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A Landmark Ruling

By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Erica E. Flores

Erica E. Flores

Businesses in Massachusetts have to comply with both state and federal anti-discrimination laws that prohibit discrimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of are sex, age, and religion, but there are many more.

Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gender identity and expression since 2012. However, many other states either don’t have employment-discrimination laws at all or don’t include sexual orientation or gender identity as protected characteristics under the laws they do have. So what about the federal law?

Title VII of the Civil Rights Acts of 1964 prohibits discrimination in employment based on specified protected classes. That statute, however, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.

In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.

Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Stephens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation discrimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had a different outcome. The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.

“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex. The Supreme Court answered in the affirmative.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The court noted that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by reproductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimination against an individual, not a group.

Based on this language, the court found that, under the plain meaning of Title VII, “an individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:

• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.

• An employer employs a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer continued to employ someone who identified as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees.

Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Home Improvement Uncategorized

Advice — on the House

Andrew Crane holds up a prototype of one of the reusable bags attendees will receive at the 2020 Home and Garden Show.

By Mark Morris

Sometimes the online approach isn’t the most efficient way to tackle a project.

“If you’re looking to hire a landscaper, for example, you could look all over the internet and be dissatisfied,” said Andrew Crane, executive director of the Home Builders and Remodelers Assoc. of Western Massachusetts (HBRAWM).

Instead, he suggests conducting a search at the Western Mass Home and Garden Show, where consumers can speak directly with local landscapers and myriad other professionals.

Crane’s organization sponsors the annual event, which is now in its 66th year. Held at the beginning of spring, this year’s edition is scheduled for March 26-29 at the Eastern States Exposition grounds in West Springfield.

Originally, the event served as a venue for tradesmen in the association to familiarize each other with their craft. Over time, the show evolved, putting more emphasis on consumers, and has grown to the point where more than 350 exhibitors reserve space every year.

Exhibitors at the show can help consumers with everything from replacing a faucet to building an entire home — and everything in between. Innovations in building products, as well as home-related services such as Realtors and insurance agents, all have a presence at the home show.

Todd Hickman, Steve Sgroi, and John Collins will use the show to introduce a new segment of their business, Home Service Electrical.

Regarding that landscaper search, at press time, four landscapers had reserved booths at this year’s home show. For landscape projects that involve ‘hardscape’ (incorporating stone work into a landscape design), 14 different vendors of this specialty have signed on.

BusinessWest caught up with several different exhibitors to this year’s show, representing a wide range of industries. Their home-show experience varies from nearly two decades to a couple of first-time exhibitors, but they all share an enthusiasm about the opportunity to connect with people during the event.

Room to Grow

Stuart Fearn, president of Safeco Foam Insulation, marks his 17th home show this year. “Since day one, the home show has proven to be a home run for my business,” he said, adding that he sees his main job at the show as educating people about spray-foam insulation, and it’s a worthwhile effort.

“We get a lot of business and awareness from the home show,” he noted. “It helps people know we exist, and we will often get calls up to six to nine months after the show when they need insulation.”

For nearly two decades now, remodeling has remained a strong trend in home projects. Whether someone is updating their current home or purchasing an older home to modernize, Crane said demand remains strong for windows, siding, and many other products that will fit into existing homes.

Scott Fleury, business development director for Kelly-Fradet Lumber in East Longmeadow, sees the home show as an opportunity to put consumers in touch with the best people for their remodeling projects. The current president of HBRAWM, Fleury has been a part of the home show for 10 years. Kelly-Fradet often displays kitchen, bath, and outdoor deck products it sells primarily through contractors.

Painters Christopher Grenier and Jillian Forcier inspect the results of their recent work in a Northampton home.

“Often a homeowner will come to our booth with a project, and we are able to walk them right to a contractor who is also at the show,” he said. “On the flip side, contractors will bring people to our booth to show them the products we carry that apply to their project.”

Lori Loughlin, showroom manager for Frank Webb Home in Springfield, has taken part in the show for the past five years. Loughlin, vice chair of the organizing committee for the event, said her company sees an almost immediate return on its investment.

“Initially we see a big spike in sales right after the home show,” she said adding that the impact of the event often continues throughout the year. “People will come in as late as Christmas time and tell me they saw us at the home show.”

Christopher Grenier, owner of Grenier Painting and Finishing, reserved a booth at the home show last year for the first time. He enjoyed the experience so much, he is now on the event’s organizing committee.

Grenier noted that customers who need painting services often ask him for referrals about flooring, plumbing, and other services. He gladly recommends other members of the association to help customers find the right person for the job.

“I’ve recommended other painters when a customer needs someone who specializes in painting cabinets, for example,” he said. “We’re not in competition; it’s more of a camaraderie.”

One of the key benefits he sees to having a booth at the show is the ability to give people individual attention for their projects.

“When I’m asked why people should go to the home show, my response is, you’re going to find local people you can trust,” he noted.

Loughlin agreed and said that, because people can touch the products in her company’s booth, it helps them recognize quality kitchen and bath fixtures. When products like these are researched and then bought online, there’s no tactile experience, and service after the purchase is often lacking.

“Our customers know they can call us if there is ever a problem,” she said.
“There’s no sending things in the mail; we’ll just take care of it right here.”

As in past years, most booths will be located in the Better Living Center and the adjacent Young Building. New this year, the space between the two buildings will be used as a “contractor’s village” for products that exhibit better outside.

Scott Fleury helps Kelly-Fradet Lumber get all decked out for the show.

PV Squared Solar, a residential solar-energy installer, will forego the traditional booth setup indoors and will instead set up a solar-powered trailer in the contractor’s village to run electrical devices off the grid.

Anna Mannello, marketing coordinator for PV Squared, said that, as a first-time exhibitor, the home show presents a great way to connect with people in the community.

“PV Squared Solar is based in Greenfield, so we’ve done most of our business in Franklin and Hampshire counties,” she said. “While we’ve done a few installations in Hampden County, this will be an opportunity to increase our exposure to lots of new people.”

Mannello hasn’t yet finalized what appliances they plan to demonstrate, but during the four days of the show, attendees will be able to connect to PV Squared’s trailer to charge their phones using solar power.

It’s one thing to be a first-time exhibitor, and it’s quite something else to launch a new business at the home show. That’s how Todd Hickman, president of Hickman and Sgroi Electric, is approaching his inaugural exhibit.

While his company is an established residential, commercial, and industrial contractor, he and his partner, Steve Sgroi, are introducing Home Service Electrical, a membership-based, comprehensive approach to homeowner electrical needs. Instead of waiting for an emergency, Hickman said the service starts with a full inspection of the home’s electrical system to prevent familiar problems, such as losing power while cooking Thanksgiving dinner.

When a service call is needed, a professional technician in a fully stocked van will be expected to solve most problems in one visit. Each service has a standard price, so the consumer knows upfront what the job will cost. The home show represents an opportunity to introduce this different concept for electrical service.

“We’re creating a brand, so it’s important to educate the public on who we are, the image we present, and to assure people that we plan to be here for generations to come,” Hickman said.

Sgroi, vice president of Hickman and Sgroi, said their goal for the home show is simple, and it’s one shared by many, on one level or another.

“We hope to schedule inspections and grow the business until we are overwhelmed,” he said, while Hickman quickly added, if that happens, the business will gladly expand to meet the demand.

The Finish Line

For many years, HBRAWM provided plastic bags for show attendees to collect information from exhibitors. Crane proudly noted that the plastic bags are gone and have been replaced this year with reusable cloth bags, similar to those found in supermarkets.

“It’s one small way our members can be part of the solution to improving our environment,” he said. The bag will include a map showing all booth locations and a guide with contact information on all the HBRWM members.

“If you have a specific project, the map and guide will help you navigate the show to get the information you need,” Crane said. “If you don’t have any projects and you want a social experience, then you can just walk around, and you’ll have a great time.”

He concluded that other home shows have come and gone in the area, but ‘the original’ home show is here to stay. “After 66 years, it’s now a piece of Western Mass. history.”

The Western Mass Home and Garden show will be open Thursday and Friday, March 26-27, from 1 to 9 p.m.; Saturday, March 28, from 10 a.m. to 9 p.m.; and Sunday, March 29, from 10 a.m. to 5 p.m. General admission is $10 for adults. Children under 12 are admitted free. Veterans and active military with ID are admitted free on Thursday only. Discount coupons for every day of the show are available at www.westernmasshomeshow.com.

Home Improvement

Green-building Tax Breaks

By Lisa White, CPA, CJ Aberin, CCSP, and Brandon Val Verde, CEPE

On Dec. 20, 2019, a pair of tax provisions, Sections §45L and §179D, made their way into the government’s year-end spending package. These often-overlooked incentives provide a lucrative tax-saving strategy for the real-estate industry.

Not only were the 45L credit and 179D deduction extended through 2020, but the benefits can also be retroactively claimed if missed on prior tax returns. Real-estate developers, builders, and architects that may be unfamiliar with the provisions should take a closer look to avoid a missed opportunity.

45L: Tax Credit for Residential Real Estate

The 45L credit is a federal incentive worth up to $2,000 per qualified unit and is designed to reward homebuilders and multi-family developers of apartments, condos, or production homes. To qualify, a dwelling unit must provide a level of heating and cooling energy consumption that is 50% less than the 2006 International Energy Conservation Code (IECC) Standards.

Of this 50% reduction, a minimum of 10% must come from the building envelope. All residential developments and apartment buildings completed within the last four years are worth assessing for potential 45L tax credits. Eligible construction also includes substantial reconstruction and rehabilitation. The credit is available in all 50 states; however, developments must be three stories or less above grade in height.

Here’s an example of now the credit works:

A building owner has an apartment complex consisting of three, two-story buildings, and each building has 20 units. All 60 units meet the qualifications to claim the credit. In year one, 48 of the units go under lease. The credit in year one would be $96,000 ($2,000 x 48). In year two, if the remaining 12 go under lease, a credit of $24,000 can be claimed in that year.

Of course, there are some costs for this benefit. The amount of basis in the building will need to be reduced by the amount of the credit claimed. Since a credit is a dollar-for-dollar reduction in tax liability, taking a credit over a deduction usually results in a more favorable tax position. There is also the cost for the study and certification, but this expenditure would qualify as a business deduction.

The credit can be claimed in the year the dwelling unit is leased or sold, and there is no limit on the number of qualifying units that can be claimed. The amount of the credit applied is limited to the tax liability (meaning it’s not a refundable credit), and the credit cannot be used to offset AMT. However, any unused credit can be carried back one year or carried forward for 20 years.

The following types of projects should be evaluated, as there are typically benefits available for:

• Affordable housing (LIHTC);

• Apartment buildings;

• Assisted-living facilities;

• Production-home developments;

• Residential condominiums; and

• Student housing.

179D: Tax Deduction for Commercial Real Estate

While 45L typically applies to residential properties, 179D is designed for energy-efficient commercial buildings and offers a tax deduction of up to $1.80 per square foot for energy-efficient lighting, HVAC systems, and the building envelope.

Unlike most deductions, which are based on the amount spent, this deduction is primarily based on square footage. New construction and a wide range of improvements, from simple lighting retrofits to full-scale construction projects, are eligible for this beneficial tax break.

Improvements are limited to the affected area, and to be eligible, they must reduce energy and power costs by making investments in any of the following categories: a building’s envelope, HVAC and hot water, and/or interior lighting systems.

Beneficiaries of this deduction may include:

• Building owners (commercial or residential);

• Tenants making improvements; and

• Architects and designers of government-owned buildings.

Added Benefits for Architects and Designers of Government Buildings

Architects and designers who implement energy-efficient designs on government buildings are also eligible for the 179D tax deduction if their design meets the criteria. Because government entities cannot use the tax deduction, they can assign the deduction to the designer in the year that the building was placed in service. Since 179D was extended retroactively, architects, engineers, and building contractors should review government projects from prior years to obtain all the deductions for which they are eligible.

Claiming the Benefit

Pursuant to the IRS guidance on claiming these green-building tax breaks, taxpayers are required to certify the tax credit or deduction with a detailed engineering analysis. These supporting studies can be generated by a third-party provider.

While a taxpayer may have missed out on tax credits or deductions when filing original tax returns, the good news is that the tax benefits can be claimed retroactively, dependent on the taxpayer’s situation. A tax preparer can assist in the finer details while working with a qualified professional that has expertise in securing both 45L and 179D tax incentives.

Lisa White, CPA is a tax manager with Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; [email protected]

CJ Aberin is a principal at KBKG and oversees the Green Building Tax Incentive practice. Over the last several years, he has performed green building tax incentive studies and cost segregation for clients in various industries that range from Fortune 500 companies to individual real estate investors.

Brandon Val Verde is a certified energy plans examiner and senior manager within the Green Building Tax Incentives practice of KBKG. His understanding of various energy standards and codes such as ASHRAE 90.1, IECC, and Title 24 allow him to identify opportunities for Green Building Tax Incentives.

 

 

 

Technology

Air Apparent

By Sean Hogan

Small businesses have been drawn to VoIP technology because of the substantial cost savings they gain when making the switch. However, as VoIP has continued to evolve over the years and moved into the ‘cloud,’ small businesses have begun to leverage VoIP in new ways to gain competitive advantages in their respective industries.

The growth of virtual companies and remote workforces has brought everyone to the same playing field, and customers across every industry are looking to work with credible, prestigious, large companies. Here are some ways in which cloud voice can make your business look bigger than it is today.

Your office just got a receptionist you don’t have to pay for. Cloud-based phone systems today include features that completely eliminate the need for a receptionist. Systems can be configured in order to route calls directly to the intended employee via a unified auto-attendant. Also, if your office doesn’t have a receptionist, systems can distribute incoming calls among specific groups.

This goes beyond simply sending sales calls to salespeople and admin calls to support employees. For example, you can use caller ID to send specific accounts directly to the CEO’s cell phone. Or if none of the salespeople answer an incoming call, it goes to the sales manager’s cell phone.

Sean Hogan

“Small businesses have begun to leverage VoIP in new ways to gain competitive advantages in their respective industries.”

Unlimited locations, one office number. With the rampant growth of startups and virtual companies, many businesses need to have a communications system that supports both in-house and remote workers while maintaining a professional image across the board. With cloud voice, calls to the main office can be sent out anywhere simply by asking the customer to dial an extension, just like how large corporations are doing.

Seamless conference calls and lightning-fast voicemails. Conference calls or online meetings are often a source of frustration for most companies. Cloud voice solutions enable businesses to host conferences during meetings so you can be face to face, even when you can’t be in the same location.

Furthermore, all technology is hosted through a single solution, so when it’s time to host a meeting, businesses can rest assured that the technology will perform as promised. Another way in which cloud voice accelerates collaboration is through its ability to convert voicemails into MP3 files, which can be sent as e-mail attachments. Additionally, voice calls can be converted to text and vice versa for easier retrieval and communication.

Collaborate on the fly. Today’s employees need to be constantly connected. Collaboration can’t always be planned out in advance, and when a good idea strikes, everyone needs to be in the loop. Cloud technology has made it easy for employees to see from their desktop what their co-workers are doing and how to best access them (e.g. instant message, voice, or e-mail) so communication can happen immediately.

There are many advantages to moving a company to cloud voice. For small business, the rewards are plentiful because they can utilize the same technology as large enterprises for a fraction of the cost and make them look just as big.

Sean Hogan is president of Hogan Technology.

Accounting and Tax Planning

This Measure Changes the Retirement Landscape in Several Ways

It’s called the Setting Every Community Up for Retirement Enhancement Act, and it was signed into law just a few weeks ago and took effect on Jan. 1. It is making an impact on taxpayers already, and individuals should know and understand its many provisions.

By Ian Coddington and Gabriel Jacobson

Signed into law Dec. 20, 2019, the SECURE Act, or Setting Every Community Up for Retirement Enhancement Act, has changed the retirement landscape for Americans retiring or planning to retire in the future.

The prominent components of the SECURE Act remove the maximum age for Traditional IRA contributions, increase the age for required minimum distributions, change how IRA benefits are received after death, and expand the types of expenses applicable to education savings funds. This law offsets some of the spending included in the budget bill by accelerating distribution of tax-deferred accounts.

Ian Coddington

Gabriel Jacobson

Due to the timing of this new legislation, there will be many questions from tax filers regarding the new rules and what changes apply to their plans. We hope this article will provide a starting point for understanding the changes that will impact us come tax time.

A Traditional IRA, or Traditional Individual Retirement Account, can be opened at most financial institutions.

Unless your income is above a certain threshold, every dollar of earned income from wages or self-employment contributed to the account by an individual reduces your annual taxable income dollar for dollar. This assumes you do not contribute above the annual limit into one or more tax-deferred retirement accounts.

Due to increasing life expectancy, the SECURE Act has eliminated the maximum age limit that an individual may contribute to a Traditional IRA. Prior to 2020, the maximum age was 70½.

The SECURE Act also raises the age that an individual with investments held in a Traditional IRA or other tax-deferred retirement account, such as a 401(k), must take distributions from 70½ to 72. These required minimum distributions, or RMDs, serve as the government’s way of collecting on tax-deferred income and are taxed at the individual’s income-tax rates, so no special investment-tax rates apply.

Each year, the distribution must equal a certain fraction of the year-end balance of an individual’s tax-deferred retirement account. The tax penalty for omitting all or a portion of your annual RMD is 50% of the amount of the RMD not withdrawn. The fraction is known as the life-expectancy factor and is based on the individual’s age.

The SECURE Act did not change the life-expectancy factors for 2020, but a change is expected for 2021. Unfortunately, RMDs for individuals who reached 70½ by Dec. 31, 2019 are not delayed. Such individuals must continue to take their RMDs under the same rules as prior to passage of the SECURE Act.

“With the SECURE Act going into effect Jan. 1, 2020, the law is making an impact on taxpayers now. The effects of this will continue over the next few years, as death benefits for beneficiaries and minimum distributions will not affect all retirees immediately.”

Individuals who inherit Traditional or Roth IRAs during or after Jan. 1, 2020 are now subject to a shorter time frame for RMDs pursuant to the SECURE Act. Prior to passage of the SECURE Act, individuals were able to withdraw funds from their IRAs over various schedules. The longest schedule was based on the beneficiary’s life expectancy and could last the majority of the individual’s life.

This allowed those who inherited Traditional IRAs to stretch the tax liabilities on those RMDs discussed previously over a longer period, reducing the annual tax burden. Under the current law, distributions to most non-spouse beneficiaries are required to be distributed within 10 years following the plan participant’s or IRA owner’s death (the 10-year rule). This may increase the size of RMD payments and push an individual to a higher tax bracket.

Exceptions to the 10-year rule are allowed for distributions to the following recipients: the surviving spouse, who receives the account value as if they were the owner of the IRA; an IRA owner’s child who has not yet reached majority; a chronically ill individual; and any other individual who is not more than 10 years younger than the IRA owner. Those beneficiaries who qualify under this exception may continue to take their distributions through the predefined life-expectancy rules.

Section 529 plans have also been expanded by the SECURE Act. These plans can be opened at most financial institutions and are established by a state or educational institution.

These 529 plans use post-tax contributions to generate tax-free earnings to pay for qualified educational expenses. As long as the distributions pay for these expenses, they will be tax-free. Qualified distributions include tuition, fees, books, and supplies. Previously, distributions were only tax-free if paid toward qualified education expenses for public and private institutions; now, they will include registered apprenticeships and repayment of certain student loans.

This will expand the qualified distributions to include equipment needed to complete apprenticeships and technical classes and training. For repayment of student loans, an individual is able to pay the principal or interest on qualified education loans of the beneficiary, up to $10,000. This can also include a sibling of the beneficiary, if the account holder has multiple children.

With the SECURE Act going into effect Jan. 1, 2020, the law is making an impact on taxpayers now. The effects of this will continue over the next few years, as death benefits for beneficiaries and minimum distributions will not affect all retirees immediately.

This article does not qualify as legal advice. Seek your tax professional or retirement advisor with additional questions on the impact this will have in your individual situation.

Ian Coddington and Gabriel Jacobson are associates with Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; [email protected]; [email protected]

Hampshire County

Prodigy Offers Fresh Entertainment Alternative

By Mark Morris

Jeff Bujak says he designed the mini-golf course to challenge everyone who plays it.

When game designers evaluate a new concept, one of the most important considerations is for the game to deliver a fun and different experience every time it’s played.

Jeff Bujak, owner of Prodigy Mini Golf & Game Room in Easthampton, applies that same standard to his business.

“I want folks to view the experience at Prodigy as one where they haven’t had enough. I want people to say, ‘there are about 2,000 games I haven’t played yet, so I’m going to keep coming back.’”

Actually, there are currently 2,198 games available at Prodigy, and that’s one reason why the company website describes it as “a gamer’s wonderland.”

Located on the ground floor of the Eastworks mill complex, the 8,000-square-foot game room is the culmination of Bujak’s past experiences as a musician and game player, and his passion for creating things that didn’t exist before.

Originally from Syracuse, N.Y., he spent 15 years traveling the country as a solo keyboard player and as part of the band Somebody’s Closet. He moved to Northampton for its well-known music scene in 2004. Tired of life on the road and sleeping on people’s couches, he decided in 2015 that he’d had enough of life on the road and left music for what he called “a stable paycheck with daytime hours.”

While working in the IT department at Viability, a human-services provider in Northampton, Bujak had the idea of a business that featured a mini-golf course and board games. Meanwhile, around that same time, his wife opened Small Oven, a bakery in Easthampton.

“I could see that Easthampton had real positive energy for business, so I started telling bakery customers about my idea for an entertainment complex,” he recalled. When he presented his business plan to Will Bundy, owner of Eastworks, it proved to be a winning move.

“When I first met Jeff, I knew that Prodigy was going to happen at Eastworks,” Bundy said. “Eastworks is a community of creative and entrepreneurial businesses. Prodigy and its unique view on games and gaming is a perfect fit for us.”

Flipping the Switch

The original proposal was for a mini-golf course and board-game room with no video games that would be called Analog. When Bujak saw how much space was available at Eastworks, he refined his idea and decided to offer more entertainment options. As a collector of video games and their consoles, he knew he could easily include those into the game room.

Most of the video-game offerings are on consoles like NES, Sega, and ColecoVision, which are no longer produced. Bujak has connected them to TV sets from 20 to 30 years ago because the games work best on the older sets.

“I want to keep this place fun for real gamers. When someone plays Mario, they expect it to react the way it did when they were younger, so you need the older TVs to get that.”

Prodigy is positioned as a game room for ages 13 and up. As a result, Bujak said some of the younger players have never seen televisions with picture tubes and often ask for help in turning them on.

Prodigy offers 26 retro video-game consoles that work best on older TV monitors.

The nostalgia doesn’t end with video games, as Bujak proudly pointed out that, instead of serving alcohol, Prodigy offers vintage sodas such as Yoo-hoo, Mellow Yello, and Hawaiian Punch to put customers in a nostalgic mood.

Bujak considered naming the game room after himself, but Bundy suggested that choosing a an edgy word people could relate to might be more effective. After researching several candidates, Bujak landed on ‘prodigy,’ loosely defined as ‘young and smart.’

“My vision was for a place that was ‘young’ in the sense that it always offered something fresh, and ‘smart’ because it encouraged people to use their brains in a fun way,” he said.

He envisioned a game room with one admission price, and every game is then free to play, intentionally countering the typical business model of an arcade, where admission is free and customers pay for each game they play.

