This November, state-level ballot measures and initiatives around the country proved as interesting and complicated as national elections. I suspect the Massachusetts ballot measure with the most ramifications for changing our legal landscape was Question 4, regarding the legalization of recreational cannabis. Massachusetts voters approved the measure and our Commonwealth will join several states that have legalized recreational use.
The ballot question was simply the first step, of course. A host of legal and public policy questions remain to be worked out. How will legalization sit alongside federal law and the new Administration in Washington? What will the state regulations look like? How will municipalities respond? Will communities of color that have been negatively affected by marijuana criminalization benefit from the legalization?
Personally, I think that legalization is a step in the right direction, even though I have seen the negative and devastating effects that narcotics have had on all communities, including communities of color. As a practical matter, wholesale criminalization of marijuana has been a public policy failure and the failure to distinguish between clearly dangerous narcotics such as heroin and marijuana has been a public health failure. Legalization at the state level permits the kind of careful public policy experimentation contemplated by our Constitution's federal structure, which imagines States, as Justice Brandeis observed, to be "laboratories" for new approaches to law and social organization.
The ballot measures can be read on the Secretary of the Commonwealth's website here
While wandering through a store in Boston's Downtown Crossing, I happened to come across a sign at the entrance to a major retailer that said, "Only Registered Services Animals Permitted." This raises a question that many retailers and commercial offices have: what kinds of restrictions can they impose on service animals? A policy that demands "registration" of service animals may not be a good idea.
The Massachusetts Attorney General's Office provides a useful webpage answering many of the important compliance questions that businesses have.
A couple notable statements that I would draw attention to: "Currently, there is no state or national certification available for service animals so businesses are not permitted to inquire if the animal is licensed or certified or whether the animal has identification papers."
Also: "To differentiate between pets and service animals, businesses can ask the person with a disability if the animal is a service animal required because of a disability. They can also ask what tasks the animal has been trained to perform. Once an individual answers these questions the business may not question them further or separate the animal from the individual except as noted above. Businesses may not inquire about the individual’s disability."
The underlying body of law rests on the principle that persons with disabilities should have access to businesses and public spaces. In turn, businesses and offices should probably use policies that favor access over restrictions.
Contracts matter. Contracts and the obligations they bind us to will shape our present and future, from the smallest purchase to the biggest personal decisions. That is one lesson to be taken from this recent decision by a California court, in which a spouse who agreed to destroy embryos upon a divorce was found to be bound by that agreement, even if it destroys her chances of having children in the future. Of course the case is subject to appeal. But it's a stark reminder that our contractual agreements matter, often regardless of the circumstances that may lead us to want to break them.
I think that some essential rules to keep in mind when entering into a contract are these: There are no such things as meaningless boilerplate or irrelevant clauses. Know what you're getting into before you sign. Check every part of a contract before signing it. Caveat Emptor.
No one can have a monopoly on an idea, but good businesses are the ones who able to translate those ideas in to effective services and products. A tricky piece of the puzzle is figuring out how to protect the various things that allow for an idea to become a business enterprise, such as brands, pricing structures, delivery mechanisms, vendors relationships, and client lists.
An employee leaves a business and starts his or her own business. The new business provides similar services in the same market to the same clients. What recourse does the owner of the original business have? What protections does the new business have? These questions underlay a recent lawsuit between two competing Massachusetts dumpling restaurants over trade secrets and intellectual property
. The dispute illustrates the fact that even small business need to have a plan for preserving intellectual property and trade secrets, and ensuring that employees do not disclose strategies and secrets to competitors. Likewise, newly created businesses need to figure out how to protect themselves from claims that they're relying on stolen intellectual property or have violated non-disclosure and non-compete agreements.
At a minimum, businesses should have a baseline knowledge of what intellectual property and trade secrets they have and what can be legally protected. Similarly, entrepreneurs should review carefully what their prior and current obligations to former employers are. Advance planning is everything because, as the case of Dumpling v. Dumpling, shows, once the genie is out of the bottle, it's out.
