Pandemic FAQs: Job Loss and Employment Concerns

October 26th, 2020

In this MassBar Beat podcast, Attorney Kavita Goyal discusses frequently asked questions regarding employment and unemployment during the COVID-19 pandemic.


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Mail Order Orthodontics – Article by Joel Rosen in Lawyers Journal

January 1st, 2018

This article appeared in Lawyers Journal in December 2017.  The comparison of MassHealth’s reimbursement rates with those of online providers is no longer accurate, as MassHealth changed its reimbursement regime after the article was submitted, but the point is still valid.  The online providers charge a comparable rate to some licensed orthodontists. 

To read the original article, see:



Lawyers Journal

Mail Order Orthodontics

Issue November/December • 2017  • By Joel Rosen


Want to fix your teeth for a fraction of what you’d pay an orthodontist? How is that possible? By not paying an orthodontist.

Online providers will remotely guide you to take your own impressions and put on your own “aligners.” For $7.98, will even sell you a box of elastic “gap bands” that are supposed to pull teeth together. One of the biggest players is Smile Direct Club (SDC), a Tennessee company that provides services in Massachusetts.

The Board of Registration in Dentistry has received two complaints against SDC for the unlicensed practice of dentistry. The American Association of Orthodontists filed the first one in April. I filed the second one in August on behalf of the Medicaid Orthodontists of Massachusetts Association.

How SDC Operates

The SDC website asks you to enter your zip code. If you can successfully accomplish that task, you get a message that says, “Congratulations! You’re a great candidate.” If you want a more detailed evaluation, you can take a “free 30-second smile assessment.” You look at six drawings and choose the one you think looks like your teeth.

There are no wrong answers. Everyone who orders one gets “an at-home impression kit.” If you are not sure you can take accurate impressions at home, you can “book a scan” at the “Smile Shop” in Boston. Eventually, you receive a series of “invisible aligners,” which you insert yourself. You do not get X-rays and never see an orthodontist.

I called SDC and spoke with a guy named Andy. “Is there anything I can do to make you smile today?” he asked.

I wanted to know whether I could see an orthodontist at the Smile Shop. “We never have an orthodontist there,” he said. “We have a dental professional.”

“Is that someone with a license?”

“We have dental technicians. They are trained to use the equipment.”

“Dental technician” is not a thing. You can be a dental assistant or hygienist, but there is no license in Massachusetts for a “dental technician.”

SDC charges $95 for an impression kit, $1,850 for aligners, and $99 for a retainer. This is on the lower end of what orthodontia costs but not the bargain it seems. MassHealth pays $1,200 for banding, $90 per adjustment visit (after the first three months), and $95 for retention. A MassHealth patient who saw an orthodontist once per quarter for two years would generate a fee of $1,925. For this hypothetical case, SDC would receive $2,044. SDC would charge $119 more for online orthodontia than a licensed orthodontist would receive for 11 in-person appointments.

Dr. Ben Burris, an orthodontist from Arkansas, is an SDC spokesman who claims to have “diagnosed and treated hundreds of SmileDirectClub cases,” apparently without ever meeting a patient in person. He writes on the company’s website that he initially had concerns about SDC’s model: “The first thought that popped into my head was, ‘You can’t do that! It’s against the law for a non-dentist to practice dentistry, you can’t move teeth without an in-person visit to the dentist and you need an x-ray!’”

Dr. Burris overcame his scruples upon learning that the parent company also sells contact lenses and hearing aids over the Internet. Camelot Venture Group is the largest shareholder of Sharper Image and 1-800 Contacts. Sharper Image sells such self-cure devices as a “professional fat-reduction belt,” “sleep improving wristband,” “light therapy glasses,” a “breathing exerciser,” and “vibrating arthritis gloves.”

Dr. Burris may not realize this, but diagnosing and treating a malocclusion is not the same as filling a prescription for contacts. In one case, the patient has been examined and diagnosed by a licensed optometrist. The patient has been checked for diseases like glaucoma and has received a prescription, which can then be filled by mail. But with mail order braces, the patient receives no medical examination. Whatever other business interests the parent company may have, Dr. Burris’s initial conclusion stands. It is against the law for a non-dentist to practice dentistry.


