The Interim Enforcement Guidance issued refers to the standard promulgated on September 23, 2017. Initially, rather than issue citations for violations of the standard, OSHA’s compliance officers were instructed to assist employers making good faith efforts to comply with the new standard for the first 30 days of its enforcement. With the new Guidance issued on October 19, full enforcement of the new standard was rolled out on October 23. Accordingly, employers in the construction industry, and particularly those where substantial silica exposures may be encountered, should be cognizant that full enforcement of the standard will now be enforced by compliance officers.
Because prolonged and intense exposure to crystalline silica is known to cause cancer, and crystalline silica is byproduct of many construction activities and materials, such as concrete, rock, mortar and sand, OSHA’s Respirable Crystalline Silica in Construction Standard is intended to limit such exposures. Many safety measures can be installed and protective equipment can and should be used to avoid intense or prolonged exposures to crystalline silica. Contractors frequently involved in operations where such exposure is likely should be careful to provide all necessary safety measures, safety equipment and personal protective equipment necessary to comply with the new standard.
If you have questions regarding OSHA’s new guidance, your compliance with other OSHA safety standards, or in connection with your rights after a citation has been issued, you are well-advised to consult with counsel familiar with OSHA matters.
The dispute centered around four different provisions of the Act.
First, Section 15B(4)(iii) requires landlords seeking to retain all or a portion of a security deposit to submit a written itemized list of damages to the rental unit, including precise detail of the nature of the damage and the necessary repairs and copies of estimates, bills, invoices, receipts, or other evidence to validate the amount deducted, sworn to by the landlord under the pains and penalties of perjury. Failure to comply with the requirements of Section 15B(4)(iii) forfeits the landlord’s right to deduct any amount from the security deposit for damage or repairs.
Second, Section 15B(6)(b) states that a landlord loses its right to retain any portion of the deposit for any reason, if the landlord fails to furnish the itemized list of damages in compliance with the requirements of the Act.
Third, Section 15B(6)(e) states that a landlord cannot retain any portion of the deposit for any reason if the landlord fails to return the deposit, or any balance after deductions, within 30 days after termination of the tenancy.
Finally, Section 15B(7) provides triple damages, interest, court costs, and attorneys’ fees to successful tenants where their landlord violated Section 15B(6)(a), (d), or (e).
The Federal District Court of Massachusetts awarded the tenant damages in the amount of his security deposit under Sections 15B(4)(iii) and 15B(6)(b), but denied an award of triple damages. On appeal, the First Circuit Court of Appeals submitted a certified question to the SJC, requesting clarification on the treble damages provision under Section 15B and whether a landlord’s violation of the itemized list requirement, which forfeits the landlord’s right to retain any portion of the deposit for any reason, also constitutes a violation of the Act.
The SJC answered “no” to the Circuit Court’s question. In its decision, the SJC ruled that the triple damages provision under Section 15B(7) does not apply to claims for violation of the itemized list requirement of Section 15B(4)(iii) or to forfeiture of the deposit under Section 15B(6)(b). The SJC did find, however, that improper deductions under the first sentence of Section 15B(4), or the failure to return a deposit or account for any portion within 30 days, would constitute violations entitling a tenant to an award of triple damages and attorneys’ fees.
If you have questions regarding whether your security deposit practices comply with Massachusetts law, contact experiencedlandlord counsel to evaluate your practices and to limit your exposure.
The Boston Bar Foundation (BBF) Board of Trustees elected Strang Scott partner Chris Strang to the office of Treasurer for a second term. Chris’ service to the BBF as Treasurer continues his long-term committment to the organization, where Chris has served in many capacities, including as a member of the Executive Committee, the Board of Trustees, the Society of Fellows, the Young Lawyers Advisory Council and many ad hoc, fundraising or event planning committees.
The BBF is the charitable arm of the Boston Bar Association. It raises money to provide grants for many community organizations that further the mission of the BBF. These include providing legal services and access to justice to those in need, as well as a variety of public service activities. To learn more, please visit the BBF: http://bostonbarfoundation.org/
We all enjoyed meeting our community leaders, area residents and local business owners, as well as catching up with several old friends and colleagues. The turnout was outstanding and everyone left a bit heavier than when they arrived.
This post updates our previous post regarding proposed taxation of revenue generated by Airbnb rentals. Despite prior consideration of an Airbnb tax as early as July 2017, the proposal was dropped from the fiscal year 2018 budget proposal. Earlier this year, the state Senate pushed to apply Massachusetts’ state hotel tax, and local levies, on private residences rented for short stays by Airbnb and its competitors, but lawmakers in the House could not agree on a budget measure.
Although the so-called Airbnb tax will not be included in the 2018 fiscal year budget, Representative Aaron Michlewitz, a leader in the efforts to install an Airbnb tax, remains confident that the legislature will institute a tax plan for short-term housing. It seems all parties concerned — from Governor Charlie Baker to industry leader Airbnb — agreed that short-term housing in Massachusetts should be subject to some taxation along the way. Thus far, however, no consensus could be reached to keep the tax on the 2018 budget proposal. Expect more updates on this matter as they develop in state government.
