Category Archives: Legal Discussions

Consumers’ 3 Day Right to Cancel Gym Memberships in Massachussetts

Q: If you join a Massachusetts gym and change your mind, how long do you have to cancel the contract and get your money back?

A: Three days, pursuant to MG.L. ch. 93  § 81.

MG.L. ch. 93  § 81 Every contract for health club services shall provide clearly and conspicuously in writing that such contract may be cancelled within three business days after the date of receipt by the buyer of a copy of the written contract or written receipt indicating the buyer’s payment for health club services. The contract for health club services shall contain the following written notice in at least ten point bold type:

“CONSUMER’S RIGHT TO CANCELLATION. YOU MAY CANCEL THIS CONTRACT WITHOUT ANY PENALTY OR FURTHER OBLIGATION BY CAUSING A WRITTEN NOTICE OF YOUR CANCELLATION TO BE DELIVERED IN PERSON OR POSTMARKED BY CERTIFIED OR REGISTERED UNITED STATES MAIL WITHIN THREE (3) BUSINESS DAYS OF THE DATE OF THIS CONTRACT OR THE DATE OF YOUR RECEIPT TO THE ADDRESS SPECIFIED IN THIS CONTRACT.”

Notice of the buyer’s right to cancel and the method of cancellation under this section shall also be posted clearly and conspicuously on the premises of the health club.

The notice of the buyer’s cancellation of his contract shall be in writing and delivered in person or by certified or registered United States mail at the address specified in the contract. Such notice shall be accompanied by the contract forms, membership cards and any other documents or evidence of membership previously delivered to the buyer. All monies paid pursuant to such contract shall be refunded within fifteen business days of receipt of such notice of cancellation. If the buyer has executed any credit or loan agreement to pay for all or part of the health club services, any such negotiable instrument shall be void upon cancellation under this section and shall also be returned to the buyer within said fifteen days.

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Legal Discussion: Stalking, Harrassment, and Massachusetts Law

Massachusetts has several laws dealing with unwanted, harassing contact. Criminal charges for Stalking, under M.G.L. ch. 265 s. 43 can result in a term in state prison of up to 5 years or a fine of up to $1,000. Criminal Harassment under M.G.L. ch. 43A carries a sentence of up to 2 ½ years in prison. Some forms of electronic communication, i.e. harassing email, text messaging, or Facebook messages can result in a fine of $500 or imprisonment for not more than 3 months, under the “Annoying telephone calls or electronic communication law,” codified at M.G.L. ch 269 s. 14A. It is possible to to obtain a Harassment Prevention Order against a perpetrator under M.G.L. ch 258E.

Stalking

“Stalking”

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Legal Discussion: Foreign Driver’s Licenses in Massachusetts & International College Students

Issue:

Do validly licensed foreign college students in the Commonwealth temporarily for school have an obligation to obtain Massachusetts Drivers Licenses? If so, what are the time frames that govern these requirements? If they remain in Massachusetts for over a year without leaving the U.S., does that change things?

Example A: Alfred, who is a citizen of Spain, has a valid driver’s license from Spain. He is admitted to Boston College and purchases a car upon arrival. Alfred registers the car in the Commonwealth. Must he obtain a Massachusetts driver’s license immediately? Can he drive here on his Spanish license temporarily? If so, how long does he have before the Spanish license becomes invalid here?

Example B: Assume same facts as above, except that Alfred returns home each summer for vacation and then returns in the fall. How does leaving and re-entering the country affect this situation?

Example C: Upon graduation, Alfred remains in Spain through the summer, then comes back to Massachusetts for a job. He does not obtain a Massachusetts driver’s license. Does the Commonwealth honor his Spanish driver’s license indefinitely? At what point must he obtain a Massachusetts driver’s license?

Answer:

It depends.

First, it is necessary to determine whether the foreign driver’s license in question is honored in the United States at all.  That depends on whether the license was issued by a country which is one of the Parties to the 1949 Road Traffic Convention and the 1943 Inter-American Automotive Traffic Convention.

Explanation of the 1949 Road Traffic Convention and its application:

  • According the 1949 Road Traffic Convention, a non-resident foreign student from one of the countries listed therein who is at least 18 years of age and is validly licensed in his/her home country can drive a passenger type of vehicle authorized by the license for up to one (1) year in the U.S. on the valid foreign license.
  • If he/she is still here at the end of the 12-month year, they lose the right to operate a motor vehicle on their foreign license in the U.S.
  • If the student goes home at the end of the academic year and returns the following academic year (leaves in May-June and returns in September) then, a new one (1) calendar year period is established on return in September.
Driver's license from Brazil, as issued in the...

Brazilian Driver’s License
Photo Credit: Wikipedia

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Legal Discussion: Are debit/credit bank cards “credit cards” subject to the same privacy safeguards under Massachusetts Law?

There are a number of Massachusetts statutes governing the use and misuse of credit cards.  Most address criminal conduct, and unfair business practices. Some define the term “credit card.”  They were all enacted before debit/credit cards issued by banks became prevalent.  Case law indicates that these debit card amounts to the functional equivalent of a credit card.  This is important, because the Massachusetts credit card privacy law (G.L. c. 93, § 105) should also apply to debit cards.

CIVIL

G.L. c. 93 § 104 (definitions for § 105 Credit cards; checks; personal identification information)

  • “Credit Card”, any instrument or device, whether known as a credit card, credit plate, or by any other name, issued with or without fee by an issuer for the use of the card holder in obtaining money, goods, services, or anything else of value on credit. Credit card shall not include a check guarantee card.