In July of 2015, a new low-cost legal services agency dedicated to assisting transgender individuals in New England went live: Transformative Justice Legal Service (TJLS)
. This law practice, along with is proud to be a chief supporter of TJLS. Updates and a link to TJLS new survey of the legal needs for transgender individuals can be found on its Facebook page
More broadly, the national and regional picture for transgender equality and employment protections is changing. The EEOC
recently solidified its long-developing position on anti-discrimination protections by formally announcing
that it considers discrimination on the basis of sexual orientation and gender identity to be forms of sex discrimination. This should come as a welcome clarification to all workers and employers.
As I mentioned in an earlier post, starting on July 1, 2015, employees of businesses with eleven or more employees are eligible to start earning paid sick leave. Businesses with fewer than eleven employees may earn unpaid sick leave. For more information, the Massachusetts Attorney General's Office has provided a useful website.
The Massachusetts Attorney General is presently in the process of promulgating regulations for the law's implementation. The proposed regulations are available here
in PDF form.
As a practical business matter, employers continue to be a central focus for public policies and private sector initiatives intended to improve the health of individuals and communities. Employers may well want to carefully consider what actually works for keeping employees healthy. Currently, what doesn't
appear to work very well, according to the Kaiser Family Foundation's research
, are many of the "wellness programs" that have become popular among corporate employers over the last decade.
The reality might well be that the workplace is not the ideal setting for health-care related social policies, especially when driven by trends and hype. The bottom line for both money and health, might be that businesses may want to consider adopting a wait-and-see attitude when it comes to figuring out how to contain health care costs and how to empower workers to take better care of themselves.
A Texas federal district court has prevented implementation of the Deferred Action for Parents of Americans and Legal Permanent Residents (DAPA
). Created by the Obama administration's Executive Order in late 2014, DAPA would offer a way toward lawful status to many parents of US Citizen and permanent resident children. However, this delay not the end of the story. The Obama administration is appealing the decision and has much reason to expect success.
In the meanwhile, the USCIS and many advocates suggest that prospective applicants for DAPA start gathering together documentation, including:
Evidence of identity;
Evidence of a relationship to a US Citizen or permanent resident;
Evidence of five years of continuous residence in the United States.
Immigration advocates caution that, like the Deferred Action for Childhood Arrivals
program, DAPA is a program that can be terminated by a future Presidential Administration or changed by Congressional legislative action. So anyone seeking status under DAPA (or DACA) should also review eligibility for other, more permanent, ways to adjust status.
In the meanwhile, have hope!
Starting on July 1, 2015, Massachusetts employers with 11 or more employees must begin providing paid sick leave. Click here
for a summary of the new law's key features.
Both employers and employees should review their rights and responsibilities under the new law carefully. Notably, good record-keeping of hours worked and accrued leave will be essential.
Employers should also be aware that employees still retain their FMLA rights
under federal law. Furthermore, when documenting the use of sick leave employers should bear in mind the need to comply with both HIPAA
and Massachusetts data security
and personal information privacy standards, when dealing with employee medical information.
After eating some very delicious Christmas and New Years meals with family and friends, I've realized that few personal freedoms are as close to our hearts and daily lives as being able to eat what we choose. When governments step in to regulate what we eat on grounds other than public health and safety, there should be careful scrutiny of such rules. In a small, but important case in federal district court in California, the state's ban against foie gras -- based on legitimate concerns about animal cruelty in its production -- was overturned on the grounds of federal regulatory preemption. In other words, the comprehensive nature of the federal regulations trumped the state's attempt to impose its own wholesale ban on a product. Here's the New York Times article
The lesson goes beyond foie gras and beyond California. Businesses of all sizes would be well served by being willing to carefully scrutinize state and municipal regulations and licensing practices for overreach and excessive micromanagement of legitimate activities. Governments do not have unfettered or unlimited regulatory authority.
Happy New Year!
Cats are not an appropriate source of foie gras.
As 2014 draws to a close, charitable donations appear to have gently risen from past years. Donors and charitable beneficiaries should be aware of IRS guidance on charitable giving and tax deductions
so that good intentions don't become a problem later down the line.
Individuals who routinely foster animals on behalf of tax-exempt charitable organizations may wish to (carefully!) consider whether or not their activities qualify as charitable contributions.
Sadly, no tax deductions are available to me for accidentally feeding the squirrel who lives next door by having my bird feeder in his tree. I hope he enjoyed his suet.