Dissatisfied Customers

The only information publicly available on SDC’s outcomes (apart from testimonials on the SDC website) is based on voluntary reviews. The Better Business Bureau lists 126 customer complaints. Not all the online reviews are bad, but some customers say the product doesn’t work, charges are improper and customer service is terrible. One consumer writes:

I would NEVER RECCOMMEND [sic.] THIS COMPANY. I’d rather spend money … to see a real dentist and get quality service then [sic] deal with people who just want your money, ignore and lie to you….

Another customer writes on RealSelf:

I’m appalled by their customer service. I honestly wished I had paid the extra

$1,500 (after insurance) to get Invisalign through my primary dentist because it would’ve saved me that much frustration. I did not get the impression at any time using SmileDirectClub that there was actually a dental professional anywhere checking in on my progress.

Some patients write that the treatment has exacerbated a malocclusion or that they received bad medical advice. For example, a Ripoff Report user writes: “I noticed they were moving teeth that were straight (that are now totally misplaced).” Two Yelp users had similar complaints:

“I was given a 7-month treatment plan, which was delayed to a full year due to people forgetting to send my aligners, sending the wrong aligners … they even told me they accidentally sent me someone else’s aligners. Many weeks can be added for each aligner that is delayed or messed up. All of this would have been fine I guess if they just straightened my smile. My two front teeth are still bucked out and protruding and my smile looks crooked. They told me there’s nothing they can do and my teeth are in “optimal” position. Well I went to an orthodontist consultation and he immediately said I have protrusion and they can fix it, even with clear aligners. This company let me down.”

Another customer complains:

“Caused damage to my bite alignment. I can no longer bite all the way down. They also refused a full refund. Now I have a damaged “alignment” and will have to pay more at a dentist office to fix the damage…. Save your money and your smile and pay to see a real dentist in person.”

A customer reports to that her online provider (not SDC) did not screen her for TMJ and told her, incorrectly, that hers was a simple case:

“It isn’t worth the money when you’re going to get saddled with further orthodontic treatment and bimax jaw surgery, in addition to chronic pain, from something like this – trust me, I know, because I’m living it. Thankfully a real orthodontist has taken me on as a patient … after this horrible experience.”


Harm To The Public

People may not realize what they are giving up when they forgo professional treatment. For example, here is an actual comment on Amazon regarding whether orthodontic gap bands (not an SDC product) provide a lasting improvement:

“they can go back the way they was most of the reasons for this is poor high-gen all you have to do is try a list to brush 2 times a day and always but always use LISTERINE it won’t hapen in 1week o 1 month but it will happen sooner o latter depends how bad it is and you will notice i talk for personal experience becose those rubber things they only going to give ypu gum infections that all you paying for and believe me you don’t want that it really hurts i know believe me i know.”

Online patients do not receive radiographs. There is no dental screening for issues like periodontal disease, bone pathology, extra teeth in the bone, and so forth. Patients do not get any kind of basic evaluation, a cancer screen, or the identification of lesions that should be treated before orthodontia begins. Proper screening may uncover unseen, un-diagnosed issues that may result in loss of teeth, gum recession, or bone tumors that if not discovered may become increasingly serious or even fatal.

There may be impactions or cranio-facial abnormalities that may become worse under the online treatment, dentists say. Other problems may be discovered during treatment by an orthodontist, which remain hidden in an online case, for example: posterior open bites, lack of rotational control, or poor deep bite management.

Nor is anyone following the patient as an orthodontist would. As one of my clients pointed out, “The orthodontist in real time modifies the appointment periodicity as a function of the patient’s behavior and responsiveness to treatment. Furthermore, there are adverse oral conditions that that may arise during treatment. These include root resorption, soft drink related decay under aligners, gingival recession, traumatic occlusion, gingival impingement, and the loosening of dental restorations.” When no orthodontist is involved, these problems go unnoticed.

Unlicensed Practice

It’s illegal to “directly or indirectly practice or attempt to practice dentistry” without a license. G.L. c. 112, § 52. Someone is practicing dentistry if s/he “offers or undertakes by any method to diagnose [or] treat, any deficiency, deformity or other condition of the … teeth, gums, or jaws….” G.L. c. 112, § 50.

Under the regulations of the Board of Registration in Dentistry, only a licensed dentist can write an orthodontic prescription. Only licensed dentists can perform final positioning and attachment of orthodontic bonds and bands. Patients must provide specific informed consent for orthodontic procedures.

