Boston Lawyer Blog

Attorney Ana Muñoz Speaks to Massachusetts Lawyers Weekly About New SJC Decision

Published on: September 13, 2024 | by Ana Muñoz

Attorney Ana Muñoz spoke to Massachusetts Lawyers Weekly this week about the SJC’s decision in Patel et al. v. 7-11 Inc., et al. The Court answered a certified question from the First Circuit about how to address claims by franchisees that they have been misclassified as independent contractors. Muñoz, who wrote an amicus brief in the case on behalf of the Massachusetts Employment Lawyers Association (MELA), noted that in its decision “the SJC also reaffirmed its commitment to ensuring that people are paid for their work by adopting a broad reading of the Wage Act under which a label like ‘franchisee’ will not be determinative.” Read the full story here: Bar sees balance in SJC’s ruling in 7-Eleven case | Massachusetts Lawyers Weekly (masslawyersweekly.com)

Supreme Judicial Court Holds That a Switchblade is Protected Under the Second Amendment

Published on: September 10, 2024 | by Ana Muñoz and Niamh Gibbons

As we recently wrote, states’ firearms regulations have faced legal challenges across the country since the Supreme Court’s 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen, which held that individuals have a Second Amendment right to carry a handgun in public for self-defense. But how does Bruen affect regulations of other weapons besides firearms? Last week, the Supreme Judicial Court (SJC) held that its logic governed whether a switchblade qualifies as an “arm” under the Second Amendment. In Commonwealth v. Canjura, the defendant challenged the Massachusetts switchblade ban. Massachusetts General Laws Chapter 269, § 10(b) outlawed switchblade knives, defined as knives with a spring release device, as well as several other dangerous weapons. Violations of the statute are punishable by up to five years in state prison. In Canjura, the SJC held that the ban violated the Second Amendment under the two-part test the United States Supreme Court set out in Bruen. That means the switchblade band is no longer enforceable.

What is the Bruen test?

Under Bruen, the party challenging a weapons regulation must first show that their conduct falls within the plain text of the Second Amendment and is therefore presumptively protected. If the conduct is protected, the burden then shifts to the government to show that its regulation is “consistent with the Nation’s historical tradition of [weapons] regulation.”

Supreme Judicial Court to Revisit Anti-SLAPP Standard

Published on: October 19, 2023 | by Ana Muñoz

Earlier 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.

Know Your Rights: Restrictions on Non-Solicitation Clauses

Published on: November 7, 2022 | by Ana Muñoz

We 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, 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.

SJC Prevents Ballot Measure Removing App-Based Drivers from Employment Protections

Published on: June 17, 2022 | by Ana Muñoz

The SJC struck an initiative from November’s ballot that, if approved, would have created a new class of “app-based driver” not subject to many bedrock employment laws. In Koussa v. Attorney General, the Court held that the proposed initiative raised too many different policy questions, and, thus, did not meet constitutional requirements for petitions. Because Massachusetts law only allows ballot initiatives that present voters with “related” and “mutually dependent” issues, the Court held that the Attorney General should not have allowed the initiative onto the ballot. CONTINUE READING ›

Text is not Talking: Supreme Judicial Court Holds that Individuals have no Reasonable Expectation of Privacy in Sent Text Messages

Published on: June 3, 2021 | by Ana Muñoz

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.

Thinking About Participating in a COVID-19 School or Childcare Pod? Here’s What You Should Know as a Massachusetts Employer or Employee.

Published on: August 4, 2020 | by Ana Muñoz

Due to the COVID-19 pandemic, many parents are exploring new arrangements for education and childcare for their children. Families who can afford to are creating “micro-schools” or “school pods”—groups of a few families with similar-aged children who hire a teacher to provide lessons in the families’ homes. Others are simply looking to hire extra childcare help for children who are out of daycare or doing school remotely.

Coronavirus and Employment Law Update: The New Federal Families First Coronavirus Response Act

Published on: March 23, 2020 | by Ana Muñoz

The 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.

CORONAVIRUS – What Protections do State and Federal Leave Laws Provide?

Published on: March 13, 2020 | by Ana Muñoz

On 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.

New Department of Labor Rule Makes Wage Claims Harder for Plaintiffs

Published on: January 23, 2020 | by Ana Muñoz

Last week, the Trump administration finalized a rule that narrows the definition of “joint employer” 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.