News + Insights from the Legal Team at Zalkind Duncan & Bernstein

Articles Posted in Employment Law

Gordon-CollegeTwo weeks ago, the Massachusetts Supreme Judicial Court (SJC) heard oral argument in Deweese-Boyd v. Gordon College, a case which tests the limits of the “ministerial exception” and the legal protection it provides for religious employers. CONTINUE READING ›

By Lilly Gill, Law Student Intern

mother-5354379_1920The COVID-19 pandemic has drastically changed the relationships between employment, education, and family life as parents are juggling having their children home in remote education or otherwise having limited childcare, and other caregivers have needed to take care of elderly parents or disabled or sick relatives. In recent months, substantial evidence (examples abound, but a few are here, here, here, here, and here) has demonstrated that women are disproportionately taking on caregiving responsibilities during the pandemic. As a result, there are serious concerns that women are being pushed out of the workforce at higher rates than their male counterparts. While female workers may be particularly vulnerable to COVID-related job consequences, our practice has also received numerous inquiries from men who have sought time off, reduced schedules, or other accommodations to help take care of their children or elderly family. As the end of the year is approaching, the COVID-related protections passed by Congress earlier this year are expiring and therefore this may be the last chance for some employees to seek leave for child-care related needs. Moreover, employers may be making decisions regarding layoffs, performance reviews, promotions, and pay raises or bonuses, and may penalize employees with caregiving responsibilities based on gender-stereotypes that caregivers are unable to prioritize their work responsibilities. If employees face adverse career consequences due to their caregiving role, they may have multiple legal paths they can take to challenge those decisions.



By: Amanda Gordon, Legal Intern

In Massachusetts, in limited circumstances a person’s criminal records can be available to a licensing board or prospective employer. However, there remains a societal responsibility to ensure that criminal charges do not unfairly stigmatize or disadvantage defendants who have served their sentence or were never convicted at all. The Supreme Judicial Court acknowledged this tension in Boston Globe v. DJCIS, and again in its recent decision, Doe v. Board of Registration in Medicine. In this most recent case, the Court carved out a unique loophole, allowing the Medical Board to use sealed criminal records of doctors for the purposes of disciplinary deliberation. Typically, sealed criminal records can only be accessed by a small number of entities: courts, law enforcement agencies, and a few others. Prior to the Court’s decision, the Board of Registration in Medicine did not ordinarily have access to these records.

Criminal records can be sealed in one of three ways: The first two (G. L. c. 276, §§ 100A and 100B) provide for automatic sealing of certain criminal records, upon request, after a required period has passed without any additional criminal convictions—currently three years for misdemeanors and seven years for most felonies. The third method (§ 100C) of sealing permits a former defendant, whose criminal case resulted in a nolle prosequi (abandonment of the case) or a dismissal, to seal their criminal record at any time upon a judge’s discretionary determination that “substantial justice would best be served” by such sealing, based on the standards set by the Supreme Judicial Court.


photo-1444840535719-195841cb6e2bDue 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.


woman-in-blue-sweater-lying-on-bed-3873179-scaledIf you have been exposed to COVID-19 or have COVID-19, the last thing you want to worry about is your workplace rights and obligations. However, both you and your employer have certain rights and obligations to ensure your health and safety, and the health and safety of people you come into contact with at work.

What do I do if I’ve been exposed, tested positive, or have symptoms of COVID-19?

The Massachusetts Attorney General has made clear that employers can require employees who have been exposed or have a family member who has been exposed to stay out of work, even if quarantine has not been recommended. If you exhibit symptoms of COVID-19, your employer can also require you to stay out of work even if you have not tested for COVID-19. If your employer requires you to stay out of work, you are eligible to apply for unemployment benefits, and may also be eligible for the new paid sick leave benefits the federal government recently enacted.


girl-1641215_1920The 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.


cdc-w9KEokhajKw-unsplash-scaledMy colleague recently explained how Massachusetts and federal leave laws may apply to employees who contract COVID-19 or who are medically required to self-quarantine because of concerns about COVID-19. In addition to leave laws, such as the Massachusetts earned sick time law and the Family and Medical Leave Act (FMLA)state and federal disability laws provide protections to employees. Disability laws also allow employers to require medical examinations and exclude employees from the workplace in certain circumstances.

The main state and federal laws that prohibit disability discrimination in the workplace are the Americans with Disabilities Act (ADA), the Rehabilitation Act, and Massachusetts General Laws ch. 151B. These laws provide similar protections and generally prohibit discrimination against an employee because of that employee’s real or perceived disability, or that employee’s history of having a disability. Disability laws also require employers to provide “reasonable accommodations” to disabled employees to allow them to perform their jobs. 


person-holding-thermometer-3873171-scaledOn 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 man-teaching-woman-in-front-of-monitor-3285203employer” 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.


By: Jinal Sharma, Legal Intern

affection-baby-care-carrying-1170897Earlier this month, in Capron v. Attorney General of Massachusetts, the Court of Appeals for the First Circuit rejected an au pair agency’s challenge to Massachusetts labor laws, finding that Massachusetts wage and hour laws apply to au pairs. Under the First Circuit’s ruling, that means that au pairs in Massachusetts are now entitled to workplace protections, including minimum wage and overtime pay.  

Under the First Circuit’s ruling, Massachusetts will require employers to comply with the Domestic Worker Bill of Rights with respect to au pairs. This means au pairs will be paid minimum wage, which in Massachusetts is rising to $12.75 an hour starting January 1, 2020. An au pair will be considered to be “working” any hours the au pair is required to be on the employer’s premises to provide childcare services. Meal periods, rest periods, and sleep periods are not considered as hours worked only if the au pair is free to leave the premises at their sole discretion. Employers will also be required to pay time-and-a-half for any hours worked over 40 hours/week and to keep records of au pair hours worked. Additionally, au pairs will be entitled to sick leave, worker’s compensation, and notice of why and when the employer might enter the au pair’s living space.  


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