Boston Lawyer Blog

Published on: March 13, 2020

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

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.

Published on: February 10, 2020

SJC Will Decide When Forced Blood Draws Are Permissible and Admissible

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.

Published on: January 23, 2020

New Department of Labor Rule Makes Wage Claims Harder for Plaintiffs

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.

Published on: December 20, 2019

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

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.

Published on: November 26, 2019

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

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.

Published on: November 21, 2019

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

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.

Published on: November 6, 2019

Matta’s New Test for When Police Officer Interactions Constitute Seizures: An Unrealistic and Disappointing Ruling

by Zoraida Fernandez

Last month, the Supreme Judicial Court issued Commonwealth v. Matta, a case that makes it easier for police to stop individuals – especially those in high crime neighborhoods – without any reasonable suspicion.

Background

On the evening of November 5, 2015, an anonymous caller contacted police on two occasions and stated that they had seen someone put a gun under the front seat of black car with two male and two female occupants. The caller claimed that the car was parked in the city of Holyoke in an area described as “known for violent crime, drug sales, and shootings.” An officer who was dispatched to the scene saw a parked green car with only two passengers. The officer pulled up behind the green car and parked, without lights or a siren. As the officer exited his vehicle, he observed the defendant, who had been seated in the passenger seat, exit the car and adjust his waistband with both hands. The defendant then began walking toward nearby bushes away from the sidewalk. The officer called out to him, “Hey, come here for a second.” The defendant then made eye contact with the officer and started to run, holding onto his waistband as he ran. At this point the officer yelled at the defendant to stop and then ran after him. As the defendant was running, the officer observed him throw a plastic bag over a fence and onto a sidewalk. Several officers apprehended the defendant as he tried to climb the fence, and once they arrested him, the officers saw six wax baggies at his feet and found small wax baggies on the other side of the fence, totaling 129 baggies that were later determined to contain heroin.

Published on: September 23, 2019

Boston Public Schools’ Secret Residency Enforcement Regime Violates Students’ Due Process Rights

by Naomi Shatz

If the volume of calls to our office is any indication, the Boston Public School (BPS) system is stepping up enforcement of its residency policies. It is not surprising that with national attention on the “Varsity Blues” scandal (involving prosecutions of celebrities who fraudulently secured their children’s acceptance to college), and increasing criticism of the lack of diversity at Boston’s elite exam schools, BPS would be looking to crack down on students falsely claiming to live in Boston in order to attend Boston schools. But parents and students have a right to understand and contests BPS’s findings in these investigations: Fifteen years ago a Massachusetts court made clear to BPS that before it could declare a student a non-resident and remove him or her from the BPS system, it had to provide the student’s family basic due process protections. Unfortunately it appears that BPS continues to ignore this court decision and families’ rights in pursuing residency enforcement actions.

What are the BPS residency requirements?

Massachusetts General Laws chapter 76, § 5 states “Every person shall have a right to attend the public schools of the town where he actually resides.” The law seems clear enough, but of course the devil is in the details: what does it mean to reside in Boston? This is a question our courts have answered: in most cases, the minor student “resides” where the parent(s) who has (or have) physical custody resides. The BPS Superintendent’s Office has issued a policy further explaining what it views this statute to require, and how BPS will determine residency. Following Massachusetts court cases that have defined residency, the policy defines “residence” as “the place that is the center of [the student’s and/or parent’s] domestic, social, and civic life.” The focus of “residency” is therefore not only whether the student has a physical address in Boston, though of course that is relevant, but on where the center of the student’s life is. This focus indicates that where questions about residency arise, BPS must conduct a holistic evaluation that takes into account non-traditional family and education arrangements.

Published on: September 20, 2019

Massachusetts SJC Says No Pre-Arraignment Diversion Without Prosecutor’s Approval

by Ruth O'Meara-Costello

This week the Supreme Judicial Court (“SJC”) decided Commonwealth v. Newberry, in which it held that judges must arraign defendants prior to assigning them to pretrial diversion if the Commonwealth seeks arraignment. In my opinion the decision is wrong on the law, and eliminates an essential avenue for some defendants to avoid the negative consequences of a criminal charge on their records.

Under the law in question, the court may “at arraignment” delay the case for two weeks for assessment of the defendant’s suitability for diversion to a treatment or other program in lieu of prosecution. (The “program” in question can include community service, so diversion is a possibility even for those not in need of, for example, mental health or substance abuse treatment.) At the two-week return date, the court may, if it determines that the defendant is eligible for diversion, continue the case for 90 days to allow the defendant to complete the program, and then dismiss it following that period. The question in this case was whether the defendant must be arraigned before the case is diverted, if the Commonwealth so requests. Before the decision certainly many judges believed that they had authority to divert cases pre-arraignment even if the prosecution objected, and our office secured this disposition for a number of defendants. For example, in January 2019 I convinced a judge to grant a client pre-arraignment diversion on condition that he complete an anger management course and community service, over the objection of the Commonwealth.

This case will change the availability of that option. The SJC read the language in the statute stating that these events must take place “at arraignment” to mean that they cannot happen pre-arraignment if the prosecution objects. To my mind this reading is not at all mandated by the plain language of the statute. I would read the language “at arraignment” to indicate only that the determination should be made at the defendant’s first appearance before the court, i.e. their scheduled arraignment. The statute does not use language such as “after arraignment,” which would clearly indicate that defendants must actually be arraigned before diversion, or directly address whether diversion can take place prior to arraignment. And it nowhere gives the prosecution authority to stand in the way of diversion if the court finds it to be warranted, so it is bizarre that the court’s statutory reading gives prosecutors the discretion whether or not to demand arraignment in a particular case.

Published on: September 10, 2019

Supreme Judicial Court Imposes Limited Obligation on Prosecutors to Instruct Grand Juries in Murder Cases on Legal Implications of Exculpatory Evidence

by David Russcol

The 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.