Boston Lawyer Blog

What Does the NLRB Decision in the Whole Foods Case Mean for Recording in the Workplace?

Published on: January 8, 2016 | by Naomi Shatz

Whole Foods, a major grocery store chain, has a company-wide policy that prohibits its employees from making any recording—audio or video—and from taking any photographs in any area of a Whole Foods store. But a recent decision by the National Labor Relations Board (NLRB) might require Whole Foods to make serious changes to its policy, in order to make sure that it isn’t trampling on employee rights under the federal National Labor Relations Act (NLRA). We are discussing the impact of this decision in two posts. This post explains the NLRB’s decision and what it may mean for employees in states where no other law prohibits such recordings. For Part Two of this series, click here.

The NLRB is the body tasked with interpreting the NLRA. And it recently sided with the employees who challenged Whole Foods’ policy on recordings. It determined that the policy violated the Act because it interfered with employees’ rights under Section 7 of the Act, which grants employees the right to join together to advance their interests. The NLRB appeared to concede that the Whole Foods rule did not explicitly restrict activities protected by Section 7 of the NLRA, but held that employees would reasonably construe the rules to prohibit protected activity and would create a chilling effect on employees’ exercise of their rights. In other words, employees would opt not to exercise their protected rights for fear of violating the overbroad recording policy.

How are Accused Students’ Lawsuits over Sexual Misconduct Discipline Faring?

Published on: August 21, 2015 | by Naomi Shatz

Much has been made about allegations of sexual assault on college campuses in recent years. At first the discussion centered on victim’s rights advocates’ claims that colleges swept allegations of sexual assault under the rug. Starting in 2001, and escalating in 2011, the U.S. Department of Education’s Office for Civil Rights (OCR) began issuing guidance dictating how federal funding recipients (i.e. virtually all colleges and universities) should handle sexual assault claims. Many point to the OCR’s 2011 “Dear Colleague” letter, which instructed schools to lower the standard of proof they use in these cases to a “preponderance of the evidence” standard, as a turning point in the national discussion about college sexual assault. As we have previously noted on this blog, schools jumped to follow OCR’s guidance for fear of losing federal funding.

As the policies and procedures that have been implemented in the wake of the 2011 OCR “Dear Colleague” letter have gone into effect, there has been a sea change in how schools address allegations of sexual assault by and against their students. Recently, journalists, legal experts, and those of us who represent accused students have raised concerns that the procedures put in place to address sexual assault claims do not comport with basic notions of fairness or due process, and therefore may not be accurate at determining whether sexual assault has actually occurred. As those concerns were first being aired in the public discourse, students who had been disciplined by their schools following sexual assault adjudications began to sue the schools, alleging that they had violated their rights to due process, had violated Title IX itself, and had violated contracts the students had with the schools. To date, at least seventy-seven men have filed suit against their colleges on these grounds.

Commonwealth v. Bastaldo: Endorsing the Use of Scientific Information on Eyewitness Identification, the SJC Wades in to the Fray on How to Define Race and Ethnicity

Published on: July 8, 2015 | by Naomi Shatz

Six months ago we wrote about the SJC’s recent cases grappling with the fallibility of eyewitness evidence in criminal cases, and the provisional jury instructions the Court had drafted on this topic. Two weeks ago, the SJC again tackled the issue of eyewitness identification in Commonwealth v. Bastaldo, and revised the provisional model instructions with respect to cross-racial identifications.

In Bastaldo, the defendant was accused of assaulting the bouncer at a nightclub. The defendant identified himself as a “dark-skinned Hispanic of Dominican descent,”[1] and the SJC determined that he had “black” skin. He was identified in court by three witnesses: two self-identified as Caucasian, and one – the victim – was of Puerto Rican and Italian descent and self-identified as Hispanic. The SJC determined that this last witness had “brown” skin. The defendant requested an instruction on cross-racial and cross-ethnic eyewitness identification. The Commonwealth opposed the motion, arguing that at most the evidence suggested the witnesses may have had different ethnic backgrounds than the defendant, and that if any instruction were given it should not apply to the victim because he, like the defendant, was Hispanic. The trial judge declined to give a cross-racial or cross-ethnic identification instruction.

