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writing-1149962_1920In our last post, we assessed the provisions and potential impacts of two of the campus sexual misconduct bills that will be considered by the Massachusetts Legislature in an upcoming hearing on April 9. In this post we are focusing on several of the other bills that will be up for debate, including one that would require a school to label a student’s transcript as soon as he or she is accused of certain criminal acts and another that would mandate sexual harassment training for all Massachusetts college and university students, faculty, and staff.

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MoneyThe Supreme Judicial Court in the recent case of Ferman v. Sturgis Cleaners, Inc. addressed a limited but important question under state law: when an employee brings a claim for violation of the Wage Act or similar statutes and then settles the claim before trial, can the court award attorney’s fees to the employee? This is a common situation because wage cases, like any other civil cases, typically are resolved one way or another before going all the way to trial. The SJC held that, in contrast to federal law, a plaintiff who obtains a favorable settlement is a prevailing party under state law, and therefore can seek attorney’s fees. There are unique aspects of the Wage Act that make settlements especially common, such as mandatory treble damages, but the provision requiring an award of attorney’s fees to prevailing plaintiffs works the same under other employment-related and civil rights statutes. Thus, this decision is likely to be applicable beyond the specific context of the Wage Act.

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On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.

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On August 10, 2018, Governor Baker signed a new law that, among many other things, restricts and reforms noncompetition agreements, which are commonly used by employers in some sectors of the economy. Noncompetition agreements, or noncompetes, restrict what an individual can do during or after their employment – typically, to prevent them fromhandshake working for competitors or entering market areas where the employer is already present. Although reasonable noncompetes sometimes serve to protect legitimate business interests of an employer, they can also be used to punish employees who decide to leave, or even lock them into their current employers by severely limiting permissible opportunities to work elsewhere. In one egregious case, the sandwich shop Jimmy John’s attempted to use noncompetition agreements to stop fast food workers from leaving for competitors, although they stopped this practice after investigations by multiple state attorneys general.

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On July 3, 2018, Governor Baker signed a law permitting a court to order firearms and other weapons to be taken away from a licensed individual who “poses a risk of causing bodily injury to self or others” for any reason. This so-called “red flag” bill is similar to laws that have been increasingly passed in other states in the wake of mass shootings such as the school shooting in Parkland, Florida. The new law is designed to make it easier to remove guns from the equation where there is an indication that someone is in crisis or may engage in violence. In Parkland, police had been alerted to concerns about Nikolas Cruz’s violent propensities, but they had no legal authority to remove the guns he already owned. Although police chiefs in Massachusetts have broader discretion to suspend or revoke firearm licenses than authorities in many states (since here only someone whom a police chief determines to be a ”suitable person” according to set criteria receives a license to carry firearms), the suspension or revocation process is not designed for fast action in response to changing circumstances.   Continue reading

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On April 13, 2018, Governor Baker signed a law overhauling many aspects of the Massachusetts criminal justice system. My colleague Naomi Shatz recently covered the ways that the bill made pretrial diversion available to more defendants, and introduced a new program of diversion through restorative justice. Both of those programs, if successfully completed, allow defendants to move forward without a record of conviction, or even without a record of arraignment.

The reform legislation also takes several steps to expand the ability of defendants to turn the page on prior criminal cases by sealing or expunging their prior records. Although these provisions will not become effective until October, at that point they will have far-reaching effects for many individuals. I previously addressed the pre-reform state of the law a few years ago for this blog. As things stand until the new law takes effect, a defendant must wait 5 years after a conviction of a misdemeanor before being able to seal his or her record, 10 years for a felony, and 15 years for sex offenses that can be sealed. Non-convictions (such as dismissals after a continuance without a finding) can be sealed either after those waiting periods, or by petitioning a judge to seal the record sooner. Continue reading

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Pre-Arraignment-DismissalOn March 22, a decision by the Massachusetts Appeals Court made a small but significant change in the authority of District Court and Boston Municipal Court judges to screen out criminal charges that may have been improperly issued or legally flawed. In Commonwealth v. Moore, the Appeals Court held that these judges cannot decide a motion to dismiss a complaint for lack of probable cause before a defendant is arraigned – that is, before a defendant formally faces the charges and pleads guilty or not guilty. This decision has the potential to substantially increase the number of people in Massachusetts with criminal records, many of whom may face adverse consequences from employers or others. This result will waste judicial resources and is contrary to the goals of the criminal justice reform bill that just passed the Legislature. It should be addressed promptly by the Legislature and/or reversed by the Supreme Judicial Court.

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SJC-Sick-Time-Wage-Act

On January 29, the Supreme Judicial Court in Mui v. Massachusetts Port Authority held that accrued but unused sick pay is not subject to the state Wage Act, even if the employer has agreed to pay out some or all of the sick pay when an employee separates from employment. While the result may make sense on the facts of this case, and is generally consistent with the way the Wage Act is currently drafted, the Court’s decision sweeps more broadly than it needs to. It removes a powerful incentive for employers to promptly pay compensation that is due to some employees at the end of their employment.

In Mui, MassPort (the agency responsible for Logan Airport, among other things) began the process of discharging the plaintiff, a longtime employee, after he made an apparent suicide attempt that caused property damage. Before that process completed, Mui retired from MassPort, and an arbitrator later decided that MassPort could not fire him because he had already retired. MassPort had a policy of paying a portion of accrued but unused sick time to employees upon their departure, unless they were discharged for cause. MassPort at least initially refused to give Mui his sick pay (which amounted to about $47,000) because it claimed he had been discharged for cause. Continue reading

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Sessions Department of Justice Marijuana

Perhaps motivated by California’s legalization of recreational marijuana, which just became effective at the beginning of the year, Attorney General and longtime cannabis opponent Jeff Sessions recently issued a brief statement changing the Department of Justice’s approach to marijuana, even as support for marijuana legalization is hitting all-time highs. Over the course of the Obama Administration, Deputy Attorneys General David Ogden and James Cole had issued increasingly detailed and refined guidance, instructing U.S. Attorneys to take a largely hands-off approach to marijuana to the extent it was legal under state laws; federal authorities would focus on enforcing certain red lines such as sales to minors, use of weapons or violence, and interstate trafficking. With the clarity of these guidance memos, participants and investors in marijuana markets – first medicinal and, more recently in a few places, recreational – developed a comfort level that, as long as they carefully observed state requirements, the risk of federal prosecution was remote (even though there continued to be tension between state laws and the federal Controlled Substances Act). Now Attorney General Sessions has rescinded all of that guidance, sparking a blaze of consternation among industry observers. Continue reading

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Massachusetts-Criminal-Justice-Reform

Over the last few months, the Massachusetts Senate, and then the House, debated and passed bills that would make significant changes to the state criminal justice system, ultimately resulting in a more flexible and forgiving system, with a greater ability for those who have gone through the system but subsequently stay out of trouble to move on with their lives. Both chambers’ bills would crack down on certain specific offenses, such as increasing penalties for selling or trafficking in opioids like fentanyl, but reduce mandatory minimums and other penalties like those for non-violent drug offenses, sometimes retroactively. And both would take a less strict and punitive approach toward low-income defendants who cannot afford to post bail or to pay fines and fees. Continue reading

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