Boston Lawyer Blog

Supreme Judicial Court Allows Employees to Seek Court Award of Attorney’s Fees After Settling Wage Claims

Published on: February 25, 2019 | by David Russcol

The Supreme Judicial Court in the recent case of Ferman v. Sturgis Cleaners, Inc. addressed a limited but important question under state law: when an employee brings a claim for violation of the Wage Act or similar statutes and then settles the claim before trial, can the court award attorney’s fees to the employee? This is a common situation because wage cases, like any other civil cases, typically are resolved one way or another before going all the way to trial. The SJC held that, in contrast to federal law, a plaintiff who obtains a favorable settlement is a prevailing party under state law, and therefore can seek attorney’s fees. There are unique aspects of the Wage Act that make settlements especially common, such as mandatory treble damages, but the provision requiring an award of attorney’s fees to prevailing plaintiffs works the same under other employment-related and civil rights statutes. Thus, this decision is likely to be applicable beyond the specific context of the Wage Act.

In Yee v. State Police, SJC Holds that Denial of Lateral Transfer Can Be Employment Discrimination

Published on: February 5, 2019 | by Naomi Shatz

Last week the Supreme Judicial Court (SJC) issued its decision in Yee v. Massachusetts State Police, an employment discrimination case raising the question of whether denying a police officer a lateral transfer to different troop could be a discriminatory under our state anti-discrimination law. (As a note of disclosure: I wrote an amicus brief on behalf of the Massachusetts Employment Lawyers’ Association and other groups in support of the plaintiff, Lt. Yee.) The SJC reaffirmed that chapter 151B—Massachusetts’ law addressing discrimination in employment—is to be read broadly to protect employees. The Court held that when an employer makes a decision that causes a material disadvantage to an employee in objective aspects of their job, even if the employee doesn’t lose money as a result of the decision, that decision is illegal employment discrimination if it is based on the employee’s membership in a protected class.

New Ruling Allows for Secret Recording of Public Officials Engaged in Public Duties in Public Places

Published on: January 31, 2019 | by David Duncan

As we have previously discussed on this blog, the Massachusetts wiretap statute makes it a crime to “secretly record” any person without their consent. The law has been used to prosecute and convict people who secretly record police activities. In Martin v. Gross and Project Veritas Action Fund v. Conley, an individual and a public-interest organization challenged the statute on First Amendment grounds. Chief Judge Saris of the U.S. District Court agreed with the challengers. In a decision published on December 10 of last year, Judge Saris held that the statute was unconstitutional insofar as it prohibited the secret recording of public officials (including police) engaged in their official duties in a public place. Police, and other public officials in Massachusetts, must now assume that their acts and statements are being recorded, whether they are told so or not. CONTINUE READING ›

Massachusetts begins releasing prisoners under new “compassionate release” program

Published on: January 10, 2019 | by Melissa Ramos

Before April 2018, Massachusetts was only one of five states without a “compassionate release” program. However, thanks to the new criminal justice reform bill signed by Governor Baker, inmates may now apply to be considered for this new opportunity. The program officially began taking applications from inmates in August 2018 and the first inmate was released in November 2018 due to his terminal cancer. The program is available to all inmates other than those serving life sentences without the possibility of parole for first degree murder convictions.

“First Step” Criminal Sentencing Bill Reduces Sentence Lengths, but Catches More Defendants in Sentencing Enhancement Net

Published on: November 27, 2018 | by David Duncan

The “First Step” bill now circulating in the U.S. Senate promises to make some changes to sentencing and imprisonment that would ameliorate harsh penalties and treatment. However, it does not go far enough, and in some cases it actually takes a step backward. There are multiple provisions, but I will look at only one of them, which makes changes to the mandatory minimum sentences imposed on defendants convicted of drug offenses based on their prior criminal history.

Section 401 of the bill is titled “Reduce and Restrict Enhanced Sentencing for Prior Drug Felonies.” The bill does both of these things: it reduces the mandatory minimums applicable to each enhancement category, and it restricts the prior offenses that trigger enhancement. But it also adds an entirely new category of prior offense that can trigger enhancement.

How Would Cross-Examination Under the Department of Education’s Draft Title IX Regulations Work?

Published on: November 16, 2018 | by David Russcol

On November 16, 2018, the U.S. Department of Education released draft regulations that would significantly reform Title IX requirements for schools in dealing with sexual harassment and sexual assault on campus. Naomi Shatz has tweetstormed initial summaries and analysis of key features of the draft regulations. There is a lot to unpack in the regulations, and we will undoubtedly have more to write about them in the coming weeks. They also may change before they become final; this publication is the start of a 60-day public comment period, after which the Department of Education must reconsider and respond to input from the public before the regulations become effective. However, once the regulations are finalized, they will have the force of law and will be difficult to change, so it is very important to focus on what is in the draft now.

