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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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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 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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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 ›

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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