Dr. Burris says on the SDC website that he has “diagnosed and treated” hundreds of SDC cases. If SDC is diagnosing and treating patients, then it is practicing dentistry. And because it has a Boston office, SDC is providing services in the commonwealth.


What Can We Do About It

If an orthodontist opened a storefront where “dental technicians” scanned patients’ teeth and provided aligners for the patients to install themselves — without complying with any of the other regulations — that orthodontist would probably hear from the Board of Registration in Dentistry. But SDC is not a licensed dentist — it’s a corporation — and the board does not feel it has jurisdiction to impose a sanction.

But the board does not just sanction licensed dentists. It is legally required to investigate complaints of the unlicensed practice of dentistry. If it finds that there is reasonable cause to believe a violation has occurred, it “shall forthwith file a written report of the same with the attorney general who shall, within three months following receipt of such report, notify the board in writing of the action taken with respect to such violation.” G.L. c. 112, s. 43.

By using words like “forthwith” and setting a three-month time limit for the attorney general, the legislature is saying that unlicensed practice must be dealt with quickly. But after six months, the board has not taken any action on the complaints. In the meantime, Massachusetts residents have a choice. They can hire a licensed professional, or they can order aligners on the Internet and hope for the best.

posted by: joelrosen in Announcements, BUSINESS, For Medical Professionals | 3 Comments

Massachusetts Wage Act Overview

March 3rd, 2016


Get the Wages You Have Earned

Here are a few ways employees get cheated:

  • They don’t get all their wages at the end of every pay period.
  • They don’t get time and a half when they work over 40 hours.
  • They work on public works projects but don’t get paid the prevailing wage.
  • They don’t get paid commissions when they are due.
  • They don’t get paid in full on the day they terminate, including vacation pay.

If you’re one of those employees, the Massachusetts Wage Act may provide a way for you to get back three times your unpaid wages.  

Massachusetts has some of the strongest employee rights laws in the country.   If your employer has not paid you your full wages, commissions, vacation pay, overtime, or prevailing wages—and paid you on time—you can sue to get back three times your unpaid wages, and also your attorneys’ fees and costs.    

The first step is to file a wage complaint with the Massachusetts Attorney General’s Office.  You need to do this before suing your employer.  It is best to fill out this claim as soon as you learn you are being cheated, and it must be done within three years of the wage violation.  Otherwise, you waive your right to bring a wage claim.  You do not need to submit any documents, just follow the link below to fill out the online form.

The purpose of completing a wage complaint is to give the Attorney General’s Office the opportunity to investigate your claim and get back your lost wages for you.   If the investigation results in payment, you’ll get your wages, but not treble damages and attorneys’ fees.  And the investigation can take a very long time.  That’s why you may decide to file a lawsuit. 

After you fill out the wage complaint, you can ask the Attorney General’s Office for a “Right to Sue” letter.  When the letter arrives, you can file a lawsuit against your employer in court.  At this point in the process, or earlier, you may want to find an attorney to help you with your case.  

Because the statute is so punitive to employers, our firm often takes on wage claims on a contingency fee basis.  This means that we will bring the lawsuit on your behalf, in exchange for payment from the settlement you receive from your employer if you win. 

The Rosen Law Office has a great deal of experience bringing successful Wage Act lawsuits.  In the last few years, we have helped a number of employees who were being cheated out of their proper overtime wages, prevailing wages, or both, obtain satisfactory settlements with or judgments against their employers.  If you think you’ve been cheated, you should call for a free consultation.    

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Dental Board to Start Random CEU Audits

June 10th, 2015

dentThe Board of Registration in Dentistry is going to start doing random audits to make sure dentists and hygienists have met their continuing education requirements (“CEUs).  

In the past, the only way the Board knew if someone was up to date on their CEUs was if there was a complaint.  In the course of the investigation, they would routinely request proof of attendance at the various required courses.  Starting in the fall, the Board will do random audits.  The goal is to hit 5 percent of the licensed dentists and hygienists every year.  

When dental professionals renew their licenses, they have to certify that they have satisfied their CEU requirements.  Dentists have to take 40 CEUs every two years; hygienists need 20 units.  Dentists are required to include courses in infection control and pain management.  It’s easy to miss the pain-management requirement, because it’s not in the regulations.  You can find it here.  The dentist or hygienist should also take a CPR course. 

