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

pexels-rodnae-productions-6069522-scaledMassachusetts has a fraught history with clemency and has strongly disfavored this post-conviction remedy for decades. Last year, however, there was a slight uptick in the number of clemency grants: Governor Charles Baker approved 3 commutations for Thomas Koonce, William Allen, and Ramadan Shabazz and 10 pardons 

 Article 73 of the Amendments to the Constitution of the Commonwealth vests clemency power in the governor. 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. Although clemency power technically vests in the governor, there are multiple entities involved in the decision-making process.  CONTINUE READING ›

Man in yellow shirt being patted down by police officerThe use of “patfrisk” or “stop-and-frisk” techniques by police is a serious—and, in some communities, alarmingly frequent—intrusion on personal liberty and dignity. In Commonwealth v. Karen K., the Massachusetts Supreme Judicial Court (SJC) considered the case of a sixteen-year-old African-American girl stopped and patfrisked by Boston police, who discovered a loaded firearm in the waistband of her pants. The case provided an opportunity for the Commonwealth’s highest court to revisit some of the same highly charged questions of constitutional law at play in their controversial and fractured 2021 decision in Commonwealth v. Sweeting-Bailey, which we previously discussed on this blog. 

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For the second time this year, the First Circuit has reversed a district court’s ruling dismissing a student’s breach of contract claim against his school, reaffirming that courts are willing to second guess school’s interpretations and applications of their own policies.

Background of the Case

In Doe v. Stonehill College the plaintiff alleged that Stonehill had violated his contract with the school, and discriminated against him in violation of Title IX, when it found him responsible for sexual misconduct in 2018 and expelled him. According to his complaint, he and student Jane Roe had had three previous consensual sexual encounters before the incident that gave rise to her Title IX complaint against him. On the night in question, he claimed that the two engaged in sexual conduct that was the same as on other nights, and to which she consented in the same way (through physical manifestations of consent) that she had on previous occasions.

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us-capitol-building-g54e7f07d2_1920Federal legislators have introduced a bill to correct absurdities in anti-discrimination law that ensure institutions are rarely held liable for egregious acts of discrimination on their campuses. As things currently stand, a school district cannot be held liable for an on-campus rape of a student even if the student had previously been harassed by the assailant and told her teacher about the harassment, but the teacher failed to report it to the right administrator at the school. Even where students can bring legal claims against their schools for the school’s failure to properly address sexual harassment, they may well walk away from such a lawsuit empty handed because plaintiffs cannot recover punitive damages and may not be able to recover emotional distress damages in civil rights lawsuits in the education context. Imagine this: a college knows that it employs a professor who has assaulted countless students over many years. The professor sexually assaults another student on campus. Despite suffering extreme mental health consequences from the assault, the student manages to stay in school and graduate on time. If the student sues the school, a court could decide that even though the school has violated the student’s rights under Title IX, the student is not entitled to any damages for the harm the school has caused. CONTINUE READING ›

This week, President Biden signed the Speak Out Act into law, the most recent victory for advocates against workplace sexual assault and sexual harassment. The Speak Out Act makes prior non-disclosure and non-disparagement clauses in agreements (or “NDAs”) unenforceable when the partiespexels-anna-shvets-3727513-scaled later become engaged in a dispute regarding sexual assault or sexual harassment.  

The first substantive section of the Speak Out Act lays out a series of findings regarding sexual assault and sexual harassment that paint a clear picture of the need for the law. As stated by the Act, “eighty-one percent of women and forty-three percent of men have experienced some form of sexual assault or harassment throughout their lifetime,” and “one in three women has faced sexual harassment in the workplace during her career.” Despite these staggering statistics, “an estimated 87 to 94 percent of those who experience sexual harassment never file a formal complaint.” CONTINUE READING ›

This is a follow up to a previous two-part series: you can read Part 1 here and Part 2 here pexels-nataliya-vaitkevich-7173013-scaled

 On October 24, 2022, An Act Prohibiting Discrimination Based on Natural Hair and Protective Hairstyles, also known as the Massachusetts CROWN Act, went into effect, but is significantly changed from the proposed legislation we have previously discussed on this blog. The CROWN Act expands the statutory definition of “race” that applies to all laws addressing racial discrimination to include “traits historically associated with race, including but not limited to, hair texture, hair type, hair length and protective hairstyles.” In addition, the Act defines “protective hairstyle” to include “braids, locks, twists, Bantu knots, hair coverings and other formations.” The CROWN Act also prohibits schools (except for sectarian schools) from adopting any policy or code that “impairs or prohibits” hairstyles historically associated with race. CONTINUE READING ›

pexels-fauxels-3184603-scaledWe have previously written about how Massachusetts law limits non-competition clauses. Non-competition clauses restrict where an employee can work after she leaves a job; an employee agrees in a contract not to work for a competitor for a period of time after she separates from an employer. Under M.G.L. c. 149 § 24L, Restrictions on Non-Solicitation Clauses non-compete agreements signed as a condition of employment must meet certain requirements, including advance notice of the clause, compensation in exchange for accepting the limitation, and the opportunity to consult with counsel. The law also requires that non-competes have a limited duration and scope. Clauses signed after October 2018 must comply with the statute to be enforceable.

