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Families Can Save Close to $100,000 Under New Rules

By Hyman G. Darling, Esq.


At long last, Massachusetts has passed a law increasing the estate-tax exemption. Under the prior law, if a person died with less than $1 million, there was no estate tax due. However, if they died with more than $1 million, the $1 million exemption basically disappeared, and taxes were due on all assets back to the first dollar. This includes assets such as real estate, stocks, bonds, retirement plans, life insurance, annuities, etc.

Under the new law, the exemption has increased to $2 million, but this is a true exemption. Therefore, if a person dies with less than $2 million, there is no estate tax due. If their estate is greater than $2 million, the tax will be calculated on all assets, but basically, the first $2 million is exempt from tax.

Hyman G. Darling

This does have the effect of taxing all assets at a bit higher rate, but the exemption of $2 million basically applies to a credit. The credit is $99,600, which would have been the tax on the first $2 million. In other words, if a person dies under the new law, and if the estate was greater than $2 million, the family basically saves $99,600, which would have been the tax on the first $2 million. The law is retroactive to any individual who dies on or after Jan. 1, 2023. Therefore, if you are reading this article, you have the benefit of the increased exemption amount.

Under the new law, there is also a provision that attempts to impose an estate tax on out-of-state property, which was not the case under the old law. The new law will allocate the tax and charge only a proportionate share of the estate tax as it applies to the Massachusetts property, but the out-of-state property is included, thus increasing the total of the taxable estate. This probably will be challenged by an individual who has a significant amount of out-of-state property, which would therefore increase their estate tax in Massachusetts. However, it may be some time before the litigation on this matter makes its way through the court system.

For a married couple, they each now have an exemption of $4 million. However, they must use the exemption, or it is otherwise lost. For instance, if one spouse dies, leaving all assets to the surviving spouse, there is no tax because the unlimited marital deduction allows a spouse to receive an unlimited amount of money from the deceased spouse. If this is the case, then the person who died did not use their $2 million exemption, and the assets are then in the surviving spouse’s estate. If that surviving spouse has greater than $2 million, there will be a tax, and only the exemption will be allowable on the second to die.

Therefore, the first spouse should consider establishing a trust with up to $2 million in assets. The trust fund will be available for the surviving spouse, and that spouse may receive income and principal at the discretion of the trustee. At the death of the second spouse, the funds remaining in this trust will pass to the children or other contingent beneficiaries without any estate tax, and the surviving spouse will still have their $2 million exemption available. Thus, they have sheltered $4 million of assets to pass to beneficiaries, which is a significant change over the prior law.

An alternative would be to have $2 million of assets left outright to the children on the death of the first spouse, but then the surviving spouse will not have availability of those assets to use during their lifetime. The use of the trust is more advisable since it is flexible in allowing the surviving spouse to have access to income and principal, but not have those assets taxed in their estate.

An additional benefit of utilization of a trust is that the funds may be held in the trust for the benefit of children until they attain desired ages when they may be more mature to receive their funds for distribution. The funds may also be distributed in intervals such as one-third at age 25, one-third at age 30, and one-third at age 35, with also giving the trustee discretion to utilize funds for the children for their health, maintenance, education, support, etc.

While the increase in the exemption has finally increased, it is still not as desirable as many other states that have either no estate tax or a significantly higher exemption. The federal exemption is currently $12.92 million for each person who dies as a U.S. citizen, but this amount is proposed to be reduced in 2026 to approximately half of this amount unless Congress extends the higher exemption amount.

In any event, this is a good time to review all estate -planning documents to be sure they are up to date, including a will, a healthcare proxy, a power of attorney, and any other estate-planning documents a person may have. Of course, use of the new tax credit should be considered to reduce or eliminate the tax.


Hyman Darling, a shareholder at Bacon Wilson and chair of the firm’s Estate Planning and Elder Law department, is recognized as the area’s preeminent estate planner, with extensive experience with all aspects of estate planning, trusts, tax law, probate and estates, guardianships, special-needs trusts and planning, elder law, and long-term care planning, and additional specialties including adoption and real estate; (413) 781-0560.


Employers, Take Note

By Amelia J. Holstrom, Esq.


The Massachusetts Paid Family and Medical Leave (PFML) law is a relatively new statute that employers have to comply with in the Commonwealth. Under that law, eligible employees can take up to 26 workweeks of job-protected leave each benefit year for various reasons, including leave for their own serious health conditions or the serious health condition of their family members; leave to bond with children after birth, adoption, or placement; and leave for certain military-based reasons.

During any PFML leave, an employee is paid a portion of their regular pay as a PFML benefit. While some Massachusetts employers have a private PFML plan, the majority provide PFML to their employees through the Commonwealth’s Department of Family and Medical Leave.

Recently, two very important changes were announced regarding the PFML law. As a result of those changes, employers need to take action in the coming weeks. Here is what you need to know.


The Contribution Rate Is Increasing

Employees (and employers at companies with 25 or more employees) fund the PFML program through contributions deducted from their wages. For employers who provide PFML through the Commonwealth, rather than a private program, the Department of Family and Medical Leave sets the contribution rates annually, and it recently announced that contribution rates will increase in 2024.

“Recently, two very important changes were announced regarding the PFML law. As a result of those changes, employers need to take action in the coming weeks.”

Beginning on Jan. 1, 2024, the PFML contribution rate for businesses with 25 or more employees is increasing from 0.63% of wages to 0.88%. Of the 0.88%, 0.18% applies to the family-leave portion of the law and may be paid for solely by the employee. The remaining 0.7% is applicable to the medical-leave portion of the law, of which 0.28% may be paid for by the employee, with the remaining 0.42% to be paid for by the employer.

Similarly, the PFML contribution rate for businesses with fewer than 25 employees is increasing from 0.318% to 0.46%. Employers with fewer than 25 employees may require the employee to pay the full 0.46% contribution, or they can pay a portion of the contribution at their option.