All-day admission on Wednesdays and Thursdays costs $10 “per human” and increases to $12 Friday through Sunday. Monthly memberships and discount punch cards for small groups are also available. Bujak said he wants to keep his focus on providing value to people who visit Prodigy.

“I will often ask myself, ‘what does $12 get you at a movie theatre compared to the experience at Prodigy?’ Did my customers get their $12 worth?”

Opened in March 2018, Prodigy features a rich mix of retro video games, classic pub games, and stacks of board games. Winding its way throughout the game room is a challenging 18-hole mini-golf course Bujak designed and built himself. As someone who won mini-golf tournaments in the past, he researched courses and game rooms throughout the Northeast to come up with a fresh design for his course.

“My vision was for a place that was ‘young’ in the sense that it always offered something fresh, and ‘smart’ because it encouraged people to use their brains in a fun way.”

“I wanted to throw a whole different angle on mini-golf course design,” he said. “I’ve tried to incorporate some of the decision making players are confronted with in video games and apply that to mini-golf. “

He explained further that, like a video game, many of the holes on the course offer several paths to aim for, all with different consequences.

Next Level

Business has been brisk, with Bujak doubling his first year’s projections. Along the way, he has also been making adjustments to the room and game choices to make sure the appeal stays fresh.

“I see my key demographics as people in their 30s,” he said, adding that couples in their 30s will often come together to Prodigy to play competitively with a board game or a four-player video game. If they want to play cooperatively, they can form a band and play Guitar Hero.

Bujak has also found that Prodigy is a great place for first dates.

“You can really get to know someone better when you are having a conversation over a game — not to mention what you learn about a person when you see how they handle winning and losing,” he said. Because Prodigy doesn’t serve alcohol, it’s also a safe place to ‘break the ice’ with someone.

“While we host plenty of families and friends, our place appeals to folks who don’t know each other well, but end up knowing each other better at the end of the experience,” he noted.

With that dynamic in mind, he sees hosting business groups as a growth opportunity for Prodigy in 2020. “Because games bring out the competitive and cooperative nature in us, I feel we can offer companies a great place for team-building events and networking opportunities.”

From day-long rentals to single meetings, Bujak said Prodigy is set up with plenty of audio-visual support, including a 10-foot-wide screen for PowerPoint and video presentations and seating to accommodate up to 40 participants.

Recently, Bujak hosted his former co-workers from Viability, who took part in several staff days. This experience assured him that Prodigy can be an effective location for off-site business meetings.

“When you have a social event with a game theme, it generates conversation in ways other gatherings don’t,” he said, adding that “competing with yourself or with others creates healthy competition, which is good for your mind and good for productivity.” 

Prodigy has found success early on as a place where people bring their friends to share a fun place they’ve discovered, which is right in line with Bujak’s marketing strategy.

“From the beginning, I’ve told people that Prodigy is not like any other place,” he said. “It’s something you have to come and see.”

Accounting and Tax Planning

The State of Things

By Jonathan Cohen-Gorczyca, CPA

Very rarely do court cases related to state taxation make national news. South Dakota v. Wayfair Inc. (2018) was a Supreme Court case that decided in a 5-4 vote that states can charge and collect tax on out-of-state sellers, allowing the new precedent to supersede the physical-presence standard that most states were practicing.

Jonathan Cohen-Gorczyca

Typically, when a case is decided, states react quickly in order to increase tax revenues. While this case predominately affects Internet retailers who exceed a certain amount of shipments to a state or a certain dollar threshold of sales, it should cause all businesses to rethink what state tax filings and business registrations they are required to complete in order to maintain compliance with state tax laws and reduce exposure. In addition, pass-through entities, such as partnerships and S corporations, could have partners and shareholders that may also have tax-filing requirements in these states.

Businesses should maintain records of the number of completed transactions as well as the dollar amount of sales to each of the 50 states. Since each state has different laws that could trigger nexus for income or sales tax, this is a starting point to determine if additional state filings are required or if they should have been filed in prior years.

Nexus is the amount and degree of a taxpayer’s business activity that must be present in a state before the taxpayer is required to file a return and pay tax on income earned in the state. Individual states determine what degree of nexus triggers a tax-return filing requirement, and those rules can vary from state to state. Other questions that should be asked and analyzed include, but are not limited to, the following:

• How much property and equipment does the company own in another state?

• How much payroll is paid to employees that are in another state?

• If the company is selling tangible property, how is the property delivered? Are they using a third-party carrier? Are they sending company employees to make the delivery?

• Are employees or hired independent contractors installing the property once it is delivered in another state?

While these questions relate to the more traditional physical-presence standard in various states, the answers should be looked at in conjunction with the number of completed transactions and the dollar sales in a state. For example, Connecticut and New York have implemented a factor-based nexus standard (also known as a bright-line nexus test) for sales, payroll, and property (even if the taxpayer does not have a substantial physical presence in the state) in an attempt to increase tax revenue.

If, during the tax year, sales exceed $500,000 to Connecticut or $1 million to New York, a company located in Massachusetts with very little or no physical presence would be required to file tax returns in these states. Various states are now collecting income and sales tax revenue when an out-of-state company is not even setting foot into the state.

“Individual states determine what degree of nexus triggers a tax-return filing requirement, and those rules can vary from state to state.”

In order to help businesses determine if a sales or income-tax nexus exists in a particular state, states will commonly post a nexus questionnaire on their Department of Taxation’s website. Numerous questions will be asked about current and prior business activity in the state, such as sales amounts, how items are shipped, if employees are traveling to the state, and many other questions. Once submitted, the state will decide on whether sales or income-tax nexus exists in the state and what filings would be required. You should consult with your accountant or attorney prior to filling out these questionnaires because, if they are filled out incorrectly, it could cause a state to make an incorrect determination.

In addition to the questionnaires, many states have set up voluntary disclosure programs. If it is clear that a business has established nexus in a state in the current year but also failed to make this determination in prior years, there is the risk of exposure and potential tax audits, which could lead to additional taxes due plus penalties and interest.

By disclosing prior years’ sales, activities, and other connections to the state, the state may potentially waive penalties and interest through its voluntary disclosure program. Once again, the voluntary disclosure program should only be entered into after a determination is made by your accountant or attorney.

The states’ changes in nexus standards, which determine when a company may become subject to sales or income taxes in outside states, should be cause to review and analyze a company’s annual activities in other states. As these state laws may change every year, a company is responsible for maintaining tax compliance in each respective state and should review the nexus standards every year in order to stay compliant.

Jonathan Cohen-Gorczyca, CPA, MSA is a tax supervisor in Melanson Heath’s Greenfield office; (413) 773-5405.

Banking and Financial Services

A Primer on Record Retention

By Emily White

Emily White

Emily White

These days, it’s hard to imagine holding on to paper copies of every paid bill, invoice received, or other financial document. Today’s society has moved from paper copies of documents to digitized, searchable files — all within the click of a mouse or stroke of a keyboard. Many practices even have copies of important documents secured by fingerprints or facial recognition on iPhones or tablets.

However, while the methods of retaining documents have changed, having a record-retention policy is still important and should serve as a guide within a practice, no matter where or how files are kept.

Retention of specific documents should be easily identifiable in a practice’s record-retention policy. A basic record-retention policy should include a listing of recommended retention periods for specific financial items. The length of time certain records should be maintained depends on services offered by the practice, types of files, and any specific regulations that may determine the holding period.

“While the methods of retaining documents have changed, having a record-retention policy is still important and should serve as a guide within a practice, no matter where or how files are kept.”

The retention policy should be reviewed by a practice’s legal counsel to ensure proper compliance with all laws and regulations.

Records retention generally falls into four general time-specific categories: two years, three years, seven years, and permanently. Documentation to be retained for two years includes items such as bank reconciliations and general correspondence. Typical three-year retention-policy items include bank statements, insurance policies, internal reports, and employment applications. Records to be kept for seven years include items such as payroll records, personnel files (for terminated employees), sales records, and subsidiary ledgers. Items to be retained indefinitely include audit reports, active contracts, legal correspondence, meeting minutes of board of directors and stockholders, retirement and pension records, and union agreements.

In addition, specific guidelines provided by the IRS govern retention of income-tax returns and related documents. Generally, income-tax returns are kept indefinitely, along with related depreciation schedules, financial statements (audited or unaudited), and year-end trial balances.

As the world becomes more technologically advanced, it is becoming easier for practices to store files on the ‘cloud.’ Cloud-based storage has become the newest method of storing records and files. Keeping files on the cloud not only frees up physical space, but also significantly reduces the risk of potential for loss of work and crucial documents. Medical practices are recommended to back up their computerized files to the cloud daily, at a minimum.

Record retention on the cloud is a secure and paperless way to keep all required files. Many practices opt to scan in all paper copies of files, support, or related documents and keep these files on the cloud. This method of record retention is a great way to reduce physical paperwork but remain in compliance with applicable laws, regulations, and company policies on record retention. As e-mails have become a significant form of communication, their storage timelines have also become important. E-mails are subject to discovery as evidence in the event of a lawsuit, so ensuring that e-mails are retained for an appropriate amount of time is crucial.

The storage of e-mails should be outlined in a practice’s record-retention policy, dependent upon the nature of the e-mails. Some may need to be kept indefinitely if they include significant legal correspondence or other agreements. Practices should refer to the general guidance for these matters.

Practices should consider the necessary requirements for record retention based on their service offerings and areas of expertise. Practices should also consult with legal counsel to develop an appropriate record-retention plan that follows all appropriate laws and regulations, including specific IRS guidance for tax-related items. In today’s digital world, it is easier than ever to engage in cloud-based storage for the purpose of complying with record retention. Additionally, a record-retention policy should be reviewed annually for possible changes and updates. After all, who knows when paper copies will come back in style?

Emily White is a senior audit associate for the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3531; [email protected]

Banking and Financial Services

Dollars and Sense

By Steve Siebold

It is now not only the start of a new year, but also the beginning of a new decade. Maybe the last 10 years weren’t exactly your greatest, financially speaking. Maybe you are still dragging around an excess amount of credit-card debt, or you simply haven’t done a good job putting enough money away for retirement.

Whatever the case, the new decade can be different, and it starts with what goes on between your ears.

If you are really serious about taking control of your financial situation in the coming years, start by examining your relationship with money. Here are six changes to make when it comes to how you think about money.

Money Is Your Friend

If you have struggled financially your entire life, chances are you have a bad relationship with money. You may even see it as an evil force that you associate with greed or crooks. The more you see it as a negative, the harder it’s going to be to acquire any of it.

Start by changing your outlook on money, and see it for the positives it really presents, like possibility, opportunity, and freedom. Money isn’t everything, but it does make life easier.

Money Is Infinite

Sadly, most people are stuck with the limited belief that they can only make so much money in a year. They’ve been led down this path by well-meaning but misguided people their entire lives who sold them on the notion that this is the way it has to be.

This is so untrue. In a free-market economy, you can earn as much as your heart desires. The key is solving problems for people. The more problems you solve and the more value you bring to the marketplace, the more money you make.

It Starts with Your Expectations 

The majority of people believe the only way they will ever get wealthy is by guessing the lottery numbers or going to the casino. In the new decade, self-made millionaires expect to make even more money than they made in the previous decade, and there’s no talking them out of it.

“The more problems you solve and the more value you bring to the marketplace, the more money you make.”

You have to expect big things to happen, and this will make you bold, aggressive, and fearless in the pursuit of wealth. Even if you don’t know how it’s going to happen just yet, it starts with a belief that it will.

Separate Logic and Emotion 

Most people use emotion when making financial decisions, and this is one of the worst things you can do. Self-made millionaires, on the other hand, use emotion to motivate them, but stick to pure logic when it comes to money.

Logic means not buying the million-dollar mansion that you can’t afford. Emotion is dangling that big house in front of you like the proverbial carrot in front of the rabbit to make you work harder.

Focus on Your Reason

Behind any defined goal there is always a reason. Why do you want whatever it is you are after? In this case, why do you want more money? Is it for your family? Do you want to take a big trip next summer? Do you finally want to be financially free? When you focus on your ‘why,’ it’s going to push you to take action in achieving those financial goals. Figure out your why and never take your eyes off of it.

Watch Your Dialogue

Begin monitoring everything you say to yourself and others. When you talk about money, is the way you use your language programming you for success or failure? Next, begin listening to the way people around you use their language when it comes to money. Ask yourself the same question about them.

This is an eye-opening experience. What you’ll find is that the masses are always talking about running out of money. The self-made wealthy, on the other hand, are always talking about how to make more of it.  

The Takeaway

As we enter a new decade, make the decision to take control of your finances once and for all. Your thoughts and beliefs about money won’t make you rich on their own, but it all starts here.

If you are rich, keep thinking the way you are thinking. If not, it’s time to change the way you look at money in 2020 and beyond.

 

Steve Siebold is author of the book ‘How Money Works,’ and a self-made millionaire who has interviewed more than 1,300 of the world’s wealthiest people over the last 35 years; www.howmoneyworks.com

Law

2019 Employment Law Year in Review

This past year was one that saw a number of landscape-changing developments in the broad realm of employment law. From paid family leave to cannabis to overtime-threshold changes, there were a number of changes to existing laws, new measures to keep track of, and new challenges for employers.

By Maureen James, Esq.

2019 … it’s been real.

Much like politics this year, employment law has experienced quite the roller-coaster ride. So what has this year taught us? Where will we go next? Has anyone really gotten over the Game of Thrones finale? Will 2020 include more Baby Yoda? You know … the important stuff.

This year saw many changes, most of which will really be felt during 2020 and beyond. Even so, those changes have opened dialogue to new and progressive topics that are changing the landscape of employment law. Here is a summary of the new developments, both here in the Commonwealth and nationally.

Paid Family Medical Leave

We cannot write a ‘year in review’ without starting with the Massachusetts Paid Family Medical Leave law (PFML). A lot of attention was given to PFML last year, and rightfully so. This is an institutional change, and all involved have been nervous about its rollout.

As readers are likely aware, PFML is a state-offered benefit that, come 2021, will entitle most Massachusetts workers to take up to 26 weeks of paid leave for medical or family reasons. PFML is funded through a Massachusetts wage tax that is shared by employees and businesses with 25 or more employees.

Last summer, the Department of Paid Leave issued final regulations and rolled out an updated timeline for employers, which included the deadline for notification to employees of Sept. 30, 2019, the commencement of payroll withholdings on Oct. 1, 2019, and information on the application process for private-plan exemptions.

It is clear this will be a hot topic throughout 2020 as employers will start making their quarterly PFML tax contributions and begin preparing for the first round of claims beginning in January 2021.

Marijuana

Medicinal and recreational marijuana went from nowhere to everywhere this year. Commissions, taxes, licensing … there are lots of complicated issues. For employers, many have been trying to balance state and federal law, as well as existing policies and changing culture. Unfortunately, we are not yet at a place were clear policies and practices exist. Over the next year, this will likely be a hot topic as its effects continue to grow — pun intended.

National Labor Relations Board

Last summer, the National Labor Relations Board made some drastic policy shifts in three swift steps. In May, it was announced that it intended to set standards for union activity on employer property. It followed up in June 2019 with a ruling in UPMC Presbyterian Shadyside, where it overturned decades of precedent and determined that employers can ban union organizers from public areas of their private property.

In August 2019, it held in Bexar County Performing Arts Center Foundation that property owners can bar labor protests by off-duty contractor workers unless they work “regularly and exclusively” on the property and there is no “reasonable non-trespassory alternative” for communicating their message. With these large shifts, it will be interesting to see what other areas NLRB reviews and possibly enacts changes to next year.

“This year saw many changes, most of which will really be felt during 2020 and beyond. Even so, those changes have opened dialogue to new and progressive topics that are changing the landscape of employment law.”

Continuing this trend of pro-employer decisions, a few weeks ago the board released a decision overruling a prior case that held that employees have a presumptive right to use an employer’s e-mail system for non-work-related communications, which includes e-mail traffic related to forming a union. The recent decision reconfirmed that an employer has a right to restrict employee use of its e-mail system as long as it is done on a non-discriminatory basis.

Union Fees

In a recent case — Janus v. State, County, and Municipal Employees Council 31, 138 S. Ct. 2448 — the U.S. Supreme Court held that non-union workers cannot be forced to pay fees to public-sector unions. Throughout 2019, this has been a debated topic in Massachusetts. The Legislature passed a law providing Massachusetts’ public employee unions access to contact information for employees, as well as certain allowances to charge fees to non-members.

Gov. Charlie Baker vetoed the law, but in September, he was overridden. As we move into 2020, the effect this law has on union dues and relationships between members and non-members, if any, remains to be seen.

Department of Labor Overtime Threshold Changes

One of the many regulations taking effect at the inception of 2020 includes a boost to the salary threshold for the eligibility of workers to receive overtime under the Fair Labor Standards Act (FLSA). This change will extend overtime protections to currently exempt workers making less than $684 per week (or less than $35,568 per year) and highly compensated employees making less than $2,066 per week (or less than $107,432 per year). This means, before year’s end, employers who employ exempt workers will need to review their compensation (including any non-discretionary bonuses and commissions) to ensure they earn enough to qualify for exempt status as of Jan. 1, 2020.

Non-compete Law

Massachusetts’ new Noncompetition Agreement Act has changed how employers draft, use, and enforce non-compete agreements. The law makes certain types of non-competes flatly unenforceable, and restricts how long and for what reason an agreement can be used in other situations. It also requires consideration (i.e., some sort of payment) to the employee if an employer wants to enforce a non-compete provision. The law has only been in effect a year, so we have not seen the full ramifications of the statute yet.

U.S. Citizen and Immigration Services’ H-1B Visas

March 2020 will bring the official beginning of the spring season, but also the first round of electronic registration for H-1B visas under the fiscal year 2021 cap. H-1B sponsorship is offered by employers in ‘specialty occupations’ that require at least a bachelor’s degree (or the equivalent in education and experience). In this new electronic process, employers seeking H-1B workers subject to the 2021 FY cap will complete an electronic registration that requires only basic information about the company and each requested worker.

The H-1B random selection process will use those registrations, and then the selected registrations from that pool will be eligible to file more detailed petitions for the H-1B visa cap.

2020 … Bring It On

There are only a few things that are certain: death, taxes, and another terrible reality show. However, 2020 most certainly will be a year where many new laws stretch their legs and see their first moments of sun. There will undoubtedly be new issues to confront, but no matter what year it is, you can never be too prepared.

Maureen James is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law; (413) 737-4753; [email protected]

Law

And to Keep It That Way, Businesses Can Make Use of the NDA

By Kenneth Albano, Esq.

Managing Partner Kenneth Albano

Kenneth Albano

In the legal world, we use the term ‘attorney-client privilege,’ while in the medical field, you may have heard the expression ‘doctor-patient confidentiality.’ Both terms are used in circumstances where a lawyer or doctor must maintain confidentiality to best protect a client or a patient.

In a business setting, the term ‘confidential’ can be used on many fronts, most notably in the context of a formal confidentiality/non-disclosure agreement, more commonly known as an NDA.

The use of an NDA can be seen in many different business scenarios, with the primary purpose being to protect confidential information from being revealed to the public or an unwanted third party, or from being used without the consent or knowledge of the first party.

Within the NDA document itself, the two parties are known as the ‘disclosing party’ and the ‘receiving party.’ The disclosing party is the person requesting that the receiving party sign the NDA, in order to protect the confidential information at stake.

For example, if an owner of a company were looking to retire and possibly sell the business to a competitor, he would not want to offer up proprietary information without protection. In a case like this, the retiring business owner might ask his purchaser or competitor to sign an NDA, which would protect the business owner while the two parties negotiated the terms for the sale of the business.

“You have worked long and hard to develop and grow your business, and without the protection of an NDA, loss of information could have very real financial repercussions.”

The content of an NDA can typically be broken down into five main components:

• Define the parties. This means laying out in clear terms who is the disclosing party and who is the receiving party. Typically the parties are individuals. Within the NDA document, the receiving party will be bound by numerous covenants or conditions associated with the protection of the confidential information being used or revealed.

• Describe the nature of the transaction the NDA is governing. For example, an NDA might be used to protect confidential information associated with the hiring of a new employee or executive, keeping business information private when working with independent contractors, preventing an idea or invention from being stolen or infringed upon, or protecting proprietary or secret company information that might be disclosed during a potential sale of a business.

• Include all the details. Within the NDA, it is important to specifically define, in great detail, exactly what constitutes the confidential information to be protected. In our prior example of the sale of a business, the NDA might prevent the receiving party from revealing any information about the business — whether it were oral or written information concerning the company, technical information, proprietary sales and financial data, software products, marketing strategies, customer lists, personnel records, or any information supplied by the business to the receiving party by the company or its representatives.

In another example, if the NDA were being used for the purpose of hiring a new employee or executive, the definition of the confidential information might include various proprietary information belonging to the company, about which the new employee would become aware during his or her employment. This type of protective covenant regarding confidential information can also be found in a written employment agreement or non-compete agreement as well.

• What information is allowed to be disclosed by the receiving party without violating the NDA? Under normal circumstances, confidential information does not include (a) information generally available or known to the public; (b) information that was already known by or available to the receiving party; (c) information subsequently disclosed to the receiving party by a third person, under no obligation of confidentiality to the disclosing party; or (d) information required to be disclosed as part of a judicial process, government investigation, or legal proceeding.

This type of information would normally be presented as a defense by the receiving party, if litigation alleging a violation or threatened violation of the NDA was commenced by the disclosing party.

• Define the consequences of a violation. If the receiving party breaches or violates the terms and covenants of the NDA, in most cases, the disclosing party can pursue a legal remedy via the court system. Remedies may include but not be limited to preventing further disclosure or use of the confidential information, award of damages, or other equitable relief as may be provided under the law.

Other important elements of an NDA include the length of time the agreement is to be in effect (the ‘term’), and also the governing law which would interpret the terms of the NDA should a conflict arise, and which is generally the state law for the state or commonwealth in which the disclosing party is doing business.

If your company is involved in a transaction where proprietary information could be disclosed to an independent third party, consider the use of an NDA. You have worked long and hard to develop and grow your business, and without the protection of an NDA, loss of information could have very real financial repercussions.

Kenneth Albano is managing partner for Bacon Wilson, P.C., and a member of the firm’s corporate, commercial, and municipal law departments. He represents commercial banks in all aspects of lending and workout practices and represents closely held business entities in all aspects of operations. He serves as town counsel to several Massachusetts municipalities, including Monson, Southwick, and Holland; (413) 781-0560; [email protected]

Law

Understanding the Americans with Disabilities Act

By Sarah M. Ryzewski, Esq.

Sarah M. Ryzewski

A request for time off comes across your desk from an employee. The employee is requesting additional time off to accommodate a disability she has. The additional time requested is needed to be able to attend all of her appointments, necessary for her to complete her treatment.

How an employer goes about identifying an accommodation request, and either approving or denying the request, is important in staying compliant with the Americans with Disabilities Act (ADA) and other federal and state laws. Satisfying the obligations required by employers under such laws is necessary to prevent unlawful actions and prevent disability discrimination.

Under the ADA, it is unlawful for certain employers to discriminate against individuals with disabilities; the law further requires employers to provide reasonable accommodations to individuals with a qualified disability. A disability is an impairment that substantially limits one or more life activities. A qualified disabled individual is a person who is capable of performing the essential functions of the particular job or would be capable of performing the essential functions with a reasonable accommodation.

