Must employers keep workers cool?

While there are guidelines for workplace temperatures in Massachusetts, there are few requirements, such as the requirement that workplaces be heated from Oct 15 to May 15. [See Mass GL c 149, s 13.] Proper heat ranges vary but here is what they look like (in degrees Fahrenheit): Foundaries, 50-60; Factories, 60-62; Machine shops, 60-62; Public buildings, 60-68; Restaurants, 62-66; Warehouses, 62-65; Theaters, 62-65; Stores, 65; Offices, 66-68; and Schools, 66-68 [Source: Your rights on the job, 5e, by Robert Schwartz (Labor Guild of Boston, c 2008), pg. 38.] Although it appears as if there's an upper "limit," those ranges apply between Oct 15 and May 15. No law or regulation requires employers to provide air conditioning for their employees if temperatures exceed that upper limit during the summer. If temperatures in a workplace become unbearable, making the working conditions unhealthy or unsafe, workers can complain to the local board of health or to OSHA. To find out how to file a complaint with OSHA, link to http://www.osha.gov/as/opa/worker/complain.html To read Mass GL c 149, s 113 at http://www.malegislature.gov/Laws/GeneralLaws/PartI/TitleXXI/Chapter149/Section113

Comments Sought on Proposed Changes to Superior Court Rules

Through September 2, 2011, the Superior Court is soliciting comments on proposed changes to Rule 9A and proposed new rule 30B:

"Chief Justice Barbara J. Rouse of the Superior Court invites comments on proposed (1) changes to Superior Court Rule 9A(b)(5)(ii) that would require a party opposing a motion for summary judgment to cite to pleadings, depositions, etc., in support of an opposition to a motion for summary judgment; and (2) a new Superior Court rule on "Certification of Expert Disclosures" (Proposed Superior Court Rule 30B), which would require that experts who will testify at trial sign the answers to expert interrogatories certifying that the answer accurately states the subject matter(s), the substance of the facts and opinions, and a summary of the grounds for each opinion, to which the expert is expected to testify at trial."

New UPC and Rogers forms

The Mass. Probate and Family Court has issued new forms for Guardianship and Conservatorship, effective June 30, 2011, as both fillable and non-fillable PDFs.

Also, last week the court issued Standing Order 4-11: Administrative Process for Uncontested Rogers Reviews and Extensions, which deals with the administration of antipsychotic medication. The accompanying forms for processing uncontested Rogers matters, effective July 1, 2011, are now available.

SJC Rule 4:02 amended effective September 1

A new subsection (10) has been added to SJC Rule 4:02 effective September 1, 2011. The new subsection reads:

(10) Residential Addresses Confidential
Residential addresses disclosed on registration statements, except those designated as the registrant's place of business, shall be treated as confidential and shall be used by the Board and by Bar Counsel only for the purpose of communicating with registrants or otherwise in the course of the business of the Board or Bar Counsel. Other than in the course of such business, neither the Board nor Bar Counsel shall disclose any such residential address to any third party unless directed to do so by order of this Court for Suffolk County. 

New BBO Rules

The Board of Bar Overseers Rules have been amended effective September 1, 2011. There have been two changes:
Remove Rule 3.54 and replace with a new Subchapter G: Recusal.
Add new Section 4.5B: Taking out-of-state depositions pursuant to subpoena

The text is available at http://www.lawlib.state.ma.us/docs/BBORulesAmendments.pdf.

Some new & revised District Court's Criminal Model Jury Instructions

District Court has added a number of new & revised criminal jury instructions: http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/criminal/index.html

Eviction Storage Law Limits Distance of Storage Facility

Massachusetts' eviction storage law, MGL c.239, s.4 was amended effective March 16, 2011 by St.2010, c.393. The old law said, in part, that tenants' property 

"shall be stored with the licensed public warehouser identified in the notice provided to the defendant pursuant to section 3, except that the officer shall store the property with a warehouser or other storage facility of the defendant’s choosing if the defendant notifies the officer of his choice in writing at or before the time of removal of the property."