Individual contributions are still capped by the federal Social Security taxable maximum. In other words, PFML contributions are not paid by the employee or employer on any income over that maximum. For 2024, that maximum is $168,600.

The increase is not surprising given statistics recently released by the Department of Family and Medical Leave in its FY 2023 Report. The report, which covered July 1, 2022 through June 30, 2023, indicates that the department approved more than 143,000 applications for PFML in FY 2023, which was a 27.39% increase in approved applications over FY 2022. With more PFML claims receiving approval, the department is paying out more in benefits, which are funded by employer and employee contributions.


A New Notice Is Now Required

The change in the contribution rate means that employers need to issue a new PFML notice to employees. Under the law, employers are required to give employees a written notice, which includes information on the contribution rates, among other things, at the time of hire and 30 days in advance of any contribution-rate change.

The new contribution rates will be effective Jan. 1, 2024. As a result, employers must provide notice to their employees no later than Dec. 2, 2023. The Department of Family and Medical Leave issues a model notice for employers to use each year, which will be found on the department’s website once it is released.


‘Topping Off’ PFML Payments

Since its inception, the PFML statute prohibited an employee from using company-provided paid time, including but not limited to vacation, personal, and sick time (collectively, PTO) and receiving PFML benefits from the Department of Family and Medical Leave at the same time.

In other words, an employee who chose to use PTO during their PFML leave was not permitted to receive any payment from the state. Employees could not even supplement — frequently referred to as ‘topping off’ — their reduced-PFML benefit using PTO to receive 100% of their pay during their leave. This, however, has recently changed.

Employees who apply to the department for PFML benefits on or after Nov. 1, 2023 will be allowed to supplement their PFML benefits with accrued PTO provided by their employer at their option. This will enable an employee to receive their full pay while on PFML leave, if they choose to do to. It is important to note that employers cannot require an employee to use their company-provided paid time to top off.

Employers with private plans may need to make some changes, too. Prior to Nov. 1, 2023, employers with private plans could choose whether or not to permit employees to top off their reduced PFML benefit by utilizing company-provided PTO. There is no longer a choice. Beginning on Nov. 1, employees working for employers with private plans will also be permitted to utilized company-provided paid time off, at their option, to supplement their PFML benefit to receive their full pay while on leave.


What Should Employers Do Next?

Employers should review the Department of Family and Medical Leave website regularly for the new contribution-rate notices and send those out to employees no later than Dec. 2, 2023. Additionally, now that employees have the option to top off their PFML benefits with PTO offered by the employer, employers should review their PFML policies and other related documents to make any necessary changes in light of the new topping-off option.

Employers who have questions about the changes to the law or edits to their policies and related documents should work with their labor and employment counsel to address those questions.


Amelia Holstrom is a partner with the Springfield-based law firm Skoler, Abbott & Presser, P.C., with a practice that focuses on litigation avoidance, employment litigation, and labor law and relations; (413) 737-4753.

Law Special Coverage

Getting Their Message Across

Seth Stratton wasn’t belittling what he does. He was just stating what most would consider the obvious — “business law isn’t what you would call sexy.”


Indeed, when the state Supreme Judicial Court overturns a $3.5 million settlement awarded to a couple living next to a golf course after 651 stray golf balls hit their property, frightening their young child and forcing them to confine themselves indoors for fear of injury — which it did almost a year ago — that’s business law that tumbles into the ‘sexy’ category. (The case became front-page news in the Boston Globe and other large daily publications.)

Understanding this, and also understanding that his firm, East Longmeadow-based Fitzgerald Law, P.C., has a few golf courses in its portfolio of business clients and would like to add more, Stratton posted this item on LinkedIn:

“Interesting SJC decision worth noting in the context of golf course neighboring residential developments. In essence, the SJC overturned a $3.5 million verdict in favor of the neighboring homeowners on the basis that the jury needed to consider the reasonableness standard in connection with an easement for the ‘reasonable and efficient’ operation of a golf course. Always a good sign when courts emphasize reasonableness in trial decisions.”

He then attached a link to a Mass Lawyers Weekly article on the case.

While the post falls into the category of education, it can also be considered marketing and building brand awareness, said Stratton, adding that the item speaks to how the marketing and advertising of legal services, something first permitted 46 years ago, has certainly changed over that time, even over the past 10 years or so, and certainly since the days when the yellow pages, and especially the back page of the phone book, were at the top of the list of options for many firms and sole practitioners.

“We’re not trained for this; they didn’t teach it when I was in law school. In fact, it was the opposite — they were teaching you how to be thoughtful about what you do, while marketing is sort of shouting from the rooftops, ‘we’re greater than sliced bread.’ And they still don’t teach it now.”

“That post took me five minutes to prepare and share,” he told BusinessWest. “Twenty years ago, firms would spend hours on a client alert, color, printing, and mass mailing.”

With that, he explained how a LinkedIn post can reach a large audience quickly, efficiently, and at minimum expense, and how social media has become a larger force in an equation that has many components — and questions to be answered.

Indeed, there are many aspects to be considered with marketing, said Tim Mulhern, a partner with the Springfield-based firm Shatz, Schwartz & Fentin, noting, as others we spoke with did, that marketing isn’t something law students typically study.

Amy Royal

Amy Royal says the importance of law marketing continues to grow, as does the number of options for law firms to consider.

“We’re not trained for this; they didn’t teach it when I was in law school. In fact, it was the opposite — they were teaching you how to be thoughtful about what you do, while marketing is sort of shouting from the rooftops, ‘we’re greater than sliced bread,’” he said. “And they still don’t teach it now.”

So lawyers and firms have had to learn as they go, he said, adding that there is much to learn as the methods for getting a message across have evolved. Meanwhile, firms have to decide if they want to do it themselves — many have marketing committees comprised of lawyers — or hire a marketing director or an outside PR firm, an expensive step (one that didn’t have to be taken years ago), which many of them have taken.

