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girl-1641215_1920The Families First Coronavirus Response Act (H.R. 6201) provides $100 billion dollars worth of relief to Americans coping with the coronavirus outbreak.  Below is a summary of the provisions that affect workers most directly. The bill goes into effect on April 2, 2020, and expires December 31, 2020.

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cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 

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person-holding-thermometer-3873171-scaledOn March 10, Governor Charlie Baker declared a state of emergency in Massachusetts to combat the ongoing threat posed by COVID-19.  As of this writing, Massachusetts had 108 cases confirmed, and experts warn that the virus will likely continue to spread.  What do our state and federal leave laws provide for employees who contract COVID-19, or who have family members who contract COVID-19? 

First, and foremost, Massachusetts guarantees earned sick time to the vast majority of employees.  Workers earn and may use up to 40 hours of job-protected sick time per year.  That’s roughly five days of leave.  And the law applies even to part-time workers: workers earn at least one hour of sick leave for every 30 hours worked.  Workers can use that earned time to care for themselves or a “child, spouse, parent, or spouse’s parent.”  Employers with 11 or more employees must pay employees who take that sick time.  Small businesses that employ fewer than 11 employees must provide the sick time but are not obligated to compensate employees who use sick time.  To utilize sick time, an employee must provide an employer with some notice – employees must make a “good faith” effort to notify their employers in advance of any time taken.  In most circumstances, employers cannot insist on specific documentation; the law only allows employers to request additional medical or other documentation from an employee who uses 24 consecutive hours – or three days – of earned sick time.  

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person-getting-his-blood-check-1350560Today, the Supreme Judicial Court (SJC) hears oral argument in Commonwealth v. Bohigian, a case that addresses, among other issues, when law enforcement can take a subject’s blood without consent and when evidence of that blood draw is admissible in court.  

Mr. Bohigian was charged with operating under the influence and related crimes after a severe car accident. When Mr. Bohigian arrived at the hospital after the accident, police presented nurse with a search warrant to draw his blood. Over Mr. Bohigian’s objection and at the instruction of a police officer, the nurse drew Mr. Bohigian’s blood. The results of the blood test indicated that Mr. Bohigian’s Blood Alcohol Content (BAC) was over the legal limit at the time of the accident. 

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Last week, the Trump administration finalized a rule that narrows the definition of “joint man-teaching-woman-in-front-of-monitor-3285203employer” under the Federal Labor Standards Act and will make it harder for millions of workers to combat wage theft. Under the Obama administration, the federal Department of Labor clarified that more than one company could be held liable for wage violations when they were “joint employers” of an employee; the critical question was the worker’s level of “economic dependence” on a company. That rule allowed courts to conduct a fact-specific inquiry that accounted for workplaces in which more than one company played a role in managing and directing work. The new rule rescinds that more flexible approach and replaces it with a more stringent standard. That means that if more than one company owns or manages your workplace, you now may face challenges in collecting unpaid wages because it will be harder to sue all responsible parties.

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By: Jinal Sharma, Legal Intern

affection-baby-care-carrying-1170897Earlier this month, in Capron v. Attorney General of Massachusetts, the Court of Appeals for the First Circuit rejected an au pair agency’s challenge to Massachusetts labor laws, finding that Massachusetts wage and hour laws apply to au pairs. Under the First Circuit’s ruling, that means that au pairs in Massachusetts are now entitled to workplace protections, including minimum wage and overtime pay.  

Under the First Circuit’s ruling, Massachusetts will require employers to comply with the Domestic Worker Bill of Rights with respect to au pairs. This means au pairs will be paid minimum wage, which in Massachusetts is rising to $12.75 an hour starting January 1, 2020. An au pair will be considered to be “working” any hours the au pair is required to be on the employer’s premises to provide childcare services. Meal periods, rest periods, and sleep periods are not considered as hours worked only if the au pair is free to leave the premises at their sole discretion. Employers will also be required to pay time-and-a-half for any hours worked over 40 hours/week and to keep records of au pair hours worked. Additionally, au pairs will be entitled to sick leave, worker’s compensation, and notice of why and when the employer might enter the au pair’s living space.  