Massachusetts SJC Grants Global Remedy to Some Defendants Affected by Drug Lab Misconduct but Doesn’t go far Enough

Published on: October 24, 2018 | by David Duncan

In 2011, the Massachusetts Department of Public Health (“DPH”) discovered that state lab chemist Annie Dookhan had tampered with drug samples and falsified drug analyses submitted to DPH’s Hinton drug testing lab in Boston, where she was employed as an analyst, and that the tainted results were then used as evidence in criminal trials. Her misconduct began in 2003 and extended until the end of 2011. Over the course of the next two years the understanding of the scope of her misconduct grew, until it became apparent that over 40,000 criminal cases were affected. Multiple litigations later, the Supreme Judicial Court issued an opinion (its third involving Dookhan) which tried to find a middle way between wholesale dismissal of the cases she had a hand in analyzing and painstaking, time-consuming and expensive case-by-case determination of the impact of her misdeeds. As my colleague discussed at the time, in Bridgeman v. District Attorney for Suffolk District, the SJC fashioned a remedy in light of four principles:

The government must bear the burden of taking “reasonable steps” to remedy egregious misconduct on its part;
Relief from a conviction generally requires a convicted defendant to file a motion for relief;
Dismissal of a criminal conviction “with prejudice”, i.e. without the option to re-file charges, is a remedy of last resort; and
Where the misconduct affects large numbers of defendants, the remedy must be not only fair, but timely and practical.

Does the Man Suing over #MeToo List About Men in Media Have a Shot?

Published on: October 19, 2018 | by Naomi Shatz

In the fall of 2017, writer Moira Donegan created the “Shitty Media Men” list—an “anonymous, crowd-sourced” spreadsheet that collected rumors and allegations of sexual misconduct by men in media and publishing. The spreadsheet was up on the internet for only 12 hours before Donegan pulled it, but it went viral and became much more public than Donegan intended. Donegan said she had not foreseen this outcome; her goal had been to “create an alternate avenue to report this kind of behavior and warn others without fear of retaliation.” That fear of reprisal has become reality: last week, one of the men named on the list, writer Stephen Elliott, sued Donegan and 30 other anonymous women for defamation, intentional infliction of emotional distress, and negligent infliction of emotional distress.

What do these legal claims mean, and does Elliott have a case?

What is the Future of a Right to Confrontation in Campus Title IX Proceedings? New Draft Federal Regulations and Holdings in the Sixth Circuit Point in Different Directions.

Published on: September 21, 2018 | by Ruth O'Meara-Costello

In recent weeks, potential new draft regulations from the Department of Education’s Office for Civil Rights (OCR) have garnered considerable media attention, despite not being yet released. Last week the full text of those draft regulations was leaked to the public. Among several other notable changes to current practice at most colleges and universities (detailed in my colleague Naomi Shatz’s tweets after we first got our hands on the draft regulations), the draft would require a significant increase in respondents’ rights to cross-examine their accusers and other witnesses. Meanwhile, in the past months, the Sixth Circuit Court of Appeals has focused in a string of decisions on whether respondents in Title IX cases at public schools have a due process right to confront and cross-examine their accusers, and recently issued a new decision, in Doe v. University of Michigan making the strongest statement we have seen yet from any court of appeals in favor of cross-examination. The regulations and the Sixth Circuit’s decision are both plainly intended to increase the rights of accused students, yet they offer schools very conflicting guidance about how to do so. In addition, the regulations could have significantly unintended consequences in practice.

Refused a breathalyzer? Court gives defendants power to decide whether jury is instructed to ignore the absence of breathalyzer evidence

Published on: September 10, 2018 | by Melissa Ramos

In an October 2017 opinion, the Massachusetts Supreme Judicial Court decided that a judge could no longer instruct a jury about a defendant’s refusal to take a breathalyzer test unless the defendant requested the instruction. An individual stopped on suspicion of operating a vehicle under the influence, more commonly known as OUI, already had a legal right to take or refuse a breathalyzer, and the refusal could not be entered into evidence at trial. However, until recently, the prosecutor could request that the judge instruct the jury that they could not consider the absence of breathalyzer evidence at trial when determining guilt or innocence—an instruction that could focus the jury on the absence of that evidence and cause them to speculate that the defendant had refused the breathalyzer. Now, during a trial for OUI, the absence of breathalyzer evidence should not be mentioned in jury instructions unless at the request of the defendant.

In Commonwealth v. Wolfe, the defendant was charged with OUI in 2015. He had two trials; the first ended in a mistrial. During both trials, there was no evidence presented of the defendant’s blood alcohol level. During the second trial, the judge instructed the jury, over the defendant’s objection, not to consider the absence of breathalyzer tests in their deliberations. The judge decided to give the instruction because the jury in the first trial had asked about the lack of breathalyzer test. The second jury ultimately convicted the defendant. CONTINUE READING ›