And the job descriptions for these marketing directors have certainly changed as the times have.

“When I began my career in legal marketing in 1995, law firms were just starting to introduce websites as a tool to differentiate themselves from the competition,” said Jennifer Jacque, head of Marketing and Business Development for Springfield-based Bulkley Richardson. “Responsibilities of marketing professionals in law firms were limited to tasks such as writing bios and planning events. Since then, law firms have expanded their core portfolio of marketing services to include branding, public relations, advertising, social media, digital marketing, market research, communications, accolades and awards submissions, and more.”

Meanwhile, the importance of marketing and building brand awareness has grown steadily, said Raipher Pellegrino, managing partner of Springfield-based Raipher, P.C., which specializes in personal injury, medical malpractice, and related fields. He cited several reasons why.

Competition is one of them, he said, noting that firms in this market now compete against regional and national giants that open small offices in markets like this one — and they have for some time now. More recently, there is increased competition from firms from Boston and other large markets who can take advantage of shifts brought on from COVID — especially Zoom calls with clients and Zoom court hearings instead of the in-person variety of both — to take cases in this market that previously would have been prohibitive.

These same shifts bring down the cost of client representation, Pellegrino went on, making it possible for a potential client to hire a firm in a larger market that might previously have been out of their price range (more on this later).

All of this points to the importance of marketing and business development and the need for firms to stay on the cutting edge, said those we spoke with — whatever that might be.


Case in Point

As he talked about marketing and the many changes that have come to the profession and the legal landscape, if you will, in Western Mass., Mulhern noted that, among other things, the names of many of the firms are shorter — in some cases, much shorter.

“Years ago, if you added a new partner, you added their name to the firm,” he said, noting that some firms had six, eight, or even more names on the letterhead and sign over the door.

Shorter names are, for the most part, a function of marketing and branding, he said, adding that there are myriad other parts of this equation, from a strong web presence to involvement in the community, such as with his firm’s charitable foundation.

Indeed, as Jacque noted, marketing and business development covers areas ranging from PR to submitting nominations for the many ‘best of’ awards that lawyers can put on their résumés, the press releases for which start flooding the inboxes of media outlets each fall, when the announcements are made.

The world of law marketing changed dramatically in June 1977, when the U.S. Supreme Court handed down its decision in Bates v. State Bar of Arizona, essentially striking down prohibitions against advertising by attorneys.

Tim Mulhern

Tim Mulhern says that, while law marketing has certainly evolved, word-of-mouth referrals are still effective.

Until then, marketing was a function of signage on a building or office door, networking — everything from joining the Rotary Club to being active with the local chamber of commerce — and word-of-mouth referrals, all of which, and especially the last two, are still very important pieces of the puzzle and perhaps the most important, said those we spoke with.

Indeed, Stratton said he and other lawyers at Fitzgerald are very visible, attending a number of business functions (the recent Developers Conference in Springfield is a good example) and fundraisers for area nonprofits. Meanwhile, word of mouth has long been perhaps the most effective way to build a book of business.

“Word of mouth has always been important,” said Mulhern, who specializes in business organizations, estate planning, and real estate. “My favorite way to get a new client is to have another lawyer say, ‘Tim knows how to do this stuff.’”

But while advertising was frowned upon by many in the business for years after the 1977 ruling, the many aspects of marketing and brand building have become more accepted and increasingly important over the years, for those reasons mentioned earlier. The questions have always concerned how to market.

And the answer usually depends on what type of law one specializes in and what audiences they are trying to reach.

“Marketing of law firms comes down to messaging — and then targeting who you want to be receiving this message,” said Jacque, noting that the work of targeting takes many forms and involves different mediums.

Amy Royal, founding partner of the Springfield-based Royal Law Firm, agreed, noting that her firm, which represents and counsels businesses on all aspects of labor and employment law, focuses on that specific audience.

That’s why she never took out ads in the yellow pages — she was solicited annually but always said no — and instead focused on business publications like this one.

“We’ve also expanded over the years into the digital space — and while we don’t do advertising, we do brand awareness on social media,” she said, adding that some firms have gone to platforms ranging from Facebook to Instagram and even TikTok to get their message out with videos, articles, links to reports on recent rulings, and more. Doing so enables them to reach large audiences inexpensively.

“Now, in order to be competitive, you have to advertise in some form. But you have to figure out what works for you.”

Meanwhile, the firm’s web page has become a valuable asset, especially since the start of the pandemic, for introducing people to the firm and its lawyers, and also disseminating information through a blog, articles, and links to articles, such as the ones Royal’s attorneys write regularly for BusinessWest.


Weighing the Facts

Overall, Royal said law firms often need to use several vehicles, including traditional forms of media, depending, again, on the audience they want to reach and the messages they want to send.

Pellegrino, who uses billboards, television, print, and other mediums, agreed, but added that, for many lawyers, especially those who specialize in different areas, targeting specific audiences can be more challenging.

“Now, in order to be competitive, you have to advertise in some form,” he told BusinessWest. “But you have to figure out what works for you; it’s a very difficult business to advertise in. If you were selling engagement rings, you’d target the 19- to 30-year-old audience. But who gets in accidents? What type of clientele are you targeting? Personal injury is a very difficult business to advertise.”

Meanwhile, measuring return on investment from whatever forms of marketing are used is more difficult with legal services than other products or services, Pellegrino went on.

“There’s no guarantee of what you’re going to get in return,” he said, adding that, while it’s like this for all industries, it’s especially true with the law and especially personal-injury law, where the goal is to get the higher-end cases with bigger returns.

Despite these challenges, he said marketing is ever-more important because the level of competition continues to increase, with regional and national firms specializing in personal injury moving into this market — and making their presence known.

And the advent of virtual hearings and client meetings enables firms in other markets to woo clients in the 413.

