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.
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.
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.
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.
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, the 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.
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