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Law

Passion for Practice

Last week, Western New England University School of Law graduated its latest class, all of them surely thinking about the road ahead — specifically, the bar exam and the planned first stops on their career paths. But they’re also reflecting on long-term goals and the experiences and mindsets that have shaped those ambitions, in a field of law as broad and diverse as it is challenging. BusinessWest spoke with four of them to put a face — several, actually — on the WNEU Law class of 2019.

Stand Up and Represent

Sometimes, a work experience is more than that, because it sparks a passion. For Kate Malone, she found that passion interning for the Committee for Public Counsel Services (CPCS), a public-defense organization, in Northampton.

“I really admired the attorneys I worked with and the people who put such effort and compassion into what they do every day, regardless of the client,” she said. “I really like being in that role — even when the facts are against me, I like being able to stand up and represent somebody.”

An interest in work that serves the public interest wasn’t new for Malone, but she had been searching for the right role.

“I initially wanted to find some way to use my degree working in the community, and I started doing work in the immigration clinics,” she said, noting that, during her first summer away from WNEU, she traveled to Guatemala to learn Spanish in an immersion program, then came back and split time between school and the public-defense work.

“I’ve always found a way to relate to people I serve and trying to find ways to give them not only a great defense, but the best opportunities going forward.”

There was a time when Malone had envisioned herself across the aisle, in a prosecutor’s role, especially during her undergraduate years at Smith College, when she interned in the Victim/Witness Unit of the Northwestern District Attorney’s office. “I knew that I wanted to be a trial lawyer after spending my summer in court with the victim witness advocates,” she said, adding, however, that her work with CPCS led her in a different direction. She did credit the DA’s office, however, with lending her the sensitivity she finds necessary for her work as a public defender.

“I developed a passion for public defense after observing the challenges people accused of crime often face that I did not fully appreciate before,” she went on. “The issues that my clients experience — namely, poverty, substance-use issues, and mental-health disorders — often contribute to them cycling in and out of court.”

As for her immediate plans, Malone will continue working for CPCS — and helping to fill what she sees as a desperate need for public defenders. “I’m happy to be joining CPCS to help fill that gap, and also helping serve the people in the community I grew up in,” she noted.

Kate Malone — pictured, at center

Kate Malone — pictured, at center, with fellow grads Veronice Santana and Claribel Morales — says an internship sparked a passion for public defense, specifically standing up for often-marginalized people.

“I’ve always found a way to relate to people I serve and trying to find ways to give them not only a great defense, but the best opportunities going forward,” she went on. “The way their cases get resolved matters — it has an impact I’d never even considered before law school.”

Taxing — but Fascinating

Emily Eash entered law school with an interest following in the footsteps of her aunt, who operates an estate-planning practice. But she soon stumbled across a different passion — although ‘passion’ might not be the first word most people would use to desribe it.

That field is tax law.

“When I took my first tax course — it wasn’t required, but I was curious — I was hooked, and I wanted to take all the tax courses they had to offer,” Eash said.

She found out she was good at it, too, placing second in the Young Lawyers Tax Challenge, a national annual competition, held in New Orleans this past January. “I was already interested in tax law, and that cemented that I was fairly decent at what I do.”

“Tax is always a puzzle; there are moving parts and different ways you can create a plan or figure out the puzzle to best suit a client’s needs and wants.”

It helps that she considers the wonkier aspects of the discipline, well, kind of fun.

“Tax is always a puzzle; there are moving parts and different ways you can create a plan or figure out the puzzle to best suit a client’s needs and wants. To get the best outcomes, it takes a lot of moving pieces and interacting with the client to help them achieve their goals.”

Eash isn’t sure where her first landing spot will be — she’s still interviewing for jobs, and would like to land in a small to medium-sized firm to start out — but she’s been impressed by the sheer range of opportunities, both in the tax-law discipline and across the legal realm in general.

“Some of my friends knew exactly what they wanted to do and stayed on that track,” she said. “Others, like me, were thinking they’d do something else and found a different branch off the main tree.”

One thing many young lawyers have in common is a desire to help people, and they don’t wait until they’re out of school to do it.

“I’ve done a clinic with the Housing Court in Springfield, and that’s been very gratifying, helping people access the system. Well, it’s not so much helping them, but giving them the tools they need to access the system and have a fair outcome,” Eash said. “That’s been really nice — I’ve been in the Housing Court for seven months, and it’s been a very fulfilling experience, with a lot of courtroom time and client triage.”

Emily Eash

Emily Eash was surprised at how much she enjoyed her first tax-law course — then turned it into a potential career.

From that perspective, the entire field of law may be seen as a series of puzzles to solve — not just intellectual exercises, but challenges with real stakes, and an opportunity to make a difference.

Broad Outlook

Zac Broughton is a bit of Renaissance man when it comes to the law. At least, he’d like to be.

“I think my favorite part about law is that I don’t have to stay with one thing for the rest of my life,” he said. “As law continues to evolve over time — with new technology, new situations, new philosophical debates to participate in — my desire is to be part of that conversation in whatever area of the law I’m working in.”

Broughton, who will be clerking at Connecticut Appellate Court later this year, honed his multi-faceted approach as editor in chief of the Western New England Law Review.

“I loved working through different areas of the law, but also helping other people find their voice to help advance one area of the law or another — and inspiring my staff and reminding them that we’re stewards of the law, and they should help advance it any way they can. What’s the next legal challenge we can help the legal world solve with the piece we were publishing?”

Broughton has dreams of running for public office someday — or at least being involved in the political scene — but he also wants to work in the public sector with underprivileged populations, particularly individuals with disabilities. That’s a passion that started in his undergraduate years at UMass Amherst — specifically, in the Pi Kappa Phi fraternity, which runs an organization called the Ability Experience, whose purpose is to raise money for people with disabilities.

Zac Broughton

Zac Broughton says he’s excited to explore myriad areas of the law — and perhaps run for political office — during his career.

That’s a lot of goals, but there’s nothing wrong with exploring myriad paths in the law, he said. “To say I’ve settled on one area of the law right now is not true. But that means every day, I go to work excited and interested in what comes next.”

Broughton understands that a law degree doesn’t have to mean working in what people might consider traditional legal settings. For instance, at UMass, he earned a master’s degree in higher education administration, and can envision himself someday working in the higher-ed field.

“Today, there’s a host of outside things impacting how higher education operates in law, such as funding Title IX; it’s an incredible time to be working on a college campus and seeing how that intersects with the law.”

In short, it’s good to have options.

“I still want to run for office; I want to work in government,” he said. “It’s all interesting to me.”

A Passion on Hold

Sara Idris was on the cusp of middle school when 9/11 changed the complexion of the country, in many ways for the worse.

“Soon after that, the Patriot Act came out, and I was hearing about these people imprisoned at Guantanamo Bay without cause,” she recalled. I wrote a lot of research papers on that, and it became my passion to go to law school and get justice for people who can’t get justice for themselves.”

As a student of Pakistani descent, she was sometimes harassed in school in the coming years, but the perpetrators were never disciplined, which further solidified her resolve to be an advocate for victims of persecution — or worse.