Dentists who fall short are in double-trouble.  They’ve violated the CEU requirement, and they’ve also lied on their license renewal form.  If there are no other violations, the Board will often impose “stayed probation.”  That’s a nondisciplinary sanction.  If the dentist makes up the missing credits and stays out of trouble for a year, there won’t be any indication of public discipline when someone looks up the license, and there won’t be any report to the national data bank.  But the investigators may find some other concern, and when the issues start to add up, the sanction can be more severe.

The current license renewal cycle runs from April 1, 2014-March 31, 2016.   The Board is going to be more conscientious in checking CEUs than it was in the past, so make sure you are more conscientious about taking all your courses.

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The Dental Board’s First Look at Your Case

May 12th, 2015

Here’s an article Joel wrote for the Journal of the Massachusetts Dental Society in the summer of 2014. Since then, the Board has decided to schedule cases in advance, and you’re told where your case will fall in the order. But otherwise this is a fair summary of what you can expect at your first trip to the Board of Registration in Dentistry.


Screen Shot 2016-01-23 at 5.55.28 PM

Let’s say a patient has complained. You’ve received a letter from the Board of Registration in Dentistry (BORID). Your lawyer has responded with a complete explanation, and you’ve kind of forgotten about the whole thing. Then one day, you get this letter telling you that in one week the Board will meet in executive session to consider the complaint.

There’s no reason to panic. The letter is not necessarily bad news, and at worst, the Board’s new procedure will give you a better understanding of your case.

When the Board gets a complaint, it generally asks the dentist to respond and provide relevant documents. After the dentist replies, it can be months before anything happens. But eventually, the Board has to decide what to do about the complaint, and that’s when the letter will come.

In the past, the Board dealt with most complaints in open session. These would be listed on the agenda. But dentists don’t always consult the Board’s website and might not have known their case was on. The next thing the dentist would hear was either that the case was dismissed or that the Board was taking it further.

Things are different these days. Now, you are more likely to get a letter saying that the Board is going to consider the complaint against you in “executive session”—a closed hearing. You have the right to be present, to speak on your own behalf, and to make a recording or transcript. You may bring a lawyer. The lawyer is not entitled to participate actively. His or her main job is to prepare you, observe the proceedings, and advise you about your rights.

The open meeting law allows the Board to meet in executive session to discuss “the discipline or dismissal of, or complaints or charges brought against . . . [an] individual.” You would think, from this, that the Board is concerned with protecting the reputation of a dentist who may not have done anything wrong. And the closed sessions do serve that purpose. But the main goal is to preserve patient confidentiality.

It’s impossible to discuss your treatment of a patient without a risk that protected health information will be disclosed. When a specific patient isn’t involved—let’s say your dental hygienist forgot to renew her license—the Board will discuss the matter in open session.

What to Expect at the Board Meeting

The meeting opens at 8:30 a.m. at BORID’s headquarters at 239 Causeway Street in Boston. Cases are called in the order that people sign in, so get in line early and try to sign up about 15 minutes before the proceedings begin. The Board meets first in open session to discuss general business. After an hour or two, there will be a motion to enter executive session, and the public will leave the room. Depending on when you signed in, you may have an hour or more to wait.

When your case is called, you and your lawyer will sit at a desk near the Board’s conference table. You will have discussed in advance what you will say, if anything. The Board investigator will make a presentation about what regulations you may have violated and what evidence there is.

Although you’ve already received some indication of what your case is about, the investigator may have discovered facts that will come as a surprise to you. The executive sessions are recorded, so if you choose to speak, those words may come back to haunt you. If something surprises you, it’s probably better to remain silent than to blurt out an ill-considered explanation.

Although an appearance before a licensing board can be nerve-wracking—try not to worry. The large majority of cases don’t result in public discipline. Dentists frequently are in and out of the boardroom in a few minutes, smiling and shaking hands with their lawyers.

By the Number

Jeffrey Mills, the Board’s assistant executive director, was kind enough to provide the following statistics from the Board’s files regarding the period between June 1, 2013, and May 31, 2014. The Board closed 170 complaints during that time. Of these:

• 26 were dismissed

• 22 were dismissed with an advisory letter

• 69 resulted in stayed probation (non-disciplinary)

• 10 resulted in a reprimand

• 35 resulted in probation

• 5 resulted in suspension (one was summary suspension)

• 3 resulted in voluntary surrender

Only 32 percent of the complaints resulted in public discipline, which is reportable to the National Practitioner Databank. Fewer than 5 percent of the complaints resulted in the temporary or permanent loss of a license. There was only one summary suspension. That happened to be my case, and it was dismissed after a hearing, so really there were only four suspensions, or a little more than 2 percent of the cases.