“Before, the Boston lawyers didn’t want to take cases in Western Mass.,” he said. “But now they do because they can do a lot of the hearings by Zoom, so they don’t have to drive out here; it’s more cost-effective, and it’s really good for the consumer. And it means that it’s more important to advertise.”

Stratton agreed, noting that, overall, success in this industry is about forging relationships and continually strengthening those relationships. This is accomplished by staying visible and front of mind — in every way imaginable, be it by attending functions, being active in the community, writing articles to be published in BusinessWest, or, yes, sending links to articles on developments and cases like the one involving that couple living just off the golf course.

Doing so helps show that, while business law isn’t sexy — usually — it’s important, especially to those in business.

Legal advertising usually isn’t sexy, either, but it’s equally important, and while the landscape has changed dramatically since June 1977, and even over the past five years, the basic mission remains the same — to build a brand and put one’s best foot forward.


Questions of Accommodation

By Trevor Brice, Esq.


As we move out of the COVID-19 era, employees are struggling more frequently with drug and alcohol addiction. As such, it is important for employers to know that alcoholism and drug addiction can qualify as disabilities under federal and Massachusetts anti-discrimination laws.

If an employee suffers from alcoholism or drug addiction, the employer could be exposed to liability for discriminating against that employee or failing to grant the employee a reasonable accommodation for the employee’s alcoholism or drug addiction. However, alcoholism and drug addiction do not qualify as disabilities in all circumstances.


Alcoholism and Drug Addiction as Disabilities

Despite the possibility that alcoholism or drug addiction can qualify as legal disabilities, employers do not have to tolerate employees who are drunk or under the influence on the job. As such, employees cannot excuse being under the influence at work by claiming that they suffer from alcoholism or drug addiction.

Furthermore, employees cannot request to be drunk or under the influence at work as a reasonable accommodation for alcoholism or drug addiction. In these circumstances, the employee would not be a ‘qualified’ alcoholic or drug addict that would meet the definition of disability under the ADA. Consequently, the ADA does not cover those who are currently engaging in use of illegal drugs or alcohol.

In addition, an employee who is an alcoholic or drug addict can lose their qualification as a disabled individual due to low performance, as the ADA specifically provides that an employer can hold a drug-addicted or alcoholic employee to the same standards and behaviors as other employees. However, a high-performing alcoholic or drug-addicted employee can be qualified under the ADA if the employee is no longer engaging in illegal drug use or alcohol.


Reasonable Accommodations Under the ADA

Reasonable accommodations for employees who are recovering alcoholics or drug addicts can include seeking time off for inpatient treatment; time off to undergo outpatient treatment, including methadone clinics; or being excused from work events that involve alcohol. However, qualified alcoholics and drug addicts do not necessarily need to be granted accommodation every time they ask.

For example, if a drug-addicted employee requests a reasonable accommodation in response to discipline for unacceptable performance or conduct, the employer does not have to grant that accommodation if the low performance is attributable to the current use of drugs.

However, if the low performance is due to alcohol, and the employee specifically notes this in her accommodation request, it is the employer’s responsibility to engage in an interactive dialogue to determine whether or not the requested accommodation is reasonable. Absent undue hardship, the employee may have to grant the employee’s reasonable-accommodation request, such as a modified work schedule to enter treatment or to attend an ongoing self-help program.

However, another wrinkle presents itself when the reasonable accommodation is in response to a court order for an alcohol- or drug-related offense. As a recent court case (Mueck v. La Grange Acquisitions, L.P.) notes, employers do not have to grant a requested accommodation of leave in relation to a court-order DUI for a recovering alcoholic.

Further, the employer can offer the employee a “firm choice” or “last-chance agreement,” in which the employee can be terminated for future poor performance or misconduct resulting from drug or alcohol addiction. The agreement will normally state that the employee’s continued employment is conditioned on the employee’s agreement to receive substance-abuse treatment and refrain from further use of alcohol or drugs.



When an employer is determining whether an accommodation for disabled employees is reasonable, it is a difficult task in and of itself. When the question becomes whether the employee is actually disabled due to current or past alcohol or illegal drug use, the question for the employer becomes even harder. If an employee is seeking a questionable accommodation request for alcoholism or drug addiction, it is prudent to seek out representation from employment counsel.


Trevor Brice is an attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


A Critical Consideration


By Amanda R. Carpe, Esq.


Planning for the future is an essential part of life, and one of the most critical aspects of this process is estate planning. Having a comprehensive estate plan ensures that your assets are distributed according to your wishes and minimizes confusion and conflicts among your loved ones after you’re gone.

While drafting a healthcare proxy, power of attorney, and will, along with creating trusts, are crucial steps, many people overlook another vital aspect: updating beneficiary designations.


Avoid Unintended Consequences

Beneficiary designations supersede the instructions laid out in a will or trust. If you’ve named specific beneficiaries on your retirement accounts, life-insurance policies, or other financial accounts and have not reviewed or updated them in a while, it’s possible that they no longer reflect your current wishes.

Outdated designations may lead to unintended consequences, such as leaving assets to an ex-spouse, a deceased individual, or someone with whom you no longer have a close relationship. You may also unintentionally exclude one or more children if the account was established prior to the birth of all your children and has not been updated.


Ensure Smooth Asset Distribution

Your estate plan is designed to provide a clear roadmap for the distribution of your assets. By keeping your beneficiary designations current, you ensure that your assets will be transferred efficiently to your chosen beneficiaries and the distributions align with the rest of your estate plan. This process can help your loved ones avoid delays, legal complexities, and potential disputes, ensuring that your hard-earned assets are put to good use without unnecessary hindrances.



Accommodate Changes in Life Circumstances

Life is ever-changing, and so are your circumstances. Major life events like marriage, divorce, the birth of children, or the passing of a loved one can significantly impact your estate plan and beneficiary designations. By regularly reviewing and updating your beneficiaries, you can adapt to these life changes and guarantee that your financial arrangements align with your current family dynamics and relationships.