“I knew the injustice done to me wasn’t on the level done to people all over the world, and I saw a future for myself in human-rights law.”

She’s not sure when that future will arrive, however. As she works to finish her education — she has one class left to finish and will take the bar exam in February — she continues to work as a form filing specialist at a local intellectual-property law firm.

Sara Idris

Sara Idris says it can be difficult to match one’s passions to financial realities coming out of law school, but she intends to reach her goal of advocating for victims of social injustice.

“I really enjoy this, and I can see myself working here long-term,” she said. “I have a passion for public interest, but given the amount of loans I have, I don’t know if I can risk working in public interest for the next 10 years at a salary that’s probably lower than I’m making now.”

But Idris and her fiancé have a career plan that involves methodically paying off those loans and perhaps navigating her law career toward the issues she’s most passionate about.

She also realizes that a juris doctor degree doesn’t necessarily mean taking the title of lawyer at all. In fact, many law-school students enroll in order to use the JD to move up in the worlds of education, business, finance, nonprofit management, journalism — the possibilities are endless.

“I spoke with my supervisor here, and she talked to me about how other people have moved up in different departments not working as lawyers, but utilizing the skills they’ve learned in other ways.”

That’s one value of the degree, she went on. “While I want to practice law, I don’t necessarily have to.”

Still, it’s not hard to imagine Idris, down the road, standing up, as she put it, for people struggling to defend themselves against all manner of injustice, and could use a passionate advocate.

Joseph Bednar can be reached at [email protected]

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]

Law

A Sometimes Fine Line

By Marylou Fabbo, Esq.

There’s no doubt the #MeToo movement has brought positive change to the business world by creating a safer environment for women (and men) to come forward with accounts of sexual harassment. But what if the claims aren’t true, either because they don’t rise to the legal definition of harassment or they’re completely fabricated? The damage, to both individual and company reputations, can be significant.

Make no mistake. Subjecting an employee to sexual harassment in the workplace, at a company-sponsored event, or on a business trip is unacceptable and should be punished.

#MeToo has had a strong, positive impact on encouraging victims to come forward with valid claims that had been unreported or overlooked. Everyone who complains of sexual harassment should be heard, but should everyone be believed? Most people — men and women — are not sexual abusers, and yet most individuals would say they have experienced some form of sexual misconduct. Most also would agree that some sexual behavior, such as grabbing a co-worker’s breast, exposing oneself to another employee, or telling an employee that he or she will get a promotion if he or she sleeps with the boss are clear-cut cases of sexual harassment.

Marylou Fabbo, Esq

Still, even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law. This leaves the door open to unfounded and/or, in some cases, intentionally false claims, which can have a damaging impact on company image and the accused person’s professional and personal life.

Sexual Harassment Defined

Title VII and Massachusetts law prohibit sex discrimination in the workplace, and sexual harassment is a form of sex discrimination. The harasser and the victim of sexual harassment can be the same or opposite gender and have the same or different sexual orientations.

Although this article addresses sexual harassment in the workplace, sexual harassment is also prohibited in places of public accommodation, educational facilities, and housing.

“Even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law.”

There are two types of sexual harassment: ‘quid pro quo’ harassment and ‘hostile work environment’ harassment. Quid pro quo harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a term of employment or employment decision depends on whether an employee accepts or rejects those advances.

Many of the accusations asserted against producer Harvey Weinstein fall into the quid pro quo category. Actors have come forward stating that Weinstein promised them career advances in exchange for a positive response to his sexual advances; they also have stated that Weinstein failed to help them out if they chose not to meet his sexual demands. That’s unambiguous quid pro quo harassment.

In Massachusetts, employers are strictly liable for quid pro quo harassment, which means the business is on the hook for damages even if it did not know about the harassment.

The other type of sexual harassment is hostile work environment sexual harassment. Under Massachusetts law, illegal sexual harassment occurs when “requests for sexual favors and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”

Complaints about Matt Lauer and Charlie Rose’s actions fall into the sexually hostile work environment category. Lauer is accused of exposing himself to staff, and the accusations against Rose included making lewd phone calls and groping women’s breasts. In both cases, the individuals’ employers have been accused of knowing about the harassment and doing little to stop it.

Subjective and Objectively Offensive

An employee who is offended by sexual behavior may file a claim of harassment with the Mass. Commission Against Discrimination (MCAD), believing that the actions were illegal simply because they were of a sexual nature.

However, to constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public. Ask yourself this question: if an employee shows co-workers vacation pictures on his phone that include friends in bikinis, is that sexual harassment? What about the long-term manager who refers to women as ‘girls,’ gives hugs occasionally, and makes jokes about the lack of sex in his long-term marriage?

Some may find those comments and actions offensive, and others may not. Is the manager just ‘old school’? If an employee subjectively perceives the behavior as hostile, intimidating, humiliating, or offensive, then the conduct may constitute sexual harassment. But that’s not enough — the question becomes whether a reasonable person in the employee’s position would find the conduct offensive.

“To constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public.”

Conduct of a sexual nature also must be unwelcome in order to constitute illegal sexual harassment, but it is almost impossible to be absolutely sure whether the conduct is welcome or unwelcome. The fact that an employee appears to be a willing participant in sexual discussions about weekend conquests may suggest that the employee was not opposed to the sexual discussions by the water cooler on Monday mornings. Yet, the employee may have actually been cringing on the inside.

Under the law, even if an employee makes sexual comments or jokes, or engages in sexual conduct, those actions do not automatically mean that all behavior is welcome. A disgruntled employee who appeared to be a willing participant may later claim that behavior that was welcome was in fact unwelcome.

Nimrod Reitman, a former NYU graduate student, accused his school adviser, Avita Ronell, of sexually harassing him over a three-year period. He claimed that she referred to him in e-mails by names such as “my most adored one” and “sweet cuddly baby,” and kissed and touched him repeatedly and required him to lie in her bed, among other things. Ronell did not deny the behavior but denied the harassment and claimed that the behavior had been welcomed.

While that case doesn’t arise in the employment context, it provides an example of one reason employers should implement zero-tolerance policies when it comes to sexual banter in the workplace. What may have been considered welcome sexual commentary or behavior may have actually have been unwelcome and could subject them to a lawsuit.

False Accusations of Sexual Harassment

Why would one make a false accusation of having been sexually harassed at work? It cannot be disputed that some people fabricate claims of sexual harassment in the workplace because alleged victims have admitted to making up allegations against co-workers or management for many different reasons.

In some cases, sexual-harassment claims may be made to ward off terminations because employers are fearful of being accused of illegal retaliation if they take (warranted) disciplinary action after an employee has come forward with a sexual-harassment complaint. Disgruntled employees have been found to have made false accusations against someone they believe is responsible for an adverse personnel action the employee received, such as a demotion or termination from employment.

Employees have admitted that they have intentionally made sexual-harassment complaints against co-workers for vindictive reasons or for attention.

Unfortunately, it is often difficult to determine whether specific allegations are true or false, as there usually are no witnesses or hard evidence. Because of this, businesses may overreact or react harshly without having all of the facts.

