After My Boss Hired Me, He Sent Me a 1099 And Told Me I Was An Independent Contractor – Is That Legal?

worker-classificationThe answer is, probably not. Massachusetts law defines when an employee can be paid as an independent contractor, and when he or she must be paid as an employee. See G.L. c. 149 §148B. If you work under the direct supervision and control of your boss, in the same line of business that your boss performs, you are likely required to be paid as an employee.

For example, if you were hired as a plumber, go where and when your boss tells you to go, and your boss is a plumber, then you are likely an employee and not an independent contractor. In that case, your boss cannot pay you as an independent contractor. If he does, he is likely in violation of Massachusetts law.

When an employer wrongfully pays an employee as an independent contractor, it is called employee misclassification, and it can entitle the wronged employee to significant damages. Often times, an employee can recover two or three times his damages and attorneys fees. If you feel you have been misclassified as an independent contractor, you should contact me immediately. If you are an employer and have questions about employee classification, you should contact me to ensure you are in compliance and avoid a costly mistake.

New Overtime Rules Mean A Lot More Employees Will Qualify for Overtime

US-dept-of-laborIf you are an employee working in a managerial, administrative, or professional position, you likely know two things: 1) your employer can pay you a salary, and 2) when you earn a salary, you don’t get paid for overtime. What you may not know is that the Department of Labor sets a minimum salary that an employer must pay in order to avoid having to pay you overtime. Currently, that minimum is only $23,660 annually. See 29 CFR Part 541. However, Department of Labor just increased that minimum to $47,476, effective December 1, 2016. See Department of Labor’s Summary of the Final Rule.

What this means is that formerly salaried employees earning less than $47,476 will have to be paid hourly and be entitled to overtime as of December 1, 2016. For many employees, including low-level managers at fast food chains, retail stores, and restaurants, this change should translate into a tremendous pay boost. For employers, this new rule could be a huge headache.

If you are an employee and believe that you are being unfairly denied overtime wages, you should call my firm. If your employer is violating the Fair Labor Standards Act or the Massachusetts Wage Act, you may be entitled to double or triple your back pay, and in some cases, attorneys fees.

If you are an employer and have questions about how these new regulations will affect your business, you should call my firm. Federal case law makes clear that if the employer makes a good faith effort to comply with the Fair Labor Standards Act by obtaining the advice of counsel, the employer can avoid paying damages. Make sure you are protected.

Investigating Automobile Accidents – the First 24 Hours Is Critical

auto investigationWhenever my firm receives an automobile accident referral, we act immediately, because time is critical. In a serious automobile accident, the early stages of investigation are so important because evidence fades or gets destroyed over time. Seemingly small details, like scorch marks, gouges, or tire marks in the road are valuable evidence that needs to be examined and photographed by experts.

I once represented a person who was so severely injured in a motorcycle accident that he spent weeks in the hospital. Although the police department had an on-site investigator that did his best to preserve evidence and perform an accident reconstruction, that officer only did accident reconstruction on a part-time basis. He made some mistakes in taking measurements of skid marks that ended up being central to the case. Unfortunately, that referral came to us well after the accident took place, so by the time we were able to get our own investigator, the skid marks were all but gone. We still managed to get a good result in the case, but that was much more difficult because we did not have access to the accident scene immediately after the accident.

If you’ve been injured in an automobile accident, hiring an experienced attorney is so important. Many attorneys dabble in auto accident claims, but few have the practical experience of investigating and representing injured people in serious accidents. I have been doing this for over ten years, and have prosecuted these types of cases at the highest levels. If you need help, please contact me.

Uninsured Motorist Coverage Is One of the Best Ways to Protect You and Your Family in an Auto Accident

are you coveredWhile carrying car insurance in Massachusetts and Rhode Island is mandatory, the coverage that motorists are required to have is not likely to be sufficient to protect you if you are injured in an accident. The minimum requirement is only $20,000 per person in Massachusetts and $25,000 per person in Rhode Island. With rising medical costs and typical emergency room bills exceeding thousands of dollars, that kind of coverage is hardly sufficient. To make matters worse, not everyone is diligent in paying their insurance bills, and injured motorists often find themselves in situations where the at-fault party does not have any insurance coverage at all.

