Boston Lawyer Blog

The Supreme Judicial Court’s Opinion in “In the Matter of a Grand Jury Investigation” Offers Fleeting Protection on a Misreading of the Supreme Court’s decision in Fisher v. United States

Published on: January 15, 2015 | by David Duncan

On January 12, the Supreme Judicial Court issued an opinion, In the Matter of a Grand Jury Investigation, which held that a grand jury subpoena, issued to a law firm for a cell phone containing text messages or other communications that the Commonwealth contended were evidence of a crime, and which had been provided to the firm by a client for the purposes of providing legal advice, must be quashed, meaning the attorneys did not have to turn the cell phone and its contents over to grand jury. Though no names were mentioned it was widely reported that the phone belonged to Aaron Hernandez and the grand jury is deciding whether to charge him with murders in Suffolk County. He was the “target” of the investigation.

Three legal issues and their interplay decided the case, but they also left open an alternative route for prosecutors to seek documentary evidence belonging to a client but held by an attorney.

US DOJ Adds its Interpretation of Title VII to List of Federal Entities Recognizing Protection for Transgender Rights

Published on: January 12, 2015 | by Rachel Stroup

The United States Justice Department (DOJ) recently announced that it will interpret Title VII of the Civil Rights Act of 1964 as protecting transgender employees from discrimination in the workplace. In a December 15, 2014 memo to U.S. Attorneys, Attorney General Eric Holder stated that he has “determined that the best reading of Title VII’s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status.” The memo acknowledges that this interpretation constitutes an evolution of the DOJ’s thinking on the issue; as recently as 2006 the DOJ defended the Library of Congress’ decision to refuse to hire the most qualified candidate for a position upon learning that she was transgender. This interpretation should influence all actions taken by the DOJ, both through its U.S. Attorneys, who defend the United States when it is a party in civil suits, and through its Employment Litigation Section which enforces Title VII against state and local governments.

The DOJ’s new Title VII interpretation brings it in line with various other federal entities’ recent interpretations of federal anti-discrimination law. In 2011 the Office of Personnel Management issued a notice stating that the government’s policy of non-discrimination on the basis of sex in the federal workplace includes non-discrimination based on gender identity. In 2012 the Equal Employment Opportunity Commission (EEOC) held that discrimination on the basis of gender identity is a form of discrimination on the basis of sex. Most recently, in July of 2014 President Obama issued an executive order stating that discrimination based on gender identity is prohibited for purposes of federal employment and government contracting. Previously the Department of Education and the Department of Justice had already determined that Title IX, the federal law that prohibits discrimination on the basis of sex in education, applies to gender identity claims brought by students.

Crayton & Collins: Preventing Eyewitness Misidentification in Massachusetts

Published on: January 2, 2015 | by Zoraida Fernandez

“Eyewitness misidentification is the single greatest cause of wrongful convictions nationwide, playing a role in 72% of convictions overturned through DNA testing.”

—Innocence Project.

Two cases recently decided on the same day by the Supreme Judicial Court (“SJC”) have made important strides in helping prevent wrongful convictions due to misidentification. In Commonwealth v. Crayton, the SJC excluded an in-court identification of the defendant where the witnesses were never asked to identify the defendant before trial. The Court also held that the in-court identification of the defendant in Commonwealth v. Collins should have been excluded where the witness had been unable to make a positive identification prior to trial.

To examine the importance of these recent cases, we should first explore why eyewitness identification evidence, while powerful evidence to juries, can be so unreliable that it can lead to the extraordinary rate of wrongful convictions noted above.

Change in Federal Law Regarding Marijuana Enforcement is Important for Massachusetts

Published on: December 23, 2014 | by Ruth O'Meara-Costello

A new federal spending law enshrines in statutory form the policy that federal agents will no longer seek to interfere with medical marijuana retail establishments in states where they are legal. As Massachusetts law with regard to marijuana possession and use continues to evolve, this change lessens the likelihood that Massachusetts residents will find themselves federally prosecuted for the sale or possession of marijuana for medical use. However, federal prohibitions on, and penalties for, possession of marijuana remain far broader and harsher than those under Massachusetts law, and the new provision affects only medical marijuana; Massachusetts residents therefore remain vulnerable to federal prosecution for conduct that is not criminal under state law.

Massachusetts law regarding marijuana possession has undergone major changes in the last few years. First, in 2008, voters passed a ballot question (question 2) decriminalizing (but not legalizing) possession (but not distribution or possession with intent to distribute) of less than an ounce of marijuana. In 2013, a second ballot question (question 3), legalizing the medical use of marijuana, also passed. There is currently a campaign seeking to put the question of legalization of marijuana for recreational use before voters in 2016.