Nev Shulman, star of MTV’s Catfish, was accused of sexual assault. He denied the claims, but the show was suspended anyway. Upon a later investigation, the claims were deemed not credible, and the show was reinstated. A Sacred Heart University student falsely reported having been raped by two school football players and has since faced criminal charges. The leader of the New York City Ballet was accused of sexual harassment and retired. He was later cleared of any wrongdoing.

Collateral damage follows baseless accusations of sexual harassment. Valid harassment claims are devalued and may be looked upon skeptically. When it becomes known that an accusation was false, it raises the possibility in individual’s minds that the next allegation of a similar nature may also not be credible.

Being falsely accused of sexual harassment is also a downfall to the accused’s career. Prior to having their names cleared, alleged harassers may quit or be required to resign, and they sometimes remain under suspicion even after the complaint is found to have been fabricated. The fact that a sexual harassment lawsuit has been filed against a company may be covered in the media, but when, years later, it is dismissed by the court before it gets to the jury stage because the case is without factual support, that information often is not made available to the public — perhaps forever leaving a bad mark on the employer in the eyes of its customers as well as employees. u

Marylou Fabbo is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. Fabbo devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753; [email protected]

Law

Attention to Details Matters

By Timothy Netkovick, Esq.

As attorneys, we often hear comments like these: ‘we don’t need you to draft our handbook, we got one online,’ or ‘we got one from a third party.’

We also hear the same thing about employee trainings: ‘we don’t need an attorney to do our employee trainings; our HR department conducts our trainings,’ or ‘we’re having an outside contractor conduct the trainings.’

I could go on for hours talking about the importance of up-to-date employment trainings and making sure your employment policies are concise, to the point, and tailored to your company. But a recent case from Maine underscores this point better than I could.

By now you may have heard about the so-called ‘Oxford comma case,’ more formally known as O’Connor v. Oakhurst Dairy, which was filed in the U.S. District Court for the District of Maine. In the case, employees of Oakhurst Dairy filed suit against their employer alleging they were due unpaid overtime pay.

Timothy M. Netkovick

Timothy M. Netkovick

Oakhurst Dairy claimed that it did not have to pay overtime wages due to a qualifying exemption in the Maine overtime law. The entire case boiled down to the placement of a comma in the Maine overtime law. If Oakhurst Dairy was correct, it would incur no further expenses other than the time, expense, aggravation, and attorney’s fees incurred in defending the case. If the employees were correct, that meant that Oakhurst Dairy was in violation of the Maine overtime law, and could have had to pay the employees a substantial sum of money.

The case has reportedly settled for $5 million, an extremely hefty sum to pay based upon differing interpretations of the placement of a comma.

While the Oxford comma case dealt with the interpretation of a law, the lesson for employers is simple — attention to detail matters. In this age of cost cutting in HR departments and legal departments (both in-house counsel and the use of outside counsel), providing trainings for employees and having clear, concise employment policies can save your company immeasurably in the long run.

The Oxford comma case shows that even misplaced or missing punctuation could end up costing your company dearly. Trained legal counsel can provide comprehensive training that will help guide your employees, aid in defending your company in the event of litigation, and also review your handbook policies and give quality advice regarding updates that may be needed in the ever-changing world of employment law.

Holding off on trainings and handbook updates may save your company money in the short term; however, doing so invites the risk of unnecessary litigation based upon both naïve employees and outdated policies. Litigation can last for several years and can be a tremendous drain on your company, not only in terms of legal fees, but also in business disruption caused by the need to gather documents and comply with other discovery requests, including employee depositions.

A company’s managers are its first line of defense. Having regular trainings can help your managers identify potential issues and resolve them before the situation gets out of control. Likewise, having an annual review of your employee handbook can help ensure that all of your company’s policies are up to date and in compliance with applicable laws.

As the old saying goes, an ounce of prevention is worth a pound of cure.

Timothy M. Netkovick, an attorney at Royal, P.C., has more than 15 years of litigation experience, and has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288; [email protected]

Law

Firm Resolve

Managing Partner Kenneth Albano

Managing Partner Kenneth Albano

As Bacon Wilson approaches its 125th anniversary next year, it can look back on plenty of history and change — with perhaps the past couple of decades representing the most dramatic evolutions in law. Through it all, the practice has remained remarkably steady, boasting numerous long-time attorneys and a measured growth strategy that has led Bacon Wilson to its position as the region’s largest law firm — one with its focus squarely on the future.

Just before he sat down with BusinessWest, Kenneth Albano was looking through an old file at Bacon Wilson, dating from 1993. Two things struck him about the letterhead.

One was the number of lawyers — just 16, compared to 42 today. The other striking thing was how many of those 16 are still practicing at Bacon Wilson today.

“Every lawyer except a few is still here,” said the firm’s managing partner, noting that he’s been at Bacon Wilson for 31 years, while the other two partners who spoke with BusinessWest for this story, Hyman Darling (38 years) and Donna Wexler (a relatively brief 17 years), have also built quite a bit of history with the firm.

“It says a lot about the fabric of the firm, that people stay here as long as they do.”

It says a lot about the fabric of the firm, that people stay here as long as they do,” Albano went on. “We have lawyers like Mike Katz and Paul Rothschild, who have been here 40-plus years and are still working hard every day.

“When we interview for associates, they always bring that to the top of the discussion, because it’s important for people to feel stability,” he noted. “With Millennials these days, it’s tough to get a straight answer as far as commitment, but we try to impress upon them that this can be your work family and your home for years to come. That’s what we bring to the table, and it’s been successful over the years.”

That stability has no doubt contributed to the firm’s growth, but so have a series of strategic mergers, which have led to Bacon Wilson establishing offices over the years in Northampton, Amherst, Westfield, and Hadley in addition to Springfield, where it has maintained a State Street address for almost 125 years.

“These are not offices where you call a phone number get a receptionist covering all the shared space,” Albano said. “These are standalone facilities with partners, associates, paralegals, and receptionists.”

At a time when it’s more difficult to find young talent (more on that later), the key has been smart expansion — not hiring just to hire or merging just to merge, he added. And those mergers have essentially been achieved through relationship building.

“We don’t buy practices,” he said. “So if you were looking to retire, you wouldn’t come to me and say, ‘I want X amount of dollars for my practice,’ because it’s a lose-lose situation for us. The win-win is, ‘sure, let’s talk, come be part of the Bacon Wilson family for three or four years, allow your clients to meld into our practice groups, and allow our lawyers to get to know your clients, and have a slow exit strategy.’ That’s how it’s worked in the past.”

Last year, Massachusetts Lawyers Weekly ranked Bacon Wilson as the 42nd-largest law firm in Massachusetts, but it’s the largest in Western Mass. — and well-positioned, Albano said, to continue to tackle what has become an increasingly complex and demanding legal landscape.

Time to Change

Long-timers like Albano, Darling, and Wexler have seen their share of changes in the legal world, too.

“When I first came here, if somebody came in for an estate plan, it was a will,” said Darling, who has built a reputation as a premier authority in the region on estate planning. “Now, it’s a will, health proxy, power of attorney, homestead declaration, maybe a trust … we talk about things like end-of-life decisions and organ donors and cremation and anatomical gifts. Pet trusts, gun trusts. It’s evolved into things that none of us ever learned in law school.”