In a recent decision in Dallas, Texas District Court, a jury awarded $1,000,000 in damages to a wedding photographer due to defamatory statements published in the media, and in particular on internet sites and social media.
Every business owner fears the damage that negative comments made online can do to their reputation. With the advent of social media and ratings websites, any post can take on a life of its own, making its way around the world. In many cases there’s not much a business owner can do to combat negative opinions. However, when the posts are actually false and defamatory there may be recourse.
In this instance, an unhappy bride and groom went public with their dispute over a $125 fee with their wedding photographer. Instead of sticking to the facts, a jury found they went far beyond that. The jury’s opinion was that many of the statements, including that the photographer stole money and did this to many other customers, were malicious and defamatory. The photographer put on evidence of severe decline in revenue immediately following the statements. The jury compensated her $1,000,000 as a result.
While the case remains subject to appeal, it gives hope to business owners that enraged customers might think twice before getting carried away with online retribution. If false and defamatory statements are posted about your business online, you should consult with an attorney that practices online business defamation law to consider your options.
As discussed in one of our previous posts , Massachusetts legislators have continued to discuss imposing a tax on short-term rental companies like Airbnb. Recently, the Massachusetts Senate decided to proceed with Governor Charlie Baker’s proposal to expand the room occupancy tax to include short-term rentals, but not without a few modifications. Back in January, Governor Baker proposed to expand hotel taxes to include users of services like Airbnb who rent out private rooms for more than five months (150 days) per year. The proposal stated that the 5.7% state tax – and up to 6% local tax – should apply to all providers of “transient accommodations.”
The Senate’s proposal, which was published in late May, adopts and expands upon Governor Baker’s initial proposal. Instead of only applying the room occupancy tax to private rooms that are rented out for more than five months per year, the Senate proposes imposing the tax on all “transient accommodations.” In contrast to Governor Baker’s proposal, which suggested encompassing long-term Airbnb providers under the definition of “hotels,” the Senate’s proposal introduces an entirely new category of housing that would be subjected to the room occupancy tax. “Transient accommodation” would encompass all “owner-occupied, tenant-occupied or non-owner occupied property . . . that is not a hotel, motel, lodging house or bed and breakfast establishment” where at least one room is rented to an occupant and all accommodations are reserved in advance. This new category of accommodation would expand the application of the room occupancy tax to all Airbnb-type services, regardless of their frequency. As a result of this proposed expansion, the state Senate’s proposal is projected to raise $18 million in 2018.
In a television ad Airbnb declared its support for the proposed rental tax in Massachusetts. Although similar ads ran last summer, the new ad reaffirms the company’s “commit[ment] to working with Massachusetts on new, common-sense home sharing rules. We want to collect and pay taxes for our hosts and protect affordable housing. Together, we can make sure all of Massachusetts benefits.” At this point it appears that at least some tax will be levied on companies like Airbnb in the very near future. The effect on hosts and customers remains unknown. Strang Scott will continue to follow the progress of the proposed tax.
Nicole Rushovich, a rising third year student at Boston University Law School, will spend the summer working as a summer associate in Strang Scott’s Boston office. Nicole obtained her B.A. at the University of Colorado at Boulder, earning summa cum laude honors with a dual degree in Psychology and Political Science. While there she was a member of the Delta Epsilon Iota academic honor society, and wrote a thesis on negative political advertisements and effects on system-based beliefs. She also enjoyed honing her French during a semester in Paris at the Institut D’Etudes Politiques. After college she spent some time working as a legal assistant and paralegal in Colorado law firms.
Since starting at Boston University School of Law, Nicole has excelled both academically and in extracurricular activities. She participated in the ABA Negotiation Competition, advancing to be a school representative in the regional rounds. She excelled in the Stone Moot Court competition, advancing to the honors Albers Moot Court competition. She spent last summer as a legal intern at The Wilderness Society. During the past year she served as a student attorney at The Environmental Law Practicum, working on environmental justice litigation, as well as working as a legal intern for the Solicitor’s Office at the Department of the Interior.
In her very limited spare time Nicole enjoys hiking and Corepower yoga. She is excited to join Strang Scott for the summer to learn the practice of business litigation and commercial real estate law.
The Massachusetts Appeals Court recently upheld a trial court’s award of damages to a subcontractor in spite of a “no damages for delay clause” in the subcontract.
On a public construction project, the subcontractor entered into a subcontract that contained a clause making extensions of time the exclusive remedy for delays to the subcontractor. The project coordination did not go according to the original schedule, and the subcontractor was not able to start on various phases at the expected times. Despite this, the general contractor did not grant the subcontractor any time extensions. Instead, it insisted that the subcontractor increase the onsite labor, along with other accommodations.
The subcontractor filed suit, seeking payment for additional labor costs incurred due to the site not being ready for that trade’s work and related inefficiencies. The court awarded such damages, finding the failure to grant warranted time extensions to be a “deprivation of remedy.” In other words, the general contractor could not use the defense of the “no damage for delay” clause if it itself did not abide by the terms of the clause.