Boston Lawyer Blog

Ten ZDB Lawyers Named to Best Lawyers in America

Published on: August 18, 2022 | by Zalkind Duncan & Bernstein LLP

Zalkind Duncan & Bernstein LLP is proud to announce that Attorneys Inga Bernstein, David Duncan, Emma Quinn-Judge, Monica Shah, Naomi Shatz, Rachel Stroup, David Russcol, Ana Munoz, Norman Zalkind, and Ruth O’Meara-Costello are listed in the 2023 edition of The Best Lawyers in America. They were recognized for their work in Criminal Defense: General Practice, Criminal Defense: White-Collar, Employment Law – Individuals, Education Law, Appellate Practice, and Litigation – Labor and Employment. 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 attorneys recognized for their hard work and incredible achievements!

Proposed legislation would increase opportunities for juvenile diversion

Published on: July 22, 2022 | by Jennifer M. Herrmann

The majority of adolescents in Massachusetts, at some point, engage in behaviors that could subject them to delinquency proceedings in Juvenile Court. Although most of those adolescents are unlikely to engage in that type of behavior more than once or twice, even those who are otherwise not at risk for reoffending are significantly more likely to reoffend once they are arrested, charged, and processed in juvenile court.

David Russcol Defeats Summary Judgment Motion in Federal Unpaid Wage and Sexual Harassment Case

Published on: July 21, 2022 | by Zalkind Duncan & Bernstein LLP

Earlier this week, a federal judge largely denied the defendants’ Motion for Summary Judgment in a case alleging that a nonprofit operating group homes on Cape Cod coerced our client into working long hours for no cash wages for nearly two years, and allowed her to be sexually harassed by her supervisor. David Russcol convinced the court that issues such as whether our client is exempt from the state minimum wage law and whether she was subjected to unlawful retaliation rest on factual determinations that must be made by a jury.

ZDB is Hiring!

Published on: July 18, 2022 | by Zalkind Duncan & Bernstein LLP

ZALKIND DUNCAN & BERNSTEIN LLP is hiring an associate to join our premier Boston criminal defense and civil litigation boutique. This progressive 13-lawyer law firm has a dynamic federal and state court practice, at both the trial and appellate levels. Our criminal defense practice includes crimes of violence, fraud and drug offenses, white collar crimes, and other felonies and misdemeanors. Our civil practice consists primarily of plaintiff-side employment matters (mostly discrimination cases), and representing students, faculty, and other employees accused of misconduct or facing discrimination at colleges and universities (including in Title IX proceedings). We also have a general civil litigation and complex motions practice.

We are looking for an associate with 1-2 years of experience and excellent research, analytical, and writing skills. Judicial clerkship a plus. Competitive benefits. Associates must be available for court, depositions, and other in-person proceedings in the Greater Boston area. Associates currently work in the office at least two days per week and may otherwise work remotely where that is compatible with the needs of a case. More information about our firm can be found on our website: http://www.zalkindlaw.com.

Interested applicants should email their resume, law school transcript, writing sample (preferably 5-10 pages long, showing writing that has not been substantially edited or revised by anyone other than the author), to resume@zalkindlaw.com with “Application for associate position” in the subject line. Start date flexible. Applicants should include their available start dates in their cover letters. Applications will be reviewed on a rolling basis until the position is filled.

Concepcion v. United States Affirms District Court’s Broad Discretion in Deciding Criminal Sentences

Published on: June 30, 2022 | by David Duncan

In Concepcion v. United States, the U.S. Supreme Court continued its support for sentencing discretion for district court judges. In this case, the issue was how much discretion a sentencing judge has when resentencing a defendant pursuant to the First Step Act, a substantial criminal justice reform act that Congress passed in 2018. Among its provisions is one allowing for resentencing of persons convicted before 2010 for distribution of crack cocaine who had been ineligible for resentencing when Congress in 2010 revised downward the penalties for crack cocaine (in the so-called Fair Sentencing Act). The quantities that triggered mandatory minimum sentences were reduced substantially, and the guidelines were amended to reflect those reductions.

