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hammer-802301_1920The grand jury is a centuries-old institution, dating back at least to the Magna Carta in England, and enshrined in both state and federal constitutions in this country. In order to charge someone with a felony, a prosecutor must present sufficient evidence to a group of ordinary citizens to establish probable cause that the defendant committed the crime. The grand jury is both an investigative body – the grand jury has the power to issue subpoenas, typically at the prosecutor’s suggestion – and a check on the authority of the prosecutor. The felony prosecution cannot proceed if the grand jurors vote a “no bill” and refuse to indict.

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On Friday, David Russcol and Rachel Stroup filed a lawsuit in federal court alleging that Tufts University retaliated against their client, a graduate student who blew the whistle on research fraud in her laboratory, which was funded by the National Institutes of Health. As the complaint alleges: “After Dr. Meadows reported this issue to Tufts, she faced severe and ongoing retaliation, including a delay in her progression through her Ph.D. program; interference with her research at the university; and severe damage to her reputation, including false accusations of theft.” The complaint alleges that in retaliating against her for reporting research misconduct related to a federal grant, Tufts violated the False Claims Act (which protects individuals who report on entities defrauding the government), the Massachusetts Civil Rights Act, and various common-law claims including invasion of privacy and defamation. The full complaint can be read here.

Press coverage:

PhD veterinary graduate files $1 million lawsuit against Tufts University because she’s been ‘unable to get a job after reporting her department for faking research and animal abuse’ – Daily Mail

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On August 6, 2019, the U.S. Court of Appeals for the First Circuit released a decision that ca1strengthens the due process requirements applicable to discipline at state universities, but does not go as far as other courts such as the Sixth Circuit, which has forcefully affirmed a due process right to cross-examination on issues of credibility. In Haidak v. University of Massachusetts-Amherst, the First Circuit largely found the University of Massachusetts-Amherst (UMass) procedures adequate as they were applied in the specific case before it, but adopted a requirement for some form of real-time cross-examination sufficient to address the key facts and issues in a student’s case. The court also emphasized the need for a state college to provide a student with due process for even an interim suspension – and only in the case of a real emergency can that process occur after the suspension. 

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Joint-RollingWe frequently get inquiries from employees who are unsure of their rights regarding cannabis. Their confusion is understandable, since marijuana is very much in a legal gray area. Although possession of any amount of marijuana is a federal crime, Congress and Justice Department priorities have sharply limited enforcement of federal law against most people who have marijuana only for personal use. Under Massachusetts state law, different statutes authorize medical and recreational sale and use of cannabis. State-licensed dispensaries sell cannabis in cities and towns across Massachusetts for medical purposes and increasingly for non-medical purposes as well. Depending on the situation, employees who use cannabis may or may not have legal protections. This general overview will focus on three areas: drug testing, the use of medical cannabis under state law, and recreational marijuana. 

Massachusetts employers may require employees to take drug tests under some circumstances, but the employers must meet specific legal criteriaUnder federal and state laws against disability discrimination (the Americans with Disabilities Act and Chapter 151B), an employer may be permitted to require an applicant to undergo a test for illegal drugs after offering the applicant a job, if the test is relevant to the employee’s ability to perform the job and is applied equally to all employees in the same job category. After an employee has been hired, any drug test must be job-related and consistent with business necessity. Because marijuana is illegal for federal purposes but legal under state law, it is unclear whether Massachusetts employers may test for marijuana even if they can test for other drugs; however, if there is a specific federal requirement to test for marijuana, such as for truck driversthe federal law would govern. 

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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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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.

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