The ADA applies only to employers who have 15 or more employers, labor unions, and state and federal government.

Employers need to be able to recognize when a request for an accommodation for a qualified disability is being made. Employees seeking accommodations under the ADA are making the request to be able to perform the essential functions of the job which they have. When making a request for an accommodation, employees are not required to use specific words such as ‘accommodation’ or ‘disability,’ but, rather, only need to explain why a change or adjustment is needed because of a medical condition.

“Under the ADA, it is unlawful for certain employers to discriminate against individuals with disabilities; the law further requires employers to provide reasonable accommodations to individuals with a qualified disability.”

This medical condition can be either mental or physical. Since key words or phrases are not required under the ADA to make accommodation requests, employers need to educate themselves on how to spot a variety of different ccommodation requests, how requests are being made, and the words being used. Take, for instance, the employee cited above, requesting time off for her appointments. She would be successful in submitting her request for an accommodation by explaining to her employer she needs additional days off during the next few months to be able to complete her chemotherapy. She would not be required to say she needs an accommodation for her disability.

Once the accommodation request has been made, employers will need to determine whether or not the accommodation is reasonable and will need to enter into an interactive discussion. A reasonable accommodation is a change to a job that will allow an individual with a qualified disability to perform essential functions of a job. The accommodation must be related to the job the employee making the request has — otherwise, it is not reasonable. Moreover, employers are not required to approve a request for an accommodation if the request made would cause the employer an undue hardship.

Undue hardships occur when it would require an employer to undertake an unreasonable expense or it would cause significant difficulty to allow the request. Reasonable accommodations usually include modified work schedules, making workplaces easily accessible, leave, and modifying work equipment, among others.

An unreasonable accommodation request would include personal items such as paying for special eyewear or hearing aids. Whether or not an employer ultimately approves or denies an accommodation request, the employer should seek out alternative accommodations to present and negotiate to the employee making the request. Employers are strongly encouraged to fulfill their duty to be compliant by researching the accommodation request and providing alternative accommodations before flat-out denying the request. Determinative on whether an accommodation decision can be reached or not, employers can provide temporary accommodations until a final accommodation has been determined.

To complicate the obligations under the ADA, additional federal and state laws may be intertwined, forcing employers to stay informed. These laws can obligate employers to adhere to additional requirements or may prevent employers from being able to approve certain accommodations.

Frequent laws which come into play with the ADA include the Family Medical Leave Act (FMLA) and state-specific medical leave acts. Medical leave acts allow employees to take a specified amount of time off for medical or family-related reasons. Employers should inform employees whether or not the leave for a disability is within an existing leave policy with the employer, or whether it will be treated as an accommodation request, and should provide information as to whether the leave will be paid or not and the amount of time an employee is allowed to take.

Employers can request documentation for a leave request before approving it as an accommodation request. Employers should provide information on how the ADA’s reasonable-accommodation requirement could be affected by other federal and state laws. Based upon the example from above, the employer would need to explain how the employee’s request for leave as an accommodation would either be within the employer’s existing leave policy or treated as an accommodation request for her disability.

Furthermore, the employer would need to provide additional information to the employee on whether or not the leave, if approved, would be paid or unpaid, and the amount of time she could take.

Although the ADA has many complex components, it is crucial to be well-educated on obligations owed by employers. Employers who fail to adhere to the requirements risk possible claims of non-compliance and potential claims of disability discrimination.

Providing information to employees on the ADA is crucial. Employers should provide employees with the procedures on how to request accommodations, provide contact information for individuals who handle accommodation requests, and document every accommodation request. Having information relating to the ADA within an employee handbook, signage, and training and orientation material is essential. Finally, employers should have a procedure in place for how to successfully oblige the law.

For more information on the ADA and employer obligations, seek clarification from an attorney.

Sarah M. Ryzewski, Esq. is an associate attorney at Royal, P.C.; (413) 586-2288; [email protected]

Accounting and Tax Planning

Complicating Matters

By Kristina Drzal Houghton, CPA, MST

Year-end tax planning in 2019 remains as complicated as ever. Notably, we are still coping with the massive changes included in the biggest tax law in decades — the Tax Cuts and Jobs Act (TCJA) of 2017 — and pinpointing the optimal strategies. This monumental tax legislation includes myriad provisions affecting a wide range of individual and business taxpayers.

Among other key changes for individuals, the TCJA reduced tax rates, suspended personal exemptions, increased the standard deduction, and revamped the rules for itemized deductions. Generally, the provisions affecting individuals went into effect in 2018, but are scheduled to “sunset” after 2025. This provides a limited window of opportunity in some cases.

Kristina Drzal Houghton

Kristina Drzal Houghton

The impact on businesses was just as significant. For starters, the TCJA imposed a flat 21% tax rate on corporations, doubled the maximum Section 179 ‘expensing’ allowance, limited business interest deductions, and repealed write-offs for entertainment expenses. Unlike the changes for individuals, most of these provisions are permanent, but could be revised if Congress acts again.

For your convenience, this article is divided into two sections: individual tax planning and business tax planning. Be aware that the concepts discussed in this article are intended to provide only a general overview of year-end tax planning. It is recommended that you review your personal situation with a tax professional.

INDIVIDUAL TAX PLANNING

Age-old Planning

Postpone income until 2020 and accelerate deductions into 2019 if doing so will enable you to claim larger deductions, credits, and other tax breaks for 2019 that are phased out over varying levels of adjusted gross income (AGI). These include deductible IRA contributions, child tax credits, higher-education tax credits, and deductions for student-loan interest. Postponing income also is desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances. In some cases, however, it may pay to actually accelerate income into 2019. For example, that may be the case where a person will have a more favorable filing status this year than next (e.g., head of household versus individual filing status), or expects to be in a higher tax bracket next year.

“Generally, the provisions affecting individuals went into effect in 2018, but are scheduled to ‘sunset’ after 2025. This provides a limited window of opportunity in some cases.”

If you believe a Roth IRA is better than a traditional IRA, consider converting traditional-IRA money invested in beaten-down stocks (or mutual funds) into a Roth IRA in 2019 if eligible to do so. Keep in mind, however, that such a conversion will increase your AGI for 2019, and possibly reduce tax breaks geared to AGI (or modified AGI).

It may be advantageous to try to arrange with your employer to defer, until early 2020, a bonus that may be coming your way. This could cut as well as defer your tax.

Capital-gain Planning

Long-term capital gain from sales of assets held for more than one year is taxed at 0%, 15%, or 20%, depending on the taxpayer’s taxable income. The 0% rate generally applies to the excess of long-term capital gain over any short-term capital loss to the extent that it, when added to regular taxable income, is not more than the maximum zero-rate amount (e.g., $78,750 for a married couple).

YEAR-END ACTION: If the 0% rate applies to long-term capital gains you took earlier this year. For example, if you are a joint filer who made a profit of $5,000 on the sale of stock bought in 2009, and other taxable income for 2019 is $70,000, then before year-end, try not to sell assets yielding a capital loss because the first $5,000 of such losses won’t yield a benefit this year. And if you hold long-term appreciated-in-value assets, consider selling enough of them to generate long-term capital gains sheltered by the 0% rate.

Itemized Deductions

Among the most prominent tax changes for individuals, the TCJA essentially doubled the standard deduction while modifying the itemized-deduction rules for 2018 through 2025. For 2019, the inflation-indexed standard deduction is $12,200 for single filers and $24,400 for joint filers.

YEAR-END ACTION: With the assistance of your professional tax advisor, figure out if you will be claiming the standard deduction or itemizing deductions in 2019. The results of this analysis will likely dictate your tax planning approach at the end of the year.

Some or all of these TCJA provisions on itemized deductions may affect the outcome:

• The deduction for state and local taxes (SALT) is limited to $10,000 annually. This includes any combination of SALT payments for (1) property taxes and (2) income or sales taxes.

• The deduction for mortgage interest expenses is modified, but you can still write off interest on ‘acquisition debt’ within generous limits.

• The deduction for casualty and theft losses is eliminated (except for disaster-area losses).

• The deduction for miscellaneous expenses is eliminated, but certain reimbursements made by employers may be tax-free to employees.

• The threshold for deducting medical and dental expenses, which was temporarily lowered to 7.5% of adjusted gross income (AGI), reverts to 10% of AGI, beginning in 2019.

TIP: Depending on your situation, you may want to accelerate deductible expenses into the current year to offset your 2019 tax liability. However, if you do not expect to itemize deductions in 2019, you might as well postpone these expenses to 2020 or beyond.

Charitable Donations

Generally, itemizers can deduct amounts donated to qualified charitable organizations, as long as substantiation requirements are met. The TCJA increased the annual deduction limit for monetary contributions from 50% of AGI to 60% for 2018 through 2025. Any excess is carried over for up to five years.

If you are age 70½ or older by the end of 2019, have traditional IRAs, and particularly if you can’t itemize your deductions, consider making 2019 charitable donations via qualified charitable distributions from your IRAs. Such distributions are made directly to charities from your IRAs, and the amount of the contribution is neither included in your gross income nor deductible on Schedule A, Form 1040. But the amount of the qualified charitable distribution reduces the amount of your required minimum distribution, which can result in tax savings.

YEAR-END ACTION: Absent extenuating circumstances, try to ‘bunch’ charitable donations in the year they will do you the most tax good. For instance, if you will be itemizing in 2019, boost your gift giving at the end of the year. Conversely, if you are claiming the standard deduction this year, you may decide to postpone contributions to 2020.

For donations of appreciated capital-gain property that you have owned longer than one year, such as stock, you can generally deduct an amount equal to the property’s fair market value (FMV). Otherwise, the deduction is typically limited to your initial cost. Also, other special rules may apply to gifts of property. Notably, the annual deduction for property donations generally cannot exceed 30% of AGI.

If you intend to donate securities to a charity, you might choose securities you have held longer than one year that have appreciated substantially in value. Conversely, it usually is preferable to keep securities you have owned less than a year.

TIP: If you donate to a charity by credit card late in the year — for example, if you are making an online contribution — you can write off the donation on your 2019 return, even if you do not actually pay the credit-card charge until 2020.

Alternative Minimum Tax

Briefly stated, the alternative minimum tax (AMT) is a complex calculation made parallel to your regular tax calculation. It features several technical adjustments, inclusion of ‘tax preference items,’ and subtraction of an exemption amount (subject to a phase-out based on your income). After comparing AMT liability to regular tax liability, you effectively pay the higher of the two.

YEAR-END ACTION: Have your AMT status assessed. Depending on the results, you may then shift certain income items to 2020 to reduce AMT liability for 2019. For instance, you might postpone the exercise of incentive stock options (ISOs) that count as tax preference items.

Thanks to the TCJA, the AMT is now affecting fewer taxpayers. Notably, the TCJA substantially increased the AMT exemption amounts (and the thresholds for the phase-out), unlike the minor annual ‘patches’ authorized by Congress in the recent past.

TIP: The two AMT rates for single and joint filers for 2019 are 26% on AMT income up to $194,800 ($97,400 if married and filing separately) and 28% on AMT income above this threshold. Note that the top AMT rate is still lower than the top ordinary income-tax rate of 37%.

Education Tax Breaks

The tax law provides tax benefits to parents of children in college, within certain limits. These tax breaks, including a choice involving two higher-education credits, have been preserved by the TCJA.

YEAR-END ACTION: If you pay qualified expenses for next semester by the end of the year, the costs will be eligible for a credit in 2019, even though the semester does not begin until 2020.

Typically, you must choose between the American Opportunity Tax Credit (AOTC) and the Lifetime Learning Credit (LLC). The maximum AOTC of $2,500 is available for qualified expenses of each student, while the maximum $2,000 LLC is claimed on a per-family basis. Thus, the AOTC is usually preferable. Both credits are phased out based on modified adjusted gross income.

The TCJA also allows you to use Section 529 plan funds to pay for up to $10,000 of K-12 tuition expenses tax-free. Previously, qualified expenses only covered post-secondary schools.

TIP: If your student may be graduating in 2020, you may want to hold off and pay the spring 2020 tuition in early January 2020. The student can usually use this credit to offset their own 2020 tax liability even if the parent’s income exceeds the thresholds.

Estimated Tax Payments

The IRS requires you to pay federal income tax through any combination of quarterly installments and tax withholding. Otherwise, it may impose an ‘estimated tax’ penalty.

YEAR-END ACTION: No estimated tax penalty is assessed if you meet one of these three ‘safe-harbor’ exceptions under the tax law. These exceptions consider the timing of quarterly estimates as well as your withholdings. You should review your payments with a tax professional prior to year-end.

BUSINESS TAX PLANNING

Depreciation-related Deductions

Under the TCJA, a business may benefit from a combination of three depreciation-based tax breaks: (1) the Section 179 deduction, (2) ‘bonus’ depreciation, and (3) regular depreciation.

YEAR-END ACTION: Acquire property and make sure it is placed in service before the end of the year. Typically, a small business can then write off most, if not all, of the cost in 2019.

1. Section 179 deductions: This tax-code section allows you to ‘expense’ (i.e., currently deduct) the cost of qualified property placed in service during the year. The maximum annual deduction is phased out on a dollar-for-dollar basis above a specified threshold.

The maximum Section 179 allowance has been raised gradually over the last decade, but the TCJA gave it a massive boost. In 2017, the deduction limit was $510,000, and the phase-out threshold was $2.03 million. Those figures rose to $1 million and $2.5 million in 2018, and $1.02 million and $2.55 million in 2019.

However, note that the Section 179 deduction cannot exceed the taxable income from all your business activities this year. This could limit your deduction for 2019.

2. Bonus depreciation: The TCJA doubled the previous 50% first-year bonus depreciation deduction to 100% for property placed in service after Sept. 27, 2017. It also expanded the definition of qualified property to include used, not just new, property.

Note that the TCJA gradually phases out bonus depreciation after 2022. This tax break is scheduled to disappear completely after 2026.

3. Regular depreciation: Finally, if there is any remaining acquisition cost, the balance may be deducted over time under the Modified Accelerated Cost Recovery System (MACRS).

TIP: A MACRS depreciation deduction may be reduced if the cost of business assets placed in service during the last quarter of 2019 (Oct. 1 through Dec. 31) exceeds 40% of the cost of all assets placed in service during the year (not counting real estate). Additionally, many states, including Massachusetts and Connecticut, do not recognize bonus depreciation. This should be included in your planning considerations.

Travel Expenses

Although the TCJA repealed the deduction for entertainment expenses beginning in 2018, you can still deduct expenses for travel and meal expenses while you are away from home on business and in other limited situations. The primary purpose of the expense must meet strict business-related rules.

If you travel by car, you may be able to deduct your actual expenses, including a depreciation allowance, or opt for the standard mileage deduction. The standard mileage rate for 2019 is 58 cents per business mile (plus tolls and parking fees). Annual depreciation deductions for ‘luxury cars’ are limited, but the TCJA generally enhanced those deductions for vehicles placed in service in 2018 and thereafter.

TIP: The IRS recently issued a ruling that explains when food and beverage costs are deductible when those costs are stated separately from entertainment on invoices or receipts.

QBI Deductions

The TCJA authorized a deduction of up to 20% of the ‘qualified business income’ (QBI) earned by a qualified taxpayer. This deduction may be claimed by owners of pass-through entities — partnerships, S corporations, and limited liability companies (LLCs) — as well as sole proprietors.

YEAR-END ACTION: The QBI deduction is reduced for some taxpayers based on the amount of their income. Depending on your situation, you may accelerate or defer income at the end of the year, according to the figures.

First, however, it must be determined if you are in a ‘specified service trade or business’ (SSTB). This includes most personal-service providers. Then three key rules apply:

1. If you are a single filer with income in 2019 below $160,725 or a joint filer below $321,400, you are entitled to the full 20% deduction.

2. If you are a single filer with income in 2019 above $210,700 or a joint filer above $421,400, your deduction is completely eliminated if you are in an SSTB. For non-SSTB taxpayers, the deduction is reduced, possibly down to zero.

3. If your income falls between the thresholds stated above, your QBI deduction is reduced, regardless of whether you are in an SSTB or not.

TIP: Other rules and limits may apply, including new guidelines for real-estate activities. Consult with your tax advisor for more details about your situation.

Business Repairs

While expenses for business repairs are currently deductible, the cost of improvements to business property must be written off over time. The IRS recently issued regulations that clarify the distinctions between repairs and improvements.

YEAR-END ACTION: When appropriate, complete minor repairs before the end of the year. The deductions can offset taxable business income in 2019.

Estimated Tax Payments

A corporation (other than a large corporation) that anticipates a small net operating loss for 2019 (and substantial net income in 2020) may find it worthwhile to accelerate just enough of its 2020 income (or to defer just enough of its 2019 deductions) to create a small amount of net income for 2019.

YEAR-END ACTION: This will permit the corporation to base its 2020 estimated tax installments on the relatively small amount of income shown on its 2019 return, rather than having to pay estimated taxes based on 100% of its much larger 2020 taxable income.

Bottom Line

These are just some of the year-end steps that can be taken to save taxes. As previously mentioned, be aware that the concepts discussed in this article are intended to provide only a general overview of year-end tax planning. It is recommended that you review your personal situation with a tax professional.

Kristina Drzal-Houghton, CPA, MST is the partner in charge of Taxation at Holyoke-based Meyers Brothers Kalicka, P.C.; (413) 536-8510.

Law

Breaking Up Is Hard to Do

By Amelia J. Holstrom

On Nov. 3, 2019, news broke that the McDonald’s board of directors voted to terminate CEO Steve Easterbrook for having a consensual relationship with an employee.

Early reports indicate that, after a three-week internal investigation, McDonald’s board found the relationship to be inappropriate and in violation of its policies, including its standards of business conduct, which prohibits employees with “a direct or indirect reporting relationship” from “dating or having a sexual relationship.” McDonald’s makes clear in its policy that “it is not appropriate to show favoritism or make business decisions based on emotions or friendships rather than on the best interests of the company.”

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

McDonald’s is not the first large corporation to find itself in this type of predicament. Companies like Boeing, in 2005, and Best Buy, in 2012, have parted ways with chief executives based on alleged relationships with employees. The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.

You may be asking, can companies do that? Can they fire someone for a consensual relationship? Yes, they can — and so can you.

Love Hurts

It isn’t any secret that people spend most of their waking hours at work. Not surprisingly, office romances sometimes bloom. What better place to meet your soulmate, right?

From the employer’s point of view, dating in the workplace can spell trouble. Office romances create many problems. Because employers cannot prevent their employees from developing emotions, it is important to address workplace romances well in advance of any potential problems.

Workplace dating is a recipe for disaster in more ways than one. In addition to decreasing morale and productivity, when true love goes sour, employees often cannot work with each other anymore, or worse, workplace romances can ultimately lead to sexual harassment and/or discrimination and retaliation claims.

“The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.”

Assume, for example, that a superior and subordinate have been dating for some time. Their romance fizzles, and things end. What if the subordinate now claims to have felt pressured into the relationship? A supervisor’s relationship with a subordinate is most damaging to the company because of the legal consequences.

In Massachusetts, when a supervisor engages in harassment of a subordinate, even if there is no direct reporting relationship, a business is automatically liable for that harassment.

I Would Do Anything for Love, but I Won’t Let Supervisors Date Subordinates

How should you combat workplace romances? Employers can adopt policies on personal relationships in the workplace that specifically prohibit supervisors and managers from engaging in any romantic relationships with employees at the company, including direct and indirect subordinates.

If you choose to adopt such a policy, it should state that such relationships raise ethical and fairness issues and problems with favoritism and morale, and that they will not be tolerated. Employers should also spell out what will happen if such a relationship is discovered.

Some employers confront the couple, indicate that, if they wish to continue the relationship, one must resign, and let the employees decide who will resign. Other employers confront the employees and terminate the employment of one or both of them effective immediately. It depends on the stance your business wants to take.

Love Rules

What if you don’t want to prohibit such relationships at your workplace? Another approach used by some employers is to have employees in a relationship enter into a ‘love contract.’

Such a document essentially memorializes, in writing, the consensual nature of the employees’ relationship. Be careful here, though. Love contracts are not prospective, as they will not limit the company’s liability for future sexual harassment and/or discrimination and retaliation claims. They may only be helpful to demonstrate that there was a consensual relationship between the employees before and at the time the employees signed the contract.

You Oughta Know

All employers can learn a valuable lesson from the situation involving McDonald’s. Each employer should consider how it wants to handle workplace romances before one becomes an issue for its business. Having a plan or policy in place could save you a lot of heartaches … I mean, headaches.

(The author wishes to thank Neil Sedaka, Nazareth, Meat Loaf, Don Henley, and Alanis Morissette for their wise lyrics about love.)

Amelia J. Holstrom is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Law

Cannabis, Marijuana, and Hemp

By Chris St. Martin and Sarah Morgan

Late last month, the U.S. Department of Agriculture published regulations on domestic hemp production. However, there remains significant confusion surrounding the legality of cannabis, marijuana, and hemp.

Chris St. Martin

Sarah Morgan

This confusion comes from state and federal governments’ shifting approaches to regulating these industries. It is even more difficult to understand the legal framework surrounding retail sales, which include hemp and CBD products, as well as marijuana products sold by state-licensed dispensaries. In this article, we hope to provide some clarity regarding what the laws say about cannabis and how they are being enforced.

What Is Cannabis?

Cannabis is a plant genus, or family, composed of three species: Cannabis sativa, Cannabis indica, and Cannabis ruderalis. The species have physical variations between them that allow them to grow in different environments, flower at different periods during the growth cycle, and contain different chemical properties (see discussion on cannabinoids below) that produce different sensations when ingested.

Strains (think, ‘flavors’) produced from the Cannabis sativa species tend to incite feelings of euphoria, boost energy and creativity, and lead to a more head-focused high. Cannabis indica, alternatively, primarily affects the body, and is often helpful in reducing muscle aches and pains and inducing sleep. For these reasons, strains cultivated from indica plants tend to be more useful for medicinal purposes.

“THC, or tetrahydrocannabinol, is the cannabinoid responsible primarily for producing the psychoactive effect, or the ‘high,’ commonly associated with ingesting cannabis.”

Cannabis ruderalis is somewhat between sativa and indica, and has lower yields, but can often be cross-bred with other species to create medicinal strains. The stems of this species can also be used to make clothing and textiles.

The flowering buds of the cannabis plant produce a resin that contains cannabinoids, which are unique chemical compounds found only in cannabis and interact with different receptors in the user’s central nervous system to produce the effects described above.

The ratio of the cannabinoids in a particular strain depends on the genetics of the plant from which it is derived — in other words, how the plant has been bred by selectively combining sativa and indica plants to emphasize particular cannabinoids over others and create a unique strain with individualized characteristics.

More than 100 cannabinoids have been identified, most notably THC and CBD.

THC, or tetrahydrocannabinol, is the cannabinoid responsible primarily for producing the psychoactive effect, or the ‘high,’ commonly associated with ingesting cannabis. Although THC is most notable for its psychoactive properties, it has also been purported to have medical benefits on the user and can be used to treat a variety of conditions, including seizures, inflammation, pain, nausea, depression, and anxiety.