The provisional model jury instructions set forth in Commonwealth v. Gomes stated that “if witness and offender are of different races” the court should instruct the jurors that “research has shown that people of all races may have greater difficulty in accurately identifying members of a different race than they do in identifying members of their own race.” Because Bastaldo’s case was tried before the Gomes opinion was released, the Court determined that no cross-racial identification instruction had been required, and the trial judge had not erred in denying Bastaldo’s request for one. The Court, however, went on to modify the provisional model jury instructions set forth in Gomes to “direct that a cross-racial instruction be given unless all parties agree that there was no cross-racial identification.”

In Da Rosa v. City of New Bedford SJC Rolls Back Access to Public Records

Published on: May 22, 2015 | by Naomi Shatz

On May 15, 2015 the Supreme Judicial Court released its opinion in DaRosa & others v. City of New Bedford, Monsanto Company & others, addressing the question of how the work-product doctrine and public records laws interact when government entities are involved in litigation. The case has negative implications for those, like our firm, who routinely litigate against public agencies in employment and other matters. It also further undercuts the effectiveness of the already-weak Massachusetts Public Records Law.

In 1999, in a case called General Electric Company v. Department of Environmental Protection, the SJC held that privileged work-product materials are subject to disclosure under the public records statute unless they fall under one of the specific statutory exemptions listed in Mass. G. L.c. 4, § 7, Twenty-sixth. The court rejected the lower court’s reasoning that there is an implied exemption in the public records statute that covers work product. It noted that although the Federal FOIA law explicitly exempts from disclosure internal documents that would not be available to parties in litigation with the government agency, the Massachusetts public records law, although modeled after FOIA, did not contain that language, indicating the legislature intended to allow work-product to be considered a public record unless otherwise exempted by statute. As a practical matter, the General Electric opinion meant that litigants engaged in suits with the government could circumvent the work-product protection and obtain government documents via public records requests that they could not obtain in the normal course of discovery.

Where is the line between teaching children independence and engaging in child endangerment and neglect?

Published on: April 16, 2015 | by Naomi Shatz

A number of recent news stories have demonstrated that around the country, parents and departments of child welfare are in disagreement about what activities are appropriate for children – and the states are taking steps to enforce seemingly draconian yet undefined rules on parents who leave their children unsupervised for any period of time. Last summer a South Carolina woman was arrested and her child was taken into state custody when she let her nine-year-old play alone in a park while the mother worked her shift at McDonald’s. Recently parents subscribing to a “free range parenting” philosophy were investigated and found responsible for unsubstantiated neglect after letting their ten and six-year-olds walk home from a park together. A few months later, the children were picked up a second time and a new investigation was opened.

Not surprisingly many states do not actually have laws to guide parents as to what the state considers appropriate versus neglectful parenting. Those that do have widely varying requirements. In California, for example, no child under 6 can be left alone unsupervised in a car, but only if the car is on, the keys are in the ignition, or when there are circumstances that present a risk to the child’s health and safety. In Hawaii no child under the age of 9 can be left unsupervised in a car for five minutes or longer. States also range dramatically in the age they give as law or guidance on when a child can be left home alone: Colorado recommends children not be left alone before they are 12, Kansas thinks they are ready at 6, and Illinois prohibits by law leaving children home alone until age 14. There don’t appear to be any rules or regulations about other independent activities children might engage in, although the cases in Maryland and South Carolina indicate that state agencies and courts might apply the laws relating to leaving children alone in homes and cars to letting children do other activities without supervision.

Commonwealth v. Gomes: The SJC’s New Jury Instruction on Eyewitness Identification Attempts to Protect Defendants While Recognizing the Ever-Changing Nature of Scientific Evidence

Published on: January 22, 2015 | by Naomi Shatz

On January 12, 2015 the Supreme Judicial Court (“SJC”) issued an opinion in Commonwealth v. Gomes holding that from now on juries must be instructed on scientific principles regarding eyewitness identification, and drafted a provisional jury instruction for judges to give until an official model instruction is developed. The decision is not retroactive, and did not apply to Gomes’s case itself. The case followed closely after two other SJC cases highlighting the fallibility of eyewitness identification.

