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

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Over the last several years, it has become increasingly common to send or request nude or intimate images in the context of personal relationships. However, it is important that all parties to sexting and similar activities be consenting adults. (Sexual photos of minors under 18 are considered child pornography under state and federal law, much to the surprise of many teenagers.) If a former romantic partner, hacker, or other individual distributes such photos without consent, or threatens to do so, the subject of the photo is considered a victim of “sextortion” or “revenge porn.” Different states have adopted different approaches to these phenomena, and past proposed legislation in Massachusetts on this subject has not passed, leaving revenge porn victims with few options in this Commonwealth.

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This is a follow up to a previous blog about clemency: you can read that post here.

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Last month, Governor Maura Healey recommended seven individuals to the Governor’s Council for pardons and on July 19, 2023, the Governor’s Council unanimously voted in favor of all seven pardons. A pardon is complete forgiveness of the underlying convicted offense, which erases the crime from an individual’s criminal record. These pardons make Governor Healey the first Governor in Massachusetts in over thirty years to successfully grant pardons during her first year elected. These seven pardons also mark the highest number of pardons granted by a Massachusetts Governor in their first term in over forty years.

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Photo of Yale UniversityWhen can a person accused of sexual misconduct sue the accuser for defamation? Since the #MeToo movement began, more and more people accused of sexual assault have turned to defamation lawsuits as a weapon to combat those allegations. In 2022 Johnny Depp won his defamation claim against his ex, Amber Heard, who had written an op-ed describing herself as a survivor of domestic violence, without naming Depp. (Depp was also found liable for defaming Heard when his lawyer called Heard’s claims a “hoax”). In 2020 a judge found singer Kesha had defamed her former music producer by telling a friend he had raped her; New York’s highest court recently overturned that decision, and the parties settled. A crowdsourced Google spreadsheet of allegations of sexual misconduct against men in media resulted in a lawsuit against the woman who started the spreadsheet, and a six-figure settlement for the plaintiff. Defamation claims in sexual assault cases have gone the other way too; A jury recently found that Donald Trump defamed E. Jean Carroll by calling her sexual assault allegations against him a hoax. In these high-profile instances, defamation suits have become a vehicle to set up a jury to decide whether allegations of sexual misconduct are true. CONTINUE READING ›

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Criminal records can have a devastating impact on access to life-affirming resources such as housing and employment. To address this issue, Massachusetts has steadily passed legislation that has made it easier for people to seal their records. My colleague has previously written about CORI reform law, including the 2018 legislation, and the Supreme Judicial Court (SJC) decision in Commonwealth v. Pon, which made it easier for people to seal their criminal records under M.G.L. c. 276, § 100C by laying out six factors for judges to evaluate whether there is “good cause” to seal the criminal records as discussed in our previous blog post.

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Considerable data shows that police stop Black people in the U.S. much more frequently than white people. At least some of these stops are motivated by racial profiling, implicit or explicit, in violation of the constitutional guarantee of equal protection. But how, in practice, can a Black defendant establish that the stop in his or her case was racially motivated—and use this fact to defeat a criminal charge?

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Since its 2008 decision in Heller, the U.S. Supreme Court has been expanding the understanding of the constitutional right to bear arms under the Second Amendment. Heller held that the Second Amendment right is individual, and not limited to the context of an organized, “well-regulated militia.” In 2010, the Court held in McDonald that the right to bear arms applies to the states, not just against the federal government. Both Heller and McDonald addressed the context of keeping a firearm for self-defense in the home. But in the 2022 case of Bruen, the Supreme Court extended that right beyond the home, to include carrying a firearm in public, at least under some circumstances. State courts and legislatures are still grappling with the consequences of that decision.

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Employees have the benefit of a whole set of laws designed to protect them in the workplace. But what happens when an employer tells a worker that they are an independent contractor, or simply gives that worker a 1099? What you as a worker need to know is that whether you are an employee or an independent contractor doesn’t necessarily depend on what the employer says—it depends on the nature of the work you do. 

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Last week saw a wave of legal developments—legislative, jurisprudential, and administrative—on issues related to trans rights. While state legislatures passed laws restricting medical care for transgender minors, and barring trans women and girls from participating in school sports, federal appellate courts upheld the rights of transgender students and the Biden administration weighed in on the trans athlete issue. On April 6 the Supreme Court refused to lift a ban imposed by the Fourth Circuit on the enforcement of a West Virginia law that would prevent transgender students from competing on sports teams that corresponded to their gender while litigation about the constitutionality of the law is pending. West Virginia was attempting to enforce that law against a 12-year-old girl who wanted to run track at her middle school. That same day the U.S. Department of Education released a proposed rule that would address transgender students’ athletic participation. That rule, however, far from protecting trans students’ right to be treated equally to other members of their gender, would only prohibit a school from imposing a blanket ban on students’ participation in sports that corresponded to their genders. Schools would retain the authority to restrict trans athletes’ participation in sports if they could show that the restriction is “substantially related to the achievement of an important educational objective and (ii) minimize[s] harms to students whose opportunity to participate on a male or female team consistent with their gender identity would be limited or denied.”

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Earlier this month, the Massachusetts Supreme Judicial Court (SJC), heard oral arguments for
Mark A. Adams v. Schneider Electric USA, Inc., an age discrimination lawsuit in which Monica Shah and I filed an amicus brief in support of Adams, on behalf of the Massachusetts Employment Lawyers Association 

The Facts

Adams worked as an electrical engineer at Schneider Electric in Andover, Massachusetts from 2007 to 2017. On January 27, 2017, as part of a reduction-in-force (RIF), Schneider Electric laid off Adams, who was 54 years old at the time. As part of this RIF, Schneider Electric laid off seven other employees, all of whom were over 55 years old. There were two other RIFs at Schneider Electric within a year of Adams’ termination and of the 24 employees laid off, 23 of them were 44 years or older. Adams had strong performance reviews throughout his employment with Schneider Electric and when one of his direct supervisors discovered he was terminated, the supervisor asked for Schneider Electric to bring Adams back because Adams’ absence threatened the success of one of the supervisor’s projects; Schneider Electric declined to re-hire Adams. While Schneider Electric maintains that Adams’ termination of employment had nothing to do with his age and the person who fired Adams acted alone without influence from others at the company, Adams argues that there are several factors surrounding his termination that suggest he was discriminated against because of his age, including a Human Resources employee instructing the decision-maker who fired Adams to consider age when selecting candidates to terminate for the RIF. In addition, there was voluminous e-mail documentation between Schneider Electric employees discussing restructuring tactics that included letting go of older employees to make room for a younger workforce.  

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We often get calls from people wondering whether their school or their child’s school has violated their privacy rights with respect to education records, and if so, what can be done about it. While federal law provides significant privacy rights for students those rights are not absolute, and there are limited mechanisms to enforce violations. 

What is FERPA 

The Family Educational Rights and Privacy Act (FERPA) is a federal law that was passed in 1974 to protect the privacy of student education records. The law applies to educational agencies and institutions that receive funds from the U.S. Department of Education. FERPA gives parents or students 18 and older (“eligible students”) the right to inspect and review students’ education records. It also gives parents and eligible students the right to request amendment of the student’s records, and the right to a hearing if the school denies the request to amend. 

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