Supreme Court: Your Boss Can Waste Your Time Without Paying You

Published on: December 10, 2014 | by David Russcol

Yesterday, the United States Supreme Court ruled that, under federal law, employees only have to be paid for time spent working or on activities necessary to perform their jobs – even if their employers require them to be there longer. In Integrity Staffing Solutions, Inc. v. Busk, employees of a contractor for Amazon.com were not paid for time spent, after the ends of their shifts, waiting for an anti-theft security screening. Although the employees claimed that the employer could have eliminated the wait time by using more metal detectors or staggering shifts, it did not do so, and so they waited as much as 25 minutes every day without pay.

The Fair Labor Standards Act (FLSA) sets a national minimum wage and provides that employers, with some exceptions, must pay time-and-a-half for overtime (more than 40 hours per work week). In general, a work week includes all the time that an employee is required to be at the office or work location. However, a 1947 law called the Portal-to-Portal Act carved out exceptions to this principle. At issue in the Busk case is an exception for activities “preliminary to or postliminary to” an employee’s “principal activity or activities.” The “principal activity” is whatever the employee is hired to do – so in the Busk case, the “principal activity” is finding items in a warehouse and shipping them to Amazon customers. The “principal activity” also includes activities that are necessary to perform the job safely (putting on a protective suit in a chemical factory) or effectively (sharpening a knife in a butcher shop).

Pregnant Women Are Entitled to Reasonable Accommodations in the Workplace Under the Americans with Disabilities Act

Published on: December 5, 2014 | by Emma Quinn-Judge

On Wednesday, the Supreme Court heard oral argument in Young v. UPS, a case that examines what protections pregnant workers have under the Pregnancy Discrimination Act (“PDA”). As I explained in detail earlier this week, the issue in Young is whether an employer who accommodates some of its workers by providing light duty or modified work assignments is required to provide pregnant workers who are “similar in their ability or inability to work” with the same accommodations it voluntarily provides its other workers. Oral argument was lively and we’ll know by June at the very latest how the Supreme Court will decide this case. (One court-watcher predicts a ruling in favor of UPS, but hedges that his “confidence level is not high on this prediction.”)

The PDA, however, is not the only law that protects pregnant workers. As the Equal Employment Opportunity Commission (“EEOC”) made clear in the updated pregnancy guidance it released this summer, pregnant women are not exempt from the protections of the ADA. Pregnant workers who have medical conditions that would trigger ADA protection are entitled to reasonable accommodations on the same terms as any other workers who have ADA-protected medical conditions. In order to be covered by the ADA, a pregnant woman must establish that she has a pregnancy-related condition that substantially limits one or more major life activities; the EEOC clarifies that even “impairments of short duration that are sufficiently limiting can be disabilities.” Numerous medical conditions associated with pregnancy may qualify for protection under this test. These include carpal tunnel syndrome, cervix problems, sciatica, pelvic inflammation, gestational diabetes, preeclampsia, nausea that causes severe dehydration, abnormal heart rhythms, swelling, or depression. Moreover, even a non-specific pregnancy-related condition – such as a doctor’s opinion that a pregnancy is “high risk” and therefore requires certain limitations, even where there is no diagnosis of a specific medical impairment –may able to obtain protections under the ADA. The ADA also protects pregnant women who are “regarded as” having disabilities. If an employer takes adverse action against a pregnant woman – for example, it refuses to hire her, terminates her, or reassigns her to a low-paying position against her will – the employer may also be liable under the ADA for disability discrimination.

Supreme Court Will Decide Scope of Protection for Pregnant Workers in Young v. UPS

Published on: December 3, 2014 | by Emma Quinn-Judge

When she became pregnant in 2006, Peggy Young’s doctor told her not to lift more than 20 pounds during the early part of her pregnancy, and no more than 10 thereafter. Upon hearing of this restriction, Young’s employer, UPS, refused to let her stay in her job, as she occasionally – albeit rarely – needed to lift packages more than 20 pounds. Young responded that she could keep working: she could do her “regular job” with occasional assistance from willing coworkers or she could be assigned to “light duty” like other employees to whom UPS offered light duty when they faced similar work restrictions. UPS refused to accommodate Young; a division manager told her she was “too much of a liability” while pregnant and instructed her not to return until she “was no longer pregnant.” Young took an extended unpaid leave of absence and eventually lost her medical coverage.

The Supreme Court today hears oral argument in Young v. UPS, Young’s case alleging that UPS violated the Pregnancy Discrimination Act (“PDA”) by failing to provide her with the same accommodations it provided non-pregnant workers who were similar to Young in their ability to work. (The many briefs in the case are here.) The PDA, which was enacted in 1978, amended Title VII to clarify that discrimination based on pregnancy is a form of sex discrimination; the statute further provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability or inability to work.” Young argues that the PDA requires an employer that accommodates non-pregnant employees with work limitations to provide pregnant women who are “similar in their ability or inability to work” with the same accommodations.