CBD, or cannabidiol, has anti-anxiety effects on the user and is utilized primarily for its purported medicinal benefits. It does not produce psychoactive effects (in fact, it may lessen the psychoactive effects of THC), and, for this reason, although CBD and THC have similar medicinal benefits, some people may choose to ingest only CBD to avoid feeling the ‘high’ brought about by THC.

CBD can be extracted from the resin of the cannabis plant and can be processed into essential oils, tinctures, and other non-smokable forms. CBD can even be added to body-care products and applied topically.

Marijuana or Hemp?

The term ‘marijuana’ is generally used to identify cannabis that is cultivated for its intoxicating effect on a user. Marijuana was made effectively illegal under federal law with the passage of the Marijuana Tax Act of 1937.

The Legislature later classified, and criminalized, marijuana as a Schedule 1 narcotic under the Controlled Substance Act of 1970, during the nascent ‘war on drugs’ declared by President Nixon. Classification as Schedule 1 — alongside heroin, LSD, and ecstasy — means that marijuana is deemed to have no currently accepted medical use and a high potential of abuse.

Public sentiment has recently begun to reject this classification of marijuana and the total federal prohibition. Although, at this writing, marijuana remains illegal at the federal level, 11 states, including Massachusetts, and the District of Columbia, have passed laws legalizing marijuana for recreational use, and 23 others have legalized the use of medical marijuana. Since 2016 in Massachusetts, individuals age 21 or older may possess up to an ounce or more on their person and up to 10 ounces in their homes without violating Massachusetts law.

The Cannabis Control Commission (CCC), the agency tasked with regulating the state’s marijuana industry, provides further information regarding the Massachusetts law on its website.

Cannabis that is selectively bred for non-intoxicating properties is considered ‘hemp.’ Industrial hemp is one of the oldest cultivated crops in the world and is useful in formulating textiles, rope, paper, plastics, insulation, oil, and body-care products. Because of this selective breeding, hemp plants contain only trace amounts of THC, but their CBD levels are unchanged.

“State and federal legal developments have created a confusing CBD marketplace. Stores everywhere are selling CBD products intended for human consumption and making health claims about such products. However, both types of sales are illegal, according to state and federal agencies.”

Hemp is cultivated to enhance its distinctively versatile qualities, such as longer, more fibrous stalks and shorter leaves, rather than for the leaves and flower buds for which marijuana plants are cultivated. Because of this, hemp cannot be consumed as an intoxicant. Nevertheless, the Controlled Substances Act did not distinguish between marijuana and hemp (since both are technically cannabis) in classifying marijuana as a Schedule I substance; therefore, hemp was swept up in the heyday of the war on drugs and made illegal.

Changing Legal Framework

Under the Farm Bill of 2018, the U.S. Congress, for the first time, legalized the production and sale of hemp at the federal level, eliminating its status as a Schedule I narcotic. The Farm Bill and regulations define hemp as cannabis containing not more than 0.3% THC. Cannabis plants containing any quantity of THC above that amount are classified as marijuana, and remain illegal under federal law. In late October, the USDA published interim regulations on hemp production, which means they are subject to change after a public comment period but were effective immediately.

These regulations also set forth licensing requirements, procedures for testing THC levels and disposal of non-compliant plants, and rules governing other aspects of the industry.

The FDA has taken a more cautious approach, citing concerns about whether CBD is safe to consume in food and supplements. In an April 2019 statement, the agency sought to clarify its position on hemp products. The statement indicated that enforcement resources are directed toward illegal sales of CBD products that claim to prevent, diagnose, treat, or cure serious diseases, such as cancer.

However, it also stated that it is unlawful to introduce CBD-containing food into interstate commerce or to market CBD products as dietary supplements.

This means that effectively all CBD food products, including those derived from legally grown hemp, are unlawful, according to the FDA. The only hemp products that can be legally added to foods are hulled hemp seed, hemp-seed protein powder, and hemp-seed oil, because the seed of the hemp plant contains neither CBD nor THC.

The FDA has undertaken to develop CBD regulations, but despite repeated urging from the USDA and members of Congress, the former FDA commissioner indicated that that the rule-making process around CBD food products would be more complex than conventional products and could take years.

Massachusetts legalized hemp production as a component of the same 2016 law that legalized recreational cannabis. However, after the change of law at the federal level, both the state Department of Agricultural Resources and Department of Public Health issued policy statements on the same day imposing strict rules on hemp products. These two statements echo the FDA’s prohibitions on adding CBD to food products and making health claims about CBD.

What Can We Buy and Sell?

These state and federal legal developments have created a confusing CBD marketplace. Stores everywhere are selling CBD products intended for human consumption and making health claims about such products. However, both types of sales are illegal, according to state and federal agencies. Consumers, retailers, growers, and other stakeholders are looking for information about what is legal, what is not, and why there is so much ambiguity.

CBD derived from marijuana remains illegal under federal law. However, the U.S. attorney in Massachusetts has indicated he will not direct his office’s resources to federally prosecute cannabis companies that are permitted under state law, a move that has allowed the cannabis industry in Massachusetts to flourish. Under this state’s regulatory regime, marijuana products containing CBD, as well as THC, can be bought and sold at cannabis dispensaries that are licensed by the CCC.

Retailers in Massachusetts sell cannabis flower, edibles, concentrates, and other forms of marijuana containing both THC and CBD. CCC regulations do not classify edible marijuana products as food, allowing dispensaries to sell CBD-infused edibles without contravening the state Department of Public Health’s policy.

In contrast, despite the federal and state legality of producing hemp, some of the most popular hemp-derived CBD products — food and supplements — cannot be sold under either state or federal law. Nevertheless, the CBD industry may avoid total extinction, since CBD can be added to topical lotions and other cosmetics without defying the laws.

Non-food CBD products, however, represent a small percentage of the potential uses of CBD, and the loss of a valuable opportunity for introducing additional, more profitable products containing CBD into the marketplace adds further demand for the FDA to promulgate its promised CBD rules. Furthermore, hemp can be legally sold for rope, clothing, building material, and other non-ingestible uses, but hemp farmers have stated that Massachusetts currently lacks the manufacturing infrastructure necessary to process the plant for these purposes.

Chris St. Martin and Sarah Morgan are both litigation associates at Bulkley Richardson; (413) 781-2820.

Law

A New Type of Relief

By Rebecca Mercieri Rivaux, Esq.

Rebecca Mercieri Rivaux

Small-business owners will soon have a more affordable option to reorganize their companies. In February 2020, the Small Business Reorganization Act (SBRA) will go into effect, providing a new type of relief to small-business debtors.

The SBRA creates a new subchapter within Chapter 11 of the U.S. Bankruptcy Code. While Chapter 11 bankruptcy generally provides for business reorganization (usually involving a corporation or partnership), it can be an unappealing option for many small-business debtors, due to complex procedural requirements and high legal and administrative costs. The SBRA will expedite reorganization for small-business debtors by streamlining the burdensome requirements of Chapter 11 bankruptcy.

The SBRA is, in fact, very comparable to a Chapter 13 bankruptcy, the kind used by individuals. Just as with Chapter 13 filings for individuals, an SBRA debtor can expect to have a trustee appointed by the bankruptcy court. The court-appointed trustee will aid the small business in developing a reorganization plan, but is not likely to be involved in any operational aspects of the business. This essentially allows the debtor to remain in possession and control of their own business during the bankruptcy process. The trustee is responsible for disbursing payments to creditors under the reorganization plan.

In order to take advantage of the new SBRA, a debtor must first qualify as a small business. To qualify, the debtor must be a person or entity engaged in a commercial or business activity. If such a business has secured and unsecured debt totaling less than $2,725,625, the business may propose a reorganization plan under the SBRA — so long as they use net income to repay creditors.

This is in keeping with the general practices of Chapter 11, where a debtor usually proposes a plan of reorganization to keep its business in existence and pay creditors over time.

SBRA debtors must produce a copy of the business’ most recent balance sheet, a statement of operations, a cash-flow statement, and a federal income — or file a sworn statement that such documents do not exist.

The SBRA allows the small-business debtor to repay its creditors within a payment plan of three to five years, as the bankruptcy court determines. The SBRA also allows small-business debtors a greater opportunity to retain their ownership interests in their business, even when claims have not been repaid in full (in contrast with a typical Chapter 11 bankruptcy, where a shareholder cannot retain equity in the business unless creditors are paid in full).

To qualify, the debtor must be a person or entity engaged in a commercial or business activity. If such a business has secured and unsecured debt totaling less than $2,725,625, the business may propose a reorganization plan under the SBRA — so long as they use net income to repay creditors.

Another significant benefit to the SBRA is a specialized restructuring strategy offered to individual debtors. An individual who qualifies as a small-business debtor can modify the mortgage on his or her principal residence, provided that the mortgage loan was not used to acquire the real property, but was used primarily in connection with the debtor’s business — such as an individual who is borrowing against the equity in their home for the purpose of supporting their business. This individual small-business debtor would then be able to reduce the loan to the value of the secured claim, propose a lower interest rate, or extend the maturity date of the loan. Once the small-business debtor has completed all payments to creditors, a discharge is granted.  

Under the SBRA, the only excluded activity for the small business debtor is operating “single-asset real estate,” a term that describes a debtor who receives substantially all of its gross income from the operation of a single real property.

Despite this restriction, for many small business debtors, the SBRA will offer relief and a realistic means to reorganize and restructure their businesses under the Bankruptcy Code.

Rebecca Mercieri Rivaux is an associate with Bacon Wilson, P.C., and a member of the firm’s bankruptcy and business/corporate practice groups; [email protected]

Features

Another Step Forward?

By Jodi K. Miller, Esq.

Jodi K. Miller, Esq

Massachusetts has been a leader in healthcare system reform.

In 2006, Massachusetts passed a first-in-the-nation, comprehensive healthcare-reform law that sought to achieve near-universal coverage for all individuals in the Commonwealth. The 2006 reforms became a model for the federal Patient Protection and Affordable Care Act passed in 2010. In 2012, after making significant gains in healthcare coverage, Massachusetts enacted additional reforms, with a key aim of controlling healthcare costs.

Among other things, the 2012 reforms set statewide benchmarks to limit the growth of healthcare costs and created a new agency, the Health Policy Commission, which is responsible for monitoring increases in healthcare spending and market activity.

Last month, seeking to further overhaul the healthcare-delivery system in Massachusetts and build upon past reforms, Gov. Charlie Baker introduced new healthcare-reform legislation, titled “An Act to Improve Health Care by Investing in Value.” The legislation seeks to tackle challenges in the current healthcare system by improving access and care delivery, further containing costs, and protecting consumers from high out-of-pocket costs.

As a former healthcare executive and former Massachusetts secretary of Health and Human Services, Gov. Baker has a particular interest in healthcare. According to the governor, his “legislation supports holistic approaches to care, provides consumers and employers with affordable care options, promotes behavioral-health parity, and ensures everyone has access to the services they need.”

Preventive Measure

The governor’s proposal prioritizes investment in primary care and behavioral-health services with the goal of keeping patients healthier and avoiding more expensive services, like emergency-department visits. Specifically, the legislation requires that providers and insurers increase spending on primary care and behavioral-health services by 30%, while at the same time staying within spending-growth limits required by the 2012 healthcare-reform law. The new legislation introduces new penalties for failure to stay within those limits.

As a means to increase access to primary care, the legislation reforms the requirements for mid-level practitioners, such as nurse practitioners. States like California that have expanded the scope of practice for nurse practitioners have seen an increase in the use of, and access to, primary-care services. The new legislation would allow nurse practitioners and psychiatric nurse mental-health specialists to prescribe medications without a supervising physician.

“The governor’s proposal prioritizes investment in primary care and behavioral-health services with the goal of keeping patients healthier and avoiding more expensive services, like emergency-department visits.”

Similarly, the bill creates a mid-level dental-provider position to provide basic dental services, and expands the scope of practice for optometrists and podiatrists. To address the shortage of nurses in Massachusetts, the legislation makes it easier for nurses to move to the Commonwealth by allowing nurses licensed in another state to practice in Massachusetts without having to obtain a new license.

The bill also seeks to expand access to, and coverage of, mental and behavioral-health services through various measures, including provisions to encourage behavioral-health providers to accept insurance and to develop and grow the number of providers. The legislation establishes a Board of Registration of Recovery Coaches — a recommendation of the Recovery Coach Commission formed as part of the opioid legislation enacted in Massachusetts last year — which will credential recovery coaches who provide addiction-recovery services.

The legislation includes new consumer protections to manage healthcare spending and reduce consumers’ out-of-pocket costs. For example, it seeks to curb the practice of ‘surprise billing’ that consumers receive for emergency and unplanned services from out-of-network providers by establishing a default, out-of-network rate for such services. The bill also imposes limits on when a hospital can charge a fee for services delivered at an outpatient or satellite site and prohibits such fees for certain types of evaluative and diagnostic services.

The legislation also seeks to contain healthcare costs by addressing the high costs of prescription drugs. In addition to requiring pharmacists to inform consumers about the lowest cost options for the drugs they purchase, the legislation creates a review process for certain high-cost drugs and imposes financial penalties on manufacturers for increases in drug prices that exceed certain set percentages. Drug manufacturers also would be required to participate in annual cost-trend hearings before the Health Policy Commission.

Relatedly, the legislation imposes new oversight authority over pharmacy benefit managers, companies that negotiate contracts with drug manufacturers and manage pharmacy benefits and payments for health plans. Pharmacy benefit managers would be required to be certified with the Mass. Division of Insurance and report financial data to the Massachusetts Center for Health Information and Analysis.

In addition to cost controls, the legislation includes provisions aimed at improving access to appropriate, coordinated healthcare, including access to urgent-care centers and telemedicine services. According to a 2018 analysis by the Massachusetts Health Policy Commission, there has been a sharp increase in the use of urgent-care centers, where services are less expensive than those provided at hospital emergency departments.

The governor’s proposal seeks to improve access to, and to eliminate confusion regarding, urgent-care centers. For example, the names of clinics operating as urgent-care centers would have to include the term ‘urgent care’ or otherwise suggest that urgent-care services are provided. The bill also requires urgent-care centers to be licensed by the state Department of Public Health, and, as requirements of licensure, such centers must accept MassHealth (the Massachusetts Medicaid program), provide behavioral-health services, and meet standards for coordinating with patients’ primary-care providers.

The legislation also seeks to expand access to care by improving and increasing the use of telemedicine (healthcare services provided via telecommunication services such as videoconferencing). Telemedicine can be a cost-effective form of care, and it eliminates the requirement of travel, which can be significant for individuals living in rural areas. In an attempt to increase the use of telemedicine in the Commonwealth, the legislation creates a regulatory framework for such services and requires insurance-coverage parity for such services (i.e., if there is coverage for the services if provided in person, there must be coverage if the services are provided via telemedicine).

The legislation seeks to support community health centers and hospitals by investing in the Health Safety Net Trust Fund, which pays hospitals and community health centers for services provided to low-income residents who are uninsured or underinsured. The governor’s proposed investment – $15 million – constitutes less than 5% of the total amount paid out by that trust fund to hospitals and community health centers in 2018. The legislation also provides for additional funding to the Community Hospital and Health Center Investment Trust Fund through the penalties that the legislation imposes on drug manufacturers and providers for failing to meet cost-containment requirements.

Along with efforts to control healthcare spending, the legislation also seeks to control the price of insurance premiums, particularly those paid by small and mid-size employers and their employees. An October 2019 report from the Massachusetts Center for Health Information and Analysis found that premiums and cost-sharing obligations for private-sector employees in Massachusetts are continuing to increase at a faster rate than wages and inflation. Among other things, the legislation includes provisions which are designed to give small employers (50 employees or fewer) greater access to health-plan options.

Finally, on Oct. 18, the same day he filed his healthcare-reform bill, Gov. Baker issued an executive order to create a commission to study the combined individual and small-employer group health-insurance market. This unique market — known in Massachusetts as the ‘merged market’ — was established in 2007 with “the intention of increasing and stabilizing its risk pool to provide greater access to affordable health-insurance coverage,” according to the governor’s executive order.

The commission is tasked with analyzing the merged market in light of the legislative reforms and changes to the healthcare market that have occurred over the past 12 years and reporting recommendations to the governor by April 30, 2020, with the objective of “ensuring that all residents have access to affordable health-insurance coverage.”

Bottom Line

Gov. Baker’s proposed reforms are just that — proposals. Lawmakers at the State House are working on their own healthcare-reform legislation, including bills supporting a Medicare-for-all, single-payer system. What will follow are negotiations among legislators and the Baker administration, with the goal of passing comprehensive healthcare-reform legislation in Massachusetts before the Legislature’s formal session ends on July 31, 2020.

Jodi K. Miller, Esq. is a partner at Bulkley, Richardson and Gelinas, LLP, in Springfield, where she represents clients in commercial and other civil-litigation and regulatory matters, with a focus on health law.

Banking and Financial Services

The Business of Selling a Business

By Brendan Mitchell

For business owners looking to sell soon, there is still plenty to be optimistic about.

Capital for purchasing businesses continues to flow thanks to low interest rates from banks and investment portfolios lingering near high-water marks.

Meanwhile, the Massachusetts economy has pushed to new highs from Boston to Springfield. Most recent reports show unemployment rates at historic lows, with both sides of the state making improvements. MGM Springfield and Encore Boston Harbor have attracted out-of-state plates. Private equity and public companies, both flush with cash, continue to show confidence in the state through investments in their workforce and current business as well as construction and new business acquisitions. We’ve seen national tax reform increase cash flows to businesses across the country.

These factors have helped to keep buyers engaged as retiring Baby Boomers head for the exits. The timing has been great for some business owners cashing out recently, but buyers have become more selective in some industries. While some businesses are snagged as soon as they go to market, many are aging on the shelf with buyers and sellers unwilling to bridge pricing gaps.

When figuring the value of their business, owners can fall into the trap of including sentimental value in their estimation. Some are relying on what a similar business sold for in a different market or, worse, have a target number they drew up without any real anchor to reality.

For business owners who have dedicated their lives to a business, it can be hard to take a step back and objectively consider what their business is worth. Business owners who are willing to take an objective look at the value of their business can be proactive now instead of reactive when they are ready to retire and list their business for the first time.

The value of a business is dynamic. While there is no way to get a buyer to price sentimental value into a purchase price, there is a potential to make changes to the business that will increase the value over time.

There are three approaches to valuing a business — asset, income, and market approaches. For most privately held companies, valuators rely on either the income approach, market approach, or a combination of the two. The basic formulas for these calculations are widely available online, but what owners can do with this information may be less obvious.

First, it’s important to know that the years leading up to the valuation or sale are the most important. A long history of profits can show stability for a small business; however, only the most recent three to five years are going to be considered in a calculation. Small-business owners with eyes on an exit have a tendency to disconnect from the business during this most important period when they should be pushing in the opposite direction.

Flat revenues or increases in expenses during this period have the potential to erase even decades of growth and profitability. Owners should resist the temptation to ‘pull the parachute’ as they get closer to the finish line. Continue to push for revenue growth and pay close attention to expense control. This is the time to let the numbers showcase the full potential of the business.

Nobody knows the ins and outs of a small business like the owner. Buyers and valuators weigh heavily on the impact the seller’s exit will have on the future of the business. Owners should focus on replacing themselves in the areas in which they are most intertwined in the business to lessen the impact. To identify these high-dependency areas, owners can interview managers and employees, noting issues that cannot be resolved without them.

Key areas of focus generally depend on the industry or business model but usually include sales generation, relationship management, product development, strategic decision making, or day-to-day business management. If continuity can be achieved through process improvement or process documentation, it should be a key focus. Some results can be found through training current employees and empowering them. Consider restructuring tasks and delegating the current owner’s duties to rising managers.

Revisit labor costs. Business owners with family members at above-market wages face a double expense. While they may overpay weekly on purpose, it will cost them a multiple of that annual salary when it’s time to cash out. For hourly workers, be ready to field questions about how the rising minimum wages will impact more labor-intensive businesses.

Finally, clean up the financial statements. For various reasons, including tax motivations, small-business owners have a tendency to let their personal and business lives collide on their company financial statements. Documentation is important for any personal expenses being charged to the business. Owners should be ready to prove which expenses were not necessary for the business so that buyers and valuators exclude the expenses to calculate the value — buyers will not report findings to the IRS.

Performing a financial analysis can also help owners understand how their business compares to the rest of the industry, making them ready to articulate strengths and defend or improve weaknesses.

Overall, the current market remains friendly to someone looking to sell their business. It’s also a great time to be proactive in managing an exit strategy, whether it lies around the corner or several years out. Getting realistic about the value of their business enables owners to take steps to improve it and make informed decisions.

Brandon Mitchell is a certified valuation analyst and supervisor in auditing and consulting for Blumshapiro, the largest regional accounting, tax, and business-advisory firm based in New England, and winner of the Massachusetts Lawyers Weekly Reader Rankings for Best Appraisal Service and Best Accounting Firm.

Law

The #MeToo Movement Has Vast Implications in This Sector

The #MeToo movement has brought about change and challenge — from a liability standpoint — in workplaces of all kinds. And this includes the broad spectrum of education. Indeed, recent cases indicate that courts may soon hold schools, colleges, and universities strictly liable for any sexual misconduct by their staff toward their students.

By Justice John Greaney, Jeffrey Poindexter, and Elizabeth Zuckerman

By now, we’ve all seen the #MeToo movement change how Massachusetts and the nation are talking about sexual harassment and other misconduct in the workplace, in schools, in social settings, on sports teams, in public places, and in our private lives.

Justice John Greaney

Jeffrey Poindexter

Elizabeth Zuckerman

The movement has ended careers, felled prominent figures, and made many newly aware of the great number of people — men and women — who face sexual harassment at some point in their lives. It has also reminded students, teachers, professors, administrators, and parents that schools and institutions of higher education are far from immune to this type of misconduct, and that students are sometimes victims of the very staff, faculty, and coaches expected to educate, guide, coach, and protect them.

Against this backdrop, administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination. The sea change in how sexual harassment is viewed, along with the development of Massachusetts law surrounding sexual harassment in schools, colleges, and universities, suggest that Massachusetts courts may soon hold these institutions strictly liable for any sexual misconduct by their staff toward their students.

That means, whether or not the school, college, or university knew about the conduct, whether or not the institution was negligent in any way, it could be on the hook for substantial damages if a staff member commits sexual harassment. In other words, even without doing anything wrong, or knowing anything wrong was happening, an educational institution could be liable for the entirety of the harm that befalls a student.

As a result, schools, colleges, and universities need to act now to implement policies which provide the best defense if a claim of sexual harassment is made.

In Massachusetts, Chapter 151C of the General Laws, the Massachusetts Fair Educational Practices Act (MFEPA), provides students who have been subjected to sexual harassment by a teacher, coach, guidance counselor, or other school personnel with a cause of action against the educational institution. MFEPA declares that “it shall be an unfair educational practice for an educational institution … to sexually harass students in any program or course of study in any educational institution.” In conjunction with General Laws c. 214, § 1C, the right for students to be free of harassment can be enforced through the Massachusetts Commission Against Discrimination (MCAD) or through the Superior Court.

“Administrators of Massachusetts schools, colleges, and universities have a special reason to take note of the rising tide of complaints about sexual harassment and other gender-based discrimination.”

