Boston Lawyer Blog

Proposed New Equal Pay Legislation Makes Needed Updates to the Massachusetts Equal Pay Act

Published on: February 16, 2016 | by Emma Quinn-Judge

Massachusetts is one step closer to a strengthened equal pay law after the State Senate passed equal pay legislation in late January. The bill, which now goes to the House of Representatives for review, seeks to address the continuing wage gap between men and women. Although Massachusetts adopted its first-in-the-nation equal pay act in 1945, women in Massachusetts still earn approximately 80 percent of what men earn. Women of color earn even less: African-American women earn 66 cents on the dollar, while Latina women earn 54 cents on the dollar compared to men. An analysis by the Institute for Women’s Policy Research has concluded that Massachusetts will not close the pay gap until 2058.

The proposed new law seeks to accelerate the rate of change by making three key updates to the Massachusetts Equal Pay Act (“MEPA”). First, the legislation broadens the definition of “comparable work” by explaining that “comparable work” is any work that is “substantially similar” in content and requires “substantially similar” skill, effort, and responsibility, performed under similar working conditions. Moreover, employers cannot rely solely on job titles or descriptions to determine whether work is comparable. If adopted, this new definition would overrule the narrower “comparable work” definition created by the Supreme Judicial Court in two decisions issued in the mid-nineties in the same case, Jancey v. School Committee of Everett. Those decisions – the first to squarely interpret “comparable work” in the context of the state’s equal pay act – failed, as the dissenting justices noted in Jancey II, to look “beyond job labels” and perceptions of job differences “that are, in part at least, artifacts of sexual stereotyping and traditional job segregation by gender.” By moving away from the Jancey definitions, the new legislation permits a broader analysis of whether work is truly comparable.

Pop Quiz: Do you know what constitutes plagiarism at your college?

Published on: February 3, 2016 | by Naomi Shatz

As far as we know, every college and university in the country has a student handbook or honor code that provides rules for how students must perform their work and the standards they are expected to meet. And as far as we know, at every college and university students are routinely disciplined for violating those rules in a number of ways – from the most minor of infractions to severe academic misconduct. Colleges and universities place a significant amount of responsibility on their students to independently learn the school’s policies, the forms of citation they should use in each discipline, and the rules applicable to each class they take. Before turning in work at college, there are a few things to know about academic misconduct policies.

First and foremost, students and their parents need to understand how their school defines academic misconduct, and particularly, plagiarism. The vast majority of students we represent in academic discipline proceedings are accused of plagiarism, and many of our clients who did not intend to violate any rules or copy anyone else’s work nonetheless find themselves disciplined for violating school policies. In our experience most schools define plagiarism incredibly broadly. For example, Harvard College’s policy states: “Whenever ideas or facts are derived from a student’s reading and research or from a student’s own writings, the sources must be indicated . . . The responsibility for learning the proper forms of citation lies with the individual student . . . Students who, for whatever reason, submit work either not their own or without clear attribution to its sources will be subject to disciplinary action, up to and including requirement to withdraw from the College.” Dartmouth College’s policy is similar: “Plagiarism is defined as the submission or presentation of work, in any form, that is not a student’s own, without acknowledgment of the source.” A few schools, however, define plagiarism more narrowly, as U. Mass. Amherst does: “knowingly representing the words or ideas of another as one’s own work without citation.”

After 25 Years, Massachusetts Finally Ends the Incarceration of Addicted Women

Published on: January 28, 2016 | by Zalkind Duncan & Bernstein LLP

Last week, the Massachusetts House of Representatives passed H. 3944 (now H. 3947), An Act Relative to Substance Abuse, Treatment, Education and Prevention. The bill will, if passed, aim to curb the increasing numbers of opioid addictions and overdoses in Massachusetts. The House and the Senate, which passed a different version of the bill, will now wrangle over a final version. But there is one thing that both bodies agreed on: that our state is long overdue to end the incarceration of women who have been civilly committed for substance addiction. To that end, the House and the Senate separated out H. 3956, an Act Relative to Civil Commitments for Alcohol and Substance Use Disorders, and sent it to Governor Charlie Baker, who enacted the bill into law on January 25, 2016.

The law brings long overdue reform to a troubling system of civil commitment in Massachusetts. G.L. c. 123, section 35 is the law that governs the civil commitment of people who are addicted to alcohol or drugs. People in their lives—from family members to police officers—can petition the court to civilly commit a person they believe to be addicted. If the court agrees, it can commit that person to a treatment facility for up to ninety days. The problem is that the treatment facilities in Massachusetts are often filled to capacity, especially the ones that accept civil commitments. When the beds are full, the courts don’t stop committing people. Instead, the courts shunt them off to prison. Men are sent to Bridgewater, a minimum security facility where they continue to get addiction treatment comparable to the treatment they might have received in a hospital. They’re in prison—despite not having committed, or being charged with committing, a crime—but at least they are getting treatment.