New Case Illustrates the Strict Limits of Wiretapping in Massachusetts

Published on: November 25, 2014 | by Ruth O'Meara-Costello

The image of an informant wearing a wire or secretly recording phone conversations during a criminal investigation is extremely common on television and in the movies. In Massachusetts, however, the use of a wiretap as an investigative tool of law enforcement is subject to extremely strict limits and protections that go far beyond the limitations of the Fourth Amendment. In a November 21, 2014 decision in the case of Commonwealth v. Burgos, an appeal by a defendant convicted of a gang-related killing, the Massachusetts Supreme Judicial Court (“SJC”) reiterated that wiretapping is only available under Massachusetts General Laws chapter 272 section 99 in order to investigate narrowly delineated categories of crime.

The statute allows police to make recordings with the consent of only one party, acting undercover or as an informant, when investigating certain serious offenses committed “in connection with organized crime,” that is, “a continuing conspiracy among highly organized and disciplined groups to engage in supplying illegal goods and services.” In Burgos, police obtained a warrant to allow the defendant’s cellmate to secretly record him and were successful in obtaining a recording of his confession to a murder committed in retaliation for the killing of a member of his gang. Burgos was convicted largely on the strength of that surreptitious recording. On appeal, the SJC reversed the conviction, granting the defendant a new trial. Although the killing was gang-related–the affidavit in support of the warrant spoke of “two rival gangs . . . both involved in selling narcotics”–the affidavit failed to establish a nexus between the murder and “the narcotics or any other ongoing business enterprise of either gang.” In short, the court concluded, “A retaliatory killing alone, without a clear link to the goals of a criminal enterprise, does not amount to a connection to organized crime,” and the warrant was therefore invalid and the evidence illegally obtained.

Harvard Business School Study Shows that Subtle Gender Discrimination in Workplace Can Lead to Significant Disparities in Senior Leadership Roles

Published on: November 20, 2014 | by Monica Shah

Researchers at Harvard Business School (HBS) and Hunter College recently issued a report based on their survey of more than 25,000 HBS graduates on issues related to work, family responsibilities, and the gender gap in senior management positions in the workplace. The study concludes that these highly educated and ambitious professional women are and have been “leaning in,” well before Sheryl Sandberg coined the phrase, despite having significantly more childcare responsibilities than their male peers. Yet, these women have not earned senior management roles at the same pace as their male counterparts. These results make clear that gender discrimination is still rampant in the workplace, even in the upper echelons of corporate America.

The survey showed that HBS men have been given more powerful leadership roles than their female counterparts. Specifically, the men were significantly more likely than women to have direct reports, profit-and-loss responsibility, and positions in senior management. However, the gender gap between men and women cannot be explained by the conventional wisdom that women “opt out” of ambitious career tracks to be home with their children. Approximately 74 percent of HBS women in Gen X (ages 32 to 48) are working full time, and of both Gen X and Baby Boomers (ages 49-67), only 11 percent of women surveyed stayed at home full-time to take care of their children. Interestingly, these figures are almost identical to a study conducted almost two decades earlier by Deloitte & Touche, which showed that 70% of women who left Deloitte continued to be employed full time and fewer than 10% were out of the workforce to care for children.

The Federal and Massachusetts Anti-Discrimination Agencies Both Say That Parental Leave Must Be Provided Equally to Men and Women

Published on: November 13, 2014 | by Emma Quinn-Judge

Just over 36 years ago, on October 31, 1978, the Pregnancy Discrimination Act (“PDA”) was signed into law, extending the protections of Title VII to pregnant women. This summer, the Equal Employment Opportunity Commission (“EEOC”) issued new enforcement guidance on pregnancy discrimination, explaining how both the PDA/Title VII and the Americans with Disabilities Act provide protections for pregnant women in the workplace.

While much of the response to the EEOC’s new enforcement guidance has focused on the provisions that require employers to provide reasonable accommodations to pregnant women, another important aspect of the guidance – one that affects both men and women – has received substantially less attention. In the new guidance, the EEOC clarifies that under Title VII men and women are entitled to parental leave on an equal basis. To be precise, “similarly situated men and women” must receive parental leave “on the same terms.” What does this mean? It means that any leave provided to a new mother that extends beyond the “period of recuperation from childbirth” must also be provided to a new father. In other words, any leave provided for the purpose of bonding with a child or providing care for a young child – as opposed to leave that is provided for the purpose of recuperating from childbirth – must be provided equally to men and women. Moms and dads get the opportunity to bond with and care for their babies.