Mr. Concepcion had been given a 19-year sentence in 2009 for selling 13.8 grams of crack. Because he was a “career offender,” meaning that he had a number of prior convictions for “crimes of violence” or drug distribution, his guideline sentencing range was not affected by the quantity reductions, and so he was not eligible for resentencing when the crack sentencing changes took effect in 2010. CONTINUE READING ›

First Circuit Holds That Massachusetts Students Can Bring Breach of Contract Cases Based on Unclear or Contradictory School Policies

Published on: June 21, 2022 | by David Russcol

Under longstanding case law in Massachusetts and the First Circuit, a court must interpret a student handbook or other school policy consistent with the “reasonable expectations” of a student reading it. If the school fails to follow its established policies, the student may be able to hold it accountable through a suit for breach of contract. But what happens when the school’s policies contain inconsistent or ambiguous provisions? In Sonoiki v. Harvard University, the Court of Appeals for the First Circuit held that a student’s claims should be allowed to proceed where the student’s interpretation of the policies was reasonably supported in the policies’ text – even if that interpretation contradicted other parts of the policies. CONTINUE READING ›

SJC Prevents Ballot Measure Removing App-Based Drivers from Employment Protections

Published on: June 17, 2022 | by Ana Muñoz

The SJC struck an initiative from November’s ballot that, if approved, would have created a new class of “app-based driver” not subject to many bedrock employment laws. In Koussa v. Attorney General, the Court held that the proposed initiative raised too many different policy questions, and, thus, did not meet constitutional requirements for petitions. Because Massachusetts law only allows ballot initiatives that present voters with “related” and “mutually dependent” issues, the Court held that the Attorney General should not have allowed the initiative onto the ballot. CONTINUE READING ›

Fourth Circuit Holds that Sex-Based School Dress Codes Can Violate the Constitution and Title IX

Published on: June 16, 2022 | by Naomi Shatz

This week, the Fourth Circuit court of appeals, sitting en banc (meaning all of the judges of the court together), held that a charter school’s dress code that requires girls to wear skirts violates their constitutional right to equal protection. The Court also reasoned that the dress code likely violates their rights under Title IX to be free from gender-based discrimination at school. The opinion was a resounding victory for students’ civil rights and for women’s rights. CONTINUE READING ›

Information in the BPD Gang Database is “Flawed” and Unreliable, According to First Circuit

Published on: June 8, 2022 | by Zalkind Duncan & Bernstein LLP

In a resounding victory for civil liberties, in January the First Circuit overturned an immigration court’s denial of Cristian Josue Diaz Ortiz’s claims for asylum, finding that the Boston Police Department’s (BPD) Gang Assessment Database (on which the immigration court’s decision relied) is a “flawed” system that relies on “an erratic point system built on unsubstantiated inferences.” The First Circuit’s criticism of the Gang Assessment Database could have broader implications for people challenging law enforcement decisions made based on their inclusion in that database. CONTINUE READING ›

Boston Employee Seeks Supreme Court Review of First Circuit’s Narrow Reading of Title VII’s Anti-Retaliation Provisions

Published on: May 18, 2022 | by Jennifer M. Herrmann

Title VII promises to protect employees who oppose workplace discrimination and harassment in good faith. Over time, judicial opinions have eroded this protection by creating an exception that has allowed employers to discipline employees if the employer deems that the manner of the employee’s complaints was insubordinate or disruptive. Last fall, the First Circuit affirmed this exception in a panel decision in Jenkins v. Housing Court Department. In that case, a Black Costa Rican employee emailed multiple discrimination complaints to his supervisors and various staff. The employer then terminated the employee for disobeying orders after he was told and refused, to cease his complaints. The First Circuit affirmed a ruling of summary judgment for the employer. Last month, the plaintiff filed a petition for certiorari, asking the Supreme Court of the United States to weigh in on a doctrine that has appeared in various forms in the lower courts and that, as scholars have noted, severely undercuts Title VII’s anti-retaliation provisions.

The insubordination exception is not rooted in Title VII’s text or legislative history, but emerged in a 1976 preliminary injunction decision concluding that a female biologist whose employer characterized her pay complaints as disloyal and noncooperative was not protected by Title VII, Hochstadt v. Worcester Found. for Experimental Biology.

Most modern First Circuit Title VII cases—including Jenkins—draw the principle that anti-retaliation statutes do not protect employees from termination for insubordination from Mesnick v. General Electric Co., a First Circuit ADEA retaliation case in which the employer terminated an employee in part for his “confrontational attitude” and other interpersonal issues with coworkers and managers against whom he alleged age discrimination. Mesnick draws its reasoning from Jackson v. St. Joseph State Hospital, an Eighth Circuit Title VII case regarding a hospital accountant who was terminated for “highly offensive and disruptive” attempts to obtain a specific statement from a coworker to use in his sex discrimination case against the hospital. Jackson, in turn cites Hochstadt.