The provisional jury instruction requires jurors to be told of five “generally accepted” scientific principles about eyewitness identification, based on a report issued by the SJC’s Study Group on Eyewitness Evidence:

Human memory does not function like a recording, but is instead a complex, multi-stage process.
An eyewitness’s expressed certainty about the identification may not indicate the identification is accurate, particularly if the witness previously expressed less certainty
Stress can negatively impact a witness’s ability to make an accurate eyewitness identification
Information that witnesses receive before or after making an identification can influence the witness’s memory and recollection of the identification
Prior viewing of the same suspect in identification procedures may reduce the reliability of the later identification of that suspect

ZDB of-counsel attorney Elizabeth Lunt told the Boston Globe that jurors misunderstanding the accuracy of eyewitness identification has been a problem “for years and years,” and that this decision will help jurors understand the scientific principles at hand.

DOE Pays Lip Service to Fairness in New Rules, but Makes Clear that Accused Students’ Rights are not a Priority

Published on: November 4, 2014 | by Naomi Shatz

The Federal Department of Education (DOE) just released its final rules implementing changes to the Clery Act – the law that requires colleges and universities to report statistics about violent and sexual crimes on and near their campuses. While there are some positive developments in the new regulations, overall the requirements regarding disciplinary procedures illustrate that the DOE does not understand how its policies continue to undermine accused students’ rights to basic fairness.

The new rules make clear that students must be permitted to have an advisor of their choice during campus disciplinary proceedings, and that that advisor may be an attorney (34 C.F.R. 668.46(k)(2)(iii) and (iv)). This is a step forward from the DOE’s April 2014 guidance on Title IX, where it simply required that schools have the same rules for both students regarding whether they could have an attorney present during the proceedings. Many schools currently bar attorneys from participating or even from being in the room at all for disciplinary hearings. However, while a student’s advisor must be permitted into the hearing room, schools continue to be allowed to place any restrictions they want on the advisor’s participation. In other words, a student can bring an attorney, but the school can still prevent the attorney from speaking in the hearing. The rules also state that the school must provide the accuser and the accused “any information that will be used during informal and formal disciplinary meetings and hearings.” 34 C.F.R. 668.46(k)(3)(B)(iii). While this provision seems like an obvious requirement, currently schools are permitted, and often do, provide students with only a summary of the evidence that a school administrator deems “relevant” to the case, rather than the full body of evidence that has been submitted to the school.

An Overview of the Department of Education’s New Rules Implementing the Clery Act

Published on: October 29, 2014 | by Naomi Shatz

Last week the Federal Department of Education released amendments to the rules implementing the Clery Act (20 U.S.C. § 1092(f)) – a law that requires colleges and universities to record and publish information about crime on and near their campuses. The new amendments require schools to collect and publish statistics regarding incidents of dating violence, domestic violence, sexual assault, and stalking as well as information about their procedures for handling these incidents in the schools’ annual reports. Some key changes made by this new rule include:

A New Definition of Rape: The definition of rape will be revised in the Clery Act, which previously used an 80-year-old definition used by the FBI. From 1927 to 2011 the FBI’s Uniform Crime Reporting Program – and by incorporation the Clery Act – defined rape as: “the carnal knowledge of a female, forcibly and against her will.” In 2011 the FBI updated its definition to reflect that both men and women can be raped, that physical force is not a required element of rape, and that rape may be accomplished by penetration with objects as well as sex organs. The definition that the FBI now uses, and that colleges and universities will now be required to use is: “Penetration, no matter how slight, of the vagina or anus with any body part or object, or oral penetration by a sex organ of another person, without the consent of the victim.”

New Categories of Bias for Hate Crimes: Under the Clery Act, schools are required to report hate crimes that occur on their campuses or school-owned property. Before the VAWA reauthorization, the categories of bias that could form the basis of a hate crime were: race, religion, ethnicity, gender, sexual orientation, and disability. The amendments add the category of “gender identity,” and separate out “national origin” from “ethnicity” to make more clear what types of bias are covered by the law.