The new law adds a sentence to s.4(a) regarding the distance of a storage facility: 

"the term 'warehouser or other storage facility' shall mean a public warehouse licensed and bonded pursuant to section 1 of chapter 105, located in the commonwealth and within a 20 mile radius of the land or tenements from which the personal property is removed." 

Crowd Manager Training Program Online

On June 1, 2011, the need for Certified Crowd Managers at every nightclub, dance hall, discothèque or bar, with an occupant load of 100 persons or more became effective in accordance with the state regulation .

For further information, see the State Fire Marshall's website.

Can the second and third cars in line proceed through a stop sign?

This is one of the most common questions we get. People who learned to drive in Massachusetts some years ago were taught that it was OK, and don't quite believe that the law (MGL c.89, s.9) says otherwise. Happily, the Boston Globe printed a column this weekend, Some old habits aren’t right, or safe, anymore, that spells it out and quotes the experts. So, although it may have been the law "in the 1960s and early 1970s," now every car must stop when they are "at the point nearest the intersecting roadway."   

Giving a Caregiver Authorization to Make Decisions for Your Children

MGL c.201F provides a mechanism for parents to authorize a caregiver to make educational and health decisions for their children: the Caregiver Authorization Affidavit. A caregiver is defined as "an adult with whom a minor resides," and there are, of course, many reasons why a parent may need their children to live with someone else for a period of time. The authorization is good for up to two years (you specify the time period) and does not have to be filed with the court. Also, it does not affect the parent's rights to make decisions for the child. In fact, if the decisions of the caregiver and parent conflict, the parent's decision will "supersede the decision of the caregiver."

The Massachusetts Probate and Family Court provides directions for filling out the form, and you can read more about its uses at the Massachusetts Estate Planning, Probate and Elder Law blog, Mass. Legal Help's Caregiver Educational and Medical Authorization, and the Department of Education, which provides helpful information for schools on how to manage caregiver authorizations. You'll find a link to the form on our website as well. 

Probate and Family Court Standing Orders

We've added the text of all currently effective Probate and Family Court Standing Orders to our site. The court has added three new standing orders in the past few weeks, which brought the need for a centralized page to our attention. The new orders:

• Standing Order 1-11: Probate and Family Court's Use of Information Contained in the Court Activity Record Information (CARI) Report, effective June 1, 2011
• Standing Order 2-11: Probate and Family Court's Use of Information Obtained by the Department of Children and Families, effective June 1, 2011
• Standing Order 3-11: Modification Pilot Program for IV-D cases in the Bristol Division of the Probate and Family Court, effective May 16, 2011

Hampden County Bar's "Day of Justice" Offers Programs on Key Issues

The Hampden County Bar Association's Day of Justice progam today is offering exciting workshops on current issues of interest to residents from 1-4 pm at the Old First Church at Court Square in Springfield, MA. Workshops are free and include:

• What to do When Stopped by Police?
• When Your Landlord is Foreclosed Upon: What a Tenant Needs to Know
• Options for Homeowners Facing Foreclosure
• Getting Help with Child Support Issues
• I Have Been Fired! Now What?
• Option for Immigrants Who are Survivors of Crime and Abuse.

For more information, contact the bar association at (413) 732-4648.

Open Court Project Puts Quincy District Court Live on Internet

Beginning today, the Quincy District Court's First Criminal Session's proceedings will be streamed live over the Internet. The Open Court project is an experiment in improving access to court proceedings. "At the outset, a video camera has been set up to stream the court’s First Session courtroom. Anyone on the internet may view these live proceedings, alongside daily archives. A Wi-Fi network has also been set up for journalists and bloggers who wish to transmit stories, post reports, and otherwise go about their online business directly from the courtroom."

The project is beginning with First Session proceedings, which include "arraignments, new summons arrests and default removals."  According to the Boston Globe, "John Davidow, executive editor in charge of new media at WBUR, who developed the idea for the project.... said that during the next year, the goal is to move the experiment outside the first session courtroom. He said the hope is to stream criminal and civil trials and small claims cases as well."

More information on how the project will function within the courtroom is available at the Boston Globe and the Open Court site. Twitter hashtag: #opencourtus.