Donna Wexler and Hyman Darling

Donna Wexler and Hyman Darling have seen plenty of changes in their fields of real estate and elder care/estate planning, respectively.

That’s why he has gone from working with one shared secretary to leading a team of six estate-planning attorneys and 20 total staff, with responsibilities ranging from asset-protection planning and pet trusts to having his picture taken with a big check for the Massachusetts Lottery wall in Braintree when a winner decides to establish an anonymous trust.

“There’s special-needs planning that we didn’t do before,” he went on. “There was nothing called elder law when I came to the practice. And 10,000 people turn 60 every day — and we have a lot of them in Massachusetts.”

Technology has changed the way lawyers work as well, said Wexler, who specializes in real estate.

“When I started practicing, I would fill out forms in pen and the secretary would type them, then there were years when I typed them, then it evolved into the banks actually preparing them and e-mailing them. Now we’ve got cloud-based things,” she said, adding that increased government regulation, especially since the financial crisis in 2008, has led to new complexities to her work. “There’s more we need to know about what the regulations are and what we’re required to do.”

Then there’s the culture of constant communication — and the resulting rise in client expectations — that has shrunk timelines on projects in industries like construction, printing, and, yes, law. Albano recalled the days when he’d come back from lunch and hope to see a phone message on one those classic pink slips of paper waiting for him. Now, he returns to a couple dozen e-mails.

“There’s an expectation of immediate response, and it’s changed the pace of the practice tremendously,” Wexler said, to which Darling noted he’s had clients call asking to set up a will before they flew off on vacation. Tomorrow.

They all recognize, however, that those constant e-mails and calls represent something important: individuals who need help, and often at a difficult time in their life.

“I always tell people, if I get a call from someone I haven’t heard from in a while, they’re not calling to say, ‘how are you doing? Have a great day.’ They have a problem.”

“There’s an expectation of immediate response, and it’s changed the pace of the practice tremendously.”

As all three mentioned, those problems continue to evolve. Cannabis law in Massachusetts, for example, has unfurled an entire new world of issues that cross several practice areas. For instance, Albano represents a few municipalities seeking guidance on what kinds of restrictions they can place on marijuana businesses. Wexler has handled transactions for clients looking to purchase land for growing, while some of Darling’s clients have sought to invest in these facilities.

In fact, the sheer scope of Bacon Wilson’s expertise is a plus for clients, Albano said. “We don’t do high-end criminal work or security work. Everything else, we do. And we cross-sell each other to clients. The clients appreciate that.”

Wexler added that the attorneys tend to collaborate for the sake of clients, whether it’s seeking advice from a different department on a case or hearing a potential client’s request for services and recommending colleague with more specialized knowledge.

“When you hire Ken, you’re not just hiring him, you’re hiring 40 lawyers,” Darling said. “The firm is your lawyer. They’re all available.”

Well Suited

Albano said the three-legged stool holding up Bacon Wilson has always been litigation, real estate, and estate planning. “That’s always been with us. But when this firm was founded back in 1895, it was a commercial law firm, and we’ve maintained that commercial group from day one, representing so many Western Mass. banks. We survived all the mergers and all the new banks coming in. The key to our success is maintaining relationships. Relationships are so big in this market.”

So is staying educated and up to date on quickly evolving trends in a practice area.

For instance, even before the #metoo movement — but certainly in the wake of it — employment lawyers have seen a steep rise in harassment and discrimination cases, as well as thorny handbook issues to help clients sort out.

“We’ve had specialists come in here and give seminars on preventing those types of harassment claims,” he noted. “You have to stay up on it.”

In turn, Bacon Wilson’s attorneys are active in the community, writing articles (for publications such as BusinessWest) and conducting workshops on hot issues. That’s in addition to the many ways the firm’s lawyers support their favorite charities and volunteer on their boards.

“Everybody gives back,” Darling said. “We don’t have to ask them; they just realize it’s important.”

Wexler agreed. “When we bring new associates in, the ones I work with seem very excited. And most of them come in with a passion for one organization or another, and we encourage them to take the time to give to that organization. It’s catchy. And it’s exciting to be a part of that.”

That said, it can be a challenge to attract young talent to the firm in a competitive marketplace in an era when law-school enrollment is significantly down from where it was 20 years ago. But Bacon Wilson has developed a relationship with Western New England University School of Law, interviewing students for clerk positions and often hiring them full-time later on, while building similar pipelines with institutions like Bay Path University to find paralegals.

“The tough part is getting young lawyers to stay in Springfield, as opposed to Boston or New York,” Darling said. “But we’ve done a good job. The quality of life here is pretty good. They can make a living and have a house they can afford and be able to pay their school debt.”

Not to mention working at a firm that continues to rack up accolades each year — including “Best Law Firm” in the Valley Advocate Readers’ Poll every year since 2012, “Best Law Firm” in the Daily Hampshire Gazette Readers’ Choice poll every year since 2014, plenty of attorney citations in Best Lawyers in America, the 2018 Firm Impact Award from the Hampden County Bar Assoc. for pro bono work, and a raft of others — and, as Albano noted, a stable, venerable firm to call home for many years to come.

“We’ve grown in bits and pieces over the years,” said Albano, who would like to see the firm grow to more than 50 attorneys during his tenure. “It’s been a great run so far. We’ve had some hiccups along the way, as with any business, especially when the economy was bad. But the reason we’ve grown as well as we have is because the people who work here really enjoy coming to work.”

Joe Bednar can be reached at [email protected]

Law

Knowledge Is Power

By John S. Gannon, Esq.

John S. Gannon, Esq

John S. Gannon, Esq

As an employment attorney, my job is to help businesses comply with the myriad laws that govern the workplace. No business is immune from workplace problems, and for those who violate employment laws, hefty penalties and damages await.

In order to help businesses avoid these problems, I’ve put together a list five costly employment-practice mistakes we frequently come across, with tips for correction and prevention.

Misclassifying Employees as Exempt from Overtime

Employers are sometimes shocked when they learn that salaried employees might be entitled to overtime when they work more than 40 hours in a week. The shock quickly goes to panic when they are told the salaried non-exempt employee is due several years’ worth of unpaid overtime, and that this unpaid wage amount can be doubled and potentially tripled under state and federal wage laws.

Misclassifying employees as exempt is a common mistake. This is because many employers associate paying a salary basis with no overtime obligation. True, paying employees a salary is typically one part of the test, but there are several other factors to consider during your exemption analysis.

We recommend you work with legal counsel to audit your exempt employee classifications. While you’re at it, consider doing a pay-equity audit to help protect against equal-pay discrimination claims.

Leave-law Headaches

When an employee is out for a medical condition, there are a series of complex and challenging employment laws that need to be navigated. This includes the Americans with Disabilities Act (ADA), the federal Family Medical Leave Act (FMLA), workers’ compensation laws, the Massachusetts Earned Sick Time law, and, coming soon, the Massachusetts Paid Family and Medical Leave law.

These laws have a plethora of traps for the unwary. What do you do when an employee continually calls out in connection with a medical condition? Do your supervisors know what to do if an employee requests several weeks off for surgery? The answers are not always easy, so make sure you know how these laws interact with one another.