But there are other kinds of restrictions that are like non-competes that are not subject to the statute’s requirements. Principal among those are non-solicitation agreements. Non-solicitation clauses restrict who an employee can contact after they leave a job. Non-solicitation clauses can prohibit people from recruiting employees at the prior employer. Clauses can prohibit reaching out to, or doing business with, any customers of the prior employer. Sometimes they are written so broadly that a clause tries to prohibit an employee from even speaking with a former customer or co-worker. Thus, employers sometimes try to use non-solicitation agreements to accomplish what they no longer can through a non-compete clause: The clauses are broad and unlimited; they can be so restrictive about what communications an employee may have, that, in practice, the employee cannot conduct business. Imagine, for example, a seasoned salesperson with a large existent network of customers. As a practical matter, a non-solicitation agreement might bar her from talking to most potential customers in her industry should she leave a job, preventing her from performing any new job she should get that involves sales.

Courts, however, have held overly broad non-solicitation agreements unenforceable. Thus, even absent the protection of a statute, the law still places restrictions on a company to limit a former employee’s communications with former colleagues and customers. A judge in the Massachusetts Superior Court recently noted that non-solicitation agreements “limit competition in a market to sell goods or services to potential customers.” As the Appeals Court has held, a non-solicitation agreement can only be enforced under Massachusetts law to the extent “necessary to protect the employer’s legitimate business interests” and “and only to the extent that it is reasonable in time and space, necessary to protect legitimate interests, and not an obstruction of the public interest.” That means, for example, that a non-solicitation clause that does not have any relationship to protecting an employer’s confidential information, intellectual property, or trade secrets is likely unenforceable. A non-solicitation agreement that is not limited in time or geography is also likely unenforceable.

Woman sitting at laptop in her homeIn the last few decades, and particularly since the start of the COVID-19 pandemic, remote working arrangements have become increasingly common. In many industries, an employee can produce documents, answer emails, and attend video meetings from anywhere with an Internet connection, without even setting foot in an employer’s office. That flexibility, however, can create complications for the employment relationship, particularly when there is a question about which state’s laws apply. Since Massachusetts laws are often more favorable to employees than those of other states, we regularly field questions from workers wondering whether they can enforce their rights under Massachusetts law even if they do not live, or regularly work, in Massachusetts.

Unfortunately, there is not one clear answer that applies to all laws or all situations. For the most part, a court will look at the details of an employment relationship to decide whether Massachusetts is the core of the relationship or has significant connections to what the employee was doing. The physical place that work takes place is relevant but not always dispositive.  CONTINUE READING ›

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If you are an at-will employee, you have the right to quit your job at any time. And there may be compelling reasons to leave immediately. But quitting your job will affect your legal rights, so before you resign, here are some things to consider. 

 Can I collect unemployment? 

You may not be able to collect unemployment if you quit. In Massachusetts, if you choose to resign, you will not be eligible for unemployment unless you show that you left (a) for good cause attributable to your employer; or (b) for urgent and compelling personal reasons. When you quit, the burden will be on you to show that you should receive unemployment.  CONTINUE READING ›

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Earlier this month, the Massachusetts Appeals Court limited protections available to public employees in Harrison vs. MBTA, holding that sovereign immunity protects public employers from claims brought under the employee misclassification and anti-retaliation provisions of G.L. c. 149.  

In general, sovereign immunity is a legal doctrine that protects a government from being sued. The Massachusetts government, like most governments, has created certain exceptions to the doctrine, so that the state can be sued under limited circumstances. Unfortunately, as decided in Harrison, employee misclassification and wage-based retaliation do not qualify.  

Background of the Case 

Harrison involves two workers who performed IT services for the MBTA pursuant to contracts between the MBTA and other merchants. The workers alleged that they were misclassified as independent contractors rather than employees, which disqualifies them from certain legal protections, and one of them alleged that he was fired in retaliation after asserting that he was misclassified.  

Both claims – misclassification and retaliation – arise under the Massachusetts Wage Act, G.L. c. 149, §148 et seq. Before reaching the question of whether the workers were misclassified or retaliated against, though, the court had to decide whether sovereign immunity allowed the suits to be brought against the MBTA.   CONTINUE READING ›

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