Maximize Tax Efficiency

Ineffective beneficiary designations can have tax implications. For instance, certain retirement accounts may offer different tax benefits based on the age of the beneficiary. By updating beneficiaries strategically, you can maximize tax efficiency, potentially allowing your beneficiaries to benefit from tax-deferred growth or minimizing their tax burden upon inheriting your assets.


Preserve Privacy

Unlike a will, which becomes part of the public record after probate, beneficiary designations typically bypass this process and remain private. By keeping your beneficiary designations updated and accurate, you help maintain the privacy of your beneficiaries and the details of their inheritances.



Avoid Intestate Distribution

Failing to designate beneficiaries or keeping them outdated can lead to the assets falling into intestacy. In such cases, the Commonwealth’s laws will determine how your assets are distributed, which may not align with your wishes. By actively managing your beneficiary designations, you retain control over who receives your assets, ensuring your legacy is preserved according to your desires.


Bottom Line

Estate planning is a responsible and thoughtful way to ensure your loved ones are taken care of after you’re gone. To make your estate plan truly effective, it’s crucial to regularly review and update your beneficiary designations. By doing so, you’ll not only prevent unintended consequences, but also provide your loved ones with a smoother process for asset distribution and avoid unnecessary complications.

Stay proactive, meet with an experienced estate-planning attorney to develop a cohesive estate plan, and keep your beneficiary designations in line with your current wishes — your loved ones will undoubtedly thank you for it.


Amanda Carpe is an associate attorney with Bacon Wilson, where she specializes in estate planning, elder law, and estate/probate administration.

Law Special Coverage

Complex Decisions

By Michael Roundy, Esq.

Estate representatives have a variety of options for how to probate an estate. Decisions made early in the process may have long-term consequences, as reflected in a recent decision of the Supreme Judicial Court, In re Estate of Slavin.

The Massachusetts Legislature enacted the Massachusetts version of the Uniform Probate Code (MUPC) in 2008. Under the MUPC, estates may be administered under a ‘formal’ or ‘informal’ process, as ‘supervised’ or ‘unsupervised’ administrations, as a ‘voluntary’ administration, and even by appointment of a ‘special personal representative’ under some circumstances.

Sorting through all of these options may seem daunting — and mistakes made at the initial stage may have lasting impact. In Estate of Slavin, an early decision to file as a voluntary personal representative nearly prevented the voluntary PR from pursuing a wrongful-death claim on behalf of the estate.

An informal probate, under Section 3-301 of the MUPC, is possible where the proposed personal representative has priority for appointment (usually named as PR in the will), and is in possession of the original will. A petition for informal appointment in intestacy (without a will) must also attest that, after a reasonably diligent search, the petitioner is unaware of any unrevoked will or why such an instrument the petitioner is aware of is not being probated. Informal probate is overseen by a magistrate rather than a judge, and hearings are not permitted. The benefit of informal probate is that it can be a faster process than a formal probate.

A formal probate, under Section 3-402 of the MUPC, is typically heard by a judge and may involve one or more hearings. It may be necessary to file a formal probate in order to object to an informal probate if the terms of the will are unclear, if the administration needs to be supervised, if the court needs to appoint a special personal representative, or for other reasons. A formal petition may also be used to obtain a judicial determination of intestacy, and of the heirs, without requesting the appointment of a personal representative.

Michael Roundy

Michael Roundy

“Sorting through all of these options may seem daunting — and mistakes made at the initial stage may have lasting impact.”

A formal administration may be supervised or unsupervised. A supervised administration is overseen more closely by the court, which typically must approve everything the PR wants to do before he or she does it. A supervised administration may be requested by the PR or by any interested person, and may be requested while a petition to appoint the PR is pending, or after the PR has already been appointed. Where a will directs supervised administration, it will be ordered unless the court finds that the circumstances relating to the need for supervision have changed since execution of the will.

For some estates, it may be necessary to appoint a special personal representative under Section 3-614 of the MUPC for specific purposes, such as searching the decedent’s safe-deposit box for his or her will, or to preserve assets of the estate. A special PR may also be appointed for the purpose of performing an act that a general PR cannot or should not perform due to a potential conflict of interest. While a special PR can have many of the same powers as a permanent PR, the special PR is not able to sell or distribute any assets of the estate.

Small estates may be administered by a voluntary PR. Under Section 3-1201 of the MUPC, a voluntary PR may administer an estate consisting only of personal property (no real estate) that includes a vehicle owned by the decedent and other property valued up to a cap of $25,000. Although voluntary PRs are recognized as such by certification by the register of probate, they are not appointed to the role by a judge or magistrate.


Case in Point

In Estate of Slavin, the decedent’s daughter filed the necessary statement of voluntary administration, which the register of probate certified in accordance with Section 3-1201. The daughter served as the voluntary PR for more than four years before she filed a petition for formal probate, seeking appointment as a personal representative under Section 3-402. She feared, correctly, that, as a voluntary PR, she would be unable to pursue a wrongful-death claim.

Although all five of the decedent’s other children assented to the daughter’s appointment as PR under the formal petition, the Probate and Family Court judge denied the appointment. The judge noted that Section 3-108 of the MUPC prohibits filing a formal petition for appointment more than three years after the decedent’s death. Since the decedent in Estate of Slavin had at that point died more than four years earlier, the judge denied the formal petition.

“The Estate of Slavin case reflects the potentially dramatic impact of an early decision about which method to use for probating an estate.”

The daughter appealed. The Supreme Judicial Court took the case for direct appellate review and reversed the lower court’s decision. The SJC noted that one of the few exceptions in Section 3-108 to the three-year limit on filing for a formal probate appointment is “appointment proceedings relating to an estate in which there has been a prior appointment.” While the Probate and Family Court judge found that a voluntary personal representative is not a ‘prior appointment,’ the SJC disagreed, holding that the exception in Section 3-108 “does not limit the type of prior appointment that qualifies.”

