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

pexels-cottonbro-studio-5077066-scaledThe ongoing battle over the employment rights of app-based drivers reached a new stage last week, when a group of drivers and union leaders brought a lawsuit to block a new set of ballot measures aimed at exempting app-based drivers from employment protections. 

When workers are categorized as employees, rather than independent contractors, the law requires their employer to provide them with certain benefits and protections. In Massachusetts, the test for determining who is an employee for purposes of the Wage Act is particularly inclusive. In the growing gig economy, providing gig workers with the expansive protections the law grants employees can be costly for employers, which has led to many battles over gig workers’ status.  

In Massachusetts, that battle grew serious in July 2020, when then-Attorney General Maura Healey filed a lawsuit in against Uber and Lyft on behalf of drivers, seeking a declaration that they qualify as employees under the Massachusetts Wage Act. That lawsuit is currently scheduled for trial in May of this year. 

pexels-yan-krukau-7640412-scaled

Massachusetts could become the first state in the country to enact a broad workplace anti-abuse law intended to hold employers liable for perpetuating, condoning, or ignoring psychological abuse at work. On October 10, 2023, Massachusetts had the highest number of advocates in the nation ever testify in front of the legislature in favor of anti-abuse legislation in the workplace. Workers, employment attorneys, human resources professionals and others urged the Massachustts Joint Committee on Labor and Workforce Development to pass the Workplace Psychological Safety Act. The committee has until February to move the proposed bill forward.  

CONTINUE READING ›

pexels-gul-isik-2293019-scaled

A recent decision against Harvard University in favor of a student accused of sexual assault demonstrates a viable path to challenging student discipline decisions. As we have discussed previously, courts are wary of interfering with academic decisions of universities, but have been willing to hold schools accountable for failing to follow their own established policies in student disciplinary processes. Where a student handbook or other policy promises certain protections, courts will defend the reasonable expectations of students who encounter a process significantly less fair than what the university agreed to provide. These principles came into play in the “Dr. Doe” case, recently decided by the Massachusetts Superior Court. 

CONTINUE READING ›

In 2022 the Supreme Court recognized for the first time a constitutional right under the Secondhandgun-231696_1280 Amendment to carry a firearm in public, outside of the home, for the purpose of self-defense. As we observed earlier this year, courts and legislatures across the country are still trying to figure out the meaning and limits of New York State Rifle & Pistol Association, Inc. v. Bruen. Several pending cases in different jurisdictions could dramatically affect the rights of defendants—including those in Massachusetts—facing criminal charges related to firearms. 

What firearms licensing regimes remain acceptable after Bruen? Bruen overturned licensing schemes that relied on non-objective, discretionary criteria for whether licenses could issue (so-called “may issue” regimes).  This November, the federal Fourth Circuit Court of Appeals issued a 2-1 decision in Maryland Shall Issue v. Moore, applying Bruen to invalidate the firearms licensing scheme in Maryland. Maryland’s scheme relied on objective criteria (a so-called “shall issue” system) and thus observers initially assumed it would survive Bruen. The system, however, was somewhat complex: in addition to a registration process for each firearm and a process for obtaining a carry permit, Maryland required would-be gun-owners to obtain a “handgun qualification license” that required finger-printing, to take a four-hour training course, and to wait up to 30 days for approval. For two Republican-appointed judges on the Fourth Circuit, this went too far to comply with Bruen’s recognition of a fundamental right to carry firearms, despite suggestions in Bruen that requiring background checks and safety courses was still acceptable. Maryland has petitioned the Fourth Circuit to rehear the case before the entire court. In the meantime, the decision suggests that the licensing scheme in Massachusetts, although recently revised to be made into a “shall issue” system to comply with Bruen, could still be vulnerable to challenge. 

Another issue concerns the carrying of firearms across state lines. Massachusetts’ gun laws are quite strict, while some of its very nearby neighbors have extremely relaxed legal regimes. For instance, G.L. c. 269, § 10(a), the Massachusetts law punishing carrying a firearm without a license, imposes a mandatory minimum prison sentence of eighteen months. In New Hampshire, by contrast, less than an hour north of Boston, carrying a firearm in public without a license is completely legal. In August of this year, a state District Court judge in Lowell dismissed carrying charges on the grounds that the defendant was a legal resident of New Hampshire. The judge reasoned that the ability to exercise a fundamental constitutional right could not shift so dramatically just because the defendant crossed a state line. The Commonwealth has appealed the ruling to the Appeals Court, where the case is currently pending. 

pexels-zachary-caraway-17630959-scaled

We have repeatedly discussed on this blog how schools handle sexual misconduct allegations through internal grievance procedures. However, students involved in these processes must remember that the conduct that gives rise to Title IX allegations may also give rise to civil and criminal legal proceedings. Students involved in school misconduct cases need to understand how these different proceedings may intersect and impact one another before deciding how to approach their cases. 

University Title IX and sexual misconduct policies prohibit sexual harassment, which includes sexual assault, dating violence, and stalking. All these behaviors are also criminal—though the definitions used in the criminal law and in school policies may differ. For example, in Massachusetts criminal law, indecent assault and battery is defined as an intentional, unjustified touching of a person’s private areas (a term that has been defined through case law to include various body parts). In many college and university policies sexual assault means sexual acts without consent, which is often defined as “affirmative, voluntary, knowing, and continuous agreement to engage in a specific form of sexual activity” (to quote the Wellesley College policy). All criminal sexual activity is generally also prohibited by school sexual misconduct policies, but there are categories of sexual misconduct that are prohibited by schools but may not be criminal. 