The statutes also define sexual harassment broadly, including “any sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when: (i) submission to or rejection of such advances, requests, or conduct is made either explicitly or implicitly a term or condition of the provision of the benefits, privileges, or placement services or as a basis for the evaluation of academic achievement; or (ii) such advances, requests, or conduct have the purpose or effect of unreasonably interfering with an individual’s education by creating an intimidating, hostile, humiliating, or sexually offensive educational environment.”

Chapter 151C has been interpreted several times in the courts in Massachusetts, including when:

• A male athletic director of a Massachusetts community college was reported to have provided alcohol to female students in exchange for sexual favors. Several years later, more complaints about his behavior led the college to implement a policy to prevent sexual harassment.

Reports of further inappropriate conduct led to an investigation and agreement that he would no longer coach female athletic teams. However, he continued to work at the school and, eventually, resumed coaching a women’s basketball team. Students who had been coached by the athletic director brought claims against both him and the school.

• During the investigation into a rape of a student by a teacher at a Massachusetts high school, it was disclosed that a male guidance counselor had been involved in sexual misconduct with students. The superintendent of the school district acknowledged that he was aware of continuing reports about the guidance counselor’s inappropriate relationships with students after a female student alleged that the counselor had brought her to his home on two occasions and attempted to coerce her into having sex.

• Parents reported the inappropriate conduct of a male middle-school science teacher to the vice principal and a guidance counselor. The teacher had made inappropriate comments and touched female students, and had been told by school officials to stop on three occasions. The teacher was fired after an internal investigation, but not before he allegedly molested an 11-year-old student.

Despite occasions to consider the applications of Chapter 151C, Massachusetts courts have not yet decided whether schools, colleges, and universities will be held strictly vicariously liable for sexual harassment. In the cases referenced above, it appears the schools or colleges knew about the misconduct and, at least passively, allowed it to continue.

That means that the schools or colleges could be considered negligent, because they knew, or should have known, an employee’s behavior was problematic, but they failed to act, or failed to take adequate measures to remedy the situation. However, if Massachusetts courts rule for strict liability under Chapter 151C, it will mean that it is no defense that the institution did not know what its employee was doing, or even that it took reasonable measures to screen that employee before hiring.

Instead, the mere occurrence of sexual harassment by an employee will be enough to make the institution liable to the victim.

There are indications this may be the direction in which the courts go, because a closely related statute, Chapter 151B, which governs sexual harassment in the workplace, does impose strict liability. It seems entirely possible that the courts will conclude that liability under Chapter 151C should be no different, given that the two statutes relate to the same subject matter and share a common purpose.

Furthermore, because the operative statute is clearly intended to protect vulnerable students from abuses of power by those entrusted with their well-being, it seems likely that the courts may conclude that a strict standard of liability is consistent with the underlying purposes of the statute.

“The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.”

This argument seems strengthened by the popular mood regarding sexual harassment. The rising awareness of the problem of sexual harassment and assault appears to make it more likely that courts will conclude that the only way to stem the tide of abuse is to put the burden on those in the best position to protect vulnerable students — the schools they attend.

Two recent decisions suggest this result may be coming. In a 2016 federal court case, Doe v. Brashaw, Judge Douglas Woodlock gave the first indication that the courts may come down on the side of strict liability under Chapter 151C. He noted there was no clear guidance in the text of the law on whether negligence was required to hold the school, college, or university liable.

Weighing the arguments on each side, he concluded it made sense, at least at the early stage in the case at which he was reviewing the matter, to apply a strict vicarious liability standard.

More recently, in 2017, another federal judge again noted that the standard was unsettled and deferred considering the argument, made by the Massachusetts Institute of Technology as defendant, that it was entitled to a more favorable standard than strict liability.

Given the significant risk that Massachusetts schools, colleges, and universities will be considered liable for their employees’ misconduct, regardless of what they knew, or didn’t know, about it, how can these institutions respond? The answer is that schools, colleges, and universities need to ensure their sexual-harassment, disciplinary, and hiring policies are up to date.

This will allow these institutions to avoid hiring or retaining employees who show any indication that they will engage in sexually harassing behavior, and also allow the institutions to respond rapidly and effectively if any employee does. In addition, schools, colleges, and universities need to appropriately train and supervise all employees.

For many institutions, this will mean implementing new requirements for training and new policies for ensuring sexual harassment cannot go on in a school, college, or university without rapid detection. In addition to in-house training, the institutions should consider learning sessions taught by outside consultants, particularly law firms, with experience in handling sexual misconduct in the educational environment.

Outside investigations by impartial law firms will, when appropriate, removed the inference of bias on the part of the educational institution when considering possible misconduct by a teacher, administrator, or staff member. In sum, educational institutions need to be prepared to act quickly and decisively when faced with a complaint of sexual harassment in order to remediate any misconduct.

Justice John Greaney is a former justice of the Supreme Judicial Court and senior counsel at Bulkley Richardson. Jeffrey Poindexter is a partner and co-chair of the Litigation Department at Bulkley Richardson. Elizabeth Zuckerman is an associate in the Litigation Department at Bulkley Richardson.

Law

What to Expect When…

By John Gannon, Esq.

My wife and I recently welcomed our first child into the world. We are over the moon in love with our daughter and excited to see where this amazing journey will take us.

John S. Gannon

John S. Gannon

As an employment attorney, this process got me thinking about the topic of parental leave. That’s the legal term for providing job-protected time off from work to employees so they can bond with a newborn or newly adopted child.

Massachusetts state law requires almost all businesses to provide some job-protected leave for the birth or adoption of their child, and the federal Family and Medical Leave Act (FMLA) obligates employers with 50 or more employees to provide additional time off and protections to new parents. Although at first glance these laws may seem easy to administer, there are plenty of traps for those who do not have a deep understanding of how parental leave needs to be administered. Here are a few things employers should be aware of when an employee requests and takes parental leave.

What Does Your Policy Say?

Hopefully, you have a policy that addresses parental leave. If not, it’s time to get one on the books. Even if you have a policy, it’s never a bad idea to be make sure the language is up to date and consistent with state and federal laws governing time off to bond with a child. For example, the Massachusetts Parental Leave Act (MPLA) requires employers with six or more employees to provide eight weeks of unpaid leave to full-time employees for the purpose of giving birth or for the placement of a child for adoption.

If you have more than six employees, you need to have a policy and practice that addresses parental leave. Notably, up until a few years ago, this law was commonly referred to as the Massachusetts Maternity Leave Law, because the language of the statute provided leave protections for female employees only. The law was amended a few years ago to expand parental-leave protections to employees in Massachusetts of all genders.

If your policy refers to maternity leave instead of parental leave, it’s time to update your handbook as several employment laws have probably been added or changed since your last review.

Intersection of the FMLA

Employers covered by the FMLA have additional obligations that go beyond the requirements of state-mandated parental leave. For starters, under the FMLA, eligible employees are entitled to take up to 12 work weeks of FMLA leave in a 12-month period for a number of different reasons, including the birth of a child and to bond with a newborn or newly adopted child.

Both mothers and fathers have the right to take FMLA leave to bond with a child. Importantly, when an employee takes time under the FMLA to bond with a child, the eight weeks of state-mandated MPLA runs concurrently. This means that an employee with 12 weeks of available FMLA is entitled to 12 total weeks of parental leave, as the MPLA is used at the same time as the FMLA is used. However, questions arise when employees use FMLA for a reason unrelated to the birth or adoption of their child.

For instance, suppose an employee used 12 weeks of FMLA earlier this year to care for a sick parent. This month, the employee approaches you requesting leave to care for a child who is expected next month. That employee would no longer be entitled to 12 weeks of FMLA to care for the newborn, but would still be entitled to the eight weeks of MPLA under state law.

Leave Employees on Leave Alone

They call it leave from work for a reason. Employers need to resist the urge to contact employees on leave with work-related questions, especially if the leave is unpaid.

A call or two about something basic, such as the location of a file or document on the system, is probably fine. However, requesting attendance at meetings or on phone conferences will cross the line, as will the assignment of projects or other tasks. Not only are you taking parents away from a special and important time in their lives, but you are also potentially creating a situation where you are unlawfully interfering with an employee’s right to take time off under the FMLA or MPLA.

Plus, if the employee is taking unpaid parental leave, which is typically the case, you will need to be sure that the employee is compensated for any work performed during parental leave, including answering calls or responding to e-mails. This can be tough to account for, so the best practice is to let employees on parental leave enjoy their time off without work-related distractions.

Final Thoughts

I learned firsthand that parental leave was a special time for me and my newborn. Employers need to openly encourage employees to take all available parental leave, and should consider offering benefits that go beyond those required by state and federal law.

The U.S. Department of Labor reported in a policy brief on parental leave that longer leaves promote better child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace.

A generous parental-leave policy is also a fantastic recruiting and retention tool, as it sends a message that the business values its workforce and is committed to bettering employee work-life balance.

John Gannon is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]

Law

Mediation: Art of Compromise

By Julie A. Dialessi-Lafley, Esq.

Mediation. Most, if not all of us, have heard the word, but what does it really mean to engage in mediation?

Many people familiar with mediation may think of it in the context of divorce or family-law matters, and, indeed, the process often provides families in conflict with meaningful solutions. But families aren’t the only ones who can benefit from the skills of a trained mediator. In fact, almost any issue or dispute that might be addressed in court could also potentially be solved by mediation.

Mediation is a process in which two or more parties discuss their disputes with the assistance of an unrelated third party — a trained mediator. The mediator assists the disagreeing parties with communication and with the terms of any settlement of the disputed issues. Resolution by agreement is the goal.

Mediation can be used for all kinds of disputes. Many couples facing divorce choose to engage in mediation rather than a court process. Issues of neighbor-to-neighbor disputes are ideal for mediation, and many schools use mediation internally to resolve student-to-student conflicts. Mediation can also address disputes involving business transactions, accidents or injuries, construction, workers’ compensation, employment issues, or labor and community relations. Almost any matter that does not involve complex procedural or evidentiary issues could be addressed through mediation.

Another appealing aspect of mediation is the relatively low cost. Mediation is normally more cost-effective than litigation in court, and certainly it is far less formal than a court process.

Mediation can take place at nearly any stage of a dispute. Conflicting parties may be able to avoid litigation altogether by mediating disputes prior to filing a court action. However, even once litigation is filed, mediation is usually still an option. If the parties agree to engage in mediation while a case is pending, they can do so in a good-faith effort to find a solution outside the courtroom. The parties can also opt out of the mediation process at any time.

Here in Massachusetts, the courts generally cannot order parties to engage in mediation. However, if an existing agreement, contract, or other independent rule requires mediation prior to litigation, the court may be precluded from hearing a matter until the parties attempt to resolve their dispute in mediation.

In fact, the courts tend to favor the mediation process and encourage parties in civil disputes to work toward their own agreements. If litigation is pending, but the parties come to an agreement through mediation and present it to the court, that agreement is likely to become the official order or judgment of the court. If only this writer had a quarter for every time a judge said to litigants, “you are better off trying to come to an agreement you can live with than to let the court decide.”

Unlike a judge or arbitrator, mediators do not decide the outcome of the dispute. They assist the parties to air their differences, identify the strengths and weaknesses of their respective sides, and find a resolution that everyone can live with.

For some people, a common misconception is that by going to mediation they will be giving up rights or forced into an outcome with which they don’t agree. For other people, a desire for the proverbial ‘day in court’ may be enough to keep them from engaging in mediation. In fact, the mediation process allows for a considerable amount of flexibility, and the mediator will design the process around the needs of the participants.

But what is the actual process like? For a typical day-long mediation, the experience normally follows six stages, each with a specific purpose.

Mediator’s Opening Statement

With everyone in the same room, the mediator makes introductions; explains the goals, expectations, and rules of the mediation; and encourages respectful dialogue with the goal of resolution.

Parties’ Opening Statements

Each party has an opportunity to give their perspective of the dispute without interruption. This can include the facts, impact, and general ideas about resolution.

Joint Discussion

Parties may remain together to begin dialogue on the issues, respond to opening statements, and engage in more in-depth work with the mediator. Normally this is determined by the conduct and emotions of the people in the room, and the mediator’s perception of their ability to work together respectfully in the same room.

Private Caucuses

Parties are placed each in separate rooms, and each is given time to meet privately with the mediator. This may continue for the majority of the in-depth work. The mediator, through this private discussion, determines the appropriate way to proceed.

Joint Negotiation

After private caucuses, parties may come back together to communicate directly. However, this does not usually happen until a settlement is reached, or the time scheduled for the mediation ends.

Closure

If the parties reach an agreement, the mediator will likely put the main provisions in writing and ask each side to sign it. If the parties are unable to agree at the time, the mediator will help determine if they want to work toward a solution within mediation.

Conclusion

Mediators are normally patient, persistent, and have plenty of common sense. Effective mediators are good listeners and negotiators, and they’re understanding of human nature. A mediator has to be articulate in order to accurately restate and relate to the positions of the conflicting parties. They may be attorneys, laypeople with training or certifications, volunteers in court-sponsored programs, privately retained, or even retired judges. Attorneys who are also mediators cannot represent one side or another, nor can they give legal advice while in the role of mediator.

One of the most important roles of the mediator is to help the parties understand that accepting less than what they may feel they ‘deserve’ is essential to a fair settlement. As the old saying goes, ‘if everyone walks away feeling slightly unhappy with the agreement, it is probably a fair agreement.’

Despite everyone walking away slightly unhappy, mediation is typically successful and satisfactory. Statistically, parties are more likely to abide by an agreement they reach on their own than an order from a court. The nature and structure of the mediation process results in its high success rate.

Attorney Julie Dialessi-Lafley is a certified mediator and a shareholder with Bacon Wilson, P.C. She has extensive experience with all aspects of family law, including pre- and post-nuptial agreements, separation, divorce, child custody and parenting time, and grandparents’ rights. In addition to family law, she represents clients in matters related to accidents and injuries, civil litigation, and probate and estate planning; (413) 781-0560; [email protected]

Opinion

Opinion

By Christine Palmieri

September is National Recovery Month. ‘Recovery’ is a word that gets used a lot in the world of mental health and addiction services, sometimes so much so that I think we can easily lose sight of what it represents. In my role with the Mental Health Assoc. (MHA), I often have the opportunity to talk to newly hired staff about the idea of recovery. We discuss what it means and what it can look like in the context of working with people who have experienced trauma, homelessness, psychiatric diagnosis, and substance problems.

When I ask new staff the question, “what does it mean to recover?” I frequently hear things like “getting better” or “getting back to where you were” or “having a better quality of life.” Although I tell staff there are no wrong answers to this question, secretly I think there are. They’re common and easy, but insufficient.

As with many things, I think it’s easier to talk about what recovery is by defining what it isn’t. For me, recovery isn’t a cure. It isn’t a finish line or a place people get to. It isn’t a goal that can be neatly summarized in a treatment plan. I believe recovery is a process that is unique and intimately personal to the individual going through it. Ultimately, though, I think the answer to the question “what does it mean to recover?” should be “it isn’t for me to say.”

I believe recovery is a process that is unique and intimately personal to the individual going through it.

As providers of services, or as loved ones, community members, and policy makers, I don’t believe it’s up to us to define what recovery means or looks like for people going through it. Each person needs to examine and define what it means to them. For the rest of us, I think the more important question is “what makes recovery possible?” When the question is posed this way, we are able to engage this idea of recovery in a much different and more productive way. This question offers the opportunity to share the responsibility and partner with those we support.

The analogy of a seedling is often used when describing this process of recovery, and one I use when I talk to our new hires about their roles and responsibilities as providers of service. Seeds are remarkable little things. For me, they represent unlimited potential. A seed no bigger than a grain of rice contains within it everything it needs to grow into a giant sequoia. But no seed can grow without the right environmental conditions. No amount of force or assertion of control can make a seed grow. It needs the right soil, the right amount of water, and the right amount of light.

In the same way, within each person who has experienced trauma, homelessness, psychiatric diagnosis, or problems with substances, I believe there lies unlimited potential for growth, and each person needs the right environment for the process of recovery to take place. As providers, loved ones, community members, and policy makers, we very often control that environment. Metaphorically, we provide the soil, the water and the light.

Soil is the place where recovery begins. It offers a place for the seed to grow roots, to gather strength, security, and safety. Soil is what keeps trees rooted tightly to the ground through storms. It is our responsibility to offer environments where people in recovery feel safe and secure, to try out new ways of coping and new ways of managing the difficulties and challenges that life presents to all of us.

Water provides a seedling with essential nourishment. We need to find ways to support people in recovery to discover what truly nourishes them. The work of recovery is hard. It requires taking risks and feeling uncomfortable. We cannot do the work of recovery for anyone else, but we can and should work to help people in recovery find the supportive relationships, meaningful roles, and reasons to do that hard work.

Light provides the energy necessary for growth. In recovery, I believe light is offered through the hope and understanding that every person has within them the potential to live a full and active life in the community, whatever that means for them. As providers, loved ones, community members, and policy makers, it is our role to shine the light of hope for people who have experienced discrimination, loss of power and control, and in many cases a loss of their identity. We hold this hope and offer this light because we know, without question, that recovery, however it is defined, is not only possible, but is happening, right now, all around us.

Christine Palmieri is vice president of the Division of Recovery and Housing at MHA.

Law

What’s Next for the Cannabis Industry?

The cannabis industry is off to a fast and quite intriguing start in the Bay State, and two new categories of license have particular potential to move this sector in new directions: one for home delivery of cannabis products, and another for social-consumption establishments, or cannabis cafés.

By Isaac C. Fleisher, Esq.

We are nearly three years into the Commonwealth’s experiment with recreational cannabis, and the industry is finally moving beyond an amusing novelty.

The Cannabis Control Commission (CCC) reports that retail sales in 2019 alone have already exceeded $190 million, and this is just the tip of the iceberg. To date, the CCC has issued only 72 final licenses for marijuana establishments, but there are currently another 400 license applications that are pending or have received provisional approval.

Isaac C. Fleisher

This all means that, over the next few years, the Massachusetts cannabis industry is set to grow at an unprecedented rate. What we don’t know is how this growth will change and shape the industry.

Much of the excitement and rhetoric around legalization has focused on the potential to create new business and employment opportunities for communities that have been disproportionately harmed by prohibition and for local entrepreneurs. Lawmakers attempted to pursue these goals (with mixed success) through the design of the original regulations, with provisions for local control by cities and towns, special categories for equity applicants, and caps on the number of licenses that a single business could control.

The CCC has recently been grappling with these issues once again as it revises its regulations.

On July 2, after months of policy discussions and hearings, the CCC released new draft regulations for both medical and recreational marijuana, which will be open for public comment until Aug. 16. While most casual observers will not find the draft regulations to be scintillating reading material, there are a number of interesting new provisions that can tell us a lot about what the future of Massachusetts’ cannabis industry could look like.

Two new categories of license have particular potential to move the cannabis industry in new directions; one for home delivery of cannabis products, and another for social-consumption establishments (i.e., cannabis cafés).

Social Consumption

A social-consumption license would authorize businesses to sell cannabis products to customers for on-site consumption. Just think of your neighborhood bar, but it serves cannabis instead of alcohol. Under the proposed regulations, cannabis could be consumed at a social-consumption establishment in almost any form, except for combustible (i.e. smoking it the old-fashioned way), but even that possibility is left open by a provision for an outdoor smoking waiver.

Cannabis edibles would have to be prepackaged and shelf-stable, but there is no prohibition on serving prepared food on site, so long as the food isn’t directly infused with marijuana. That means we could soon be seeing cannabis restaurants that offer gourmet food alongside gourmet pot.

“There is no prohibition on serving prepared food on site, so long as the food isn’t directly infused with marijuana. That means we could soon be seeing cannabis restaurants that offer gourmet food alongside gourmet pot.”

The CCC is taking an incremental approach to this new class of license by including provisions for a social-consumption pilot program that would be limited to only 12 municipalities. Towns that participated in a working group on social consumption — including North Adams, Amherst, Springfield, Provincetown, and Somerville — would be among those able to opt into the pilot program. Licenses would initially be available only to applicants that were already licensed as a ‘microbusiness’ or a ‘craft marijuana cooperative,’ or applicants certified by the CCC as an ‘economic empowerment’ applicant or ‘social equity’ applicant. The pilot program is an interesting attempt to address the demand for new cannabis markets, while still preserving access for small, local, and minority-owned businesses.

Home Delivery

A licensed ‘delivery-only retailer’ could deliver marijuana products directly to a customer’s residence. Advocates for home delivery have long touted its potential to level the playing field between large, well-funded businesses and the small, local entrepreneurs the CCC seeks to attract.

In theory, a delivery-only licensee wouldn’t need much more than a vehicle in order to begin operating. However, the draft regulations include a number of provisions that could create substantial barriers to entry for small-time operators. Home-delivery orders would still need to go through a traditional brick-and-mortar retailer, who would presumably not be particularly interested in providing their product to competitors at wholesale prices.

Additionally, the draft regulations prohibit deliveries to any residence in a town that has banned brick-and-mortar retailers.

Numerous security provisions included in the draft regulations create further costly (and controversial) requirements for delivery-only retailers. Each delivery vehicle would need multiple surveillance cameras, and delivery agents would need to wear body cameras to record the entire delivery, including the customer. This has predictably resulted in a number of concerns about privacy and regulatory overreach.

At a recent CCC meeting, Commissioner Shaleen Title pointed out that, “to the extent that home delivery to [medical-marijuana] patients has been ongoing, there may already be security in place that goes above and beyond our regulations, and to my knowledge there haven’t been incidents … That seems to be an argument that you should not be putting in additional burdens and regulations.”

While body cameras got the most attention at the CCC’s meetings, one provision in the proposed home delivery regulations with the potential to be far more consequential is the option to use a “third-party technology platform provider” to facilitate the ordering process. In simpler terms, we could soon be saying “there’s an app for that.”

While there is still a thorny tangle of federal and state laws preventing a true e-commerce for cannabis, it’s not hard to imagine startups racing to be the first ‘Uber for weed.’ This would certainly make the consumer experience even more convenient, but it would mean yet another blow to the delivery only retailer’s profit margin, and does not seem consistent with the goal of lowering the barrier to entry for small businesses.

Of course, excitement about new markets comes with the important caveat that the rules still need to be finalized and, in some cases, there would need to be a corresponding change in state law. Nevertheless, it is encouraging to see that regulators are willing to consider new ideas for Massachusetts’ cannabis industry. The lines around the block at the first retailers have everybody seeing dollar signs, but with no statutory limits on the number of licenses that the CCC can issue, it is only a matter of time before supply exceeds demand.

In states that are further along in this process there is already evidence of a boom-bust cycle, as oversupply causes wholesale prices to plummet and smaller operators are forced out of the market. In Massachusetts, where the cannabis industry is still relatively nascent, there is still opportunity for regulators, consumers, activists, and entrepreneurs to play important roles in shaping the future of the industry.

Attorney Isaac C. Fleisher is an associate with Bacon Wilson, P.C., where his practice is focused on business and corporate law, with particular emphasis on the rapidly expanding cannabis industry. An accomplished transactional attorney, he has broad experience in all aspects of business representation, for legal matters ranging from mergers and acquisitions to business formation and financing; (413) 781-0560; [email protected].

Accounting and Tax Planning

Section 199A

Section 199A of the Tax Cuts and Jobs Act was created to level the playing field when it comes to lowering the corporate tax rate for those businesses not acting as C corporations. For most profit-seeking ventures, qualifying for the deduction is not difficult, but for rental real estate, it becomes more difficult.