It agreed that, while a personal representative in a formal or informal probate must be appointed by a judge, a voluntary PR does not need to be. However, the voluntary PR statute does permit the register of probate to “issue a certificate of appointment to such voluntary personal representative” (MUPC Section 3-1201).

Moreover, the voluntary PR has the authority to pay debts, receive and sell personal property, pay funeral expenses, and distribute any balance remaining according to the principles of intestate succession. In addition, Section 3-1201 notes, third parties delivering property to the estate are “discharged and released to the same extent as if he dealt with a personal representative of the decedent.” Finally, a voluntary PR is liable for his or her administration of the estate to the same extent as a personal representative who was appointed by the court.

For all of these reasons, the SJC held that a voluntary PR constitutes an ‘appointment’ within the scope of the ‘prior appointment’ exception of Section 3-108. Thus, the daughter could be formally appointed (more than four years after death) as PR and pursue the wrongful-death claim that she could not pursue as a voluntary PR.

The Estate of Slavin case reflects the potentially dramatic impact of an early decision about which method to use for probating an estate. Would-be estate administrators may want to seek assistance from a qualified attorney in navigating such complex decisions.


Michael Roundy is a partner at the Springfield-based law firm Bulkley Richardson.


Remote Online Notarization

By Sarah Federation, Esq. and Jeffrey Fialky, Esq.


Sarah Federation

Sarah Federation

Jeffrey Fialky

Most individuals have, at some point, had special documents executed in the presence of a notary public — perhaps in connection with estate planning, banking, or the purchase or sale of real estate. Massachusetts, like many other states throughout the country, has a very specific and particular set of statutory requirements for notaries’ public compliance. In fact, to become a notary, individuals must complete an application and obtain signatures of known and respected members of their community, and then swear an oath to abide by Massachusetts law.

Further, the process of a document being certified by a notary likewise follows a strict set of statutory disciplines — most notably, that the notary and the individual executing the document be physically located together, ‘in person.’ This in-person requirement has been part of the statutory regime since the inception of the notary statutes.

However, not unlike the countless other challenges that arose during the COVID shutdown, it became difficult for parties to meet in person for notary purposes. As a result, on April 27, 2020, then-Gov. Charlie Baker signed into law an act providing for virtual notarization to address challenges related to COVID. The act permitted notaries in the Commonwealth to notarize documents remotely with the assistance of electronic videoconferencing technology, but has since ended and been repealed.

As a result of the temporary change, parties throughout the Commonwealth undoubtedly became accustomed to the convenience and practicality of remote notary, with protections put in place to ensure the integrity of the process. Recognizing the benefits that came about, the Legislature has enacted a new law that will make virtual/remote notary a permanent feature of the Commonwealth.

“While Chapter 2 of the Acts of 2023 revises relevant sections of the act to continue to allow notarization via electronic means, there are notable distinctions in the revisions.”

Indeed, the Massachusetts Legislature has enacted, and Gov. Maura Healey has signed into law, Chapter 2 of the Acts of 2023, which specifically make extensive changes to notarial law in Massachusetts to become effective on Jan. 1, 2024. The substantive provisions of this law are distinctive from those in the now-repealed acts, and while the specifics of the law are currently being composed by the state regulatory lawmakers, the new law will have certain features.

Under Section 28 of Chapter 2 of the Acts of 2023, a notary public physically located in the Commonwealth may perform a notarial act using communication technology, like Zoom, for a remotely located individual if:

• the notary public has personal knowledge of the identity of the remotely located individual; has identified the remotely located individual by means of an oath or affirmation of a credible witness unaffected by the document or transaction who is personally known to the notary public and who personally knows the remotely located individual; or can reasonably identify the remotely located individual by not less than two different types of identity-proofing processes or services;

• the notary public is able to execute the notarial act in a single, real-time session;

• the notary public is reasonably able to confirm that a record before the notary public is the same record on which the remotely located individual made a statement or on which the remotely located individual executed signature; and

• the notary public, or a person acting on their behalf, creates an audio-visual recording of the performance of the notarial act.


Notable Distinctions in the Act

While Chapter 2 of the Acts of 2023 revises relevant sections of the act to continue to allow notarization via electronic means, there are notable distinctions in the revisions.

The Acts of 2023 allow for electronic notarial seals. The notary public can attach the notary’s electronic signature and electronic seal to an electronic record using a digital certificate in a manner that is capable of independent verification and renders any subsequent modification to the electronic document evident.

The Acts of 2023 allow for remote notarizations with technology approved by the secretary of the Commonwealth. A notary public may select one or more tamper-evident technologies to perform notarial acts with respect to electronic records. Any technology approved by the state secretary and selected by the notary require the notary’s electronic signature and electronic seal to be:

• unique to the notary public;

• capable of independent verification;

• retained under the sole control of the notary public; and

• attached to or logically associated with the electronic record in a tamper-evident manner.

The Acts of 2023 create a registry for individuals seeking to notarize documents electronically. Before a notary public performs the initial notarization using communication technology, the notary public must register as a remote notary with the state secretary, inform the state that they intend to perform remote notarization, and identify the technology that will be used. The state secretary will create and maintain a registry of service providers who meet the established standards.

The Acts of 2023 require that notaries be located in the Commonwealth of Massachusetts. A notary public physically located in the Commonwealth may perform a notarial act using communication technology for a remotely located individual if the notary public meets the above-referenced criteria.

The Acts of 2023 require attorney-managed closings for one to four residential homes. However, this does not extend to commercial transactions. With respect to any document executed in the course of a closing, only a notary public who is an attorney licensed to practice law in the Commonwealth, or a non-attorney under the direct supervision of the attorney managing the closing, will be able to perform an acknowledgment, affirmation, or other notarial act utilizing communication technology. Many of the activities that are necessarily included in conducting a real-estate closing constitute the ‘practice of law,’ and, as a result, the person performing them must be an attorney.

