Boston Lawyer Blog

New Title IX Regulations: Everything You Need to Know

Published on: May 6, 2020 | by Naomi Shatz

Today the U.S. Department of Education released its long-awaited regulations implementing Title IX. The regulations require a complete overhaul of how schools currently handle allegations of sexual harassment and sexual assault, and dramatically limit schools’ responsibilities to address those claims.

By way of background, in 2011 the Obama administration issued a Dear Colleague Letter that provided guidance to schools (K-12 and post-secondary) on how to address sexual harassment. That letter was not binding law, but because the Department of Education could withhold federal funding from any school that did not comply with it, schools revamped their processes for addressing complaints of sexual harassment and sexual assault to meet the standards set out in the letter. After Donald Trump took office, the Department of Education rescinded that guidance, and in 2018 issued proposed regulations that were published for public comment. Today, the final version of those regulations, and commentary addressing the public comments, was released.

What follows is a brief overview of some of the major provisions of the new regulations, which take effect August 14, 2020.

Exposure to COVID-19 and the Workplace: What Massachusetts Employees Need to Know

Published on: April 22, 2020 | by Naomi Shatz

If 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.

Coronavirus and Employment Law Update: The New Federal Families First Coronavirus Response Act

Published on: March 23, 2020 | by Ana Muñoz

The 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.

Coronavirus and Disability Discrimination Law: Employee and Employer Rights

Published on: March 17, 2020 | by Naomi Shatz

My 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.

CORONAVIRUS – What Protections do State and Federal Leave Laws Provide?

Published on: March 13, 2020 | by Ana Muñoz

On 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.

SJC Will Decide When Forced Blood Draws Are Permissible and Admissible

Published on: February 10, 2020 | by Naomi Shatz

Today, the Supreme Judicial Court (SJC) hears oral argument in Commonwealth v. Bohigian, a case that addresses, among other issues, when law enforcement can take a subject’s blood without consent and when evidence of that blood draw is admissible in court.

Mr. Bohigian was charged with operating under the influence and related crimes after a severe car accident. When Mr. Bohigian arrived at the hospital after the accident, police presented a nurse with a search warrant to draw his blood. Over Mr. Bohigian’s objection and at the instruction of a police officer, the nurse drew Mr. Bohigian’s blood. The results of the blood test indicated that Mr. Bohigian’s Blood Alcohol Content (BAC) was over the legal limit at the time of the accident.

New Department of Labor Rule Makes Wage Claims Harder for Plaintiffs

Published on: January 23, 2020 | by Ana Muñoz

Last week, the Trump administration finalized a rule that narrows the definition of “joint employer” 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.

First Circuit Decides Massachusetts Wage and Hour Laws Apply to Au Pairs

Published on: December 20, 2019 | by Zalkind Duncan & Bernstein LLP

By: Jinal Sharma, Legal Intern

Earlier 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.

How Does Massachusetts’ Proposed “Revenge Porn” Law Compare to Other State’s Laws?

Published on: November 26, 2019 | by Zalkind Duncan & Bernstein LLP

By: Leah Durst, Legal Intern

Former California Congresswoman Katie Hill recently resigned after sexually explicit photos of Hill and a staffer engaged in consensual sexual activity were leaked, allegedly by her abusive ex-husband. Her resignation should trigger broader discussions about the consequences of living in a digital age: how do we view and treat victims and perpetrators of “revenge porn”? What legal rights are there for people whose sexual privacy has been invaded, and what legal consequences are there for those who access and distribute such material? It turns out that Massachusetts is one of the last states to take up this question at the legislative level.

First Circuit Draws Sharp Distinction Between Fairness Obligations of Public and Private Educational Institutions

Published on: November 21, 2019 | by David Russcol

In 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.