SJC Order Re: Bar Discipline Cases Extended

The SJC's "Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases," which would have expired on April 1, 2011 has been extended until April 1, 2013. The text of the Order is below:

Order Establishing a Modified Procedure for Appeals in Bar Discipline Cases

To expedite the resolution of bar discipline appeals in this court, while ensuring that the rights of all litigants involved in such cases are protected, the Supreme Judicial Court has approved a pilot program as follows. There shall be a modified procedure for appeals from decisions of the court's single justices in bar discipline cases. All bar discipline cases entered in the Supreme Judicial Court for Suffolk County after April 1, 2009 shall be subject to this order, and to the extent that its provisions are inconsistent with the Massachusetts Rules of Appellate Procedure, this standing order shall govern. This following pilot program will be conducted for a period of two years, or until such other time as the court orders:

(a) A party aggrieved by a final order or judgment of the single justice may appeal to the full court for review of the order or judgment. A notice of appeal must be filed with the clerk of the Supreme Judicial Court for Suffolk County within ten days of entry of the final order or judgment for which review is sought. An appeal shall not stay any order or judgment of suspension or disbarment unless the single justice or this court so orders.

(b) The appeal shall initially be presented to the full court on the record that was before the single justice, together with a preliminary memorandum from the appellant and, if requested, from the appellee. The appellant shall be responsible for preparing and filing a record appendix containing copies of all the relevant papers from the single justice proceeding, including but not limited to the hearing committee report, appeal panel report, if any, board of bar overseers memorandum, the order or judgment of the single justice, and any memorandum of decision of the single justice. The appellant's preliminary memorandum, which shall not exceed twenty pages, double spaced, shall set forth the relevant background and summarize the appellant's arguments on appeal, with citations to applicable authority. It is incumbent on the appellant to demonstrate in this memorandum that there has been an error of law or abuse of discretion by the single justice; that the decision is not supported by substantial evidence; that the sanction is markedly disparate from the sanctions imposed in other cases involving similar circumstances; or that for other reasons the decision will result in a substantial injustice. Nine copies of the record appendix and preliminary memorandum shall be filed with the clerk of the Supreme Judicial Court for the Commonwealth within thirty days after the appeal has been docketed in the full court; one copy of the record appendix and memorandum shall be served on each other party. In the case of multiple appellants or cross-appellants, each appellant shall be permitted to file a preliminary memorandum within this time frame, but in such a case, the appellants shall submit, and share the cost of, a single record appendix. If requested by the court, the appellee may file a responsive memorandum, not to exceed twenty pages, double spaced, within twenty days of the court's request. Extensions of time for filing memoranda will rarely be granted and should not be anticipated.

(c) Based on its review of the parties' memoranda and the record appendix, the full court may affirm, reverse, or modify the order or judgment of the single justice without oral argument; alternatively, if any three Justices so vote, the court may direct the appeal to proceed in the regular course, in which case the parties will be permitted to file full briefs conformably with the Rules of Appellate Procedure and the case will be scheduled for oral argument.

(d) The Rules of Appellate Procedure shall apply to appeals covered by this standing order to the extent they are not inconsistent with this order.

(e) The clerk of this court for Suffolk County shall provide a copy of this standing order to the respondent attorney or his or her legal representative in each bar discipline case at the time the case is commenced in the county court, and shall remind the parties of their obligations under the order at the time she notifies them that the record has been assembled for appeal.

New and Amended Appeals Court Standing Orders

Last week, the SJC approved two new and two amended Appeals Court Standing Orders, effective June 1, 2011. Since these don't yet appear on the Appeals Court site, we've added a page on Appeals Court Standing Orders which links to all of them.

Appeals Court Pilot Program Requiring Appellants to File Docketing Statements in Civil Appeals

Effective June 1, 2011, the Mass. Appeals Court will begin a pilot program requiring appellants to file docketing statements in all civil appeals. According to the court:

The docketing statement will provide the court with important background information that will be useful not only when the case is entered and screened, but also while it is under consideration. The pilot program, in turn, will help us to refine the format of the form and to determine if any adjustments are required. During the course of the pilot, the docketing statement will be posted on the Appeals Court website as a PDF form that will have drop-down menus, calendars, and text that will automatically fill in certain information. Attorneys and litigants will be able to complete and save the form and then file it by e-mail.