Outdated Handbooks and Employment Agreements

Recently, I was reviewing whether a non-compete agreement would be enforceable in court. It turned out the agreement was signed roughly 10 years ago. To make things worse, the last update to the document was pre-Y2K.

The point here is that employment agreements and handbooks should not grow cobwebs. Changes in the law require changes to these documents. For example, Massachusetts enacted significant legislation in October 2018 changing the entire landscape of non-compete law in the Commonwealth. The state also saw the Pregnant Workers Fairness Act take shape in April last year. This new law included a notice requirement that meant an update to the employee handbook was in order.

Having your employment agreements and handbook regularly reviewed by counsel is a good way to stay on top of the constant changes in the employment law world. Remember, if you have not updated these employment documents in a few years, they are probably doing more harm than good.

Failure to Eradicate Harassment at Work

Last year was dominated by headlines spotlighting sexual-harassment scandals and cover-ups. But was the #metoo movement just another fad? The answer unequivocally is ‘no.’

To prove it, late last year the Equal Employment Opportunity Commission (EEOC) published data on workplace harassment claims that revealed a 50% increase in sexual-harassment lawsuits filed by the EEOC when compared to 2017 numbers. The EEOC also recovered nearly $70 million for the victims of sexual harassment in 2018, up from $47.5 million in 2017.

You’ve heard it before, but it bears repeating: businesses need to take proactive steps to create a workplace free from harassment. This involves updating anti-harassment policies and practices, adequately training your workforce, and promptly investigating all harassment complaints.

Lack of Supervisor Training

Most of the mistakes listed above are fertile ground for supervisor slip-ups. Whether they fail to report harassment (or, worse yet, engage in harassing behavior themselves) or discipline an employee who has taken too much sick time, supervisors who don’t know any better are in a position to do considerable damage to your business.

Proper training can alleviate this risk. Plus, a supervisor who spots an issue before it spirals out of control could prevent a costly lawsuit from being filed.

John S. Gannon is an attorney 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

Navigating Change

Amy Royal

Amy Royal

Amy Royal was taking a calculated risk when she left a stable job in employment law to start her own firm at the start of the Great Recession. But those calculations proved correct, and as her firm marks 10 years in business, she reflects on how her team’s services to clients continue to go beyond legal aid into a business relationship that helps companies — and the local economy — grow.

Many employers, truth be told, don’t think the grand bargain is much of a bargain. And they have questions about how it will affect them.

“Massachusetts tends to be ripe with emerging employment issues, like the grand bargain,” said Amy Royal, referring to this past summer’s state legislation that raised the minimum wage and broadened family leave, among other worker-friendly measures.

“But that’s one of the things I enjoy — the education piece we offer to clients: ‘this is what the grand bargain looks like, and we’re going to help you plan for it. This may not seem so grand, but we’re here to help you navigate this and figure out how you’re going to work within these parameters now.’”

Royal and her team have helped plenty of employers over the 10 years since she opened her law firm, Royal, P.C., in Northampton. Since launching the business as a boutique, woman-owned, management-side-only firm in 2008, that framework hasn’t changed, but the way the team serves those clients has certainly evolved.

“Now that we’re 10 years old, we’re thinking about rebranding, thinking about growth, and how we can provide additional opportunities here at the law firm,” she told BusinessWest. “Is it continuing to market in this very discrete area or expanding beyond that?

“We obviously only represent companies,” she went on, “but in our relationships with clients, we’re being asked to handle other things for those companies apart from employment law.”

“Now that we’re 10 years old, we’re thinking about rebranding, thinking about growth, and how we can provide additional opportunities here at the law firm.”

For example, the firm represents a large, publicly traded company that recently launched a new brand and wanted help creating contracts with vendors and negotiating with other companies it was collaborating with. Another client is a large human-service agency that called on Royal to interpret regulations of its funding sources and help negotiate contracts related to those sources.

“So we’ve organically expanded over time,” she said. “We still represent companies, but we do more for them, because we’re seen as a true advisor to them. So now, at 10 years, I’ve looked at the firm and asked my team, ‘is this something we should now be marketing?’ We still are a boutique firm representing companies, but what we’re going to be rolling out in the coming year is a rebranding initiative — one that’s focused on telling the story of what we are doing here that’s more than just employment law.”

Tough Timing

Royal began her law career working for the Commonwealth, in the Office of the Attorney General, handling civil-litigation matters, which included some employment claims. From there, she went into private practice at a regional law firm that solely handled management-side labor and employment law.

Amy Royal (center) with some of her team members

Amy Royal (center) with some of her team members, including (top) attorneys Daniel Carr and Timothy Netkovick, and (bottom) Heather Loges, practice manager and COO; and Merricka Breuer, legal assistant.

With that background, Royal sensed a desire to start her own company — which turned out to be a risky proposition, opening up into the teeth of the Great Recession.

“I obviously took a huge leap; I was at an established law firm and had been there for a long time. I had an established job, with a very young family at the time. And it was 2008, when, obviously, the economy wasn’t in good shape.”

So she understood if people thought striking out on her own might not have been the safest move.

“But given how long I’d been practicing law at the time, it felt to me like it was now or never,” she explained. “I really wanted to see if I could make a go at it, and I felt like I had the tools to develop a business. Oftentimes, law firms aren’t thought of as businesses; they’re thought of as practitioners, but not businesses. But I knew I could create a law firm in a strategic way and develop it and make a company out of it.”

At first, Royal’s wasn’t the only name on the letterhead. At first, the firm was called Royal & Munnings, with Amy Griffin Munnings as a partner, helping Royal get the firm off the ground. Later, after Munnings moved to Washington, D.C., the firm was known as Royal & Klimczuk, for then-partner Kimberly Klimczuk, who subsequently departed and currently practices employment law at Skoler Abbott in Springfield.

Currently, Royal employs four other attorneys full-time, in addition to two full-time paralegals and other support staff.

“I really wanted to take the model of a specialized, boutique practice and build upon it with a strong client base of corporations throughout our Valley and beyond — because we do represent companies in Rhode Island, Connecticut, and Vermont, as well as national corporations,” she explained.

“I believed it didn’t so much matter where we were located because we go out to our clients,” she added. “So I chose Northampton because I have really enjoyed the community — I went to Smith College, and I thought I could have an impact here and throughout the region and beyond in creating employment opportunities for people.”

That is, in fact, how Royal sees her work: by helping clients navigate through often-tricky employment issues, she’s helping those companies grow and create even more jobs in the Valley.

And while many of those thorny issues have remained consistent, they’ve ebbed and flowed in some ways, too.

“Given the employment-law landscape, there becomes hot areas at certain times, and we become sort of subspecialists in those areas,” she explained. For example, early on, she saw a lot of activity around affirmative action and dealing with the Office of Federal Contract Compliance Programs. Wage-and-hour conflicts have become increasingly prominent in recent years as well, and Royal, P.C. has handled client defense on those issues, as well as general guidance on how to avoid claims altogether.