By Lisa White, CPA

On Dec. 22, 2017, the Tax Cuts and Jobs Act (TCJA) was signed into law, bringing with it a plethora of changes, affecting, albeit in varying degrees, every taxable and non-taxable entity and individual.

One of the primary focuses of the act was to lower the corporate tax rate to a flat rate of 21%. In order to keep the taxable-entity landscape equitable, however, a provision was necessary for those businesses not operating as C corporations.

Thus, Section 199A was created, providing for a deduction of up to 20% of qualified business income from a domestic business operating as a sole proprietorship, partnership, S corporation, trust, or estate.

The first step in assessing the benefit of the Section 199A deduction is to determine if there is a qualified activity. The statute uses Section 162 of the Internal Revenue Code to designate qualification — which is difficult since Section 162 does not actually provide a clear definition of what constitutes a trade or business.

“What might be the easiest way to approach making the determination is the ‘walks like a duck, quacks like a duck’ scenario. If the activity is a profit-seeking venture that requires regular and continuous involvement, there should not be an issue with rising to the level of a qualified trade or business under Section 162 — and thus being eligible for the Section 199A deduction.”

Instead, case law must be used to support the position taken. What might be the easiest way to approach making the determination is the ‘walks like a duck, quacks like a duck’ scenario. If the activity is a profit-seeking venture that requires regular and continuous involvement, there should not be an issue with rising to the level of a qualified trade or business under Section 162 — and thus being eligible for the Section 199A deduction.

For rental real estate, the determination becomes a bit more complicated. If the rental activity consists of property being rented to or among a group of commonly controlled businesses, where the same owner — or group of owners — owns directly or indirectly at least 50% of both the rental property and the operating business, and the operating business is not a C corporation, then the qualifying designation is automatic. Otherwise, to make the determination, we must once again turn to case law.

Here, this becomes problematic, as there is limited history supporting the position that rental activities rise to the level of a Section 162 trade or business, as the designation heretofore was unnecessary.

In response to concerns about the lack of guidance, the Internal Revenue Service issued Revenue Procedure 2019-7, which provides for a safe harbor under which a rental-real-estate activity will be treated as qualifying for the Section 199A deduction. In addition to holding the rental property either directly or through a disregarded entity, other qualifying factors include the following:

• Separate books and records are maintained for each rental activity (or rental activity group);

• At least 250 hours of rental services are performed each year on each rental activity; and

• For tax years ending after 2018, contemporaneous records are maintained detailing hours of services performed, description of services performed, dates on which services were performed, and, who performed the services.

When making the determination of whether an activity rises to the level of a trade or business under the general rules, each activity must be assessed separately, and no grouping is permitted.

Alternatively, the safe-harbor provision provides an opportunity to elect to group rental activities together in order to meet the other qualifications. The caveat here is that commercial properties must be grouped only with other commercial properties, and likewise for residential properties. Once made, the grouping election can be changed only if there is a significant change in the facts and circumstances. The rental services performed that qualify for the 250-hour requirement include tasks such as advertising, negotiating leases, collecting rent, and managing the property, among others. Financial-management activities, such as arranging financing or reviewing financial statements, do not qualify as ‘rental services,’ nor does the time spent traveling to and from the property. The rental services can be performed by the owners of the property or by others, such as a property-management company.

The safe-harbor election is available to both individuals and pass-through entities and is made by attaching a signed affidavit to the filed return stating that the requirements under the safe-harbor provision have been met.

It’s important to note here that, although meeting the safe-harbor requirements will qualify the activity for Section 199A, it does not provide automatic qualification under Section 162. Similarly, failure to satisfy the safe-harbor requirements does not mean the activity automatically does not qualify for the deduction. Instead, support for the position will just need to be derived from considering other relevant factors and/or case law that can be used as precedent.

Additionally, the safe-harbor election cannot be made for residences used personally for more than 14 days during the year, nor for properties rented on a triple-net-lease basis, a scenario where the tenant is responsible for the taxes, insurance, and general maintenance related to a rental property.

If pursuing the Section 199A deduction for rental property without using the safe-harbor provision, some factors to consider documenting would be the type of property rented, the day-to-day involvement of the owner (or the owner’s agent), and the types and significance of any ancillary services provided.

It seems the courts have applied a relatively low threshold in finding rental activities to rise to the level of a Section 162 trade or business, but it’s also important to note that implications of that designation have changed significantly. One thing is for certain: if the position is taken that the rental activity is a trade or business for the Section 199A deduction, then it needs to be treated as a trade or business in all other aspects, as well, which could mean additional filings (i.e. Forms 1099) and becoming subject to different tax regulations (i.e. interest-limitation rules).

Ultimately, although the Section 199A deduction was implemented as a means of leveling the playing field for the tax impact of entity choice and could potentially offer significant tax savings, in order to take advantage of the deduction, the related activity must first qualify for the deduction.

Reaching this designation is relatively easy for most business operations, but might require more analysis when considering rental activities. There are some options available, such as the safe-harbor and grouping elections, but the related tax impact should be carefully considered prior to making any election.

Be sure to consult with your tax advisor if you have any questions.

Lisa White, CPA is a tax manager with the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3542; [email protected]

Law

Date with Destiny

By Timothy M. Netkovick, Esq. and Daniel C. Carr, Esq.

Timothy M. Netkovick

Timothy M. Netkovick

Daniel C. Carr

Daniel C. Carr

As everyone knows, paid family medical leave (PFML) is coming to Massachusetts on Jan. 1, 2021. To that end, the Department of Family and Medical Leave recently released its final regulations that will govern PFML.

The final regulations provide much-needed clarity on some aspects of PFML, while other aspects remain vague.

Prior to the final regulations being rolled out, one of the most common questions was whether PFML would apply to employers who have places of business in locations other than Massachusetts. The final regulations make clear that the definition of an employee in the Commonwealth of Massachusetts will be very broad. The regulations state that an employee will be eligible for PFML leave if the service provided by the employee is entirely within the Commonwealth or the service is performed both within and outside the Commonwealth, but the service performed outside the Commonwealth is incidental to the individual’s service within the Commonwealth.

An employee is also eligible for PFML if the service is not localized in any state, but some part of the employee’s service is performed in the Commonwealth and (1) the individual’s base of operations is in the Commonwealth, or (2) if there is no base of operations, then the place from which such service is directed or controlled is within the Commonwealth, or (3) the individual’s base of operations or place from which such service is directed or controlled is not in any state in which some part of the service is performed, but the individual’s residence is in the Commonwealth.

Therefore, even employers who do not have a physical place of business in Massachusetts, but who may have salespeople in Massachusetts, will want to review the PFML regulations with their employment counsel to determine any potential impacts to their business.

“Even employers who do not have a physical place of business in Massachusetts, but who may have salespeople in Massachusetts, will want to review the PFML regulations with their employment counsel.”

Once an employee begins PFML leave, an employer cannot require an employee to use other forms of paid time off (PTO) prior to PFML leave. However, an employee can choose to use accrued PTO provided by their employer instead of PFML. If an employee chooses to use accrued PTO, the employee is required to follow the employer’s notice and certification processes related to the use of PTO.

If an employee is going to use accrued PTO, employers are required to inform employees that the use of accrued PTO will run concurrently with the leave period provided by PFML. It will be important for employers to track the use of accrued PTO, as they will also be required to report the use of accrued PTO by employees or covered individuals upon request by the Department of Family Medical Leave.

Employers have the ability to establish their own private PFML plan instead of participating in the state administration process. If an employer is going to utilize a private PFML plan, the plan must confer all the same or better benefits, including rights and protections, as those provided to employees under PFML, and may not cost employees more than they would be charged under the state plan administered by the department. A private plan will also need to be approved by the Department of Family Medical Leave before it is implemented.

While the clear intent of the PFML regulations is to line up with the Family and Medical Leave Act (FMLA) as much as possible, there are also several key areas of difference.

The first noticeable difference is that PFML applies to every employer, regardless of size. Furthermore, as covered employers are aware, under the FMLA, an individual is entitled to leave if they work for 1,250 hours within the previous 12-month period. That 12-month period can be a calendar year or rolling period. PFML contains no such service requirement or minimum hours worked.

Furthermore, an employee is eligible for 20 weeks of leave for their own serious health condition under PFML as opposed to 12 weeks under the FMLA.

It is clear that questions still remain regarding the implementation of PFML. It is also clear that PFML and FMLA will not perfectly align. Employers will therefore want to consult with their employment counsel as they continue to prepare for PFML.

Timothy M. Netkovick and Daniel C. Carr are attorneys with Royal, P.C.; [email protected], [email protected]; (413) 586-2288

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

The #MeToo movement exploded back in 2017. With #MeToo in the news almost a daily, women everywhere became more comfortable coming forward and reporting harassment and telling their stories.

As a result, women felt empowered, but has sharing their stories hurt them in other ways? According to a recent survey conducted by LeanIn.org, the answer to that question might be yes.

Over the past two years, LeanIn.org — an organization dedicated to helping women come together and achieve their goals — conducted surveys to gain an understanding of what individuals are experiencing at work. One of the surveys revealed that, in the post-#MeToo world, women may be receiving less support at work from male managers and may be hindered in their ability to seek career advancement.

The survey, titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

To put that into perspective, according to LeanIn.org, that percentage was only 32% just a year ago. The survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

Worrisome Results for Employers

The results suggest that #MeToo may actually lead to more gender discrimination in the workplace. If male members of management distance themselves from mentoring, working alone with, and socializing with women, they might be creating legal liability for their employer because they are giving women less opportunity to advance and succeed with the organization.

For example, while work performance is always a factor in decisions regarding promotions, skills learned through mentoring and workplace connections and relationships also play an important role. If a female employee is denied a promotion due her lack of mentorship and/or workplace connections and relationships, and she did not have access to those things like her male colleagues did simply because of her gender, the employer could be subject to a gender-discrimination lawsuit.

The survey did contain some good news for employers: 70% of employees, compared to 46% in 2018, reported that their company was doing more to address sexual harassment. The increase in this statistic is likely because more employers are conducting annual sexual-harassment training in the post-#MeToo world. Unfortunately, the remainder of the survey results suggest that training alone is not enough.

Proactive Steps

Employers should continue to address harassment in the workplace through their anti-harassment policies and by conducting annual anti-harassment training, but they also need to do more to educate employees regarding other forms of discrimination.

First, employers should have an equal-employment-opportunity policy that clearly outlines that discrimination based on gender or any other characteristic protected by law is expressly prohibited. The policy should also outline how an employee may file an internal complaint of discrimination at the workplace.

Second, employers should add annual anti-discrimination training to their training agenda. Implementing effective training will demonstrate that you care about the issue and are taking it seriously, which could help you defend against a lawsuit if an employee decides to bring one.

Finally, employers should remember that gender discrimination doesn’t just arise in this context. Businesses should take a close look at compensation practices to be sure there are no pay-inequity issues. Studies show that women in America earn about 80 cents for every dollar paid to men. Not only is this wage gap a fundamental problem, but it can also lead to serious legal trouble for an employer. Case in point: the World Cup-champion U.S. women’s soccer team’s lawsuit alleging pay inequity and “institutionalized gender discrimination.”

Bottom Line

It is clear that #MeToo has led to important changes in the workplace, but LeanIn.org’s recent study suggests that employers need to continue to be proactive and take steps to create a culture free from harassment, but also address other forms of discrimination.

The full survey results can be found at leanin.org/sexual-harassment-backlash-survey-results.

Amelia J. Holstrom is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation, harassment, and wrongful termination, as well as wage-and-hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Law

The Neutral Patent Evaluation

By Mary Bonzagni

Business owners often ask themselves, ‘why embark on a path of securing a U.S. patent when enforcing your patent rights in court will inevitably be a very costly and time-consuming endeavor?’ Amazon may have helped to remove the presumption embedded in that question by offering an attractive alternative to the costly and time-consuming litigation route.

As we all know, Amazon dominates the e-commerce marketplace worldwide. For many consumers (like me), Amazon has become the first and primary source for virtually anything we may need (or want). Dominance, however, has come with a price. Mounting pressure from intellectual-property owners for Amazon to take responsibility for conduct in its marketplace has apparently pushed Amazon into choosing to relinquish its former ‘hands-off’ approach to infringement concerns.

Neutral Patent Evaluation

For U.S. utility patent owners (not U.S. design or foreign patent owners) who have identified infringing products on the Amazon retail or Marketplace platform, Amazon now offers its neutral-patent-evaluation procedure.

The benefits of this procedure include its low cost ($4,000) relative to litigation and its streamlined approach to resolving patent disputes (two weeks to four months). Plus, the parties do not waive any rights to pursue their respective claims in court.

By way of this procedure, a patent owner files a request for an evaluation of their infringement allegation against an Amazon retailer. The Amazon retailer is given the option of either responding to the allegation or removing the accused product listing. If the Amazon retailer choses to respond, then Amazon assigns a neutral evaluator who is a qualified patent attorney, and each party then pays a deposit in the amount of $4,000 to the evaluator. The deposits are held in escrow during the evaluation procedure. The prevailing party will have its deposit reimbursed, while the non-prevailing party will forfeit its deposit, with the forfeited deposit paying the fees/costs of the evaluator.

“While the benefits of this process are apparent, there are limitations.”

While it is not same-day Shipping, this procedure takes only a few weeks (if the Amazon retailer does not participate in the procedure) or up to a maximum of four months (if the Amazon retailer does participate in the procedure). To assure that this procedure concludes within this relatively short term, Amazon limits the evaluation procedure to one patent claim, does not allow any challenges to the validity of the asserted claim, allows only written arguments of a specified length (no discovery or oral arguments), and imposes strict response deadlines.

If the evaluator decides the accused product is covered by the asserted patent claim, then Amazon will remove the listing of the product from its online marketplace. Irrespective of the evaluator’s finding, however, should either party obtain a judgment or order from a court of competent jurisdiction that the accused product does or does not infringe the asserted patent claim, or that the asserted patent claim is invalid, then that party may submit the judgment or order to Amazon, which will honor it by either removing or relisting the product.

During the neutral patent evaluation, the parties may not talk directly to the evaluator but may talk to each other regarding the possibility of reaching an amicable resolution to the dispute. If this happens, then the evaluator may keep a portion of the deposits received from each party as compensation for work completed.

While the benefits of this process are apparent, there are limitations. For example, the outcome of this process determines only whether a product may continue to be sold on Amazon; it does not limit other avenues of commerce for allegedly infringing products. Plus, the procedure only applies to third-party merchants. In other words, products sold by Amazon itself, cannot be challenged using Amazon’s neutral-patent-evaluation procedure. It is also problematic that Amazon does not inform the parties how neutral evaluators are selected. Nonetheless, in my opinion, this procedure is attractive for what it does offer.

Amazon’s Other Programs

Amazon has other programs as well that are designed to protect IP rights. Amazon’s brand-registry program provides owners of registered trademarks with tools for searching and identifying potential infringers of their registered trademarks on the Amazon platform. Amazon also allows IP owners to report patent, trademark, and/or copyright infringement directly to Amazon by way of its report-infringement form. If Amazon accepts the infringement claim, then it will remove the reported content and will take appropriate (but unfortunately confidential) action against the retailer. If Amazon rejects the infringement claim, then they will not take any further action. Amazon will, however, provide the claimant with the reason for its rejection of the claim.

Conclusion

As more and more consumers flock to e-commerce sites, the hope is that Amazon’s neutral-patent-evaluation initiative will be picked up and further developed by other online marketplaces, or perhaps developed into an all-inclusive system that serves to address not only patent, but also trademark and copyright, infringement in a way that all online marketplaces can collaborate on.

Mary Bonzagni is a partner at the law firm of Bulkley Richardson, where she focuses on intellectual-property matters; (413) 781-2820.

Accounting and Tax Planning

Employee or Contractor?

By Danielle Fitzpatrick

Taxpayers often ask about the difference between being an independent contractor and an employee. Although it may seem like they both perform similar work, there are some significant differences when it comes to their responsibilities and when filing annual income-tax returns.

Perhaps you are currently working for an employer and are considering becoming a contractor, or maybe you have just graduated college with a degree and are trying to decide which option is best for you. Whichever route you decide to take, it is important to know the differences so that you can plan accordingly.

Differences in Responsibilities

You are considered an employee when the business you work for has the right to direct and control the work you perform. You are given specific instructions on when and where to work, and are often provided training and the necessary equipment needed to perform specific duties. As an employee, you receive regular wages and may be eligible for benefits such as insurance, retirement, vacation, and sick pay.

You are considered a contractor when services are provided for a specific period of time. Rather than being paid a regular wage, you are paid a flat fee for contractual services. As an independent contractor, you are not eligible for benefits or training through the businesses you are performing services for. You are in charge of your own schedule and typically have several clients for which you are providing services.

Differences at Tax Time

One of the biggest differences between being an employee and a contractor is how your income is taxed on your income-tax return. Unfortunately, the difference is often not realized until an individual files their return and is faced with a significant tax burden.

As an employee, your employer pays 50% of your Medicare and Social Security (FICA) taxes. The other 50% is withdrawn from your regular paycheck along with federal and state (if applicable) tax withholdings. If any expenses are incurred and unreimbursed by your employer, the expenses are not deductible for the employee. On an annual basis, you receive a Form W-2, which shows your taxable income along with all taxes that you had withheld throughout the year.

“One of the advantages of being a contractor is that you can deduct expenses you incur in relation to the income you receive. Record keeping is extremely important when becoming self-employed in order to ensure that you are tracking all applicable income and expenses.”

As a contractor, you are considered self-employed (a sole proprietor). You are now responsible for 100% of the FICA taxes, also known as self-employment taxes. No federal or state tax withholdings are withdrawn from the income you receive, and you may be required to make quarterly estimated tax payments. On an annual basis, you receive a Form 1099-MISC showing the gross income you received in excess of $600 for each business you performed services for. All of the income you receive as a contractor is reportable on Schedule C, which is filed with your individual income-tax return, or on a business tax return if you choose to become incorporated.

One of the advantages of being a contractor is that you can deduct expenses you incur in relation to the income you receive. Record keeping is extremely important when becoming self-employed in order to ensure that you are tracking all applicable income and expenses. Expenses that may help offset your income include, but are not limited to, vehicle expenses, travel expenses, supplies, fees paid for continuing education, and the renewal of professional licenses.

Some Examples

Say you are an employee making $25 an hour and working 40 hours a week. For this example, note that nothing is being withheld for benefits. Your paycheck would look like the following:

Weekly Pay ($25 x 40 hrs.) $1,000
Less:
Federal Taxes Withheld       $200
State Taxes Withheld             $50
FICA Taxes Withheld             $77
Total Weekly Pay              $673

Now, say you are a contractor and charge $25 an hour to provide services to three businesses totaling 40 hours for the week. You receive a total of $1,000 for the week. In addition, you purchased $30 in office supplies and drove 250 miles for the week. Your net income for the week would be:

Gross Income             $1,000
Less:
Office Supplies                $30
Mileage Expense           $145
Taxable Net Income    $825

Now you’re thinking, why am I not a contractor? I bring home over $300 more a week! Yes, you bring home more for the week, but you cannot forget that taxes are not being withheld from your income. You will be responsible for paying these taxes on a quarterly basis and/or when you file your tax return.

As an employee, you report $1,000 as taxable wages on your income-tax return, from which federal and state taxes have already been withheld and will hopefully cover your tax liability. As a contractor, you have taxable net income of $825, but you are now responsible for self-employment tax, in addition to regular income tax that you have not yet paid.

Conclusion

So, should you become an independent contractor or an employee? There is no right or wrong answer; each individual needs to make their own decision and determine what will work best for them and their situation. However, whichever route you decide to take, be sure to consult your tax professional for advice to eliminate any potential surprises and ensure that you are prepared when it comes to filing your annual income-tax returns.

Danielle Fitzpatrick, CPA, is a tax manager at Melanson Heath. She is part of the Commercial Services department and is based out of the Greenfield office. Her areas of expertise include individual income taxes and planning, as well as nonprofit taxes. She also works with many businesses, helping with corporate and partnership taxes and planning.

Accounting and Tax Planning

Recording Revenue

By Rebecca Connolly

Recording revenue is, in anyone’s mind, seen as a job well done when you complete selling your product or service or receiving a donation for your organization.

But a new revenue-recognition standard for non-public companies is effective for years ending Dec. 31, 2019 and annual periods then after, and business owners and managers must be aware of what this new standard means.

The new revenue-recognition standard, Accounting Standards Codification 605, Revenue Recognition, created a five-step process to determine when you should recognize revenue.

• Step 1: Identify a contract with a customer. This contract can include an invoice, a formal signed contract, and other various forms agreed to upon the purchase of goods or services. Once a contract has been identified, you proceed to step 2.

“Know what you are signing and know, if you are entering into a long-term contract, how to structure it in accordance with generally accepted accounting principles.”

• Step 2: Identify the performance obligations (promises) in the contract. Contracts can have one or more performance obligations. An example of one performance obligation is to deliver the 10 office chairs that were ordered by a customer. An example of multiple performance obligations within a contract is a construction contract that requires a house to be built and suitable for living, a driveway to be installed, and a garage to be constructed. The key item here is to know what you are signing and know, if you are entering into a long-term contract, how to structure it in accordance with generally accepted accounting principles. Then you proceed to step 3.

• Step 3: Determine the transaction price. Transaction price is the amount of consideration the entity expects to be entitled to, in exchange for transferring promised goods or services to a customer, excluding amounts collected on behalf of third parties. This item concerns how much money the entity expects to receive. As one example, if you sell office chairs for $59 a chair, but there is a sale and the chairs are now $45 a chair, then the revenue the entity can expect to receive for the chair at this time is $45 a chair. Elements from step 2 and step 3 are then used in step 4.

• Step 4: Allocate the transaction price to the performance obligation in the contract. If there is only one performance obligation of the office- chair delivery, then no allocation is needed. It gets complicated when you have more than one performance obligation in a contract. The best method is to allocate the price per performance obligation in the contract itself. Continuing the example of the construction of a house, the price could be allocated at $200,000 and the garage and driveway obligation could potentially be allocated at $100,000. An important element here is to be consistent in your application of the price allocations and document your process with the allocation among performance obligations. Once prices are allocated, you can proceed to step 5.

• Step 5: Recognize revenue when (or as) the reporting organization satisfies a performance obligation. Recognizing the revenue in the amount determined in step 4 has become more of a checklist item, as, yes, we have completed the performance obligation, and now the revenue can be recorded. This step is ‘I have delivered the office chairs and have completed the performance obligation with this contract.’

Conclusion

The moral of the new revenue-recognition standard is that the rules are changing, and it is best to look at your contracts and how you record revenue now before your accountant comes in and notes your revenue is overstated by $300,000.

Rebecca Connelly, CPA is a manager for West Springfield-based Burkhart, Pizzanelli, P.C. She is involved in the accounting and consulting aspects of the practice and manages engagements of various size and complexity, including nonprofit and construction companies, manufacturing, and distributors; (413) 734-9040.

Senior Planning

The Four Key Documents of an Estate Plan

By Gina Barry

Consider this — tomorrow, you take a terrible fall.

You are injured to the point that you cannot communicate, or worse yet, you pass away. No one expected this to happen. Your loved ones are reeling. They are in shock and not thinking clearly.

Gina Barry

By Gina M. Barry, Esq.