Four Reasons to Show Up

With few cases resulting in serious discipline, you may wonder whether you should even bother to show up. I think you should, for four reasons.

First, the complaint you responded to may not have given you all the information about your case. The investigator may have discovered something more troubling than whatever was bothering the patient. So a complaint that seems frivolous may result in a serious charge.

Second, and perhaps most important, the investigator’s presentation is your best chance to understand what regulations you may have violated and to hear and see the supporting evidence. This information will help you inform your expert witness and prepare for a hearing. You can also see what the Board thinks of your case. The members may not agree whether there really was a violation and how serious it was. If the Board thinks it’s appropriate to impose a sanction, you will hear why they chose the particular discipline they did. You will have a sound basis to discuss with your lawyer whether to accept the discipline offered or ask for a hearing.

Third, even the Board’s investigators are capable of making a mistake. If there’s an obvious error in the investigator’s presentation, this is your chance to correct it before things progress—if your lawyer thinks that’s wise.

Fourth, and one of the best reasons to attend, is that you don’t have to wait to find out what happened. Many times, the investigator will say a couple of sentences, and the chair will ask, “Does anybody want to open a case?” If no one responds, there will be a motion to dismiss the complaint. It’s worth being in the room to hear the words, “The motion carries.”



Download a printable version here:

Journal Summer 2014_Risk Management(click to download)

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Prenuptial agreement invalid under ‘second look’ test

January 30th, 2015

joel-rosen By: Pat Murphy January 28, 2015

A prenuptial agreement that would have limited a wife’s share of marital assets in the parties’ divorce to a dilapidated home purchased during the marriage could  not be enforced, the Appeals Court has found.

The husband argued that, under the plain terms of the couple’s agreement, the wife was entitled

only to the marital home, regardless of its condition, in the division of marital property.

But the court was persuaded that, under the “second look” test adopted in 2002 by the Supreme Judicial Court in DeMatteo v. DeMatteo, a change of  circumstances during the parties’ marriage had rendered the prenuptial agreement unconscionable and unenforceable.

“If the agreement is enforced, the wife, who makes $300 per week, would be left without sufficient property and appropriate employment to support herself,” Judge Frederick L. Brown wrote on behalf of the court. “The [trial] judge’s determination that enforcement of the agreement would be unconscionable was not in error.”

The decision affirmed a judgment by Probate & Family Court Judge Amy L. Blake awarding the wife $400,000 for what the Appeals Court characterized as a “principal residence substitute.” The seven-page decision is Kelcourse v. Kelcourse, Lawyers Weekly No. 11-007-15. The full text of the ruling can be found by clicking here.

Wake-up call?

Joel Rosen of Andover represented the wife, Rebecca Kelcourse. Rosen rejected the notion that

the decision in his client’s favor is an indication that Massachusetts courts are less inclined to

enforce prenuptial agreements.

“Prenuptial agreements are pretty strictly enforced in Massachusetts,” Rosen said.  “You have to

make a very strong showing before a court is going to invalidate one.”

He added that his client’s case is instructive because it illustrates just what it takes under theDeMatteo standard before courts will substitute their judgment for the contract the parties enter.

“It’s a pretty high bar,” Rosen said. “Either you have to prove that circumstances have changed so much that they are beyond what the parties contemplated when they signed the agreement, or you have to prove that the wife is essentially going to be impoverished.”

The husband, Lawrence Kelcourse, was represented by William M. Driscoll of Chelmsford. Driscoll did not respond to a request for comment prior to deadline.


But Wellesley family law attorney David B. Feldman called Kelcourse a “very significant”

decision on the enforceability of prenuptial agreements.

“Every few years the courts need to give lawyers a wake-up call to the fact that, if the agreement is unconscionable at the time one of the parties seeks to enforce it, the courts won’t enforce it,” Feldman said.

The case underscores the point that the Probate & Family Court first and foremost is a court of equity, he said.

What attorneys need to take from Kelcourse is the understanding that a prenuptial agreement is not automatically enforceable just because both sides had an attorney and both sides entered into the contract freely with full disclosure of assets, Feldman said.

