a.   Company policy governs whether a commission has been “earned”, though the company cannot change the rules of the game in midstream.   So, for example,  if a commission is payable when a certain sales quota is obtained,  but then during the middle of the year the company raises the quota amount,   that action by the company is impermissible to deny an employee the earned commission.

b.    All contingencies attached to the commission must be satisfied, though the company cannot take actions unilaterally to keep any contingency in place.   So, for example,  if the company receives payment in Year 1,  it cannot book the payment in Year 2 for commission determination purposes.

Attorney Answer:  No.  A case decided by the Supreme Judicial Court in 2012 answered that question.   As long as you have not signed a formal “release” of the employer from liability for unpaid salary/commissions,  you can deposit the check and still bring a lawsuit against the employer.

Thankfully the law takes a dim view of attempts by companies to engage in such misclassification.   Under Massachusetts law,  an individual performing a service is considered to be an employee unless that the employer can prove the following:

a.  That the individual is free from control and direction in connection with the performance of the service;

b.  That the service is performed outside the usual course of business of the employer;  and

c.  That the individual is customarily engaged in an independently established trade, occupation, profession or business of the same nature as that involved in the service performed.

An employer’s failure to prove any of these three criteria is fatal to classification of the individual as an employee and subjects the employer to liability for three times the amount of damage sustained by the individual,  along with attorney’s fees.

All licensed home improvement contractors are considered, by the terms of their license, to consent to arbitration of any disputes arising from written contracts with homeowners if the homeowner so elects. The mandatory arbitration takes place under the auspices of the Commonwealth’s Executive Office of Consumer Affairs (ECOA) and is generally a cost-effective, speedy way of resolving such disputes. Contractors typically wish to avoid ECOA-sponsored arbitration, which they consider to be homeowner-friendly.

In the case involving Alan’s client, the contractor was not a licensed home improvement contractor (HIC), but rather was a licensed construction supervisor (CS), so technically the arbitration rules did not apply. But Alan nonetheless sought to compel arbitration on the grounds that when he applied for the building permit for the subject work, the contractor represented to the municipality that he was a home improvement contractor. The contractor also failed to provide his CS number in the contract with the homeowner.

Alan argued that the failure of the contractor to identify whether he was an HIC or CS in the contract was unfair, inasmuch as this did not properly give his client the opportunity to determine whether she would have arbitration rights in the event of a dispute. Alan also argued that since the contractor led the municipality to believe that he was an HIC, his client should not have had any different belief.

The court agreed with Alan’s arguments, and ordered the dispute to arbitration through the ECOA.

A great deal of care must go into the preparation of this document, if only because the standards governing affidavits are so difficult to satisfy. First and foremost, it’s important to note that although you yourself may be challenging a will, affidavits of objection may be filed not only by you, but by others who have “personal knowledge” of facts pertaining to the decedent and the process by which the challenged will was prepared and executed. This is important, because as the “contestant” to the will you may not be in firsthand possession of critical facts, while others know of those facts and stand prepared attest to them in writing and under oath.

Secondly, affidavits must contain specific facts supporting the challenge. The biggest problem afflicting affidavits is that they are too general. An affidavit with general statements about the decedent is subject to being declared invalid by the Probate Court, and with no affidavit your challenge goes up in smoke.

Here’s a good example of how being general in an affidavit can be fatal to a challenge to a will:

Suppose that you claim that the decedent (e.g. your mother or father) lacked sufficient mental capacity when he/she signed the will that has been offered for probate. In your affidavit you state the following: “Dad was forgetful. He had early dementia and was on Zyprexa.” That statement is far too general because people who are forgetful, have early dementia and are taking Zyprexa can also have sufficient mental capacity to sign a will. A more appropriate and specific description would be as follows: “Dad did not recall the names of his grandchildren and occasionally did not recognize me when I visited him at home. Dad told me how he occasionally got lost driving home from the bank where he regularly did his banking. One day when we were at church, Dad was convinced that he had driven there (when I had in fact driven him) and he spent several minutes after mass in hysterics, believing that he had lost his car keys.” This statement recites highly specific instances of behavior that would call into question one’s mental capacity to make a will.”

The same sort of specificity applies to claims of undue influence. It is not enough to say that “my sister completely controlled my mother’s life and overpowered her.” The appropriate and specific approach would be to say the following: “My sister got my mother to sign a power of attorney in her favor, and she took over the payment of my mother’s bills. When we tried to find out about Mom’s finances, my sister refused to provide any answers, and when we called to talk to Mom, my sister would often get on the phone and say “Mom can’t talk now”, or would listen in on the conversation and speak up when we asked about her spending.”

Most importantly, it’s critical that you have the assistance of an attorney when drafting affidavits of objection. In a high percentage of cases, the executor’s attorney (who is charged by law with defending the will) will file a motion with the court to strike an affidavit that is believed not to satisfy these stringent standards, and in cases where contestants have not been represented, a high percentage of these motions have been allowed.

In Massachusetts, as a tenant,  you have the automatic right to damages in the amount of three times your deposit,  along with attorney’s fees,  if a landlord does any of the following:

1.  Fails to place the deposit in an account that is beyond the reach of his creditors;

2.  Fails to transfer the deposit to his  “successor in interest” (e.g. new owner);

3.  Fails to return the deposit within 30 days of the tenant’s termination of occupancy.

Each of these are violations that are “non-negotiable” from a legal standpoint; that is,  if you prove it,  you’re entitled to the triple damages and attorney’s fees remedy…and there is no judicial discretion.

There is a second class of claims for which triple damages and attorney’s fees are recoverable,  but only if the landlord fails to return the deposit after written demand.    These include the following:

1.   Failure of the landlord to furnish the tenant with an itemized list of damages resulting in deductions from the deposit,  including with that list  written estimates, bills or receipts to support of each deduction;

2.   Failure of the landlord to sign the itemization under the pains and penalties of perjury.

In these instances,  the tenant has the right to immediate return of the deposit upon written demand;  if the landlord fails to return the deposit after this demand,  triple damages and attorney’s fees are recoverable.

There is a third class of claims where triple damages and attorney’s fees might be recoverable;   this is where a landlord,  in bad faith,   attempts to deduct from the security deposit amounts that are not justified.      This would include the following:

1.   Amounts to repair “reasonable wear and tear” caused during the tenancy;

2.   The use of phony or inflated estimates or receipts.

In all probability,   a court hearing this matter with either of the previous two factual scenarios would find,  or instruct the jury, that in order to find the landlord responsible for triple damages,   it would have to find that the landlord made these deductions in bad faith.

Finally, bear in mind that the landlord’s failure to properly handle the security deposit does not prevent him/her from suing a tenant independently for damage to the premises.

If you have a security deposit claim, call Alan to schedule a consultation.

Alan Fanger is a litigation attorney concentrating in matters involving real estate including security deposit claims. He serves the entire Greater Boston and Boston metrowest region including Norfolk County, Suffolk County, and Middlesex County, and the communities of Arlington, Boston, Braintree, Brookline, Cambridge, Canton, Concord, Dedham, Dover, Framingham, Lexington, Milton, Natick, Needham, Newton, Norwood, Quincy, Sherborn, Sudbury, Waltham, Wayland, Wellesley, and Weston, Massachusetts.