Finally, pursuant to the Acts of 2023, notaries must retain electronic records for a period of 10 years.


Future Implications

Naturally, one may consider what else is to come moving forward due to these revisions. The remote online notarization bill will go into effect on Jan. 1, 2024.

Pursuant to the Acts of 2023, the state secretary may require the completion of a course to address the duties, obligations, and technology requirements for conducting remote notarizations offered by the state secretary or vendors approved by the state secretary. However, if such a course is required, its duration will not exceed three hours.

In the event that this course is required, it must be successfully completed prior to notarizing any documents electronically. Most notably, certification of completion of the course would be a requirement in addition to registration with the state secretary.

The Commonwealth is no doubt following a growing trend in permanently solidifying the virtual notary revisions made in response to COVID. In doing so, it will allow both permitted attorneys and paralegals alike increased flexibility in the notarial act required when executing documents. Overall, this legislation will allow a streamlined process for attorneys and their clients in addition to the cost benefit.

While the Acts of 2023 are sure to continue evolving, it is imperative to stay informed regarding further changes, and it is our continued attention to this legislation that will allow us to provide the insight you may need ahead of the curve.


Sarah Federation is an associate, and Jeffrey Fialky a shareholder, at Bacon Wilson.


Employers, Take Notice

By John S. Gannon, Esq.


John Gannon

John Gannon

A few weeks ago, Starbucks was in all the employment-law headlines, but not for good reasons. Given the publicity, you may have heard about the case of former Starbucks employee Shannon Phillips, who worked in the Philadelphia area. Phillips was a white Starbucks employee who claimed she was fired because of her race. The jury agreed and ordered the coffee giant to pay her $25.6 million in damages.

What you may not have heard about was a more local case in which a Massachusetts employee was awarded more than $24 million by a jury who found she was discriminated against because of her mental health. Here are some details about those two cases, followed by some commentary on what these employers could have done to possibly avoid the massive judgments.


Phillips v. Starbucks Corp.

Shannon Phillips, who is a Caucasian female, began her employment with Starbucks in 2005. She started at the company as a district manager and was promoted in 2011 to regional director of Operations for ‘Area 71,’ which included all stores in Philadelphia and several suburbs near the city. On April 12, 2018, a Starbucks location in Philadelphia made national news when two African-American patrons who were having a business meeting there were arrested for trespassing. The event sparked protests throughout the Philadelphia area.

“Employers cold to the idea of reducing legal risk by paying severance ought to be mindful of cautionary tales about the penny-wise but pound-foolish.”

Starbucks later reached a settlement with the two men and issued a public statement that “Starbucks will continue to take actions that stem from this incident to repair and reaffirm our values and vision for the kind of company that we want to be.” Because she was the regional director of Operations for the Philadelphia area, Phillips was called upon by Starbucks leadership to support and implement their post-incident efforts. According to Starbucks, however, she displayed poor leadership and “failed to perform the essential functions of her role as regional director” after the April 2018 incident. As a result, she was fired.

Phillips sued Starbucks for race discrimination, saying her Caucasian race played a role in the decision to terminate her employment. In her complaint, Phillips said she “worked tirelessly” to help Starbucks repair its image after the event in Philadelphia, but that the chain’s attempts to repair community relations resulted in discrimination against white employees. The jury agreed and awarded her $25.6 million, which was mostly comprised of punitive damages (damages assessed in order to punish a defendant when the behavior is found to be especially harmful or malicious).


Menninger v. PPD Dev., LP

Dr. Lisa Menninger worked as the executive director of a global laboratory-services company. Her job included operational leadership, business development, research and development, and quality-assurance functions for optimal performance within the labs.

In December 2017, Menninger met with her supervisor to discuss her performance. During this meeting, her supervisor suggested that her role would become more visible, involving increased client visits, social interactions, and presentations. This change did not sit well with Menninger. The prospect of making her more visible, with increased client visits and social interactions, caused great distress resulting in “increased anxiety with somatic symptoms.”

About a month after meeting with her supervisor, Menninger disclosed (for the first time) that she suffered from generalized anxiety disorder that includes social anxiety disorder and panic attacks. She then submitted medical documentation noting that changes to her role would increase her anxiety and make it “substantially more difficult, if not impossible” to perform her job.

In response, the business did exactly what it was supposed to do. The company communicated with Menninger’s medical provider and asked the doctor to specifically address how and to what extent Menninger could perform each task. Her doctor responded, saying Menninger could perform most job duties with some accommodations. For example, for internal and external sales presentations, she could develop the slides and other materials, but required someone else to present to the audience. Similarly, for client meetings, she could be responsible for problem solving and idea generation, but she could not attend the meetings herself. The company ultimately determined this arrangement would not work. Menninger subsequently went out on an eight-month leave of absence, which culminated in termination of her employment.

She sued her former employer for disability discrimination, claiming (among other things) that the company broke the law when it refused to provide the reasonable accommodations she requested. The jury sided with Menninger and awarded her a whopping $24 million, consisting of approximately $1.5 million in lost wages, $5.5 million in front pay (an estimate of future lost wages had she remained employed by the company), $5 million for past emotional distress, $2 million for future emotional distress, and $10 million in punitive damages.


Bottom Line

Massive judgments like these can leave employers scratching their heads (or, more likely, pounding their fists). One way to potentially avoid these runaway jury verdicts is to use employment agreements that require employees (and employers) to go to private mediation and arbitration to resolve employment-related disputes, rather than going to trial.

Another option is an agreement between employee and employer that, if any dispute goes to court, the case will be heard by a judge, rather than a jury. These agreements are commonly referred to as jury-trial waivers. They are lawful, but businesses should use experienced labor and employment counsel to help put the agreements in place.