“Even when on the face of it the agreement was properly done, it’s not going to be enforceable if it’s totally unfair,” he said.

Cambridge lawyer Rackham Karlsson said the Appeals Court ruling illustrates that, if the second look shows that a party is not going to be able to support him or herself post-divorce, agreement is going to fail.

“One of the things that [the SJC] was considering in determining in whether a prenuptial agreement was valid in DeMatteo was the public policy of not putting people on public assistance,” Karlsson said. “That public policy overrides strict adherence to the letter of the agreement.”

Lawyers may be fooling themselves if they think they can draft a prenuptial agreement that will necessarily hold up under each and every circumstance, he said.

“The best we can do is express the intent [of the parties]. A prenuptial agreement has concrete terms, but those concrete terms are grounded in an intent. If the circumstances at the time of divorce are too far out of alignment with that intent, then the courts will try to step in and fix it,” he said.

Money pit

The husband is a businessman who owns and operates a marina. For five years preceding the

parties’ marriage in July 1991, they lived together in a three-bedroom residence in the marina. At the time of the marriage, the husband was in his 40s, while the wife was in her mid-20s and pregnant with the second of the couple’s three children.

Several months before their wedding, the parties rented a home in Amesbury. The husband allegedly promised the wife at the time that the rental would be temporary.

Four days before the wedding, the parties executed a prenuptial agreement that waived the husband’s and the wife’s interest in all premarital property separately owned by the other spouse. Each party was represented by counsel.

The agreement further provided that any principal residence purchased during the marriage would be deemed the wife’s separate property. The agreement made no provisions for either the payment or waiver of spousal support.

The landlord of the Amesbury home eventually agreed to sell the property. A home inspector hired by the parties determined that the house needed an estimated $80,000 to $100,000 in repairs. The wife claimed that she agreed to buy the home based on the husband’s promise that he would secure funding to make the necessary repairs.

With the wife’s consent, the parties purchased the home in 2006 for the discounted price of


Repairs were never made to the home, and the couple separated in 2010, with the husband moving back to the marina residence.


Including the residence, the marina was valued at $1.7 million. While the marina was unencumbered by a mortgage, the marital home in Amesbury was subject to a $256,000 mortgage.

Moreover, the house had deteriorated further since the parties had purchased it in 2006. In addition to having boarded-up windows, chipped paint and hanging utility wires, the property was rodent-infested and had a black mold problem. It was later estimated that the home needed

$300,000 in repairs. An appraisal conducted after separation determined that the home was worth

$190,000, which was $66,000 less than the amount owed on the mortgage.

The wife filed for divorce in August 2010. The trial judge awarded the wife, who had employment income of $300 a week, $1,352 a week in alimony.

However, Rosen said because the wife’s alimony terminated upon the husband reaching full

retirement age, and the husband was 65 at the time of trial, his client was receiving no alimony.

‘Second look’ at prenup

The trial judge also awarded the wife $400,000 in the division of marital assets.

The husband contested that award on appeal, relying on the language of the parties’ prenuptial


The Appeals Court concluded that the $400,000 award was justified under the “second look” test as a “substitute” for the principal residence the wife was entitled to under the terms of the

parties’ agreement.

Under DeMatteo, a prenuptial agreement valid at the time of execution will not be enforced at the time of divorce if, due to a change of circumstances, enforcement would leave the contesting spouse without sufficient means of support.

The trial judge found that the parties’ prenuptial agreement was valid at the time of execution, but found it unenforceable upon taking a second look in their divorce case. Specifically, the judge found that that the purchase of the principal residence and its subsequent neglect constituted a change in circumstance beyond what the parties contemplated in 1991, and that enforcement of the agreement would, therefore, be unconscionable.

The Appeals Court concluded that there was sufficient evidence to support the trial judge’s determination that the prenuptial agreement was unenforceable under the second look standard. “Crucial to this finding is that enforcement of the agreement would, as the [trial] judge noted, leave the wife ‘a house with negative equity, with documented structural issues, with documented code violations, and with needed repairs and/or renovations approximated to be upwards of $300,000,’” Brown wrote.

With the prenuptial agreement deemed unconscionable and unenforceable, Brown next examined

the trial judge’s consideration of the statutory factors for dividing the marital property.

Brown concluded that the trial judge properly applied the factors enumerated in G.L.c. 208, §34 in awarding the wife $400,000.