How can you protect yourself? Purchase uninsured and under-insured coverage. These coverages protect you, the policy holder, in the event that another person causes you injury and either does not have sufficient coverage, or does not have any coverage at all. Adding these coverages to your auto insurance often does not add all that much expense to your annual automobile insurance bill, but adds tremendous protection for you and your family. We recommend at least $100,000 of coverage, but $250,000 to $500,000 is definitely worth the premium.

If you do find yourself in a situation where you have been injured and the other party does not have sufficient coverage, contact an experienced lawyer immediately. Kevin DeMello of KPDM Law, LLC has over a decade of experience handling these types of cases, and has built a track record of success. If you need help, please do not hesitate to contact us.

Attorney Kevin DeMello Offers Expertise in Personal Injury, Real Estate, and Business Law

portraitAfter announcing the launch of my new law firm, KPDM Law, LLC, I have received a great outpouring of support from clients, friends, and family. I thank you all for your support. I have been asked frequently why my firm specializes in the areas of personal injury, real estate, and business law. The answer is that these are all areas that I have developed expertise in my ten-plus years of practice.

In the personal injury area, I have represented hundreds of people who were injured as a result of another’s negligence. These cases include car and truck accidents, slip and fall, construction site and industrial accidents. I have represented clients at the highest levels, including before the Massachusetts and Rhode Island Superior Courts, and appeals courts. Please click on the representative cases link on my web site for examples, but I have achieved results for my clients that include six and seven figure settlements and awards.

For the past two years, I have represented banks and fortune 500 companies in real estate litigation and transactions involving residential mortgages, purchases, and sales. I have expertise in foreclosure defense, mortgage law, title issues, and all manner of residential and commercial real estate disputes. I represent both people and businesses in real estate matters ranging from closings to leasing, title problems, and property disputes.

Given my experience representing people and businesses in complex civil litigation, I have a unique perspective that I can draw on to advise small and medium-sized businesses in issues such as leases, contracts, corporate, and employment issues. I have represented both plaintiffs and defendants in Massachusetts and Rhode Island consumer protection violations, employment matters, and contract disputes. I bring this expertise to my business clients to help them navigate the complex waters of the business legal landscape.

Again, thanks for your support, and I look forward to helping you if you ever have need of my services.

Grand Opening of KPDM Law LLC, a Personal Injury, Real Estate, and Business Law Firm

kpdm law blue bgKPDM Law, LLC is a law firm founded on the concept that the client’s interest, not billable hours or settlement numbers, comes first. What matters to you, matters to us. While our firm believes that putting our client’s interests first is the best way for us to grow as a firm, we also believe that it is the right thing to do. 

My name is Kevin DeMello, and I founded KPDM Law, LLC. I am an attorney with over a decade of experience in the practice of law in Massachusetts and Rhode Island. I have led litigation teams in high-stakes litigation in matters involving personal injury, real estate, and business litigation. Take a look at these representative cases for some examples of the results I have obtained for my clients.

I became an attorney because I wanted to help people. For that reason, integrity is the foundation of my practice. When I take on a case, my commitment is to do everything in my power to advance your cause. If you have been injured in an accident, have a real estate issue, or just need legal advice, please call me. I would love to help.

The Importance of Hiring an Attorney As Soon As Possible After An Automobile Accident

car-accident-2Retaining an attorney following an automobile accident is something an injured party should do as quickly as possible. An experienced attorney will move quickly to investigate the facts and circumstances of the accident. Evidence, like skid marks and debris at the scene, can quickly deteriorate, so getting to the scene to observe and take photographs quickly can be critical. There are also important issues that need to be addressed soon after an accident that can have an important impact on the case.

Massachusetts law requires a person who was operating a motor vehicle involved in an accident in which any person was injured to file an operator’s report with the Department of Motor Vehicles within five days. See G.L. c. 90 s. 26. If you have been injured in a car accident, this operator’s report becomes a critical document that can and will be used against a claimant by insurance companies and defense lawyers. It is therefore extremely important to consult with an attorney experienced in handling automobile accident cases before completing and sending in this report.

