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In Barbuto v. Advantage Sales and Marketing, the Supreme Judicial Court recently blazed a trail as the first state high court to extend state employment protections to medical marijuana users where those protections were not explicitly spelled out in the medical marijuana statute. The SJC unanimously gave the green light to discrimination claims by those who use medical marijuana under state law but then are punished by employers. There are limits to the court’s holding; for instance, the medical marijuana statute specifies that employers do not need to accommodate on-site use of marijuana, and an employer can still take adverse actions by meeting the high burden of showing an “undue hardship” for tolerating off-site marijuana use. But many patients who consume marijuana to treat debilitating medical conditions like cancer or, like the plaintiff Barbuto, Crohn’s disease, will get some relief by not having to choose between effective treatment and keeping their jobs.

In Barbuto, the plaintiff was hired subject to a drug test and started working. She informed her employer that she would test positive for marijuana because she used it for medical purposes according to state law because she suffered from Crohn’s disease. The hiring manager told her that would not be a problem, but after the test came back positive, she was fired by a manager who told her “we follow federal law, not state law.” (Any use or possession of marijuana remains illegal under federal law, although for several years Congress has prohibited federal authorities from spending money to interfere with state medical marijuana laws.) The plaintiff brought suit claiming, among other things, disability discrimination, and the lower court dismissed her case.

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Three publications in the last two weeks have highlighted the issue of whether President Trump has violated criminal laws while in office. They also raise the question of whether, if he has, a prosecutor should or should not bring charges against him.

In Thursday’s Boston Globe, Professor Alan Dershowitz argues that, while many of his (excellent) former students have written op-ed pieces and other publications about possible criminal charges that could be brought against President Trump, determining if criminal charges are possible is the “easy” part of the role of a prosecutor.  The hard part, he says, is exercising discretion in deciding whether the blunt and wide-ranging instrument of the criminal law should be applied, and concludes that, as with the calls for prosecution of Hillary Clinton, it should not.  Professor Dershowitz believes, noting the breadth of some of the statutes raised by these writers, and the disuse into which some have fallen, that the truly exceptional student would conclude that, as a hypothetical prosecutor, he or she would pass on bringing a prosecution.  He argues that the partisan nature of the calls in and of itself is grounds for exercising discretion against prosecution. Continue reading

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We are proud to announce that partner Emma Quinn-Judge is being honored as one of the 2017 Top Women of the Law by Massachusetts Lawyers Weekly.  The annual award recognizes women lawyers for outstanding accomplishments in the legal community who have distinguished themselves as leaders.

Emma has a litigation practice focused on criminal defense, employment, and appeals.  In her criminal defense practice, Emma has represents individuals charged with crimes ranging from disorderly conduct to murder and serious federal charges. Recently, Emma was co-counsel in a case where the jury found the client not guilty on two charges arising from a traffic stop in which police used excessive force in a local Massachusetts city. Emma has on numerous occasions helped clients get their charges dismissed altogether or substantially reduced.  She is also a strong advocate on sentencing and has helped clients in federal court receive below Guideline sentences.

In her employment practice, Emma represents employees in state and federal court, in administrative proceedings, and on appeal.  She has won substantial victories, both in court and in out-of-court settlements. Most recently, she represented the plaintiff in Charles v. City of Boston, and won a nearly $10.9 million jury verdict (now on appeal) for her client, a long-time City of Boston employee who experienced race discrimination and retaliation. She also provides advice and counseling to employees on a wide range of employment issues, including compensation, discrimination, harassment, and workplace disputes.

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Yesterday the Massachusetts Senate unanimously passed Senate Bill 2093, the Pregnant Workers Fairness Act (PWFA). Last month the House unanimously passed a similar bill, H. 3680. The PWFA is headed to Governor Charlie Baker, who has indicated he will sign it.

What is the Pregnant Workers Fairness Act?

The PWFA will amend Massachusetts’ anti-discrimination law (General Laws chapter 151B) to include pregnancy and related medical conditions (including breastfeeding) as protected categories. The law will also require employers to grant their employees reasonable accommodations related to pregnancy, childbirth, or related conditions if such accommodations do not cause an undue hardship on the employer. The law lists examples of the types of accommodations that might be required: more frequent breaks, time off to recover from childbirth, light duty, modification of equipment or seating, modified work schedules, and a private space for pumping breast milk. While the law allows employers to require medical documentation for some accommodations, employers are required to provide the following accommodations with no medical documentation: “(i) more frequent restroom, food or water breaks; (ii) seating; (iii) limits on lifting over 20 pounds; and (iv) private non-bathroom space for expressing breast milk.”  Continue reading

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Massachusetts is often lauded as one of the most progressive states in the country, and our state civil rights laws routinely provide broader protections than their federal counterparts. So it may come as a surprise that Massachusetts does not have a functional state counterpart to federal laws prohibiting discrimination in education like Title IX and Title VI.