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By: Leah Durst, Legal Internblogger-336371_1920

Former California Congresswoman Katie Hill recently resigned after sexually explicit photos of Hill and a staffer engaged in consensual sexual activity were leaked, allegedly by her abusive ex-husband. Her resignation should trigger broader discussions about the consequences of living in a digital age: how do we view and treat victims and perpetrators of “revenge porn”?  What legal rights are there for people whose sexual privacy has been invaded, and what legal consequences are there for those who access and distribute such material? It turns out that Massachusetts is one of the last states to take up this question at the legislative level. 

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IMG_1541In Doe v. Trustees of Boston College, the U.S. Court of Appeals for the First Circuit refused to extend due process protections to private Massachusetts colleges, despite its recent holding in Haidak v. UMass-Amherst that some form of cross-examination or equivalent questioning is required at public universities. It therefore reversed a District Court decision that would have required some form of real-time questioning on issue of credibility. In so doing, the First Circuit deferred to state courts and the state legislature to define the contours of the “basic fairness” requirements for private schools under state law (having ducked the issue in a previous decision in a different Boston College case). This narrow holding underscores the need for further development of state law governing student discipline in light of significant developments in law and practice around the country since the Massachusetts appellate courts last weighed in more than 10 years ago. 

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copLast month, the Supreme Judicial Court issued Commonwealth v. Matta, a case that makes it easier for police to stop individuals – especially those in high crime neighborhoods – without any reasonable suspicion.

Background

On the evening of November 5, 2015, an anonymous caller contacted police on two occasions and stated that they had seen someone put a gun under the front seat of black car with two male and two female occupants.  The caller claimed that the car was parked in the city of Holyoke in an area described as “known for violent crime, drug sales, and shootings.”  An officer who was dispatched to the scene saw a parked green car with only two passengers.  The officer pulled up behind the green car and parked, without lights or a siren.  As the officer exited his vehicle, he observed the defendant, who had been seated in the passenger seat, exit the car and adjust his waistband with both hands. The defendant then began walking toward nearby bushes away from the sidewalk.  The officer called out to him, “Hey, come here for a second.”   The defendant then made eye contact with the officer and started to run, holding onto his waistband as he ran. At this point the officer yelled at the defendant to stop and then ran after him.  As the defendant was running, the officer observed him throw a plastic bag over a fence and onto a sidewalk.  Several officers apprehended the defendant as he tried to climb the fence, and once they arrested him, the officers saw six wax baggies at his feet and found small wax baggies on the other side of the fence, totaling 129 baggies that were later determined to contain heroin.

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If the volume of calls to our office is any indication, the Boston Public School (BPS) system is stepping up enforcement of its residency policies. It is not surprising that with national attention on the “Varsity Blues” scandal (involving prosecutions of celebrities who fraudulently secured their children’s acceptance to college), and increasing criticism of the lack of diversity at Boston’s elite exam schools, BPS would be looking to crack down on students falsely claiming to live in Boston in order to attend Boston schools. But parents and students have a right to understand and contests BPS’s findings in these investigations: Fifteen years ago a Massachusetts court made clear to BPS that before it could declare a student a non-resident and remove him or her from the BPS system, it had to provide the student’s family basic due process protections. Unfortunately it appears that BPS continues to ignore this court decision and families’ rights in pursuing residency enforcement actions.

What are the BPS residency requirements?Boston-Latin

Massachusetts General Laws chapter 76, § 5 states “Every person shall have a right to attend the public schools of the town where he actually resides.” The law seems clear enough, but of course the devil is in the details: what does it mean to reside in Boston? This is a question our courts have answered: in most cases, the minor student “resides” where the parent(s) who has (or have) physical custody resides. The BPS Superintendent’s Office has issued a policy further explaining what it views this statute to require, and how BPS will determine residency. Following Massachusetts court cases that have defined residency, the policy defines “residence” as “the place that is the center of [the student’s and/or parent’s] domestic, social, and civic life.” The focus of “residency” is therefore not only whether the student has a physical address in Boston, though of course that is relevant, but on where the center of the student’s life is. This focus indicates that where questions about residency arise, BPS must conduct a holistic evaluation that takes into account non-traditional family and education arrangements.

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