“The [trial] judge considered, inter alia, the wife’s occupation, opportunity for future income, age, and contribution as a homemaker, as well as the needs of the couple’s dependent children,” Brown wrote. “We find no abuse of discretion, or other error of law, in the division of assets.”


CASE: Kelcourse v. Kelcourse,Lawyers Weekly No. 11-007-15

COURT: Appeals Court

ISSUE: Was the “second look” test properly applied to declare unconscionable and unenforceable a prenuptial agreement that limited a wife’s share of marital assets to a dilapidated home purchased during the parties’ marriage?






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What to Do When Subcontractors and Suppliers Ask the Owner for Payment

September 15th, 2013

Stacks of One Hundred Dollar Bills with Small House.When owners discover that their contractor has not paid subcontractors and suppliers, anxiety immediately sets in. Contractors who are not adept at running their businesses end up with cash flow problems and operate on credit. The situation then catches up with them and they stop making payments. Suddenly the owner finds himself being contacted by subcontractors and suppliers who are demanding payment.

The law in Massachusetts is clear; a subcontractor or supplier can only collect against an owner if it records a properly perfected mechanic’s lien. Then he can only expect payment to the extent that money is owed to the contractor at the time the lien is filed. That said, the owner has the right to finish the job. If there are no funds left, the subcontractor or supplier can only go after the general contractor for payment.

Mechanic’s liens in Massachusetts are complicated. They consist of two documents: a Notice of Contract and Statement of Account. After filing these documents, the sub or supplier must file suit within 90 days, or the lien is no longer valid. Contractors and construction companies frequently fail to properly perfect or record their liens. If this occurs, they may be dismissed.

Generally, in MA, liens must be filed within 90 days of when the general contractor or someone working through him was last at the job. If an owner pays subs during the period that others can still record liens, he “pays them at his peril.” For that reason, the owner should record a Notice of Termination with the Registry of Deeds. That starts the clock running and all liens must be filed within 90 days of the recording.

At that point, the owner has a decision to make. Should he file a motion to dismiss the lien because no money is owed to the general contractor, or negotiate with the sub or supplier and pay them something to dissolve the lien? Unfortunately, the answer is, it depends.

In order to have a lien dissolved, your lawyer has to file an application to dissolve the lien with the court, and schedule a hearing. The whole process may take ten hours or more of your attorney’s time. As with any matter before a judge, there is no guarantee that the decision will go your way, even if the facts are on your side.

If the sub or supplier will agree to a smaller amount to pay the general contractor’s debt, it may be worth it to pay and have him sign a release. This may be a preferable and perhaps the only option if the subcontractor still has work to do, or if additional supplies are needed from the same supplier. It is generally more expensive to hire someone new to come in and complete work that has been started by someone else.

On the other hand, the amount owed may be so large that it is more economical to fight it out in court. If money is still owed to the general contractor, then that amount will be distributed pro rata to the subs who have filed properly perfected liens. Unless one can get all of the subcontractors to agree, it is better to obtain a court order decreeing the amount owed and how it should be distributed.

It is extremely stressful for an owner when subcontractors and suppliers start knocking on his door. Given the complexity of the situation, it is advisable for an owner to contact a construction attorney to determine how to best resolve the matter.

-Andrea Goldman


When is your construction employee entitled to the Prevailing Wage?

March 15th, 2012

Not everyone who works on a public construction project in Massachusetts has to be in a union.  However, to prevent ordinary workers from undercutting the unions, non-union shops have to pay their employees approximately what union workers make.   Prior to the start of any public works project, a list of the jobs which are to be employed on the project is submitted to the Director of the Department of Labor Standards.  The Director then determines a rate of wages for certain classifications of jobs.  The awarding authority is then furnished with a schedule of such wages and updates these wages on a yearly basis until the project is complete.  This higher hourly rate is called the prevailing wage and is mandated by the Massachusetts Prevailing Wage Laws, G.L. c. 149 §27.   

If you are in the construction business, you want to pay your workers what the law requires.  A basic understanding how workers should be classified under a Director’s schedule of wages is therefore extremely important.   Failure to correctly classify workers can expose employers to significant fines and expensive lawsuits.  A worker who is not paid the appropriate prevailing wage has the statutory right to bring a lawsuit in his or her own name after initially filing a complaint with the Attorney General.  If successful, the employee is entitled to mandatory treble damages for any lost wages, even if it is the employer’s first offense and/or even if the employer’s violation was unintentional. 

