News + Insights from the Legal Team at Zalkind Duncan & Bernstein

courtroom-144091_960_720Restraining orders are an essential tool that Massachusetts law makes available to help victims of abuse or harassment stay safe. Abuse prevention orders and harassment prevention orders (the two types of civil restraining orders available in Massachusetts) allow courts to impose restrictions on abuse and on contact. Some judges are very quick to grant requests for orders, sometimes after giving defendants scant opportunity to challenge a plaintiff’s claims. Seeking to prevent violence and other serious harm is a praiseworthy motive. But restraining orders carry significant consequences and their erroneous issuance can also cause real harm. Recently the Massachusetts Appeals Court, in Idris I. v. Hazel H., reversed and vacated a restraining order because the trial court failed to give the defendant a fair hearing before issuing the order. CONTINUE READING ›

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“This court is very concerned about the disparate impact automobile stops have on persons of color and the national statistics on the fatalities suffered by such communities at the hands of police officers,” wrote Justice Cypher in a fractured plurality opinion for the Supreme Judicial Court in Commonwealth v. Sweeting-Bailey last month. Despite this acknowledgment, the majority of the SJC justices agreed to grant police officers power to continue targeting communities of color and low-income neighborhoods as it confirms that police officers can consider subjective factors in deciding whether to search a passenger in a stopped car.   

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option-2-scaledOn Friday the Supreme Judicial Court handed employees a decisive victory, holding in Meehan v. Medical Information Technology, Inc. that employers cannot retaliate against employees who exercise their statutory rights to file rebuttals in their personnel record. In so holding, the SJC overturned a decision of the Appeals Court from earlier this year (which we discussed on this blog). The Appeals Court had held that while the state’s personnel records law gives employees the right to submit written responses to documents in their personnel records with which they disagree, because the Legislature did not write a provision prohibiting retaliation for exercising that right, an employer could fire the employee for submitting such a rebuttal.  

 The SJC overturned the Appeals Court. In an opinion written by Justice Kafker, the Court held that a termination in retaliation for an employee exercising their rights under the personnel records statute violates the Commonwealth’s public policy. While Massachusetts is generally an “at-will” employment state—meaning an employer has the right to terminate an employee at any time for (almost) any reason—there are statutory exceptions to that rule. An employer cannot fire an employee for discriminatory reasons, or because the employee engaged in certain protected activity, like making complaints about discrimination, health and safety issues, or equal pay issues. Where there is no statute preventing an employer from terminating an employee, the only common law constraint on employers is that they cannot terminate an employee for reasons that would violate a public policy. As Justice Kafker noted in his opinion, the Court previously held the public policy doctrine has been recognized “for asserting a legally guaranteed right (e.g., filing a worker’s compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)” and for employees performing important public deeds. When an employee’s actions fall under one of these categories they are protected from termination. 

 In Meehan the Court held that the rights created by the public records law fall under the first category of the public policy exception to the at-will employment rule: when an employee files a rebuttal in their personnel record they are asserting a legally guaranteed right. In coming to this decision, the Court noted that the Appeals Court had weighed whether the statutory right set forth in the personnel record law was “important.” While the Appeals Court had concluded it was not, the SJC disagreed. The Court held that “the right of rebuttal and accuracy of information in personnel files” is important for employees to protect their ability to seek other employment, for future employers to have accurate information about the people they hire, and for evaluating employers’ compliance with Massachusetts laws. More importantly, however, the Court held that whether a right is “important” is not a decision a Court should make determining whether an employee was terminated in violation of public policy for asserting a legal right. The Court stated that by passing the personnel record statute, the Legislature had already made the decision that the right is important. This holding will extend beyond the context of the Meehan case; where the Legislature has created a statutory right, Meehan should be read to mean that the exercise of that right will always be protected from retaliation under the public policy exception, even if the statute itself does not contain an anti-retaliation provision.   

Blog-pic-1“Where the police have observed a traffic violation, they are warranted in stopping a vehicle.” The Supreme Judicial Court made this statement more than thirty years ago, summarizing what came to be known as a basic premise of operating a motor vehicle in the United States. 