Massachusetts has a law titled “Fair Educational Practices,” Mass. G. L. c. 151C.  That chapter contains provisions prohibiting educational institutions from doing the following:

  1. Discriminating against a U.S. citizen on the basis of race, religion, creed, color or national origin in the admission process;
  2. Retaliating against employees, students, or applicants for assisting in any proceeding under the law;
  3. Asking for the race, religion, color, or national origin of an applicant;
  4. Discriminating in admission or in the provision of benefits, privileges, or services based on a student’s  race, religion, creed, color, age, sex or national origin;
  5. Excluding students from admission because they are blind, deaf, or require a guide dog;
  6. Requesting information about, or to discriminate on the basis of a failure to provide information about, certain criminal records;
  7. Sexually harassing students.

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In the world of disciplinary hearings under Title IX, the process for students accused of sexual harassment or sexual assault on campus often begins this way: an accused student (the “respondent” in campus disciplinary parlance) is called into a meeting with a school administrator and informed of a disciplinary charge that could result in expulsion. At most schools, the information that the school provides about the actual charge consists of the date of the alleged event (or a range of dates); the identity of the complainant (the student who is making the accusation) and the provision of the student code that the respondent allegedly violated, or another summary description such as “non-consensual sexual conduct.” In practice, this information is often not sufficient to allow the respondent to identify the actions that the school is investigating, particularly where the allegations stem from a long-term romantic relationship with the complainant, much less to prepare a defense. It also may not give respondents adequate notice to allow them to evaluate whether they may face criminal charges, and make informed decisions about whether to waive their 5th Amendment right to remain silent by making statements during the school’s investigation.

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For over 40 years, Massachusetts has had an avenue of pretrial diversion in criminal cases, which allows young individuals accused of less-serious crimes to avoid a criminal record. Specifically, defendants under age 22 with no prior convictions who are charged in state District Court (or the Boston Municipal Court) can seek a diversion under Chapter 276A of the General Laws. (Sex offenses and certain other crimes are not eligible for pretrial diversion.) If the court agrees, the defendant’s arraignment can be postponed while the defendant participates in a “program” with an aim toward rehabilitation and preventing future offenses. A “program” can include any of a number of different things, including medical, psychological, or substance abuse treatment; education, training, or counseling; community service; or “other rehabilitative services.” After the defendant completes the program, the court may dismiss the charge without it ever showing up on his or her criminal record. Continue reading

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As I previously wrote , in December 2016 Rule 41 of the Federal Rules of Civil Procedure was changed to give law enforcement more expansive authority to conduct searches of computers. How the new procedural rule will interact with core constitutional values and established legal principles, as well as what the practical consequences of the rule are, remain open questions.

(1) Fourth Amendment

The proposed changes may well fall afoul of the Fourth Amendment. As I have discussed in a previous blog post, the Fourth Amendment protects people against unreasonable searches and seizures. It does this by requiring the government to obtain a warrant before conducting most searches, by requiring those warrants to be supported by probable cause, and by requiring the warrants to be particular about the location to be searched and the items to be seized. Continue reading

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In December 2016, a federal policy-making body known as the Judicial Conference of the United States made it much easier for federal law enforcement to hack into private computers and mine personal data regardless of the computer’s location. It did this simply by changing Rule 41 of the Federal Rules of Criminal Procedure. The Supreme Court approved the changes in April 2016, and Congress recently declined to take steps to block or delay the changes. That means that the changes have now gone into effect, and law enforcement now will have a much easier time obtaining warrants to search computers—and possibly also have an easier time surviving constitutional challenges to those warrants.

What is Rule 41, And What Did the Change Do?

Federal Rule of Criminal Procedure 41 governs procedures related to search warrants and seizures. It governs what law enforcement must do in order to obtain and then execute a search warrant; what a magistrate judge must do to issue a warrant; and what a person must do to move for the return of property or suppression of evidence unlawfully obtained.

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At a time of increasingly public protests, the Supreme Judicial Court recently reaffirmed its commitment to protecting speech here in Massachusetts.  Under Masschusetts’s Anti-Strategic Litigation Against Public Participation law (“Anti-SLAPP”), defendants can move to dismiss a lawsuit filed against them if that lawsuit targets their attempt to influence a government body or seek help from one.   It had always been clear that when a person attempts to influence the government on their own behalf – in other words, to vindicate their own interests – the statute protected that activity.  But in Cardno ChemRisk v. Cherri Foytlin et al., the Court made clear that the statute extends to citizens’ right to advocate not just for themselves, but also for others.

Massachusetts is one of twenty-eight states with Anti-SLAPP protection.  These statutes buttress a basic constitutional right:  The First Amendment of the United States Constitution protects the right “to petition the Government for a redress of grievances.”  That means that every person has a right to influence government bodies – by, for example, protesting in the town square or testifying at a hearing – without fear of reprisal.  But citizens’ protests can often frustrate powerful, non-governmental interests.  And when they do, those powerful interests may use courts to try to stop or stifle the speech.  Anti-SLAPP statutes protect citizens from those suits. Continue reading

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