An Update on the Law Concerning Campus Sexual Assault

Published on: January 19, 2016 | by David Russcol

Over a year ago, I published a blog post describing the unfair processes used by many schools to deal with complaints of sexual assault and harassment, and compared it to the criminal justice system. As I wrote then, the Department of Education (DOE) Office of Civil Rights (OCR) has placed enormous pressure on colleges and universities under Title IX to take swift and decisive action against students accused of sexual assault, even though the stacked procedures and low standard of proof make it likely that many innocent students are being punished (often, suspended or expelled), with substantial damage to their reputations and future careers.

What has changed since then? For the most part, not very much. A different bureau of DOE, separate from OCR, did issue some regulations following amendments to the Clery Act and the Violence Against Women Act. The most noticeable impact of the regulations is that now, in cases involving sexual assault (but not necessarily misconduct short of sexual assault), schools must allow students to bring an attorney or other advisor of their choice to hearings and meetings in the disciplinary process. That is unquestionably a step forward. However, the regulations still permit schools to prevent counsel from taking an active role, and the standard if not universal practice is for attorneys to be able to attend but not participate, other than whispering or passing notes to the student.

Will the NLRB Decision Allowing Secret Recording in the Workplace Affect Massachusetts Workers?

Published on: January 11, 2016 | by Naomi Shatz

This is the second in our series of posts about the NLRB’s recent decision regarding employees recording in the workplace. For Part 1 of this series, click here.

As we previously discussed, the NLRB just decided that employers cannot make a blanket ban on employees making recordings or taking photographs in the workplace. As the NLRB explained in its decision, Section 7 of the NLRA grants employees the right to join together to advance their interests, and at least some employee recordings are protected under that provision. Our previous post on this case discussed the likely consequences of the decision for companies in states where such recordings are otherwise legal. But what about states like Massachusetts, or Illinois, where this case originated, that require all parties to a conversation to consent to it being recorded? Can employees in those states rely on the NLRB decision to assert that they have a right to record workplace conversations, even though those same conversations could not be recorded outside the workplace?

Massachusetts law (M.G.L. c. 272, § 99) requires that all parties to a conversation consent before that conversation is audio recorded. The law has its limits. It does not prohibit video recordings that record audio, and it does not prohibit the covert taking of photographs (so long as those photographs are not of naked people in places where they have a reasonable expectation of privacy). In other words, the NRLB’s decision means that employers cannot prohibit the taking of recordings and photographs that are part of the employees’ exercise of their Section 7 rights under the NLRA; and Massachusetts law doesn’t create an additional barrier for employees who want to take non-sound video recordings or photographs in their work place.

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.

Cosby Prosecution for Sexual Assault Shows Shift in Attitudes

Published on: December 31, 2015 | by Ruth O'Meara-Costello

Nearly 12 years after Bill Cosby allegedly drugged and sexually assaulted Andrea Constand, his arrest in Pennsylvania on a charge of aggravated indecent assault subjects him to the possibility of criminal penalties for the first time. One reason that the prosecution is happening now is simple—this is prosecutors’ last opportunity to charge Cosby before the statute of limitations expires. But in 2005, when memories and evidence were relatively fresh, prosecutors chose not to pursue charges. The change was undoubtedly prompted in part by the enormous number of women who have now accused Cosby of similar conduct, but may also indicate a more general shift in attitudes about rape and sexual assault. While it is too early to say whether it will break any new legal ground, the case is now taking place in a historical moment when questions about intoxication and consent to intoxication are hotly contested.

In 2005, then-Montgomery County District Attorney Bruce Castor declined to prosecute Cosby, citing “insufficient credible and admissible evidence.” With the exception of statements in depositions conducted in Constand’s civil lawsuit against Cosby, though, the bulk of the information contained in the Affidavit of Probable Cause supporting issuance of a warrant for Cosby’s arrest was known to authorities in 2005. Constand’s account is essentially that Cosby offered her pills to help her relax; that after she took the pills and drank some wine which Cosby pressed upon her she began experiencing blurred vision and difficulty speaking; and that Cosby then told her to lie down, assisted her to the couch, positioned himself behind her, and then touched her sexually, including penetrating her with his fingers. According to the affidavit, Cosby was questioned in 2005 about these allegations and agreed that he had given Constand pills when she complained of tension and inability to sleep (he claimed that they were Benedryl, which he agreed made him go to sleep right away when he took it); that he had not told her what the pills were; that he had engaged in sexual activity with her; and that when Constand’s mother confronted him about his actions he offered to pay for Constand to go to graduate school. Constand’s mother also spoke with police and stated that Cosby had told her that he gave Constand prescription pills and would mail her the name of the pills. Cosby nonetheless claimed that his activity with Constand was consensual, and prosecutors declined to charge him.

