David I. Brody quoted in Massachusetts Lawyers Weekly on remote work and Massachusetts employment statutes

May 30, 2023

David I. Brody, partner in the firm’s Employment Department, was quoted in the May 29th issue of Massachusetts Lawyers Weekly. The article, “Virginia employee’s Wage Act, discrimination claims survive dismissal,” discusses Wilson v. Recorded Future, Inc., et al., how attorneys are seeing issues arise due to remote work, and whether the Massachusetts anti-discrimination statute and Wage Act should be applied outside the state.

Read the full article from Massachusetts Lawyers Weekly (subscriber content).

From the article:

As Talwani and other judges have explained, the “most significant relationship” test used to resolve choice-of-law issues involves considering several factors. But the decisions suggest that one factor may matter more than most: the state’s interest in seeing the Wage Act enforced, according to plaintiffs’ side employment attorney David I. Brody of Boston.

For example, in the 2019 case Levesque v. Schroder Investment Management North America, U.S. District Court Judge Nathaniel M. Gorton wrote that he was not persuaded that New York had a more significant relationship to the transaction in litigation than Massachusetts.

“Rather, the strongest factor at issue is the Commonwealth’s fundamental policy interest in enforcing the Massachusetts Wage Act,” he wrote.

The Wilson case offers another good reminder that “if you give Massachusetts judges a credible basis to apply Massachusetts law, they will,” Brody said.

Given that, litigation battles will often shift to venue. Brody pointed to a recent case he handled, Zucconi v. SRG Technology LLC, et al., in which the defendant requested a motion to transfer the case to Florida.

U.S. District Court Judge Leo T. Sorokin granted that request, but not before giving the plaintiff the benefit of collateral estoppel, directing the Florida court receiving the case to apply the Massachusetts Wage Act.

The lesson for plaintiffs is that if they are not fully exploring choice-of-law issues with an attorney’s help, they may be missing out on meaningful distinctions in the law, Brody said. These include the lack of a cap on punitive damages under Chapter 151B that exists under Title VII, or the availability of individual liability, which does not exist under other anti-discrimination statutes.

“If they are not asking the right questions and not exploring these issues early on, they are walking into a dispute with less leverage than they should,” Brody said.