“I do feel like we can advise clients and help them flourish,” she went on. “I’m so committed to this region, and I know there’s been a lot of work done over the last decade since our birth as a law firm, in the business community and the community at large, on how to make the Pioneer Valley an even more attractive place for people to live and earn a living and feel like they have opportunities here — that they don’t have to be in Boston to have those opportunities.”

Risk Managers

As she continues to grow the firm, Royal says it’s always a challenge to find talented attorneys who are skilled in labor and employment law and also understand her vision for the company.

“Practitioners often think, ‘here’s what the law says.’ We need to be telling clients, ‘OK, here’s what the law says you can do, but this is also a business decision, and everything is about weighing and measuring risk and deciding whether you can bear that risk or not, whether that’s a good practice or not.’”

“Given how long I’d been practicing law at the time, it felt to me like it was now or never. I really wanted to see if I could make a go at it, and I felt like I had the tools to develop a business.”

And challenges to employers are constantly evolving, whether it’s legislation like the grand bargain or issues that arise from new technology. She recalls what a hot topic portable devices, like smartphones and tablets, were in the early part of this decade.

“Now it’s like everyone has one,” she said, “but at that time, it was a huge issue for employers, who were asking, ‘where is our data going? If you’re a portable employee, what’s happening when you leave with that phone?’”

The economy can affect the flow of work as well. In the early days of the firm, as the recession set in, litigation crowded out preventive work such as compliance matters, employee handbooks, and supervisory training. In recent years, she’s seen an uptick in requests for those services again.

Sometimes, employers will call with advice before taking disciplinary action with an employee — just another way Royal aims to be a partner to clients. The firm also conducts regular seminars and roundtables, both for clients and the public, on matters — such as legislative changes and policy wrinkles — that affect all employers.

In some ways, that’s an extension of the way Royal wants the firm to be a presence in the broader community. Another is the team’s involvement with local nonprofits.

“I’ve tried to set that tone,” she said, “but it’s never been met with resistance — it’s always been met with ‘oh, yes, maybe we can do this, maybe we can do that.’ It’s been important to me to have a team that really wants to support their community.”

Meanwhile, that team has been focused, perhaps more than ever before, on what exactly Royal, P.C. is — where the firm has been in the past, what it is now, and what it wants to be going forward.

“We have a strong, viable book of labor and employment business, and what I’ve communicated to my team is, ‘we can keep going for the next 10 years, 20 years, on that book, and achieve growth.’ Or we can look at our brand and say, ‘do we want to grow beyond that? Do we tell the story of the other services we’re able to provide, and create other employment opportunities for people in the Valley?’ There’s a consensus here that that’s really the direction we should be going in.”

Joseph Bednar can be reached at [email protected]

Law

Prepare for the Unexpected

Jack Ferriter says it’s never too early to talk to an attorney

Jack Ferriter says it’s never too early to talk to an attorney about a healthcare proxy and living will.

Medical decisions aren’t always cut and dry. The way Jack Ferriter sees it, why entrust them to just anyone?

“A healthcare proxy is someone who stands in your shoes to make medical decisions for you, but only if you’re unable to make those decisions,” said Ferriter, who practices business and estate law at Ferriter Law in Holyoke.

The term ‘healthcare proxy’ also refers to the document that specifies who will make those critical decisions for an individual if they can’t make them on their own — for instance, in a medical emergency that has them unconscious or otherwise incapacitated.

For instance, Ferriter explained, “if a surgeon says, ‘do you want this operation?’ and you can shake your head to say ‘yes’ or ‘no,’ the doctor will go with your answer. But if you’re unable to make that decision — or even if you’re unwilling, if you say, ‘I don’t know; please ask my wife, who’s my healthcare proxy’ — then the surgeon would ask your healthcare proxy whether you should have the operation.”

A 2017 study in the journal Health Affairs revealed that one-third of Americans have a healthcare proxy, which is far too low, say estate-planning attorneys and doctors.

“When somebody comes in here and they’re asking for an estate plan, we will always include a will, a power of attorney, and a healthcare proxy and a living will,” Ferriter told BusinessWest. “Everyone should have them. It’s not just for people 65 and older. Anybody could get hit by the proverbial bus and need somebody else to make medical decisions with a healthcare proxy, or financial decisions with power of attorney.”

In a recent blog post, Springfield-based law firm Bulkley Richardson noted that it examined whom its own clients had named as their healthcare proxies, and found that, not surprisingly, a spouse was most common, followed by an adult child.

“Where a child was named, gender, birth order, and whether the child was the parent’s ‘unofficial favorite’ often did not seem to matter,” the firm noted. “Geographic proximity to the parent signing the document, emotional maturity, and perceived alignment with the parent’s preferences seemed to determine who was named.  If a child was in a medicine-related profession, that was often a major factor in the selection.”

“Anybody could get hit by the proverbial bus and need somebody else to make medical decisions with a healthcare proxy, or financial decisions with power of attorney.”

Ferriter recommends that clients name two people — a primary and secondary healthcare proxy — because the designation comes into play at urgent and unexpected times.

“If it’s 2 in the morning and the surgeon is trying to reach your healthcare proxy and doesn’t have the right number, or has a home number that’s going into a machine and needs an answer, or if somebody’s out of the country, it’s always good to have a secondary healthcare proxy so the surgeon can call the secondary one and say, ‘should we do this operation or not?’”

He recommends that cell-phone numbers are used, not landlines, but even then, ringers are sometimes turned off, or phones lose their charge, and no one wants the wrong person to make life-and-death decisions because of a dead battery.

Wishes Granted

In addition to the healthcare proxy, Ferriter recommends clients prepare a living will as well.

“You go down the list and check off or initial each line — you do not wish to be resuscitated, you do not wish to be artificially fed, you do not wish to be artificially kept alive,” he noted.

However, the living will in itself is not a binding legal document in Massachusetts (however, it is in Connecticut and some other states). So why prepare one? Perhaps its greatest value comes in the guidance it gives one’s doctors and healthcare proxy.

“I find it’s a good guide for your conversation with your healthcare proxy and with your family. You go down the list and say, ‘here’s what I want, here’s what I don’t want, and even though this is not legally binding in Massachusetts, I just want you to know so that, if you are making the decisions for me, you’ll have my answers ahead of time.’”

And for those who worry about the finality of the living will, Ferriter pointed out that language on the form states that the living will is to be followed only if there’s no reasonable chance of recovery.

“I know these questions are kind of scary. If you’re 55 years old and it says ‘do not resuscitate,’ you’re afraid that if you walk out my front door and have a heart attack, they’re not going to resuscitate you. But they would, because it says ‘only if there’s no reasonable chance of recovery.’ So if you’re 105 years old in a nursing home and your heart stops, they’re probably not going to paddle you. But if you’re 55 years old and you have a heart attack outside a lawyer’s office, I’m sure they would absolutely paddle you, and wouldn’t even ask anybody.”

A third document related to critical-care decisions that has emerged in recent years is the MOLST document, which stands for medical orders for life-sustaining treatment. And, unlike a living will, MOLST is absolutely a binding document.

“MOLST differs from the most common type of palliative-care planning — advanced directive orders, which usually include a living will or other expression of wishes. Those orders generally designate a surrogate decision maker, or healthcare proxy, to act on behalf of an incapacitated patient,” the Massachusetts Medical Society (MMS) notes.

