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

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Text messages have replaced the old-fashioned phone call: Since 2014, Americans under 50 reported preferring text messages to talking on the phone. American adults under 45 send and receive an average of 85 texts per day. Many people, then, treat texts like talking. But even though the government might need a warrant to intercept your phone call, as of this week, in Massachusetts, the government can read and use your texts that they obtain from someone else’s phone.   

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This is Part 2 in a series. You can read Part 1 here. 

I previously detailed how existing anti-discrimination law is insufficient to protect employees and students who wear their hair in natural or protective styles from discrimination. A national campaign called the CROWN Act, has built an impressive coalition of organizations in support of legislation to remedy this problem. In the last two years, eleven states and a handful of cities and counties have passed this type of legislation. Massachusetts Representative Ayanna Pressley introduced a federal CROWN Act in Congress in December of 2019.  CONTINUE READING ›

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This is Part 1 in a series. You can read Part 2 here.

Last week Jon Oliver took a deep dive into Black hair, and the barriers people with natural and protective hairstyles face in the workplace, in schools, and elsewhere. His segment highlighted stories of a woman who was not hired because she wore her hair in locs, twins here in Massachusetts who received detention and were banned from prom because they wore their hair in braids, and an Ivy-league alumnus who sent a vitriolic, racist letter to his college because a football player for the college wore his hair in locs. Over the weekend news broke that a high school softball player in Durham was forced to cut her beads out of her hair in the middle of a game if she wanted to continue playing. While there has been a growing movement in the last two years for states, cities, and towns to pass versions of the Creating a Respectful and Open World for Natural Hair (CROWN) Act, thus far Massachusetts has not passed any legislation on this issue. Because our current laws do not adequately protect against such discrimination, a legislative fix is necessary.   CONTINUE READING ›

kai-pilger-dwBZLRPhHjc-unsplash-scaledBy Catherine Willett, Law Student Intern

About 20% of workers in the United States are contractors: individuals hired to work on a specific project or for a specific period of time. This number is bound to grow as employment through the gig economy reaches into more sectors and the use of subcontractor agencies proliferates. Indeed, participation in the gig economy has expanded enormously during the COVID-19 pandemic. But the pandemic has also exposed the vulnerability of gig workers and the precarity of relying on gig work as a sole source of income. Many statutory workplace protections do not apply to independent contractors. The lack of healthcare benefits, paid time off, and minimum wage protections for gig workers has been the subject of considerable recent media attention. And while Congress expanded unemployment benefits to these workers during the pandemic, they generally do not qualify for unemployment benefits because neither they nor whoever they are performing services for pay into unemployment insurance. CONTINUE READING ›

yale-university-1604159_1920Freedom of speech on campus—the freedom to express opinions, including when they are unpopular—has long been a key principle of American academic institutions. Thomas Jefferson wrote to prospective members of the faculty of the University of Thomas Jefferson that the institution would be “based on the illimitable freedom of the human mind. For here we are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it.” Yet this principle is sometimes more honored in the breach than in the observance. The University of Thomas Jefferson shortly thereafter rescinded a professor’s appointment because he was a Unitarian. (This article is a very interesting account of the early history of academic freedom in America.)

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capitol-building-415839_1920By Sophie Nguyen, Law Student Intern

Eight years ago, a teacher in San Diego was fired from her job for experiencing domestic violence. After her abusive ex-husband showed up at the school where she taught to confront her, the school decided that her mere presence posed too much of a “risk,” and fired her, despite the fact that her ex-husband was arrested and later incarcerated. Later that year, California passed a law prohibiting this type of discrimination against people who were experiencing domestic violence. This teacher’s story is not unique: 74% of domestic violence survivors report that they have suffered some form of abuse at work. As a Washington, D.C. court noted, quoting testimony provided at a legislative hearing: “Studies have shown that 96% of employed domestic violence victims experience problems at work related to the abuse and that 30% lose their jobs due to domestic violence.” While many of us think of domestic violence as an issue that resides within the home, the reality is that it inherently affects survivors’ ability to function in the workplace. Employment is also often the only way for survivors to achieve financial independence from their abusers; without it, many survivors must remain with their abusers. Employers have a significant role to play in addressing domestic violence, both by protecting their employees at work and ensuring that their employees can remain employed even while dealing with domestic violence situations. Despite these facts, 65% of companies do not have a formal workplace domestic violence prevention policy.

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street-3738298_1920-1In Commonwealth v. Lek, Lang Lek was convicted of gun possession after two Lowell Police officers pulled him over for a minor traffic violation so that they could “investigate” and “suppress gang activity.” After searching the vehicle, which belonged to Mr. Lek’s girlfriend, the officers found a gun in the glove compartment. Mr. Lek appealed his conviction, arguing that the gun should have been suppressed because it was recovered during an illegal search. The Massachusetts Appeals Court agreed with Mr. Lek, deeming the search unlawful because the officers used an inventory search as a pretext for investigation. In its decision, the Appeals Court also articulated broad concerns about the threat of racial profiling and “arbitrary action” when the police are given “unbridled discretion” to conduct investigatory traffic stops.

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Gordon-CollegeWe are going through an era of extraordinary political division. On college campuses as in broader society, both students and faculty are voicing widely differing views and beliefs. Colleges also have increasingly robust disciplinary rules applying to conduct including harassment, bullying, and discrimination that may be applied to conduct that takes the form of speech. At public institutions, the First Amendment protects students from discipline based upon their speech—but not in all circumstances. (Private institutions are another matter that I will address in a separate post.) This post reviews the basic law about free speech on campus and discusses a 2020 First Circuit decision that encapsulates the complexity of determining when speech is sufficiently disruptive of the school’s mission or of the rights of other members of the school community to warrant discipline.

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pexels-photo-357514In Massachusetts, as in many other states, the Legislature has adopted a personnel record law that specifies documents and information that every employer must maintain in an employee’s personnel record, such as documents relating to an employee’s qualifications and possible promotions, transfer, or discipline. For instance, many employers must include an employee’s job description and rate of pay, job application and resume, performance reviews, warnings, and termination notices. Employees have the right to review or receive a copy of their personnel records on request, and employers must notify employees if negative information is put into their personnel records. In order to promote accuracy of personnel records, the law allows employers and employees to agree to remove or correct information in these files, and if an employee disagrees with information contained in their personnel record, they have the explicit right to submit a written response, which the employer must include whenever they transmit the disputed information to a third party (such as a potential future employer).

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Gordon-CollegeTwo weeks ago, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Deweese-Boyd v. Gordon College, a case which tests the limits of the “ministerial exception” and the legal protection it provides for religious employers. CONTINUE READING ›

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