The “Cannibal Cop” Case: A Study in the Sweep of the Computer Fraud and Abuse Act

Published on: December 7, 2015 | by David Russcol

On December 3, 2015, a divided panel of the Second Circuit Court of Appeals cleared Gilberto Valle, sensationally dubbed the “Cannibal Cop” by some in the media, of the two charges against him, conspiracy to commit kidnapping and a violation of the Computer Fraud and Abuse Act (CFAA). Although the kidnapping charge is certainly more lurid, the CFAA charge has wider implications for online freedom of speech and action, and highlights a division in the courts between those that interpret the law as making many if not most Internet users into federal criminals, and those that take a narrower view of the CFAA.

According to the court’s opinion, Valle was a New York City police officer with a penchant for spending time late at night in unusual corners of the Internet. Specifically, he was constructing elaborate fantasies with other users on a fetish forum in which they would kidnap, assault, kill, and eat various women with whom Valle was acquainted. These fantasies sometimes included some real information about the women (including their real pictures and at least partial real names) but also false or outlandish information about them or Valle, such as Valle’s claim to have an isolated cabin in the woods with a human-sized oven. The extent to which some of these fantasies might have crossed over into serious agreements or plans was the basis of the kidnapping conspiracy charge.

Chism Murder Trial Raises Unsettling Questions Regarding Competency to Stand Trial

Published on: December 1, 2015 | by Ruth O'Meara-Costello

The ongoing trial of Philip Chism, which resumed yesterday following the Thanksgiving holiday, presents an unusual and disturbing set of issues in view of the terrible nature of the defendant’s actions, his extreme youth, and his apparently very serious mental illness. First, the events at issue are undeniably horrifying; Chism admittedly raped and killed his teacher, who was by all accounts a wonderful person and whose death was a tremendous loss. (Beyond that, I won’t recount the details here, but they have been set forth at length in the press.) Second, Chism, who was 14 years old when he killed his teacher, is being tried as an adult, which he undeniably is not and was not at the time of the crime; as Northeastern University law professor Daniel Medwed has written, treating children as adults is problematic regardless of how horrifying their actions are. And finally, Chism, who is now 16 years old, has exhibited signs of significant mental illness during his trial, repeatedly raising a question about whether he is actually competent to stand trial.

Chism’s trial was delayed so that his competency could be evaluated after he said during jury selection that he wished to be shot in the courtroom and claiming that voices told him not to trust his attorneys. The trial judge concluded, following that evaluation, that he was competent, and the case has moved forward. Chism is not currently contesting his competency to stand trial, despite a breakdown on the second day of his trial in which he refused to return to the courtroom, telling his defense counsel while shaking, twitching, and mumbling that he was “about to explode” and didn’t want to hurt anyone. The case thus sheds light on the difficult questions that arise when the criminal justice system must handle serious mental illness or disability.

Warrants May Not Be Enough to Make Stingrays Lawful Under the Fourth Amendment

Published on: November 10, 2015 | by Zalkind Duncan & Bernstein LLP

As I discussed in my last post, the U.S. Department of Justice recently published a new policy that generally requires federal law enforcement agencies to obtain a search warrant before using a cell-site simulator device, otherwise known as a stingray. But the policy itself does not create grounds for someone to bring a lawsuit for improper use of a cell-site simulator. People will have to look to the courts, and to the protections against unreasonable search and seizure offered by the Fourth Amendment and by individual state constitutions. While warrantless use of cell-site simulators likely violates the Fourth Amendment, it may be that even warrant-based searches inherently violate our constitutional Fourth Amendment right against unlawful searches because such warrants are, necessarily, general warrants that have long been prohibited.

The Fourth Amendment protects people from unreasonable searches and seizures. Typically, a person’s body, home, and belongings cannot be searched unless the government has first obtained a warrant from the court. The warrant has to be supported by probable cause—in other words, a particular and reasonable basis for believing that a crime was committed, and that a search will turn up evidence of that crime. Of course, Fourth Amendment protections are more complicated than that. For one thing, a person can be subject to a brief seizure and search if a law enforcement officer has “reasonable suspicion” that the person has or is about to commit a crime, or that the person has a weapon on them or in their vehicle. For another thing, law enforcement can use the “exigent circumstances” exception to conduct a search without a warrant, when they think they will not have time to get one. In practice, these exceptions can be abused, sometimes systematically and discriminatorily, by law enforcement (my colleague has discussed this here; the report on stop and frisk practices in Massachusetts, published by ACLU Massachusetts, provides additional insight into the issue). But the Fourth Amendment—and similar rights afforded by state constitutions—continues to be a valuable protection against unreasonable searches and seizures.