CONTINUE READING ›

pexels-marcus-silva-9028990-scaled

This is a follow up to two previous blog posts about clemency: you can read the first post here and the second post here. 

After almost a year in office, last month Governor Maura Healey finally issued new Executive Clemency Guidelines. These Guidelines inform how the Massachusetts Parole Board evaluates whether petitioners are granted clemency. As explained in my previous blog post, there are two forms of clemency: commutation and pardon. A commutation is a reduction in sentence, which means the convicted individual faces a shorter period of incarceration than originally mandated. A pardon forgives the underlying offense, which means the individual’s conviction is erased. Governor Healey’s new Guidelines should enable more people to both viably petition for and receive grants of clemency because the new Guidelines have improved the previous Guidelines issued by Charles Baker in several significant ways. Further, Governor Healey’s new Guidelines track many of the recommendations provided by the Massachusetts Bar Association and Clemency Task Force Proposed Clemency Guidelines

CONTINUE READING ›

pexels-armin-rimoldi-5553051-1-scaledWe frequently represent graduate students who have experienced discrimination or harassment in their programs, something that studies have indicated is unfortunately common.  The unique status of graduate students within universities affects what legal protections for discrimination apply to them. Graduate students often hold multiple roles simultaneously – student, research assistant or teaching assistant, advisee, and mentee. Their success as early-career researchers is uniquely tied to their relationships with faculty mentors and others in their discipline, meaning they may be less likely to report discrimination. But when it comes to asserting legal claims, the key issue is how their mixed status as student and employee affects what claims they can pursue.  

 
Relevant anti-discrimination statutes 

For graduate students who also carry out paid work, there are overlapping protections from discrimination under federal and state law. Various provisions of the Civil Rights Act of 1964 prohibit discrimination in educational programs and institutions, including Title IX (sex) and Title VI (race, color, and national origin). Title VII of the Civil Rights Act and the Massachusetts anti-discrimination statute, Massachusetts General Laws Chapter 151B, bar discrimination in employment. And the federal Americans with Disabilities Act (ADA) prohibits disability-based discrimination in both employment and education. Outside Massachusetts, the anti-discrimination laws of other states protect students and employees as well, often providing stronger protections than federal law. 

MA-SJCEarlier this month, the Supreme Judicial heard a case regarding the standard for “Anti-SLAPP” motions. As we have written before, Massachusetts’ Anti-SLAPP law protects people who have engaged in protected speech from lawsuits based on that speech. The statute allows defendants to move to dismiss a lawsuit against them “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” Anti-SLAPP motions are particularly important for employees who report illegal and unsafe conduct; those employees need assurances that they will not face retaliatory and costly lawsuits targeting them for their speech.  

The Anti-SLAPP statute provides a means to seek dismissal of a legal claim that is based solely on a party’s “right of petition under the constitution of the United States or of the commonwealth.” The statute instructs that the plaintiff can defeat a motion to dismiss under the Anti-SLAPP suit by showing : (1) the defendant’s exercise of its right to petition didn’t have any basis in fact or law and (2) the defendant’s acts caused actual injury to the plaintiff. 

Since the statute’s passage, courts have grappled with the countervailing constitutional rights at issue when a party files an Anti-SLAPP motion. As the Supreme Judicial Court explained in 2017 in a case called Blanchard, the target of an Anti-SLAPP motion – typically, a plaintiff – also has a constitutional right to use the courts to petition. An Anti-SLAPP dismissal can “potentially infringe” on an “adverse party’s exercise of its right to petition, even when it is not engaged in sham petitioning.” To balance these interests, the Blanchard Court adopted an “augmented framework” for evaluating Anti-SLAPP motions. Under Blanchard, the person filing the Anti-SLAPP motion must demonstrate that it is facing a legal claim based “solely” on its “petitioning activities” and not some other basis.  

pexels-andrea-piacquadio-3760810-scaled

This month, the Supreme Judicial Court heard argument in Sutton v. Jordan’s Furniture. This case addresses questions about how commission-based pay plans can be structured to comply with the Wage Act, Overtime, and now-repealed Sunday Pay laws. 

The Statutes and Past Interpretation 

Massachusetts’ overtime statute requires employers to pay employees time and a half for hours worked in excess of forty hours in a work week. Until it was repealed this year, the Sunday Pay statute similarly required a higher rate of pay for hours worked on Sundays. The Massachusetts Wage Act sets out requirements for payment of wages, including promptness, and extends that protection to commissions, which are treated as wages when the commission amount is “definitely determined” and “due and payable.” The Wage Act also prohibits special contracts designed to evade the Wage Act’s requirements. 

CONTINUE READING ›

pexels-rdne-stock-project-6069240-scaled

This month, the Supreme Judicial Court heard oral argument in Graham v. District Attorney for Hampden County, a case raising the questions of whether the Commonwealth has a duty to investigate the Springfield Police Department (SPD),what that duty entails, and what evidentiary disclosures state prosecutors must make about any exculpatory evidence that prosecution teams may have in events involving the police department. The decision will have significant implications for defendants wrongfully convicted of crimes based on false reports filed by police officers justifying use of force against defendants. CONTINUE READING ›

Super Lawyers
Martindale-Hubbell
Best Lawyers
Best Law Firms