Apart from the legal and insurance issues, retaining an attorney as quickly as possible can save the stress and headaches associated with the process of filing a claim.

Why the Tom Brady Appeals Court Decision Matters for Everyone in Labor

footballsWhile the recent decision to reinstate Tom Brady’s appeal may seem like a distant drama of the sports world involving billionaire owners and millionaire players, the appeals court decision has impacts for both employers and employees in labor unions. The Brady case is now Federal precedent, and that precedent holds that an employer’s arbitrator has a tremendous amount of power to decide labor disputes without being subject to court review. See NFL v. Brady, Docket No. 15-2801, (2nd Cir., 2016).

For employers, this means that there is yet another precedent strengthening the already high burden that employees face in overturning an arbitrator’s decision. Employers know that arbitration is an excellent way to keep legal costs down and to resolve labor disputes far more quickly than resorting to the court system. Although an employee can try to attack an arbitrator’s decision in court, the Brady case demonstrates that doing so is a difficult proposition even when the arbitrator’s decision appears to be very controversial.

For employees, the Brady decision underscores that employees may be giving up significant legal rights when agreeing to arbitration. The Brady decision stresses the importance of bargaining for guarantees in that an arbitration will be fair. In Brady’s case, the NFL collective bargaining agreement gives the commissioner a tremendous amount of latitude and discretion, which is a key point the Court relied on in making its decision. Had the collective bargaining agreement been drafted differently, Brady may have had a much better shot at his appeal. Employees and labor unions should take note and understand just what they are agreeing to when they consider arbitration clauses in contracts.

Appeals Court Victory in Quiet Title Action

I am pleased to announce that my client obtained a victory in Appeals Court this week. In Golrick vs. U.S. Bank, National Association, the Massachusetts Appeals Court upheld a trial court decision appeals-courtroom-019-463x347on a quiet title action filed by the former owner of the property, Jeanne Golrick. Golrick claimed that there were issues with the foreclosure performed by my client, U.S. Bank, and  that vested title with her. My firm successfully defended this quiet title claim at trial, and Golrick appealed.

I drafted the appeal brief, and the Court agreed with my client that Golrick’s claims lacked merit and that title should be vested with U.S. Bank. The text of the opinion can be found here: Golrick v. United States Bank Nat’l Ass’n, 2016 Mass. App. Unpub. LEXIS 441 (Mass. App. Ct. Apr. 22, 2016).

Do I Need an Attorney When I Sell My House?

When you sell your home, you are probably selling your biggest financial asset. It is important breach_contractto not only understand the process, but to understand the legal ramifications of your actions. Advice from a good attorney can help you avoid expensive mistakes.

In Massachusetts, buyers will deliver written offers to purchase to the seller. Once the seller accepts a written offer, usually by signing the offer, the offer to purchase itself becomes a binding contract. In Tobin v. McCarthy, the Massachusetts Appeals Court held that a seller was obligated to sell his home to the buyer even though the parties never signed a purchase and sale agreement. The Court held that the written offer itself was sufficient to bind the parties. See Tobin v. McCarthy, 44 Mass. App. Ct. 274 (1997).

Sellers often find themselves considering and accepting offers, and thereby binding themselves to contracts, before they ever consult an attorney or start working on the purchase and sale agreement. Often times buyers will put conditions and other language in the offers to purchase that could have consequences for the entire transaction. Consulting an attorney early in the process can help facilitate a more smooth transaction, avoid potential problems, and ultimately save the seller money.

Another benefit of involving a good attorney early in the process is avoiding or minimizing the chance of litigation later. No one wants to contemplate getting sued, but it can happen if the sale of your house goes wrong. A good attorney will add language to written offers to purchase and purchase and sales agreements that will protect a seller in the event that a buyer defaults, makes unreasonable demands during the negotiation process, or in case something goes wrong. For all these reasons, it makes a lot of sense to spend a little money now to avoid big potential problems later.