probationers and counsel in another county. I see our e-filing numbers climbing every month. In other words, the action and engagement in change that drew me to the Massachusetts courts is being demonstrated every day.
The Supreme Judicial Court appointed Jonathan Williams to a five year term as Court Administrator for the Massachusetts Trial Court as of May 1, 2017. Williams previously served as the Senior Deputy Director of the North Carolina Administrative Office of the Courts. He has almost thirty years’ combined experience in government and in private law practice.
by Holly A. Hinte
It is the public policy of the Commonwealth that dependent children be maintained, as completely as possible, from the resources of their parents. The Court’s authority to award child support is defined by statute and applies in a variety of cases including divorce, paternity, and abuse prevention cases to name a few. Broadly speaking, child support is an amount paid from one party to another for the support of the dependent child. Unlike alimony orders, such amount is neither taxable to the payee nor deductible by the payor.
In order to receive certain federal funding, each state must establish guidelines for child support and review them once every four years to ensure that their application results in the determination of appropriate award amounts. 42 U.S. Code § 667; 45 CFR § 302.56. In Massachusetts, the Guidelines are promulgated by the Chief Justice of the Trial Court and used by the judges of the Probate and Family Court in determining the appropriate level of child support.
As required by said federal regulations, in March 2016, the Chief Justice of the Trial Court, Paula M. Carey, convened a Task Force, consisting of judges, practitioners, and economists, to review the 2013 Guidelines and the current economic climate. This review lasted over a year and included public forums, discussions, reports, and feedback from the public, the bench and the bar.
The new 2017 Guidelines were published and became effective on September 15, 2017. For the first time, the Task Force’s comments are included within the actual text of the Guidelines. There are also new forms and worksheets to be used by practitioners and the court. All of the new documents are available on the court website: www.mass.gov/courts/selfhelp/family/child-support-guidelines.html.
Compared to the 2013 Guidelines, the 2017 Guidelines contain edits made for clarification purposes, substantive changes, and in-depth instructions and commentary. Some of the notable changes are as follows:
Child Support for Children Between the Ages of 18 and 23
The 2017 Guidelines now apply in all cases in which child support is awarded, no matter the age of the child, which is a marked difference from the prior guidelines and prior federal regulations which only required application of the guidelines up to age 18. This has always been a conflict, as under the Massachusetts statutory scheme, the Court has the discretion to award child support for a child over 18 to 21, if said child is domiciled with, and principally dependent upon, a parent, and the Court has the discretion to award child support for a child between the ages of 21 to 23 so long as the child is domiciled with, and principally dependent upon, a parent, and enrolled in an educational program (undergraduate only).
The 2017 Guidelines address this conflict by providing instructions for handling child support for children between the ages of 18 and 23, including providing factors to consider when determining whether or not to enter such an order. Additionally, in recognizing the unique factors present with children between the ages of 18 and 23, the 2017 Guidelines reduces the base amount of child support in this age-range by twenty-five percent (25%). Such presumptive order may be deviated from if appropriate.
Contribution to Post-secondary Educational Expenses
In addition to the concerns regarding child support for children between the ages of 18 and 23, there was also a lack of clarity and uniformity as it related to contributions to post-secondary educational expenses of a child. The prior guidelines did not address such contributions despite statutory authority giving the Court discretion to order a party to contribute to such expenses.
The Task Force recognized the concerns voiced by the public, the bench and the bar- namely, many parents cannot afford to pay college expenses from their income while also meeting other expense obligations, often being forced to incur substantial loan liability. As such, the 2017 Guidelines include a new section addressing such contributions.
In determining whether or not to order such contribution, the 2017 Guidelines provides a list of factors the Court must consider including cost, the child’s aptitudes, the child’s living situation, the available resources of the parent and the child, the availability of financial aid, and any other relevant factors.