“Living-will instructions — when presented by a healthcare proxy — are generally recognized as evidence of patient preferences, but are not recognized by Massachusetts law. In contrast, a completed MOLST form travels with the patient at all times, may be faxed or reproduced, and is an official part of a patient’s medical record.”

Ferriter noted that the MOLST isn’t technically a legal document, but a medical one.

“We don’t do them here in the office because the medical orders are done with a physician or a medical professional. Those are your orders, and those are binding in Massachusetts because you’ve had advice from a physician.”

But MOLST is not typically a document prepared absent an impending, planned event, like, say, open-heart surgery.

“Typically, they happen if you are going into the hospital for some kind of serious procedure. My experience is that physicians don’t offer to do medical orders with their patients, but if you ask for them, they’ll do them, and if you’re going in for a serious operation, they may bring it up at that point,” Ferriter said. “You can’t sit at home and fill out medical orders by yourself because you’re not making an informed decision. And it’s usually your primary-care doctor who does it — someone who knows you well — even though the surgeon is doing the surgery.”

MOLST covers resuscitation efforts, breathing tubes and ventilation, artificial nutrition and hydration, and dialysis, the MMS notes.

“MOLST has priority over the healthcare proxy, because it’s your actual wish, as if you had shaken your head ‘yes’ or ‘no’ at the time of the actual procedure,” Ferriter said.

Don’t Put It Off

While many people will never have need of a MOLST, he went on, it’s hard to argue that they won’t need the other documents at some point — and the sooner, the better.

“We tell clients that as soon as you get married or buy a house, have a child, or even graduate from college, it’s not that expensive to do a will, power of attorney, healthcare proxy, and living will,” he noted. “For a single person, it’s less than $300, and for a couple, it’s less than $500.

“A lot of times, older couples will come in upon retirement,” he went on. “Most of the time, they had a previous version of these documents, but things have changed. They had it done in their 30s and 40s, now they’re in their 60s, so we update those.”

Individuals or couples with children will also want to include guardianship documents and perhaps establish a trust in case neither is around to care for them.

“When I have people in their 30s and 40s come in, it’s usually because one of the parents has passed away, or maybe a grandparent has passed away. There’s usually something that pushes them to come in,” Ferriter said, adding that, in truth, it shouldn’t take a big life change to start thinking about who will make important decisions in case crisis strikes.

When folks come in to get their estate plan done, I tell them, ‘you should sit around a dining room table with your family and have a frank coversation about what you want. It can be a difficult conversation, but it’s always better to have it at the dining-room table than around a hospital bed.’”

Joseph Bednar can be reached at [email protected]

Law

Hazy Picture

Just as the business and legal communities in Massachusetts were learning to deal with medical marijuana, voters kicked the door wide open in 2016 by legalizing the drug for recreational use, too. That created a tangle of issues to work out, from how to handle employees that use the drug outside work to launching a cannabis business in the face of federal law that calls the practice illegal. Some of those issues have been sorted out, but others still hang in the air, like so much smoke.

When it comes to the relationship between employers and medical marijuana, few names are as important as Cristina Barbuto.

She’s the woman who filed suit against her employer, Advantage Sales and Marketing, three years ago after being fired — after her first day on the job — for using marijuana outside of work. She was required to take a drug test, and told the employer before the test that she would fail, because she used marijuana at home to help manage her Crohn’s disease.

A supervisor said that wouldn’t be a problem, but Barbuto was dismissed from the job the next day when the drug test came back positive for marijuana. The reason? While medical marijuana was legal in Massachusetts at the time, it was still illegal under federal law.

Her complaint eventually made its way to the state Supreme Judicial Court, which affirmed her right to use medical marijuana outside work on the grounds that forbidding her — as long as she wasn’t impaired on the job — constituted disability discrimination.

“If somebody qualifies as a disabled person and they’re seeking an accommodation, the employer has an obligation to engage in a process with that person and provide a reasonable accommodation that allows them to do their job, unless they can show the accommodation would cause them an undue hardship,” said Pat Rapinchuk, a partner with Robinson Donovan in Springfield. She noted that a subsequent suit by a man denied access to a homeless shelter for his medical-marijuana use came down on the plaintiff’s side as well, on the same grounds as the Barbuto suit.

“But then comes the recreational piece,” she said. “And that’s completely different.”

Indeed, with recreational use of marijuana having been legal in Massachusetts for a much shorter time, case law has not established similar rights for such users, she noted.

“Right now, I would say the recreational marijuana user does not have the protections a medical user does,” Rapinchuk said. “You start with just the basic premise of no substances in the workplace — no alcohol, no drugs. That part’s easy. But what if I used it last week on my own time and my employer drug tests for whatever reason, and I test positive, and I don’t have a medical reason for it? Can the employer either decline to hire me or even terminate me? And I think the short answer right now is ‘yes.’”

In one case that has garnered some media attention, Bernadette Coughlin, a food service supervisor for Sodexo, was fired after being injured in a fall at work. The company required a drug test following an injury, and she tested positive for marijuana, which she admitted she used recreationally at home a few days before. She was fired, and is fighting the termination in court — but might have an uphill battle, Rapinchuk said, because she doesn’t have the disability claim that Barbuto did.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

“You’d have to find another route to challenge that,” she added, noting that one possibility is challenging the drug test itself as an invasion of privacy. “Some courts have found such a test to be invasive, and a violation of an employee’s privacy. If they found out otherwise, like through social media, that might pass muster.”

If all this sounds amorphous, it is, Rapinchuk said, and is a field of employment law that is definitely evolving. Drug tests can detect THC, the psychoactive agent in marijuana, for days, even weeks after someone smokes or ingests it, and no tests exist to gauge whether the user is currently impaired. That leaves employers with plenty of hard questions about how they want to handle this new frontier.

Growing Concerns

But that’s not the only area of the law currently evolving in the face of legalized marijuana.

Perhaps the most significant wrinkle in marijuana law, Scott Foster says, is that it’s legal in the state but illegal federally. That drives many of the odd situations people find themselves in when they start a marijuana business, and it’s why Bulkley Richardson, where Foster works as a partner, recently launched a dedicated cannabis practice.

As one example, a marijuana business cannot use most banks.

“It’s considered to be money laundering on a federal level to run marijuana money through the banking system,” he explained. “You can’t use an ATM, you can’t use a credit card, and you can’t take the proceeds from the sale of marijuana and deposit it at a bank if they know it’s marijuana funds.”

There are two exceptions: Centurion Bank and Gardner Federal Credit Union. “We literally have marijuana clients driving $50,000 to $100,000 in cash to Boston in armored cars to deposit it at [Centurion],” Foster said, adding that the bank’s fees for the service are astronomical. “The bank is basically taking a business risk. I don’t know if it’s a good risk or bad risk, but no other big banks are taking the chance because the penalties would be devastating to them. Centurion is willing to take the chance.”

Meanwhile, people buying real estate as part of a new business typically finance 60% to 80% of the cost, he noted, but banks can’t lend for this purpose any more than they can take deposits.

