Articles Posted in Recent News

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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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ShatzAttorney Naomi Shatz argued today before the Massachusetts Appeals Court in a case that again addresses a question the Massachusetts courts have grappled with for years: what types of speech can form the basis of a harassment prevention order? In the firm’s case, the plaintiff sought a harassment prevention order on the basis of anonymous letters sent to her clients that contained unfavorable information about her. Shatz argued on behalf of her client that the extraordinary remedy of a harassment prevention order is meant only to reach two narrow types of constitutionally unprotected speech: fighting words and true threats, and is not meant to be used to address purely economic harms that can be remedied through normal civil legal processes.

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Bernstein-headshot-horizontalPartner Inga Bernstein argued today before the Court of Appeals for the First Circuit about an important issue regarding the Career Offender provision of the U.S. Sentencing Guidelines that has divided the federal courts of appeal and is actively being litigated in several circuits. Specifically, she argued that the crime of conspiracy to commit a drug offense does not trigger the Career Offender provision, notwithstanding interpretive commentary from the Sentencing Commission that says otherwise because the language of the Guideline is unambiguous and does not includes such crimes.  Rejection of the commentary in this instance is dictated by the Supreme Court’s June decision in Kisor v. Wilkie, which set clear limits on the deference that can be afforded to agencies interpreting their regulations.  A decision in this case will have far reaching ramifications for many people impacted by the career offender guideline.

The audio recording of the oral argument can be heard here.

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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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Zalkind Duncan & Bernstein LLP is proud to announce that Attorneys Norman Zalkind, David Duncan, Inga Bernstein, Elizabeth Lunt, Harvey Silverglate, Ruth O’Meara-Costello, Emma Quinn-Judge, and Monica Shah are listed in the 2020 edition of The Best Lawyers in America. Best Lawyers is the oldest and most respected peer-review publication in the legal profession and rates attorneys by conducting exhaustive peer-review surveys in which tens of thousands of leading lawyers confidentially evaluate their professional peers. Congratulations to all!

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Attorneys Emma Quinn-Judge and Monica Shah win employment discrimination appeal at the Massachusetts Appeals Court, which reversed the Superior Court’s grant of summary judgment on race discrimination and retaliation claims on behalf of a Treasury employee against the City of Boston. The decision allows the firm’s client to take his failure to promote and retaliation case to trial.  This is one of three race discrimination cases the firm has involving the same department and decision-makers within the City of Boston. The firm previously won a nearly $11 million jury verdict (currently on appeal) on behalf of a second employee in the same department, and has another trial involving a third (former) employee scheduled for next spring.

Read the opinion here: Patrick Bosah vs. City of Boston & another.

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Attorney Melissa Ramos recently won an appeal at the Division of Unemployment Assistance (DUA) representing a client who had been terminated from her job due to the client’s alleged possession of a bottle of hemp-based CBD (cannabidiol) oil at work, which the employer claimed violated their drug-free workplace policy. At the DUA hearing, Attorney Ramos presented evidence that the substance in the client’s possession was not illegal because it was hemp-based. Under the most recent iteration of the Farm Bill, enacted in December 2018, hemp is no longer considered a controlled substance. A lab report provided by the company who manufactured the CBD oil showed that it was derived from hemp and contained no detectable amount of THC (the psychoactive component of cannabis, possession of which remains illegal under federal law notwithstanding its decriminalization under Massachusetts law). Attorney Ramos also presented evidence that the CBD oil could not have been covered by the employer’s drug policy because it was not a prohibited, illegal substance. The appeal hearing officer overturned the initial DUA denial and granted the client unemployment benefits dating back to the date of termination. This case demonstrates how the evolving law around CBD, and marijuana generally, continues to present novel situations for clients and that even when unemployment benefits are initially denied, appeals can be very successful with the right evidence.

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IMG_4572Attorney Zoraida Fernandez received the Pro Bono and Community Service Award from Lawyers for Civil Rights for her work representing Boston Police Department employees who had experienced racial discrimination. Attorney Fernandez was honored at the organization’s annual reception on June 13, 2019.

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On March 25, 2019, Monica Shah presented a session on criminal law and students’ rights at the South Asian Bar Association of Greater Boston’s award-winning “Know Your Rights!” program at the Waltham Public Library.  Through this program, SABA GB empowers South Asian community leaders in Massachusetts on topics ranging from criminal law to employment law, bankruptcy, consumer protection, immigration, and elder care. Learn more about SABA GB and the KYR program here: https://www.sabagb.org/know-your-rights

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