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


photo-1444840535719-195841cb6e2bDue 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.


girl-1641215_1920The 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.


person-holding-thermometer-3873171-scaledOn 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.  


Last week, the Trump administration finalized a rule that narrows the definition of “joint man-teaching-woman-in-front-of-monitor-3285203employer” 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.


On August 21, 2019, the U.S. Court of Appeals for the First Circuit released a decision that reaffirms that a hostile work environment claim can span many years, so long as some of the acts that are part of the broader pattern of harassment occurred within the statute of limitations period. In Nieves Borges v. El Conquistador Partnership, kitchen-731351_1920the First Circuit reversed a grant of summary judgment for a defendant, holding that the district court erred in excluding past evidence of sexual harassment in evaluating the plaintiff’s claims. The Court emphasized that “so long as one instance of harassment falls within the statutory limitations period,” “the entire period of the hostile environment may be considered by a court for the purposes of determining liability.”  In other words, past conduct is part of the broader pattern of harassment at issue and is therefore relevant to assessing the nature of an employer’s bad behavior.

The plaintiff in  Nieves Borges took a long time to report the harassment he faced.  This is, of course, not unusual in employment discrimination cases in which a worker who experience sexual or other types of harassment fears losing his or her job.  The plaintiff had worked at his company as a food service manager for twenty-two years when he was terminated in July of 2015. During that time, a high level manager (the Director of Human Resources) had harassed the plaintiff for more than a decade:  According to the plaintiff that harassment included unwanted touching and frequent episodes in which the manager would look the plaintiff up and down while pressuring him to go out for drinks. In 2007, the alleged harasser went so far as to proposition the plaintiff over lunch. After that time, the alleged harasser bothered the plaintiff intermittently, even asking him to socialize several times in 2014, but never propositioned him again. But the plaintiff did not report his supervisor’s behavior until 2014, years after the pattern began and well after the most severe incident. At summary judgment, the district court refused to consider the older incidents, because none of the acts that occurred after 2014 rose to the level of sexual harassment. The district court also held that to prove his claim that he was subjected to a hostile environment the plaintiff had to demonstrate that the conduct he faced was both severe and pervasive.


Police-lightLast week, the Supreme Judicial Court reaffirmed that in Massachusetts, evidence unlawfully obtained from a police search will be excluded in criminal trials even in cases in which the police had good reason to believe the search was legal. That ruling buttresses a longstanding difference between federal law and Massachusetts law. In federal court, prosecutors can insulate police errors by arguing the police had a good faith basis to use an illegal tactic, and therefore evidence should not be suppressed. Not so in Massachusetts – at least for now.

Earlier this month, the Supreme Judicial Court held that a defendant has a right to enter a “conditional plea.”   A conditional plea allows a defendant to plead guilty but preserves the defendant’s right to appeal soCourtroomme of the trial court’s rulings on legal issues.   If the defendant wins the appeal, the plea becomes unenforceable; it is essentially void.   For defendants who have legal defenses to charges – like, for example, a motion to suppress, or a challenge to the government’s interpretation of the reach of a particular criminal provision – a conditional plea is often the only meaningful way for defendants to challenge a lower court’s ruling. CONTINUE READING ›

Until this spring, the First Circuit had not decided many major student discipline cases in over thirty years.  In June, the Court handed down its long-awaited decision in Doe. v. Trustees of Boston College.

Boston-CollegeThe case concerns an alleged sexual assault that took place on a dance floor in 2012.  A female student – “A.B” – was assaulted at a party on a boat sponsored by a Boston College student organization; she felt someone put fingers up her skirt and touch her without her consent.  She identified Doe as the assailant.  But Doe denied the charges – and eventually presented video evidence that suggested another student – J.K. – had committed the act.  Indeed, the video was so convincing that the Middlesex County District Attorney dropped the criminal charges against Doe.  Yet, after a series of procedural irregularities, a Boston College disciplinary panel found Doe responsible for the assault and he was suspended from the college. Two years later, the school agreed to review the case after his parents asked the President to look into it, but ultimately declined to change its conclusion.  Doe and his parents sued.



It’s not as easy as it used to be to answer the question of who’s the boss.  Many employees survive on a patchwork of part-time jobs; the gig economy is growing fast enough to double in the next few years.  Indeed, a recent study released by  Upwork and the Freelancers Union predicts that most workers will be freelancers by the years 2020.  As facts in the workplace evolve, so must the law.

That’s exactly what happened last fall in  Gallagher v. Chambers, a case decided by the Massachusetts Appeals Court.  There, the Court clarified the test for identifying an employer under the Massachusetts Wage Act.  Previously, courts had applied a common-law set of factors that led to inconsistent results in lower courts, which in some cases dismissed corporate defendants even though those entities benefitted from a plaintiff’s work.  In Gallagher, a home health aide sued to recover for unpaid overtime wages.  She named as defendants both her former customer – who had overseen her work on a daily basis – and the agency that had helped her find the placement and processed her paychecks.  That raised the question of whether both were really her “employers” for purposes of the Wage Act.   The Appeals Court took the opportunity to refine the rule for answering that question.


Yesterday, Boston Police Commissioner William B. Evans sent a message of warning to Boston-area college students ahead of a planned “Free Speech” rally and numerous counter-protests. He told college students “please act in a way that would make your school, your family, and your city proud and please respect our neighborhoods. Student behavior off campus will be regarded the same as if it were on campus.”

College students are subject to the laws of Massachusetts just like any other person in the state. If college students engage in illegal behavior at Saturday’s rallies, they can be arrested and prosecuted. But college students are also subject to the student conduct rules of their respective universities. Under Massachusetts law, those handbooks form the basis of a contractual relationship between the student and the college. Both students and colleges must abide by the rules set forth in the handbook; schools cannot punish students for behavior that is not prohibited by their policies. While Commissioner Evans can encourage students to act responsibly, he cannot dictate that schools expand those rules to cover off-campus actions if they do not already do so. CONTINUE READING ›

Super Lawyers
Best Lawyers
Best Law Firms