If it is determined to order such contribution, the 2017 Guidelines cap such contribution at 50% of the undergraduate, in-state resident costs of the University of Massachusetts-Amherst (as set out in the “Published Annual College Costs Before Financial Aid” in the College Board’s Annual Survey of Colleges). While such cap is not an absolute limitation, any order requiring a parent to contribute more than 50% requires written findings that a parent has the ability to pay the higher amount.
The Task Force makes clear that this limitation is not meant to apply in situations where: (1) children are already enrolled in college (prior to September 15, 2017) or (2) parents are financially able to pay educational expenses using assets or other resources.
If the Court exercises its discretion and orders child support for a child over the age of 18 along with contribution to post-secondary educational expenses, the Court is to consider the combined amount of both orders and the impact of such on the obligor.
Attribution and Imputed Income
The 2017 Guidelines distinguish “imputation of income” and “attribution of income” in a more coherent and refined manner. Imputed income is undocumented or unreported income. Attributed income is a theoretical amount assigned to a parent after it is found that the parent is capable of working and is unemployed or underemployed. In addition to the clarification of the types of income, the 2017 Guidelines provide new factors the Court is to consider when determining whether or not to attribute income.
Holly A. Hinte is an associate at Lee & Rivers, LLP, a boutique domestic relations law firm in Boston and a member of the Boston Bar Association & Massachusetts Bar Association.
by Tad Heuer and Daniel McFadden
On July 24, 2017, in Lunn v. Commonwealth, the Massachusetts Supreme Judicial Court ruled that state and local officials are not authorized to arrest immigrants based on civil immigration detainers issued by U.S. Immigration and Customs Enforcement (“ICE”). As a result, public safety officials in Massachusetts generally cannot detain or hold a person in custody based solely on the existence of an ICE detainer. It appears that the SJC is the first state highest appellate court to reach and decide this issue.
The Detainer Controversy
Although ICE officers frequently detain people accused of being “removable” (i.e., subject to deportation), ICE does not always make the initial arrest. Rather, ICE often issues “detainers” to the state or local public safety officials who have certain immigrants in their custody. A detainer is ICE’s “request” that, if an immigrant of interest to ICE is in the custody of local authorities for any reason, the authorities voluntarily delay that individual’s release by up to 48 hours to allow ICE to transfer him or her into immigration custody. This is an efficient mechanism for ICE to seize immigrants who are being released from prison, who have been arrested, or who have simply been pulled over for a traffic stop.
Detainers have been controversial because they essentially ask state and local officials to hold people in custody absent a judicial warrant or probable cause. Most violations of immigration law are not crimes, and most removal proceedings are purely civil matters handled by administrative courts within the Department of Justice. Nor do detainers typically provide information establishing probable cause. Critics of current ICE practice have contended that neither state law, nor the state or federal constitutions, permit a warrantless arrest in such circumstances.
Prior to Lunn, challenges to the legality of compliance with ICE detainers had met with some success. In 2014, the Maryland Attorney General issued a memorandum concluding that “an ICE detainer, by itself, does not mandate or authorize the continued detention of someone beyond the time at which they would be released under State law.” The Virginia Attorney General issued an official opinion reaching the same conclusion in 2015. In Massachusetts, a Single Justice of the SJC ruled in May 2016 that law enforcement officials are “without authority to hold [a person], or otherwise order him held, on a civil [ICE] detainer.” Moscoso v. A Justice of the East Boston Div. of the Boston Mun. Court, No. SJ-2016-0168, slip op. at 1 (May 26, 2016). However, until Lunn, it appears that no state’s highest appellate court had squarely addressed the question.
The Lunn Decision
The Lunn case arose from the detention of Sreynoun Lunn, an immigrant ordered removed from the United States in 2008. However, ICE was apparently unable to execute that order because Mr. Lunn’s country of origin declined to issue the necessary travel documents, and he was therefore released.