They are now immediately called upon to act on your behalf. Do you know who will handle your affairs? Have you given that person the legal authority they would need to do so without added cost, time, and administrative difficulties? If your estate plan is in place and up to date, your affairs can be handled efficiently and effectively, leaving your loved ones to grieve the tragedy without all the added stress of navigating your affairs blindly and without authority.

Thus, every adult should have an estate plan in place. Fortunately, a basic estate plan is quite simple to establish. It requires four documents:

Last Will and Testament

The will is the document most people think of when contemplating an estate plan. Your will directs how your probate assets will be distributed after you pass away.

When you die, your probate assets are those assets held in your name alone that do not have a designated beneficiary. If you pass away without a will, your estate will be distributed in accordance with the Commonwealth’s intestacy laws, which may not be as you would have wanted.

A common misconception is that a will is not needed unless you have a lot of assets; however, a will can do much more than simply distribute assets. A will is necessary for you to name a personal representative (formerly known as executor), who will carry out your estate. Your personal representative will gather your probate assets, pay valid debts, and distribute the balance as set forth in your will.

Further, if you leave behind minor or disabled children, a guardian can be named in your will to take custody of these children. Likewise, a trust can be established in a will to provide ongoing protection for minor or disabled children as well as for other beneficiaries who should not receive their inheritance outright, usually due to spendthrift concerns. When there is no will in place, your power to make these designations and to direct the distribution of your property is forfeited.

Many also believe that, if every asset is jointly owned or has a designated beneficiary, a will is not necessary. For such a plan to be successful, the joint owner or beneficiary must survive you. If they do not survive you, your estate will need to be probated, which is when your will would direct the distribution of those assets.

Further, there are some instances where joint ownership cannot carry out your wishes, such as when you have more than one child, but cannot add all of their names on the same account due to the financial institution’s practices or because one or more of your children cannot be trusted to have access to your account as a joint owner during your lifetime.

Healthcare Proxy

A healthcare proxy is a document that designates a healthcare agent, who would make healthcare decisions for you if you were unable to make them for yourself.

Your healthcare agent would step into your shoes and make your decisions as you would if you were able. For example, your agent may decide whether a certain medication should be taken, a certain medical procedure should be done, or an admission or discharge from a medical facility should occur. Should you lose capacity and not have a healthcare proxy in place, your loved ones would need to petition the Probate Court to become your guardian, which is a lengthy, expensive, and public process that most would rather avoid.

‘Living-will’ language is normally included within the healthcare proxy, as it addresses your end-of-life decisions and generally sets forth that you do not want extraordinary medical procedures used to keep you alive when there is no likelihood of recovery. This can be a difficult decision to carry out; therefore, care should be taken to name someone who would be able to honor that decision.

If you have a terminal illness or are of advanced age, you also should consider establishing Medical Orders for Life-Sustaining Treatment (MOLST) in addition to your healthcare proxy. A MOLST is a form completed by you and your physician that relays instructions about your care. A MOLST would eliminate the need for living-will language in a proxy, but the best practice would be to reference the MOLST in your proxy.

Durable Power of Attorney

A durable power of attorney is a document that designates someone to make financial decisions for you. This document is usually in full force and effect when it is signed, but it is expected it will not be used unless you want help with or are unable to handle your own financial affairs.

It is also possible to grant a springing power that does not take effect until incapacity arises. Should you lose capacity and not have a durable power of attorney in place, your loved ones will have to petition the Probate Court to become your conservator, which, just like the guardianship process, is also lengthy, expensive, and public.

The durable power of attorney is a very powerful document with authority that is as broad as the powers granted within it. It gives power to the person you name to handle all your financial decisions, not just pay your bills. In most cases, the person named will be authorized to handle your real estate, life insurance, retirement accounts, other investment accounts, bank accounts, and any other matters involving money, such as tax returns and applications for public benefits.

As such, the person chosen to serve in this capacity should be someone with financial savvy who can be absolutely trusted to use your assets for only your benefit.

Homestead Declaration

For Massachusetts homeowners, a homestead declaration, once properly recorded in the Registry of Deeds, will declare your principal residence to be your homestead. The homestead declaration protects the equity in your primary residence up to $500,000 from attachment, seizure, execution on judgment, levy, or sale for the payment of debts.

In some cases, such as advanced age or disability, the equity protection can be up to $1 million. If a homestead declaration is not recorded, there is an automatic $125,000 of equity protection. It should be noted that, in addition to some other specific exceptions, a homestead declaration will not protect your real estate from nursing-home costs or tax liens.

Conclusion

While incapacity and death are not the most joyous of topics, when faced with them, most people would prefer to have a plan in place to ensure their needs and goals will be met.

You can help your loved ones avoid expensive legal hassles related to your ongoing care and your estate. Individuals with more complicated estates may require different or additional documents to fully protect their interests, but for most, an estate plan is only four documents away.

Gina Barry is a partner with the law firm Bacon Wilson, P.C. She is a member of the National Assoc. of Elder Law Attorneys, the Estate Planning Council, and the Western Massachusetts Elder Care Professionals Assoc. She concentrates her practice in the areas of estate and asset-protection planning, probate administration and litigation, guardianships, conservatorships, and residential real estate; (413) 781-0560; [email protected].

Local Business Advice

The Wealth Technology Group

By: Gary F. Thomas, JD, LLM, CLU, ChFC, AIF, CDFA

Earlier this year I received a call from “Jen”, a concerned client. She had just learned from her older brother that her widowed, elderly mother, who lives in Rhode Island, had fallen a couple of days before and had been admitted to the hospital with broken ribs and several fractures. Even though Jen was in the regular habit of calling her mother once or twice a week, the fall occurred shortly after their last conversation and was a shock.

Jen immediately dropped what she was doing and drove to the hospital. While visiting she perceived that her mother was suffering from more than the fractures, but was also somewhat disoriented, which Jen assumed was because of medications that were administered to alleviate pain.

When asked why she was not notified of the fall immediately she was told that mother and her brother who lived nearby just “didn’t want to worry her”. Of course Jen was worried, not only about her mother’s health but also about her mother’s finances, and whether any plan was in place to prepare for the unexpected. All along she had assumed that her brother, who was a retired comptroller, had everything under control.

When Jen questioned her brother, he said that even though he had dealt with finances for his entire life, he was uncomfortable talking to Mom about money, because it was too close to home. He wasn’t sure what planning their mother had done, whether or not she had even the most basic legal documents, and if so where they were located.

“They learned that their mother, who had lost her husband more than twenty years earlier, had never updated the documents after their father’s death.”

Unfortunately, they were forced to have the difficult conversation about money with their mother while she was still in the hospital, admittedly, not an ideal time. They learned that their mother, who had lost her husband more than twenty years earlier, had never updated the documents after their father’s death. Mom said that the lawyer who had prepared them had retired long ago, and she wasn’t sure where the originals were. More than that, she was not quite certain of her banking and financial accounts because the names of the institutions had changed so many times over the years, and she found it difficult to keep track of what she owned. Mom said she had just been assuming that, because of her son’s financial background “he would take care of things” should any health or financial issues arise.

Fortunately since her accident, Mom has returned home and appointments were made for the whole family to meet with a local attorney to complete some basic estate and elder law planning. Now, both Jen and her brother have located Mom’s insurance policies, financial accounts, and credit cards, and keep track of accounts monthly. They have updated the beneficiaries on life insurance and retirement accounts, which are now set up to avoid probate. For the first time, they have a clear picture of their mother’s assets, income and expenses.

Unfortunately, many incidents like this don’t quite turn out as well. Lack of planning and lack of time can cause a financial disaster. Often costly financial decisions are made in the heat of the moment and without full knowledge of the resources available, tax consequences, or the affect of the parent’s ongoing needs.

Our advice: Broach the conversation about money after you have completed your own estate and financial plan, then share with your parents what you have done, which may make it easier to begin the conversation.

 


Gary F. Thomas

JD, LLM, CLU, ChFC, AIF, CDFA

“Because it’s not what you make … it’s what you keep!”

Gary is the President of The Wealth Technology Group, with offices in Pittsfield and Westfield. His company serves over a thousand individuals and businesses in Massachusetts, Connecticut, and across the country, helping them reduce taxes, diversify their portfolios, and keep more of what they have.

Gary is a native of Pittsfield and is a graduate of the Massachusetts College of Liberal Arts and Western New England University Law School. He is a member of the Massachusetts Bar and holds the prestigious Master of Laws in Taxation degree from Boston University Law School. Gary is a Chartered Life Underwriter and a Chartered Financial Consultant. He is also certified as an Accredited Investment Fiduciary, having met the ethical and education standards of a prestigious network of forward-looking investment professionals dedicated to advancing fiduciary responsibility.

Gary has conducted courses on retirement planning, financial management, and estate planning at General Dynamics Corporation, Tubed Products, the Massachusetts Nurse’s Association, Plumbers and Pipefitters Locals 4 and 104, Westfield State University, Berkshire Community College and the Massachusetts College of Liberal Arts, and has lectured financial planning and insurance professionals throughout the U.S. and internationally on best practices and customer service. He specializes in education about safe money management and the maximization of pension and Social Security benefits, so that his clients enjoy a stress-free retirement.

Gary is a member of the Massachusetts Bar Association, the Financial Planning Association, the National Association of Insurance and Financial Advisors, and the International Association of Financial Planners; he sits on the Board of Directors of the MCLA Foundation. Last year, Gary was honored to be appointed a member of the Board of Trustees for Western New England University. He also underwrites programming for WHMP, Channel 57, and is a member of the Westfield Chamber of Commerce and the Better Business Bureau. He was chosen Outstanding Philanthropist of the Year for 2013 by the Western Mass Association of Fundraising Professionals.

Gary is a presence on local media and is sometimes called upon to comment on financial news. Every few weeks Gary also has some fun talking about financial topics with Bax & O’Brien on Rock102. His programs are available on the station websites, and are podcast on iTunes and at www.wealthtechnology.com. He has appeared nationally on Fox Business News, and has been quoted on the Forbes and CNN Money websites.

(800) 266-6793

[email protected]

www.wealthtechnology.com

Modern Office

The Value of Internships

By Brittany Bird

People are often aware of the numerous benefits for students who participate in an internship while pursuing an undergraduate or graduate degree, but the benefits to you as an employer of offering an internship program are not to be overlooked.

Interns are similar to entry-level employees who are likely students and are hired for a specific period of time. Interns may be paid or unpaid, though paid internships typically produce better candidates. Students are generally eager to get their hands dirty and get real, hands-on experience so that they can put into practice what they’ve been learning in their classes.

Brittany Bird

What’s more, students putting in the effort to seek internship opportunities tend to be motivated, aspiring professionals who are willing to work hard to show their value to a business in the field of their major and desired career. These young go-getters can offer fresh perspectives, new ideas, and valuable feedback. As interns are most often still in school while working with your business, they are able to provide insight into new technology and trends to participate in the continuous improvement of your company.

The feedback they provide from their experience with you can also help to better the work environment and position your business to attract other young graduates like themselves.

Providing internship opportunities to local students showcases that your business supports the community and is interested in the potential of the younger generations. Internships support students as part of the growing workforce by giving them work experience and a better understanding of their field of choice and their own skill set.

This is a great way for local businesses and firms to secure young talent in Western Mass. as well. Indeed, your company has the chance to try out new talent before hiring them as a full-time employee. Internships allow you as an employer to gauge the work ethic of the student and see how he or she fits with your company and vision.

Recruiting for these positions also increases brand awareness among students, across local university campuses, and beyond. People become more familiar with your company name and what you represent as a result of your recruiting presence. Additionally, interns themselves act as quasi-recruiters as they tell friends, family, and classmates about their internship experience and inform them of other positions available with your company.

Internships allow young professionals to become familiar with your company and its culture and mission. Scouting out interns is like proactively recruiting for future full-time positions. Internships are a time to evaluate the intern in a lower-risk setting than bringing someone on full-time allows. Also, interns can typically do the same work as a new hire, but for a lower pay rate.

Retention Rate as of 1 year of Employment:

Internship with your company: 70.6%
External internship experience: 65.8%
No internship experience: 46.3%
(NACE 2016)

Internships also provide the chance for more seasoned staff to improve their management, mentoring, and leadership skills by training the new students on board. Having internships during your busiest times of year puts them through the ringer and tries their abilities to keep up and help out even in the craziest of circumstances while providing relief to other associates from the less important or less involved projects.

Internships not only allow a smoother transition into a career for the student, but also for your business. Instead of hiring someone you have to train from scratch, you now have an entry-level employee who has spent time with your organization and will require significantly less, if any, training. You will already to know their strengths and how they work with the team.

When they come on full-time, you have a much better understanding of their abilities and qualifications and can bring them on and keep your business operating smoothly. And getting employees who are a better fit through internships means better retention. Studies conducted by the NACE have shown that, at one year (see table on page 30) and at five years, retention rates are higher for those employees who started with a business through an internship program. Even if there are no full-time positions currently available, the line of communication is there and can be kept open for when future opportunities arise or when the student graduates and is looking for a career.

Internship programs that are well-designed and well-run will attract bright, young talent that can be a great addition to your team and part of your strategy for achieving the goals of growing your business by increasing productivity, efficiency, and profitability. Recruiters can look to university career centers to contact personnel who can lead them in the direction of clubs relevant to your business’ field or inform them of dates of meet-and-greet events or career fairs. Often, businesses can also put postings on universities’ websites or flyers and applications in the universities’ career-counseling offices.

In short, the time, money, and effort put into an internship program usually provide a big payoff in the long run as well as providing direct benefits to your company’s short-term goals in the present.

Brittany Bird is an audit associate with the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C. She began her career at MBK as an intern and recently celebrated her first anniversary as a full-time audit associate; (413) 322-3502; [email protected]

Banking and Financial Services

The Scammers Are Out There

By Jean Deliso

Jean Deliso

Jean Deliso

Have you ever been scammed by someone or received a phone call attempting to pressure you to provide personal information or send money?

If you can say yes, have you thought about what your parents or grandparents might do in similar situations?

Senior citizens are frequent victims of these criminal activities. To help protect older family members and to safeguard yourself, everyone should be better informed about these schemes and how to help prevent becoming a victim.

Scam artists are everywhere, and they are here in Western Mass. Within the past 18 months, I personally had two different clients who were defrauded by a scam tactic that preyed on their love of their grandchildren and their innocence and confusion.

One was contacted and told their grandchild had been in an accident, he had seriously hurt someone, and he was going to spend many years in jail unless money was sent. In the other situation, it was claimed that a grandchild was in a friend’s car, which was stopped by the police, and they found drugs. The scammer stated that the grandchild was not guilty, but he would be charged unless the grandparent sent cash immediately to get him assistance in court.

Both victims were told not to tell anyone, otherwise the assistance would stop. And in both situations, the grandparents went to the bank or withdrew money from their investment accounts, converted it to cash, placed it an envelope, and sent it to these unknown addresses.

These situations are happening more often, and thus there is a pressing need to educate our senior citizens to be aware of these types of scams.

There is nothing more special than the love of a grandchild. These imposters are targeting and exploiting this love and affection.

There have been other articles written on this subject, but not everyone reads them. It is important to educate your parents or grandparents that these scams exist and that, if they ever receive a call where they are instructed to be silent, they should contact a trusted family member or the proper authorities immediately.

Not all children are comfortable talking to their parents or grandparents about these situations, but I highly recommend you do.

I’ve seen too many of these scams recently amongst my clients. As a certified financial planner, it’s my responsibility to help my clients manage their assets and finances and to help safeguard against risks to their financial well-being. If a suspicious phone call or request is unusual or confusing, it’s important for the recipient to question it and alert their loved ones.

Please speak to your parents and grandparents about these threats. If they receive such a call, have them talk to other family members or the police before providing any information to the caller. They should never send cash to someone they don’t know or if they don’t fully understand why it’s being requested. Have them call the grandchild on their personal phone number, and, most importantly, tell them never to send cash to anyone they don’t know.

Jean Deliso, CFP is a principal with Deliso Financial and Insurance Services; (413) 785-1100.

Construction

Surveying the Landscape

The National Assoc. of Landscape Professionals (NALP) recently released its annual list of the top 2019 landscape trends.

Drawing upon the expertise of the industry’s 1 million landscape, lawn-care, irrigation, and tree-care professionals, NALP annually predicts trends that will influence the design and maintenance of backyards across America in the year ahead. NALP develops its trends reports based on a survey of its members. It also draws from the expertise of landscape professionals from across the U.S. who are at the forefront of outdoor trends.

“Homeowners yearn for beautiful outdoor spaces without the hassle of upkeep. With the rise of multi-functional landscape design and automated processes, consumers can spend more time enjoying their landscapes than ever before,” said Missy Henriksen, NALP’s vice president of Public Affairs. “This year’s trends reflect current lifestyle preferences as well as innovations happening in the industry that are transforming landscapes across the country.”

NALP listed the following five trends influencing outdoor spaces in 2019.

Two-in-one Landscape Design

Functional elements are becoming a necessity in today’s landscapes. Consumers desire stunning outdoor features that have been cleverly designed to serve a dual tactical purpose. An edible vertical garden on a trellis that acts as a privacy fence, a retaining wall that includes built-in seating for entertaining, and colorful garden beds that divide properties all combine function and style.

Automated Lawn and Landscape Maintenance

The latest technology and equipment allow tasks to be more streamlined and environmentally efficient than ever before. Robotic lawnmowers continue to rise in popularity among both homeowners and landscape professionals. Also, programmable irrigation systems and advanced lighting and electrical systems help outdoor spaces become extensions of today’s smart homes. Homeowners relish knowing these technological advancements give them more time to relax and enjoy their outdoor spaces.

Pergolas

A staple of landscape design for years, pergolas constructed of wood or composite materials are now becoming more sophisticated. They can now come with major upgrades, including roll-down windows, space heaters, lighting, and sound systems. When paired with a luxury kitchen, seating area, or fire feature, pergolas can become the iconic structure for outdoor sanctuaries.

Pretty in Pink

Pops of coral and blush are anticipated to add a more feminine touch to landscapes this year. With ‘living coral’ named Color of the Year by Pantone, a leading provider of color systems and an influencer on interior and exterior design, landscape professionals predict this rich shade of pink could bring fresh blooms of roses, petunias, zinnias, and hibiscus to flower beds. Experts also anticipate light blush tones to become the ‘new neutral’ and another option for hardscapes and stone selections.

Mesmerizing Metals

Whether homeowners want a bold statement or whimsical touch, incorporating metals can bring new dimensions to landscape design. Used for decorative art, water features, or furniture and accessories, creative uses of metals, including steel and iron, can make for lovely accents or entire focal points.

Law

Paid Family and Medical Leave

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

John S. Gannon

John S. Gannon

Amelia J. Holstrom, Esq.

Amelia J. Holstrom

Businesses have had almost a year to prepare for the implementation of Paid Family and Medical Leave (PFML) in Massachusetts. Still, many questions remain, and the first critical date — July 1 — is right around the corner.

Here are five things that should be at the top of your to-do list as employers in the Commonwealth prepare for PFML.

Decide How to Handle Tax Contributions

PFML is funded through mandatory payroll contributions that begin on July 1. Currently, the contribution is set at 0.63% of an employee’s eligible wages. Because PFML covers two types of leave — medical leave and family leave — the state Department of Family and Medical Leave (DFML) has attributed a portion of the contribution (82.5%) to medical leave and the remainder (17.5%) to family leave. As if that wasn’t confusing enough, employers are permitted to deduct up to 100% of the family-leave contribution and up to 40% of the medical-leave contribution from an employee’s pay. Employers with 25 or more employees are required to pay the rest.

Although employers can pass on a lot of the contribution to the employee, businesses should consider whether to pay a portion, or even all, of the employee’s portion. When doing so, employers should consider the impact on morale, whether an employee is more or less likely to use the leave if they are paying for it, and whether the employer can afford to do more.

Provide the Required Notices

Employers are required to provide notice to employees about PFML on or before June 30. Two separate notices are required — a workplace poster and a written notice distributed to each employee and, in some cases, independent contractors. The mandatory workplace poster must be posted in English and each language that is the primary language of at least five individuals in your workforce if the DFML has published a translation of the notice in that language. Posters are available on the DFML website.

“It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work.”

The written notice must be distributed to each employee in the primary language of the employee and must provide, among other things, employee and employer contribution amounts and obligations and instructions on how to file a claim for benefits. Employees must be given the opportunity, even if provided electronically, to acknowledge or decline receipt of the notice. The DFML has issued a model notice for employers to use.

Employers must get these notices out by June 30, but also within 30 days of an employee’s hire. Failure to do so subjects an employer to penalties.

Consider Private-plan Options

Employers who provide paid leave plans that are greater than or equal to the benefits required by the PFML law may apply for an exemption from making contributions by applying to the DFML. Employers can apply for an exemption to family-leave or medical-leave contributions, or both. Private-plan approvals are good for one year, and, generally, will be effective the first full quarter after the approval.

However, the DFML has made a one-time exception for the first quarter — July 1 through Sept. 30. Employers have until Sept. 20 to apply for an exemption, and any approval will be retroactive to July 1. Employers should consider whether this is a viable option for them before employees can begin taking leave on January 1, 2021.

There are benefits to doing so, but employers should consider the potential cost. If an employer chooses to self-insure its private plan, it must post a surety bond with a value of $51,000 for medical leave and $19,000 for family leave for every 25 employees. Employers may also have the option to purchase a private insurance plan that meets the requirements of the law through a Massachusetts-licensed insurance company.

Review Current Time-off and Attendance Policies

The principal regulator of frequent leaves of absence is the fact that employees are not getting paid for this time away from work, absent company provided paid time off like sick or vacation time. Once those company-provided benefits are used up, the employee is not getting a paycheck.

Naturally, this gives employees motivation to get back to work and on the payroll. Unfortunately, when Jan. 1, 2021 comes around, businesses will lose this regulator as PFML will be paid time off, up to a cap of $850 per week (and up to a whopping 26 weeks of paid time off per year).

It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work. Therefore, businesses should be reviewing their current time-off and attendance policies to determine whether changes should be made in light of this forthcoming law. Are you providing too much paid time off already? Should you develop stricter requirements surrounding absenteeism and employee call-out procedures?

The time is now for discussing these changes as modifications to leave and attendance policies take time to think through and implement.

Plan for Increased Staffing Challenges

Many businesses and organizations throughout the region are currently dealing with significant staffing difficulties due to historically low unemployment rates. This challenge is only going to increase when the leave protections of PFML kick in on Jan. 1, 2021.

We recommend that employers try to get out in front of this by having meetings and possibly forming committees tasked with planning for expected workforce shortages. Consider increasing per-diem staff as regular staffers are likely to have more time off and call-outs from work. Consult with staffing agencies to explore whether temporary staffing will be an option if (and when) employees take extended PFML. Whatever you do, don’t wait until late next year to address potential staffing problems.

Bottom Line

PFML is certainly going to be a challenge for employers to deal with, particularly smaller employers who are not already familiar with leave laws like the federal Family and Medical Leave Act. Although it may seem as though the sky is falling on employers, with proper and careful planning and guidance from experts, transitioning into the world of PFML should be reasonably manageable.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively representing management in labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Holstrom devotes much of her practice to defending employers in state and federal courts and before administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, compliance, and union-related matters; (413) 737-4753; [email protected]; [email protected]

Law

Navigating Short-term Rentals

By Ryan K. O’Hara, Esq.