“So what you end up with is a lot of very wealthy people playing in this space because you can’t finance it. You’ve got millions and millions of dollars being poured into these ventures that are growing, and nobody hears about it because it’s all private financing. That’s another area where it looks like a normal business until you ask, ‘where’s the money coming from?’”

Then there’s intellectual-property law. Most new businesses federally register their trademarks, but that’s not available for any branding involving marijuana products. “You can come up with this great brand name, this great logo, and you can’t protect it federally,” Foster said. “So now we’re going back to the state system, which does exist in Massachusetts. There is a way to protect trademarks at the state level that, until the marijuana business, nobody had done for 100 years.”

As he and Kathy Bernardo, another Bulkley partner on the cannabis team, spoke with BusinessWest, it became clear why the new practice group includes lawyers that specialize in myriad disciplines.

The disconnect between state and federal law shows up in taxation as well. Foster brought up a quirky section of the tax code that came about after the IRS went after a cocaine dealer in the Midwest for tax evasion, so the dealer filed a tax return that wrote off expenses like security and armored cars. The IRS balked, but a tax court sided with the man.

Pat Rapinchuk says some employers might avoid drug testing for marijuana

Pat Rapinchuk says some employers might avoid drug testing for marijuana as not to rule out some strong potential employees.

“Congress later added section 280E to the tax code, which essentially says if your business is in the growing, manufacture, or distribution of a federally controlled substance, you’re not allowed to take normal business deductions,” Foster explained, and then broke down an example of how that may affect a cannabis-related enterprise.

Say a business makes $100,000 and, after spending $40,000 on product, $20,000 on employees, and $10,000 on rent, claims a profit of $30,000. The owner then pays taxes on that figure; if he owes, say, 40%, he makes a profit of $18,000. But if he’s not allowed to write off expenses, suddenly he’s paying 40% on a much larger chunk of that $100,000 — and taking home much less in profit.

“The effective tax rate is two to three times the size of a normal business. And even though it’s against the law federally, you still have to pay taxes,” Foster noted. “It’s another trap for the unwary.”

Joint Enterprises

From a real-estate point a view, issues like zoning laws, special permitting laws, and host-agreement laws also come into play, Bernardo said.

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

That depends largely on how the vote went in that particular community when the ballot question legalizing recreational pot in Massachusetts passed last November. In many Western Mass. communities where the vote was in favor, town officials have been busy putting together zoning bylaws for a marijuana district.

Kathy Bernardo

Kathy Bernardo

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

“The people of town agreed that’s going to be there, and they’ve discussed how and where,” she explained. “A lot of towns put a moratorium on it — which was fine, they were allowed to do that, but they were only allowed to do it for a year, and now they have to come to a determination whether or not they’re actually going to have that zoning district in their municipality. But that is all steered by what the vote was in their town.”

If the town’s voters favored legalizing recreational marijuana, Foster added, it puts them in a different approval process locally than if voters were against it as a group.

“If they were against it, the city council or select board has no authority unless and until they do another ballot initiative, another referendum at the town level, to approve it,” he explained. “I don’t think anybody’s really looking, from a business point of view, to go into those towns. It’s just too much of a hurdle.”

Once permitting and zoning procedures are established, business owners have to work with the town on compliance issues, Bernardo said, “and there are a lot of intricacies that you don’t usually have with a lot of other businesses. With this, it’s completely different.”

Bulkley Richardson’s cannabis group has represented outfits ranging from farmers looking to cultivate the plant to people looking to profit on the retail end, she noted, and the cultivation aspect is one that has flown under the radar, yet is important to this region.

“A lot of the things you see in the news are about the pot shops,” Foster said. “What’s not getting picked up as much is the fact that, in order to sell something, you have to first grow it, and it’s a lot cheaper to grow things in Western Mass. than it is in Eastern Mass., in terms of the cost of the land.”

The next step is the extraction and production process, he went on, and that’s an entirely different type of business with its own nuances. “It’s not just selling the leaves, it’s extracting the THC and then putting it in something — oil, an edible, a cream, or something else. Then those products are sold. So you’ve got farming, you’ve got manufacturing, and you’ve got retail. And the farming and the manufacturing are actually happening more around here.”

Foster said his firm launched the cannabis practice because the attorneys were already working with clients in the area on these various enterprises.

“We tell people, ‘here are the ways that a marijuana business is 90% exactly like any other business, and here is the 10% where it’s just wacky different, and these are the things you have to think about.’ But it’s still real estate. It’s raising money. It’s hiring people. It’s all the regular laws which you otherwise have to comply with.”

What is certain, Bernardo added, is that marijuana is now a fast-growing (no pun intended) part of the Massachusetts landscape, and that’s not going to change any time soon.

“It’s here,” she said, “and we have to learn how to deal with it rationally, because people are getting into these businesses, and there are so many balls up in the air when they get a business running.”

Smoke Signals

But while those cannabis-related businesses continue to pop up, employers at … well, pretty much every other type of company must grapple with their employees’ use of the drug outside the workplace.

“There are no tests to determine if someone is impaired by marijuana. There’s no sanctioned way to measure the amount of THC in someone’s system,” Foster said, adding that one reason is that federal grants — here’s that separation of state and federal law again — are not available to research these tests.

“You have a whole system that works on the alcohol side that makes sense — the tests are developed, and the laws are passed that go to those tests,” he said. “None of that exists yet on the marijuana side. The research is happening, but it’s happening with private money, which means it’s subject to more influence and bias.”

Bernardo said a lot of companies that used to test for marijuana are deciding not to do so going forward, due to the uncertainty. “They’ve just eliminated it completely, unless you’re a driver or it’s a safety issue. They don’t even want to deal with it.”

That makes sense in a job market with historically low unemployment, Rapinchuk said, when aggressively testing for THC might make it tougher to compete for talent.

“Employers are trying to hire a good workforce, and they’re going to be ruling out an awful lot of potential employees if they’re going to take that position, so it is possible some employers will decide not to test for that,” she told BusinessWest.

No matter what their stance, she added, it’s probably wise for employers to review their drug-testing policy to make sure it’s clear and consistent, and doesn’t need to be modified in light of the change in the law.

Medical marijuana remains an easier field to navigate than recreational use, she stressed, citing as a recent example a young man who had a medical marijuana card and applied for a position at a local company.

“They told him, ‘we drug test everybody, not just health or safety positions,’ and he disclosed his use to the employer through the testing agency and brought his card. Sure enough, he tested positive, and there was questioning — how often he used it, who’s his doctor, what’s the prescription — but once all those questions were answered, they hired him. So they followed the advice of the Barbuto court in that case.”

Whether dealing with marijuana use by employees or actually launching a cannabis business, Foster said, this is definitely new territory for lawyers, thanks to that gaping disconnect between state and federal law.

“As a licensed group, one of our rules is that can’t help your clients commit a crime,” he said. While the Massachusetts Ethics Commission passed a ruling that allows lawyers in the Bay State to engage in such activity because it’s permitted on a state level, he added, “you still have to tell clients they’re engaging in something that is illegal at a federal level. The nuances are deep and subtle.”

“And can cause a lot of trouble,” Bernardo quickly added.

Joseph Bednar can be reached at [email protected]