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.
Last 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.
Today, Emma Quinn-Judge, David Russcol, Ana Munoz, and Harvey Silverglate filed a lawsuit in Suffolk Superior Court challenging Harvard’s policy that punishes students who join single-sex organizations. As the complaint in the case notes “As a result of this policy, almost every single-sex organization available to undergraduate women at Harvard closed its doors, or reorganized as a co-ed social organization. Most male single-sex organizations, by contrast, remain open, providing men with relationships, opportunities, and experiences to which Harvard undergraduate women now have limited access.” Harvard’s policy, which bars members of single-sex social organizations from holding leadership positions on campus, varsity team athletic captaincies, and prohibits them from receiving College endorsement for prestigious fellowships, “violates the fundamental rights of Harvard women and men to associate freely with their peers and to live free of sex discrimination, rights guaranteed by articles 1 and 19 of the Declaration of Rights of the Massachusetts Constitution, as amended, as well as the First and Fourteenth Amendments to the United States Constitution.”
Information about the firm’s suit, and a parallel federal lawsuit also filed today, can be found at www.standuptoharvard.org.
Read more on today’s lawsuits:
We are pleased to announce that five of our attorneys have been selected to the 2018 Massachusetts Super Lawyers List. We would also like to congratulate six of our attorneys for being selected to the 2018 Massachusetts Rising Stars list.
Super Lawyers rates outstanding lawyers from more than 70 practice areas who have attained a high-degree of peer recognition and professional achievement. The selection process includes independent research, peer nominations, and peer evaluations. Only up to 5 percent of the lawyers in a state are named to the Super Lawyers list, and no more than 2.5 percent are named to the Rising Stars list.
Please join us in congratulating the following attorneys who have been selected as “Super Lawyers” and “Rising Stars” this year.
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 some 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.
The 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
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