Ryan K. O’Hara

Ryan K. O’Hara

Maybe you’ve spent a lazy July week with your family in a cottage overlooking Cape Cod Bay.

Maybe you’re letting Janice from work use Grandma’s cabin in Otis for a long fall weekend – you weren’t going to use it then anyway, and who would say no to an extra $200?

Maybe you’ve temporarily filled your empty nest with an Angolan physicist and a Chilean biologist attending a two-week academic conference put on by the Five Colleges.

Whatever the specifics, without actively realizing it, many Massachusetts residents have been party to a short-term rental (that is, a temporary rental of a living space that isn’t in a hotel, motel, lodging house, or bed and breakfast).

While short-term rentals are nothing new, they have become much more prevalent with the rise of entities like Airbnb. Short-term rentals can be an exciting source of income, and powerful online tools have made participation in the market easier than ever. Together with that increased participation, however, comes increased regulation.

Airbnb, Vrbo, and other companies like them act as third-party platforms where property owners can list premises for rent, and prospective renters can find a place that meets their needs. Both renters and property owners can now enter the market and operate with relative ease and informality. The market has also expanded to include a wide range of rental offerings — not only traditional houses and apartments, but also cottages, cabins, “micro” homes, campers, and even letting out vacant rooms in owner-occupied homes.

“While the notion of creating an online account and letting the rental income flow is very appealing, property owners should be aware that there is much more responsibility involved than a first glance at a website might suggest.”

While the notion of creating an online account and letting the rental income flow is very appealing, property owners should be aware that there is much more responsibility involved than a first glance at a website might suggest. Particularly in areas where the rental property is in close proximity to non-renting neighbors, conflicts and complications can arise.

Neighbors worry about vetting the renters, frequent turnover, and increased noise, traffic, and litter from transient visitors who don’t have the same investment in the neighborhood as those who live there. State and local governments are concerned with the number and density of rentals, the loss of tax revenue through unreported rental income, and the movement of customers away from traditional lodging options like hotels (and the excise-tax revenue that comes with them).

In response to these concerns, in December 2018, Massachusetts enacted “An Act Regulating and Insuring Short-Term Rentals” (Mass. Acts 2018, c. 337). This law defines short-term rentals, establishes and imposes obligations on both owners and renters, and empowers local governments to regulate short-term rentals on a town-by-town basis. The act goes into effect on July 1, making it critical that anyone interested in the short-term rental industry familiarize themselves with this new law.

The first thing to understand is whether your property is covered by the act. The act applies to any property that is not a hotel, motel, lodging house, or bed-and-breakfast establishment, and where at least one room or unit is rented, and all rentals are reserved in advance. The next question is whether a specific rental is in fact a short-term rental. Owners beware: if the space is rented for more than 31 calendar days to a given renter, it is no longer a short-term rental, but a residential tenancy, which carries vastly different obligations and duties.

If your property constitutes a short-term rental within the act’s definitions, you are considered an ‘operator,’ and are obligated to register with the Department of Revenue, file special tax returns showing rental income, and pay a 5% state excise tax on rents received. Cities and towns can also choose to impose an additional excise tax of up to 6% (or 6.5% for Boston properties). For Cape and island towns and cities, an additional 2.75% excise tax may be added.

The act also authorizes cities and towns to pass ordinances or bylaws regulating operators. These regulations may, among other things, limit the existence, location, and/or number of operators and the duration of rentals; require local licensing and registration; require health and safety inspections; or even prohibit future rentals where violations are found. Operators must consult with town authorities before operating any short-term rental, to ensure compliance with local regulations.

Per the act, operators must maintain liability insurance of $1 million or greater to cover bodily injury and property damage relative to each short-term rental, unless the rental is offered through a platform such as Airbnb or Vrbo that has equal or greater coverage. Operators must also notify their own property insurer that they will be operating a short-term rental at their premises.

Finally, the act makes clear that Massachusetts’ anti-discrimination statute applies to short-term rental operators. Any unlawful discrimination could expose operators to significant liability. For this reason, it may be advisable for operators to obtain training and legal advice on housing and rental discrimination.

Operating a short-term rental business can be a profitable endeavor that carries less expense and exposure than operating traditional, long-term residential rentals. However, it is vital that any operator understand and abide by the laws and regulations that govern this growing industry. Those who arm themselves with knowledge — whether by reviewing the law on their own or consulting legal counsel familiar with the industry — give themselves a fantastic chance at profitability and success with minimal complications.

Ryan K. O’Hara is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. His legal practice is focused on contract and business matters, landlord-tenant issues, land-use and real-estate litigation, and accidents and injuries; (413) 781-0560; [email protected]

Women in Businesss

Exchange of Ideas

President Carol Leary (right) and other Bay Path leaders

President Carol Leary (right) and other Bay Path leaders with the group of visitors from Jissen Women’s University in Tokyo.

Bay Path University has a long history of forging paths for women to work together, and this year that involved helping students cross oceans and continents to learn from one another.

Six students from Jissen Women’s University in Tokyo, Japan recently ventured to Bay Path to partake in a week of learning, adventure, and cultural interchange as a part of a new hybrid exchange program between the two universities. Bay Path was selected as one of only two U.S. institutions to take part as part of the TEamUP project pairing U.S. and Japanese institutions together to develop a dual hybrid exchange program and Collaborative Online International Learning (COIL) course.

During their weeklong stay, students from Jissen were able to visit the Bay Path campus, where they met with students, took in a student theater production, and had tea with Bay Path President Carol Leary. They also visited New York City, Boston, Northampton, the Springfield Museums, LEGO, and Yankee Candle, and ended their trip at the Bay Path Women’s Leadership Conference and a farewell dinner at Red Rose Pizzeria. Next month, students from the American Women’s College (TAWC) at Bay Path will visit Japan.

The program, made possible by support from the Japan-U.S. Friendship Commission, goes beyond international travel and includes student collaboration in an online course that the Japanese and American students will take together, with curriculum to be jointly developed by the partners. This aspect of the program gives these students, in particular the adult non-traditional students of TAWC who may have work commitments or children at home, a chance to experience another culture firsthand.

“This innovative model for international exchange will offer women, who might not otherwise have the opportunity, the ability to participate in a culturally rich and diverse learning experience,” said Veatrice Carabine, deputy chief for Partnership Development at the American Women’s College. “We are grateful for the generous support of the Japan-U.S. Friendship Commission in supporting this exciting opportunity for our students.”

Advancing the Mission

Advancing the higher education of women and preparing them for leadership roles in their professions and communities is central to the respective missions of TAWC and Jissen Women’s University, and the education this collaboration hopes to provide will extend far beyond their trips. Students will examine values related to women’s moral and ethical leadership in Japan and the U.S., including issues of social justice, diversity, and service to others. Through an experiential learning lab, students will assess leadership styles in these cultural contexts and think critically and creatively about the necessity of vision, trust, and cultural awareness to gain strategic competitive advantages for action in a global world.

“Students will have impactful opportunities to share and exchange global perspectives, compare and contrast women’s roles and leadership, and use technology tools to complete projects across time and space — not to mention develop relationships with Japanese friends.”

“I’m thrilled to partner with the Japan-U.S. Friendship Commission and Jissen Women’s University to share collaborative, cross-cultural learning experiences to students at the American Women’s College, both through the course content and learning activities, as well as through the travel and hosting opportunities,” said Maura Devlin, deputy chief learning officer at the American Women’s College. “Students will have impactful opportunities to share and exchange global perspectives, compare and contrast women’s roles and leadership, and use technology tools to complete projects across time and space — not to mention develop relationships with Japanese friends.”

In a time of increasing globalization, bringing together women of different ages, backgrounds, and nationalities to learn from one other and equipping them with a greater sense of confidence, leadership, cultural awareness, and connectedness to a global world can be a powerful strategy for empowering women to address the world’s most challenging issues, and that has always been at the heart of Bay Path’s mission, she added. For the students involved, this experience will broaden their understanding of how women’s leadership can be applied to influence organizational change in differing global contexts, as students’ own leadership skills, cultural awareness, and confidence in engaging with others globally are developed.

This article first appeared on the Bay Path University blog; www.baypath.edu/news/bay-path-university-blogs

Local Business Advice

The Wealth Technology Group

By: Gary F. Thomas, JD, LLM, CLU, ChFC, AIF, CDFA

A couple of weeks ago I spoke with a potential client on the phone who had recently purchased some trusts through an online service, and had questions about them. To create the trusts he spoke with an individual on the phone and filled out a short questionnaire listing his wishes, assets and beneficiaries. A short time later received the documents. He was told that the trusts would accomplish his three primary objectives:

Probate Avoidance

Estate Tax Reduction

Asset Protection

I responded that without reading the trusts carefully as well as knowing more about his current financial situation, it would be impossible for me to answer his concerns. We agreed to meet.

Bill arrived carrying a handsome, two-inch thick leatherette folio with his family name embossed in gold lettering on the cover. The binder included two trusts: a Revocable Living Trust and an Irrevocable Asset Protection Trust. Neither trust was funded. In addition, there was a “pour-over” will, designed to fund the Living Trust with probate assets at the time of Bill’s passing.

After chatting with Bill, I learned that he was seventy-three years old, and had two adult sons who were comfortable financially. Up until the creation of his trusts, he had a simple Will leaving all his assets to Martha, his wife of 40 years. She had recently passed after a lengthy illness, motivating Bill to reconsider his estate planning options.

Bill’s major assets included a sizable conservatively invested 401k which listed his children as beneficiaries. Bill’s other assets consisted of a couple of CDs, a modest checking account and a three-bedroom ranch built in the 1960s. Although Bill would be considered to be financially comfortable, his combined assets were only slightly above the one million dollar threshold for Massachusetts estate taxes, with no likelihood of approaching the Federal limits.

The trusts would not serve to avoid probate or to protect Bill’s assets. His major asset, the 401k, was already set up to avoid probate as it had named beneficiaries. As a retirement account it is protected from creditors under both Massachusetts and Federal law. Transferring his 401k to the Irrevocable Trust would necessitate cashing it out, resulting in an income tax disaster.

Bill asked what course he should take regarding the CDs and his home. He could, if he chose, transfer his CDs into either trust but as they were only a modest portion of his assets, the net effect of doing so would be marginal. And although he could transfer his home to the Irrevocable Trust in the hopes of protecting it from the high cost of long-term care, he would still be required to spend down his other assets to qualify for care.

Properly structured, drafted and funded, trusts are valuable tools for probate avoidance, asset protection and estate tax avoidance, but they are not needed by everyone. Basic estate planning documents such as a Will and a Durable Power of Attorney, with careful selection of beneficiaries plus proper insurance planning often produces the desired outcome.

Please consult a qualified professional who can assess your situation and guide you properly through your estate planning journey.

Social Security Informational Workshop: June 11, 13, 18, & 20th • 6:30 pm

Wealth Technology Conference Center – 130 Southampton Rd, Westfield, MA

 


Gary F. Thomas

JD, LLM, CLU, ChFC, AIF, CDFA

“Because it’s not what you make … it’s what you keep!”

Gary is the President of The Wealth Technology Group, with offices in Pittsfield and Westfield. His company serves over a thousand individuals and businesses in Massachusetts, Connecticut, and across the country, helping them reduce taxes, diversify their portfolios, and keep more of what they have.

Gary is a native of Pittsfield and is a graduate of the Massachusetts College of Liberal Arts and Western New England University Law School. He is a member of the Massachusetts Bar and holds the prestigious Master of Laws in Taxation degree from Boston University Law School. Gary is a Chartered Life Underwriter and a Chartered Financial Consultant. He is also certified as an Accredited Investment Fiduciary, having met the ethical and education standards of a prestigious network of forward-looking investment professionals dedicated to advancing fiduciary responsibility.

Gary has conducted courses on retirement planning, financial management, and estate planning at General Dynamics Corporation, Tubed Products, the Massachusetts Nurse’s Association, Plumbers and Pipefitters Locals 4 and 104, Westfield State University, Berkshire Community College and the Massachusetts College of Liberal Arts, and has lectured financial planning and insurance professionals throughout the U.S. and internationally on best practices and customer service. He specializes in education about safe money management and the maximization of pension and Social Security benefits, so that his clients enjoy a stress-free retirement.

Gary is a member of the Massachusetts Bar Association, the Financial Planning Association, the National Association of Insurance and Financial Advisors, and the International Association of Financial Planners; he sits on the Board of Directors of the MCLA Foundation. Last year, Gary was honored to be appointed a member of the Board of Trustees for Western New England University. He also underwrites programming for WHMP, Channel 57, and is a member of the Westfield Chamber of Commerce and the Better Business Bureau. He was chosen Outstanding Philanthropist of the Year for 2013 by the Western Mass Association of Fundraising Professionals.

Gary is a presence on local media and is sometimes called upon to comment on financial news. Every few weeks Gary also has some fun talking about financial topics with Bax & O’Brien on Rock102. His programs are available on the station websites, and are podcast on iTunes and at www.wealthtechnology.com. He has appeared nationally on Fox Business News, and has been quoted on the Forbes and CNN Money websites.

(800) 266-6793

[email protected]

www.wealthtechnology.com

Accounting and Tax Planning

Looking Back — and Ahead

April 15 has come and gone, and many people are not looking back on the recent tax season with fond memories. Indeed, for many there were surprises and refunds lower than expected. One of the keys to not being surprised or disappointed is planning, as in year-round planning.

By Danielle Fitzpatrick, CPA

Many taxpayers think about taxes only once a year, and that one time is when they are filing their income-tax return. However, taxpayers should be thinking about their taxes year-round.

Many people do not consider how a change in their life may affect their taxes until they see the outcome the following year. Surprises may be avoided if they were to seek the advice of their tax professional ahead of time.

Seeking the advice of a tax professional throughout the year is very important. Certified public accountants (CPAs) who specialize in tax are not just tax preparers. CPAs can be trusted advisors who can help meet your personal wealth-creation, business-management, and financial goals.

Danielle Fitzpatrick

Danielle Fitzpatrick

The 2018 tax-filing season brought some of the biggest tax-law changes that we’ve seen in more than 30 years, and left many taxpayers surprised with their tax outcome. Perhaps you were pleasantly surprised by the additional money you received because you have children, or maybe you were one of the many who were shocked because of the reduced refunds or liability that you owed for the very first time.

If you were unhappy with the results of your 2018 tax return, you now have an opportunity to plan for the future. Review your 2018 income-tax return and determine if changes need to be made. Did you owe money for the first time because your withholdings decreased too much, or because you are now taking the standard deduction due to the loss of several itemized deductions?

Consider this — if your income and deductions were to remain relatively the same in 2019 as they were in 2018, would you be happy with your results, or do you wish they were different?

“If you were unhappy with the results of your 2018 tax return, you now have an opportunity to plan for the future.”

After you have looked at your 2018 income-tax return, you should then consider what changes may need to occur in 2019. Your tax accountant can help you determine how an expected change can impact your tax liability and try to ensure that you are safe-harbored from potential underpayment penalties.

Individuals may be subject to underpayment penalties on both their federal and state returns if they do not meet specific payment requirements each year through withholdings and/or estimated tax payments. Your accountant can also help you determine if a change in withholdings at work or through your retirement is necessary, or whether there is a need to adjust or make estimated tax payments.

These changes can help you avoid, or reduce, any potential underpayment penalties.

There are so many changes in a person’s life that could impact their tax return. Some changes include, but are not limited to, getting married or divorced, having a baby, sending a child to college, retiring, or starting a new job.

Maybe you have decided to start your own business and now are responsible for self-employment tax. Or maybe you have decided that you need to sell that rental property or second home you have had for many years. Perhaps you are a beneficiary of an estate for a loved one who passed away or have decided to sell stock through your investments. These are all examples of changes that could significantly impact your taxes.

Businesses also experience changes that could have an impact on their business returns. These changes include, but are not limited to, purchasing or selling a business, investing in a new vehicle or piece of equipment, or maybe the company has grown and you want to start providing benefits to your employees.

All the above examples could have a major impact on your individual or business income-tax returns, and that impact could be reduced if you were to reach out to a tax professional for advice before the next tax season. Besides the changes briefly mentioned above, here are two lists of questions (personal and business) that may be helpful in your next discussion with your tax professional.

First, some questions to ask your accountant in relation to your personal taxes:

• How much should I be contributing to my retirement, and which type of retirement best suits my needs?

• Am I adequately saving for my children’s education, and should I consider an education savings plan?

• Do I have adequate health, disability, and life insurance?

• When should I start taking Social Security benefits?

• When do I sign up for Medicare?

• Have I properly planned for Medicaid?

• Do I need a will, or when should my existing will be updated?

• Should I consider a living trust?

• Are my bank accounts, retirement accounts, and investment accounts set up appropriately so they avoid probate if I pass away?

• Are my withholdings and/or estimated tax payments adequate?

• When should I sell my rental property, and how much should I expect to pay in taxes?

• Can I still claim my child as a dependent even though they are no longer a full-time student?

• I’m inheriting money from a loved one who passed away; will this affect my taxes?

• I’m thinking about starting my own business; how will this impact my taxes going forward?

• My financial advisor told me I would have significant capital gains; how will this affect my tax liability?

Here are some questions to ask your accountant in relation to your business:

• What business structure is most appropriate for my circumstances?

• How do I know if my business is generating a profit?

• Am I pricing my products and services properly?

• How would my business function if my bookkeeper left tomorrow?

• What controls should I have in place to prevent employees from misusing company funds?

• Should I upgrade my accounting software?

• Do I need compiled, reviewed, or audited financial statements?

• Are my withholdings and/or estimated tax payments adequate?

• Can I claim a deduction for an office in my home?

• Should I buy a new truck or equipment before year-end?

• Should I buy or lease a vehicle?

• Should I implement a retirement plan before year-end?

• What is the overall value of my business?

• What should my exit strategy be?

• What are the tax consequences of selling my business?

Whether you are experiencing a major change in your life or want to plan for your future, do not forget to reach out to your tax professional to determine how it may affect your income taxes. u

Danielle Fitzpatrick, CPA, is a tax manager at Melanson Heath. She is part of the Commercial Services Department and is based out of the Greenfield office. Her areas of expertise include individual income taxes and planning, as well as nonprofit taxes. She also works with many businesses, helping with corporate and partnership taxes and planning

Accounting and Tax Planning

A Proactive Step That Adds Up

By Joe Lemay, CPA

I’m sure you’ve heard by now, but there were quite a few changes to the tax law in 2018. When the Tax Cuts and Jobs Act (TCJA) was signed into law into December 2017, it took an axe to many itemized deductions on your personal return.

Of these, the deduction for unreimbursed employee business expenses, such as business travel or car expenses, tolls, and parking, is one of significant note. However, despite the lost deduction, there may be an alternative solution that can be a win-win for employers and employees.

Prior to the TCJA, unreimbursed employee business expenses were deductible as a ‘miscellaneous’ deduction on an individual’s return. All miscellaneous deductions were deductible in excess of 2% of adjusted gross income (AGI).

For example, if your AGI was $100,000 in 2017, you could claim only a deduction for the amount of your total miscellaneous expenses that exceeded $2,000. If you had a total of $3,200 of unreimbursed employee expenses, you would have been able to deduct $1,200 on your personal return in 2017. Now fast-forward to 2018, and the $3,200 of unreimbursed employee expenses are not deductible at all on the individual return.

The Solution

You may be thinking the changes noted above sound unfair. However, a company can establish an ‘accountable plan,’ which may serve to remedy this change. An accountable plan is a reimbursement or other expense-allowance arrangement between an employer and employee, which reimburses employees for business expenses that are not recorded as income to the employee and are generally deductible by the employer as business expenses.

If the accountable plan is followed properly, the company reimburses an employee for substantiated business expenses, and then, in turn, the company deducts those business expenses on its income-tax return. The reimbursements are excluded from the employee’s gross income, not reported as wages or other compensation on the employee’s W-2, and are also exempt from federal income-tax withholding and employment taxes.

The company can negotiate with the employee to reduce the employee’s wages in exchange for the reimbursement, thereby saving the company payroll taxes, which includes Social Security tax of 6.2% on gross wages, capped at $132,900 (for 2018) and Medicare tax of 1.45%. By executing this transaction appropriately, the employee receives full reimbursement for business expenses, while seeing no change in their overall income, and the company benefits by saving on payroll taxes.

For example, Johnson Inc. has a sales team, which includes its ace salesman, Dave. During 2017, Dave earned $105,000 in base compensation and had $7,000 of unreimbursed business expenses. Assuming Dave’s base compensation of $105,000 is also his adjusted gross income, Dave would have been able to deduct $4,900 of his unreimbursed business expenses on his personal tax return in 2017. The remaining $2,100 of unreimbursed business expenses is a lost deduction.

Now let’s assume Johnson Inc. establishes and properly follows an accountable plan in 2018. During 2018, Dave earns the same $105,000 reduced by the elective expense allowance of $7,000 to a new taxable base of $98,000. Under the accountable plan, Dave is reimbursed in full for his business expenses; therefore, his net income, subsequent to reimbursements, remains the same as 2017 at $98,000. However, in this scenario, the company saves Social Security and Medicare tax in the amount of $535 (7.65% combined tax rate multiplied by $7,000 of reduced wages). While this savings may not seem like a lot, imagine a sales team of 25 employees; that is a potential savings of $13,375. Think about what you could do with that savings as a business owner.

How to Establish an Accountable Plan

The following criteria must be met for the plan to be accountable:

The accountable plan must prove the business connection for the reimbursements and/or allowances. The typical allowable deductions are travel, supplies, local transportation, meals incurred while away on business, and lodging.

The accountable plan must also have adequate support and records (such as itemized receipts) that substantiate the expense’s amount and purpose. The substantiation should be examined and approved by a manager or supervisor. The plan also requires the employee to return any advances back to the company which are not business expenses. Excess advances must be returned to the company within a reasonable period after the expense is paid or incurred. If excess advances to employees are pocketed by the employee, the excess advances are subject to federal income-tax withholdings and employment taxes.

The business-connection requirement is satisfied if a plan only reimburses employees when a deductible business expense has been incurred in connection with performing services for the company and the reimbursement is not in lieu of wages that the employees would otherwise receive. The company cannot simply shift taxable wages to the employee to non-taxable reimbursements without adequately proving the business connection.

There is no specific IRS form used to adopt an accountable plan, nor does the tax law require an accountable plan to be in writing; however, it would behoove employers to write down a formal plan.

Costs and Benefits of an Accountable Plan

The benefits produced from an effective accountable plan are clear. The employee is reimbursed in full for business expenses, and the company can save on payroll taxes, a win all around for everyone. However, the costs of implementing an accountable plan must also be factored in.

The company must have an organized process for tracking employee reimbursements, maintaining appropriate support that substantiates the business connection of employee reimbursements and is timely with reimbursements and requests for payback from its employees.

Companies with highly functioning accounting and/or human-resource departments will not have an issue with meeting these tasks; however, companies with low-functioning accounting and human-resource departments could struggle with appropriately maintaining an accountable plan.

Conclusion

Utilizing an accountable plan is an overall win for employers and employees. But consistency must be maintained throughout the year in order to yield the benefits.

Joe Lemay, CPA is a senior associate with the Holyoke-based public accounting firm Meyers Brothers Kalicka, P.C.; (413) 322-3520; [email protected]