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In Parker v. EnerNOC, Inc., the Supreme Judicial Court held that employers who fire or otherwise retaliate against their employees in order to avoid paying earned commissions must pay treble damages for those lost commissions. Zalkind Law’s David Russcol, along with Audrey Richardson of Greater Boston Legal Services, submitted an amicus brief on behalf of the Massachusetts Employment Lawyers Association, Immigrant Worker Center Collaborative, Lawyers for Civil Rights, and Fair Employment Project. The plaintiff in Parker landed a major sale for her employer, but the jury found that her employer fired her after she complained about being underpaid on her commissions (and for being subjected to sex discrimination, which was not at issue in this appeal). A large portion of her commission only became due a year later, after the customer decided not to exercise an option to cancel its contract. The SJC agreed with David’s argument that the commissions the plaintiff would have been paid if she had not been fired qualify as “lost wages” under the Massachusetts Wage Act, meaning that she could recover triple that amount. In doing so, the SJC rejected the trial judge’s interpretation that only commissions that were due and payable as of the last day of employment should be tripled – a reading of the law that would encourage employers to fire employees to deprive them of earned commissions. The SJC strongly reinforced the purpose of the Wage Act to protect employees from wage theft, and clearly stated that an employer cannot make commissions contingent on continued employment, and then rely on that contingency to deny payment to a terminated employee who has done the work to earn the commission. This decision emphasizes the broad reach of the Wage Act’s protections, as well as the substantial remedies (including treble damages and attorney’s fees) against those who violate this law.

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Attorneys Naomi Shatz and David Russcol were interviewed by Massachusetts Lawyers Weekly about the right to cross-examination in sexual misconduct investigations at private colleges, following the First Circuit’s recent decision in Doe v. Boston College. Click here to read the article, and click here to read Attorney Russcol’s blog post about the decision.

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IMG_1541In Doe v. Trustees of Boston College, the U.S. Court of Appeals for the First Circuit refused to extend due process protections to private Massachusetts colleges, despite its recent holding in Haidak v. UMass-Amherst that some form of cross-examination or equivalent questioning is required at public universities. It therefore reversed a District Court decision that would have required some form of real-time questioning on issue of credibility. In so doing, the First Circuit deferred to state courts and the state legislature to define the contours of the “basic fairness” requirements for private schools under state law (having ducked the issue in a previous decision in a different Boston College case). This narrow holding underscores the need for further development of state law governing student discipline in light of significant developments in law and practice around the country since the Massachusetts appellate courts last weighed in more than 10 years ago. 

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RusscolZalkind Law’s David Russcol submitted a friend-of-the-court brief in Parker v. Enernoc, Inc., a case heard last week in the Supreme Judicial Court. The plaintiff was fired soon after closing the largest sale in her employer’s history, which the jury found was in retaliation for complaining of violations of the Massachusetts Wage Act. Some of the commissions on that sale were not due until a year later. The Wage Act provides that “lost wages and other benefits” due to retaliation are tripled, but the lower court did not triple those unpaid commissions. David argued on behalf of the Massachusetts Employment Lawyers Association, Immigrant Worker Center Collaborative, Lawyers for Civil Rights, and Fair Employment Project that employers cannot avoid paying commissions by firing employees before the commissions are due, and that the plaintiff’s unpaid wages had to be tripled in order to avoid giving employers an incentive to engage in illegal retaliation.

Read the brief here: Amicus Brief – Parker v. Enernoc, Inc

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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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