G.L. c. 140D §1 (Consumer Credit Cost Disclsoure; definitions)

  • “Credit”, the right granted by a creditor to a debtor to defer payment of debt or to incur debt and defer its payment.
  • “Credit card”, any card, plate, coupon book, or other credit device existing for the purpose of obtaining money, property, labor, or services on credit.

CRIMINAL

G.L. c. 266 § 37A (Misuse of credit cards; definitions)

  • “Credit card”, any instrument or device, whether known as a credit card, credit plate, or by any other name, issued with or without fee by an issuer for the use of the cardholder in obtaining money, goods, services or anything else of value on credit.

G.L. c. 266 § 37C (Fraudulent use of credit cards to obtain money, goods or services; false embossment of credit cards, multiple possession, presumption; arrest)

G.L. c. 140D § 27  (Unauthorized use of credit cards)

CASE LAW

  • “a debit card fits within the ambit of a “credit card” as defined for purposes of G.L. c. 266, § 37C.  COMMONWEALTH v. RYAN, 79 Mass. App. Ct. 179, 183-186) (2011) .

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Legal Discussion: Debt Collection –15 U.S.C. § 1692e — False or misleading representations

Federal law prohibits debt collectors from making false or misleading representations when they attempt to collect debts.

15 U.S.C. § 1692e. False or misleading representations

A debt collector may not use any false, deceptive, or misleading
representation or means in connection with the collection of any debt.
Without limiting the general application of the foregoing, the following
conduct is a violation of this section: Continue reading

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Legal Discussion: Reporting Pay or the “Three Hour Rule”

Reporting Pay, or the “Three Hour Rule”

In Massachusetts, the law is clear about “reporting pay.” Reporting pay means the minimum pay that an employer must give for requiring an employee to show up for a shift of three or more hours, and then sending them home early.

Here is the law:

455 CMR 2.03

2.03: Hours Worked (1) Reporting Pay. When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. 455 CMR 2.03(1) shall not apply to organizations granted status as charitable organizations under the Internal Revenue Code.

Example:

Joe is a delivery man at a flower shop.  Joe is scheduled to work a full shift (5 hours) on Valentines Day.  Due to a nationwide shortage of roses, the business is unable to fill any orders. Joe’s boss “cuts” him and sends him home after 2.5 hours on the clock.  Joe’s hourly rate is $15.00.  The flower shop must pay him this way:

  • 2.5 hours at Joe’s regular rate of 15.00/hr, which equals  $37.5, then at least the minimum wage for a half hour, which would be $4.00, resulting in a  a total of $41.50 minimum owed to Joe.

Reporting Pay image

Source: Attorney General’s publication about Massachusetts Wage and Hour Laws, .pdf (here).

There are no reported cases that I was able to find about this law. However, there is an opinion letter here and below:

07/09/2007 - Reporting Pay Provision "Three Hour Rule"
Opinion Letter
MW-2007-002
July 9, 2007
I am writing in response to your request, on behalf of your client ***, for this Office's written opinion regarding the applicability of the Massachusetts Minimum Fair Wage Law. Specifically, you have asked how 455 C.M.R. §2.03(1), the Reporting Pay requirement, applies to employees scheduled to work less than three hours. [1]
The Reporting Pay provision, also known as the "three hour rule," provides:
When an employee who is scheduled to work three or more hours reports for duty at the time set by the employer, and that employee is not provided with the expected hours of work, the employee shall be paid for at least three hours on such day at no less than the basic minimum wage. [This provision] shall not apply to organizations granted status as charitable organizations under the Internal Revenue Code.
455 C.M.R. §2.03(1). Therefore, if a for-profit employer schedules an employee for three or more hours, the employee arrives at the worksite on time, and the employer does not provide the expected hours, the employee must be paid for at least three hours at no less than the minimum wage ($7.50 per hour). Of course, for any actual time worked, the employee must be paid his/her actual wage. For example, if an employee is told that a meeting will take four hours, and the employee is sent home after two hours, the employee must be paid for two hours at his/her regular rate of pay, and at least minimum wage for the third hour. [2]
Alternatively, if an employee is, in good faith, scheduled for less than three hours, the employer may pay the employee for only the hours worked. For example, if an employee is scheduled for a two-hour meeting and she/he works these two hours, the "three hour rule" is inapplicable, and the employer may pay the employee for only the hours worked.
I hope this information has been helpful. If you have any further questions, please feel free to contact me.
Sincerely,
Lisa C. Price
Deputy General Counsel
[1] As you know, most employers are also subject to the federal minimum wage and hour law, found in the Fair Labor Standards Act (FLSA), and regulations promulgated thereunder. For information about applicable federal wage and hour laws, you should contact the U.S. Department of Labor.
[2] Of course, if the meeting causes a non-exempt employee's hours to exceed 40 hours in the workweek, the employee must be paid time and one-half pay for all hours actually worked in excess of 40 hours.
***=Names have been Omitted

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Legal Discussion: Massachusetts Security Deposit Recovery

In Massachusetts, the law regarding security deposits is very pro-tenant.

Has any of the following happened to you?

  • Landlord did not return the security deposit within 30 days after termination of the tenancy
  • Landlord did not deposit the security deposit in an escrow account.
  • Landlord made up false damage
  • Landlord charged you for cleaning costs and took that from the security deposit

If your landlord did not follow the law, you could be entitled to  3 times the amount of the security deposit.

If you are interested in speaking with an experienced security deposit lawyer about your rights, you are encouraged to contact us.

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