In 2016, Mr. Lunn was held by Massachusetts authorities on a larceny charge, which the state court dismissed for lack of prosecution. Ordinarily, Mr. Lunn would have been free to go. However, ICE had issued an immigration detainer requesting that Massachusetts authorities continue holding Mr. Lunn for up to two days beyond when he would otherwise have been released. Consequently, even though all charges had been dismissed, court officers detained Mr. Lunn for several more hours, until ICE agents arrived and took him into federal custody.
Mr. Lunn promptly sought a ruling that state officials were wrong to hold him based solely on ICE’s civil immigration detainer. A single justice of the SJC reserved and reported this question to the full Court.
In agreeing with Mr. Lunn, the SJC first explained that “the administrative proceedings brought by Federal immigration authorities to remove individuals from the country are civil proceedings, not criminal prosecutions.” The Court further explained that ICE detainers are issued for the purpose of this “civil process of removal,” and are purely requests for voluntary state or local assistance. In its briefing, the federal government even expressly conceded that state authorities are not obligated to enforce ICE detainers.
The Court then turned to the question of whether Massachusetts officials have statutory or common-law authority to arrest people solely because the officials received a voluntary request from the federal government to hold the person for a civil proceeding. The Court found no such authority. The Court also rejected the federal government’s argument that state law enforcement officers possess “inherent authority” to enforce detainers. Accordingly, it is generally unlawful for Massachusetts state and local officials to arrest and detain a person based solely on an ICE detainer.
However, Lunn does not preclude executing an arrest for other independent reasons (for instance, if the person is subject to a state or federal warrant arising out of suspected criminal activity). Nor does Lunn prevent officials from providing ICE with advance notice of a given detainee’s or inmate’s intended release date.
The Lunn decision could also carry implications beyond the immigration context, particularly its conclusion that a law enforcement officer has no arrest powers outside of those expressly granted by statute or common law. As the Court stated, “[t]here is no history of ‘implicit’ or ‘inherent’ arrest authority having been recognized in Massachusetts that is greater than what is recognized by our common law and the enactments of our Legislature.” Further, the Court indicated its discomfort with any expansion of common-law arrest powers, explaining that “[t]he better course is for us to defer to the Legislature to establish and carefully define” new arrest powers. This language likely will be useful to future criminal defendants and civil rights plaintiffs who seek to challenge other forms of warrantless detention.
Notably, authorship of the Lunn decision was attributed as “By The Court,” rather than to any specific justice, and the reasons for the Court doing so remain unclear. What is known is that this approach is rare, having last been employed over two decades ago. While typically employed in cases (like Lunn) involving regulation of the judicial branch or the practice of law, it is infrequent even then: in the vast majority of decisions in such cases, opinions are authored by specific and identified justices.
The Lunn decision leaves several open questions. For example, the SJC did not reach the question whether Mr. Lunn’s arrest would, if nominally authorized by state statute, be permitted by the state and federal constitutions. This is not strictly academic. Governor Baker has drafted legislation that would authorize such detention in at least some circumstances. Critics have expressed strong opposition to any such law on multiple constitutional grounds.
The SJC also did not reach the question of whether an arrest would be lawful if a particular detainer form provided sufficient information to establish probable cause that the individual had committed a federal crime. Nor did the SJC address whether an arrest would be permissible if made by a state or local official acting pursuant to a state-federal partnership under 8 U.S.C. § 1357(g). That statute permits ICE to specially deputize state and local officials to act with the authority of ICE officers. In Massachusetts, ICE has executed such agreements with the Massachusetts Department of Corrections and the Sheriff’s Offices of Bristol and Plymouth counties. These outstanding questions will have to await resolution in future cases.
Tad Heuer is a partner at Foley Hoag LLP practicing administrative law. He is currently a member of the Board of the Boston Bar Journal. Daniel McFadden is a litigation associate at Foley Hoag LLP, where his practice includes representation of both individuals and organizations on immigration law matters.