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Boston Criminal Defense & Civil Litigation Firm Paralegal/Legal Assistant Position

We are a fifteen-lawyer firm located in the North End/Waterfront of Boston, with an interesting, varied, fast-paced practice in criminal defense and civil litigation (including employment, students’ rights, and other academic cases). We seek a motivated Paralegal/Legal Assistant with a strong educational background, excellent interpersonal skills, proficiency with the Microsoft Office Suite (including Word, Excel and Outlook) and solid typing skills (70+ wpm). Interest in social media is a plus and previous office experience is desirable. This is an entry-level position that requires a minimum two-year commitment. Organization, attention to detail, self-sufficiency, problem-solving, and taking initiative are essential skills. We are looking for a candidate to start summer 2022. Please email resume and cover letter to the attention of Elena Jacob at resume@zalkindlaw.com. The position will be open until filled.

In many contexts, rules and codes of conduct have moved from evaluating the lawfulness or permissibility of sex based upon the presence or absence of force to instead evaluating whether the sex happened with or without consent. This is particularly true on college campuses, almost all of which have a definition of consent—usually affirmative or effective consent—that sex must meet in order to be allowed under campus policies. Many people—and particularly college-age students who have been trained on affirmative consent policies—think almost exclusively in terms of consent when considering whether sex is lawful or permissible. CONTINUE READING ›

By Mackenpexels-anthony-shkraba-5244025-scaledzie Bouverat, Law Student Intern

As states begin to lift restrictions designed to prevent the spread of the coronavirus, some employers have begun to require that their employees return to some form of in-person work, whether full-time or hybrid. Yet even for the fully vaccinated, the risk of infection is not eliminated. And for employees with disabilities, the possibility of contracting COVID-19 may present a grave risk. CONTINUE READING ›

Body-cam-pic-3-scaledThe use of body-worn cameras by the Boston Police Department has sparked controversy since its pilot program in 2016 and its official implementation in 2019. While the City and the Police Department have marked this move as an effort to be more transparent with the community, citizens claim that such a goal of transparency cannot be achieved within a broken system. Boston Police Department has equipped more than 1,000 officers over the city with body cameras, yet there have been minimal compliance checks and investigations into the misuse of these cameras and footage. Instead, there are a handful of loopholes that permit officers to use the footage at their discretion, putting civilians’ lives at risk for privacy invasion. To further complicate the limitations police officers have in using their body-worn camera footage, the official Body Worn Camera Policy of the Boston Police Department contains ambiguous and few rules regarding the improper use of footage. In Sec. 4.2 of Rule 405, the department enumerates five improper uses of body-worn camera footage; none of which emphasizes a civilian’s privacy nor prohibits the use of the footage for other cases than the one from which the footage originated. 

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Coffee-Meet-Up-scaledAugust is upon us and millions of college students across the country will be beginning their fall terms, including many first-year students who have just become adults and have spent little time away from their families or communities. If you are a parent of an incoming student, you may be helping your child pack, stock up on ramen, move into their dorm, and get oriented to a sprawling and likely overwhelming college campus. While you are preparing your child for a new stage of their life and hopefully independence and responsibility, this is the time to familiarize yourself with the college’s policies on sexual assault, harassment, and other misconduct. One year ago the U.S. Department of Education (DOE) issued new regulations related to sexual misconduct on campus (for a summary see our blog posts here); and here in Massachusetts a new law went into effect this month, changing how schools are required to handle sexual misconduct cases. It is important to ensure that your child is aware of their school’s specific rules and knows their rights and responsibilities, as well as the risks of any criminal exposure that may arise from sexual behavior. CONTINUE READING ›

beer-pong-768x512-1Whether you are heading off to your first year of college, or are returning for your fourth (or sixth, or ninth) year of higher education, you are likely aware that sexual assault prevention is a big issue on college and university campuses today. We represent students—both those who have experienced sexual assault or misconduct and those accused of sexual misconduct—in campus proceedings at colleges and universities around the country. Here is some information that all students should know before heading back to campus. CONTINUE READING ›

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