A sample of the form is included in the notice, but it does not include the drop-down menus and other advanced features at this time.

Obscenity Law Changed

On April 11, Gov. Patrick signed H3318, which amends the law regarding disseminating obscenity to minors, effective immediately. Section 19 rewrites MGL c.272, s.28 to read:

Section 28. Whoever purposefully disseminates to a person he knows or believes to be a minor any matter harmful to minors, as defined in section 31, knowing it to be harmful to minors, or has in his possession any such matter with the intent to disseminate the same to a person he knows or believes to be a minor, shall be punished by imprisonment in the state prison for not more than 5 years or in a jail or house of correction for not more than 2 1/2 years, or by a fine of not less than $1000 nor more than $10,000 for the first offense, not less than $5000 nor more than $20,000 for the second offense, or not less than $10,000 nor more than $30,000 for a third or subsequent offenses, or by both such fine and imprisonment. A person who disseminates an electronic communication or possesses an electronic communication with the intent to disseminate it shall not be found to have violated this section unless he specifically intends to direct the communication to a person he knows or believes to be a minor. A prosecution commenced under this section shall not be continued without a finding or placed on file. It shall be a defense in a prosecution under this section that the defendant was in a parental or guardianship relationship with the minor. It shall also be a defense in a prosecution under this section if the evidence proves that the defendant was a bona fide school, museum or library, or was acting in the course of his employment as an employee of such organization or of a retail outlet affiliated with and serving the educational purpose of such organization.

This law has been a work in progress. In 2010, in Commonwealth v. Zubiel, 456 Mass. 27, the court held that "'[M]atter,' as defined in [the previous version of] G. L. c. 272, § 31, does not encompass electronically transmitted text, or "online conversations," for the purposes of a prosecution for attempted dissemination of matter harmful to a minor under G. L. c. 272, § 28."

In response, a new law was enacted, St.2010, c.74, s.2-3, which expanded the prohibition on the dissemination of obscenity effective July 11, 2010. It  included, in part, "electronic mail, instant messages, text messages, and any other communication created by means of use of the Internet or wireless network."

In October, 2010, a federal court issued a preliminary injunction barring enforcement of MGL c.272, s.28 and s.31 in American Booksellers Foundation for Free Expression v. Coakley, holding that the law was overly broad and violated the First Amendment.

This new law, then, was enacted in response to those concerns. More information is available at Mass. Law About Obscenity.

Medication Errors and Pharmacy Complaint Forms

Bostonchannel.com reported this morning an incident of a pharmacy's prescription error and said that the customer would be filing a complaint with the Pharmacy Board. That led us to wonder how a consumer would file such a complaint. The Commonwealth's Health and Human Services webpage has an explanation of the Complaint process, as well as links to the Dept. of Public Health's complaint forms for Pharmacy Board,  Dental, Nursing, Genetic Counselling, Physician Assistant and more.

Information on this and other health care issues is available at Mass. Law About Health Care.

Pilot Program at Springfield District Court Starts Friday

A Pilot Program Suspending Certain Requirements of Joint Standing Order No. 1-04 is effective April 1, 2011  at the Springfield District Court for certain civil money damage actions. In actions where all parties are represented by counsel, "parties and their counsel may avoid appearance in court for the conduct of a Case Management Conference upon the timely filing of a joint certification that the purposes of such conference have been achieved by the parties without such appearance." The full text of Joint Standing Order 1-04 is available from Mass. District Court Standing Orders.

8th Edition MA Residential Code, effective February 4, 2011

"The 8^th edition residential code (for one and two family dwellings and townhouses three stories and less) became effective with the February 4, 2011 Massachusetts Register. The 7^th edition residential code will remain in effect concurrently with the new 8^th edition until August 4, 2011. During the concurrency period a project can be designed using either edition. The deadline for filing a permit application for projects designed using the 7^th edition is August 3, 2011.

The 8th edition residential code is comprised of the International Residential Code 2009 (IRC) and a separate package with Massachusetts amendments. The IRC is sold by the International Code Council www.iccsafe.org and the Massachusetts amendments package will be available at the State House Bookstore (617-727-2834)."