For the most part workers will fall neatly under one of the enumerated categories of jobs on the director’s schedule of wages; however, some workers, despite their job title, perform duties which make it difficult to determine whether or not they should be paid the higher prevailing wage.  For example, workers who deliver materials which are not used in road construction do not generally fall under one of the Director’s classifications.  However, when those same workers are in some way “engaged in construction activity” in connection with a public works project, then regardless of their job title, they may be entitled to the prevailing wage.

While there is no bright line rule for an employer to know whether an employee is “engaged in construction activity,” courts have interpreted this phrase as requiring that there be a “significant nexus between the employee’s work and the site of the construction project.”   In other words, regardless of what your employee’s job title may be, an employer should always ask: What exactly is my worker required do at the public works site?   If your employee is required to perform any type of labor on site or in connection with the construction project, that employee should most likely be paid the prevailing wage.   The Department of Labor Standards publishes annual topical outlines which are useful to employers seeking guidance on specific worker classifications. The most recent can be found at 

Peter Fisher


Masssachusetts Data Privacy Update

February 29th, 2012

Most businesses that handle “personal information” of Massachusetts’ residents (i.e., a resident’s name and financial information, such as driver’s license, credit card number or social security number) must satisfy additional requirements of the Massachusetts data security regulations (201 CMR 17:00, et seq.) by March 1, 2012.  The regulations, which took effect March 1, 2010, require businesses to have adequate protections in place to ensure that such personal information is not disclosed or used in an unauthorized manner.

Businesses must take further steps to comply with the regulations by ensuring that their service providers are also in compliance by March 1, 2012.  Specifically, such businesses must have investigated the adequacy and appropriateness of service providers’ data security policies and practices.  In addition, they must have contracts in place which demonstrate that they are in compliance with the regulations. Service providers may include office cleaning services, payroll companies, internet servers or host providers, or billing companies, as well as others.

Companies affected by this law should check their contracts with their service providers to determine whether the contracts comply with the regulations.  If not, such contracts should be amended as soon as possible.  Simply receiving a letter from your services providers stating that they are in compliance is not sufficient.  It is advisable that the contracts with service providers include additional language to protect your business, such as the following:

  • Include language allowing you the right to audit the service provider’s compliance with the regulations.
  • Require the service provider to inform you of any breach of the regulations
  • Include a clause that requires your provider to indemnify (pay you back) if a claim is made against you as a result of their actions.
  • State that they must return or destroy personal information upon contract termination.
             -by Coale Parker

How to Avoid Being Sued After You Fire an Employee

February 24th, 2012

Employers must be sensitive to the emotional reactions of employees when they have been fired.  An employee who realizes he may have played a part in his separation will respond differently from an employee who comes to the conclusion that he was discriminated against or fired illegally. There are steps an employer can take to prevent claims for unlawful termination.

When an employee is terminated for unsatisfactory performance, it should come as no surprise.  Unless the performance is egregious, the employee should be notified that his performance must be improved, with guidance as to how to reach specific goals.  This is not a legal requirement, but in most cases, it is more efficient to help an employee correct mistakes rather than replace him.  A better atmosphere in the workplace is created generally, and the employee has been warned if there needs to be a termination later on.

One rule is to always document discussions regarding opportunities for improvement. These interactions should be noted in the personnel file shortly thereafter to have a record of what was said.  It’s a good idea to have the employee sign the written document to show he has received it, and he should definitely receive a copy.

Be consistent. Think about chances you have given other employees to improve and why.  Make sure you provide those same opportunities to employees in similar situations and carry through.  Do not tell an employee that he has ninety days to improve, and then terminate him less than one month later.  Be careful not to create the impression that the employee cannot be fired during the probationary period.  Nothing in these conversations should be construed to change the at-will relationship.  Train your managers so that they are aware of how to deal with performance issues with their staff. Your managers represent the company and are the direct communicators with the employee.   For that reason, they should be given guidelines as to how to deal with problematic employees.

If it feels wrong, it probably is.  Place yourself in the employee’s shoes.  How would you react if you were told you were being terminated?  If you would be surprised, then more steps should be taken before you fire the employee.  Finally, seek legal advice before taking action.  If you are uncertain about the legality of the termination, it makes sense to talk to someone who deals with these situations every day.

–Kavita Goyal