Another way to avoid costly litigation is to work out a mutually agreeable separation agreement with departing employees. Yes, this will involve paying severance to folks who may not be the best performers, but in exchange, you get a release of claims from the employee and an agreement not to sue the company. Employers cold to the idea of reducing legal risk by paying severance ought to be mindful of cautionary tales about the penny-wise but pound-foolish.

Finally, it goes without saying that, any time a business is facing a risky firing, outside counsel should be engaged to discuss the situation and the best way to move forward.


John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected]



Parental Pitfalls

By Julie Dick, Esq.


Julie Dick

Julie Dick

Laws that govern familial rights and responsibilities are not always intuitively related to the continual social evolution of what it means to be a family. Many do not consider the legal realities of their family structure until a moment of crisis, and a lack of planning can cause difficult legal situations down the line.

When laws governing parentage were written, they contemplated families in which there was a biological mother and a biological father, and marriage was heavily incentivized. Since then, family structures and paths to existence have diversified. The law and society have both recognized a significant growth of LGBTQ+ visibility and rights, assisted reproductive technology has become increasingly accessible, and more children are being born to unmarried parents.

During the fight for marriage equality in the U.S., the importance of marriage to family building and parentage was one of the central talking points of the movement, and it is no wonder why. Marriage is often a social, religious, and cultural event, but it is also a legal contract that confers many protections, benefits, and obligations unavailable to unmarried people. From the right to access a spouse’s health insurance to the availability of some forms of family leave to financially significant tax and estate-planning benefits — the legal and financial impacts of marriage are broad. Until recently, those benefits, and the benefits associated with parentage, were categorically unavailable to LGBTQ+ families.

In Massachusetts, the automatic rights and responsibilities accorded to individuals within a family are still largely dependent on whether the birth parent is married. If a married person gives birth to a child, the second party to that marriage is automatically presumed to be the second parent. That parentage comes with obligations, but also rights, including a presumption of shared legal and physical custody (i.e., the right to make decisions on behalf of the minor child and to have that child live with them).

“During the fight for marriage equality in the U.S., the importance of marriage to family building and parentage was one of the central talking points of the movement, and it is no wonder why.”

Massachusetts was the very first U.S. state to allow marriage equality. A 2004 case, Goodridge v. Department of Public Health, interpreted civil marriage to mean “the voluntary union of two persons as spouses, to the exclusion of all others,” recognizing that doing so would advance the state’s interests in “providing a stable setting for childrearing.”

The decision directs the reader of Massachusetts marriage laws to interpret terms like ‘husband’ and ‘wife’ in a gender-neutral way. In 2015, marriage equality became available nationwide with a landmark case, Obergefell v. Hodges, in which the Supreme Court’s majority opinion boldly stated that “no union is more profound than marriage,” recognizing that it is so essential, in part, because it “safeguards children and families.” By accessing marriage, LGBTQ+ families can now access those automatic presumptions of parentage available to married people.


Sticky Situations

What if a child is born to an unmarried parent? In Massachusetts, the law views this family very differently. When the birth parent is unmarried, they have automatic sole legal and physical custody of the child. A second parent can establish their legal parentage by signing an acknowledgment of parentage or by asking a court to determine they are a parent. It was not until a 2016 case, Partanen v. Gallagher, that parents who were not the birth parent and not biologically related to the child (often the case for LGBTQ+ parents) could establish parentage under this law.

However, establishing parentage here in Massachusetts through either of these avenues is not the same as safeguarding parentage across jurisdictions, or across time in a changing legal landscape. Laws governing marriage and parentage are not necessarily entitled to comity — mutual respect and enforcement — between states or countries. A marriage or birth certificate that is recognized as valid in Massachusetts may not be recognized as valid in another jurisdiction. Parentage is only legally meaningful so long as the jurisdiction considering it agrees to give it meaning.

Future disputes with a co-parent and international travel pose two common points of risk when it comes to parentage.

Imagine you are in a committed relationship but haven’t gotten married. You and your partner decide to have a child together, and with the help of assisted reproductive technology, your partner carries a child. You present that child to the world and your family as your own and live together as a family raising the child. Eventually, your relationship breaks down, and your former partner now claims you are not a parent of your child and should not be awarded custody or parenting time. That was the scenario in Partanen v. Gallagher, where the ensuing argument involved years of contested litigation.

Occasionally, birth parents (married or not) have tried to take advantage of another state’s less LGBTQ+-friendly laws. By filing for divorce or custody in a state where the laws are not as inclusive, a birth parent may seek to interrupt the other’s legal parentage or gain an upper hand in custody or parenting time determinations.

In one infamous case, a birth parent residing in Vermont was dissatisfied with the state’s orders recognizing her former partner’s parentage of their child and filed a new case in a Virginia court, which denied the lesbian second parent’s legal parentage altogether. The resulting multi-state legal proceedings lasted years and involved multiple appeals. Ultimately, the birth parent kidnapped the child to Nicaragua and successfully remained in hiding until the child was 18.

The risks the accompany international travel can be even more surprising. Picture this: you’re on vacation with your family, and your child — born to your spouse during your marriage using reproductive technology — falls ill. Will the hospital allow you in the room? Give you information? Let you make vital medical decisions? Let you take your child home? “It depends” is hardly a comforting answer.


Adoption as an Answer

For those wishing to decrease that uncertainty, adoption may be the answer. A 1993 case, Adoption of Tammy, confirmed that an existing legal parent and their co-parent can together adopt their own child to secure their parentage in Massachusetts and across jurisdictions.

Sometimes called a confirmatory adoption, marital adoption, or second-parent adoption, this was one of the first tools available for LGBTQ+ families to establish parentage of their children and remains the most secure. Unlike a marriage or a birth certificate, an adoption is entitled to comity across jurisdictions. In Massachusetts, it is a widely available legal proceeding which can stand alone or in addition to an acknowledgement of parentage or marriage to secure a non-birthing parent’s parentage.

In an internationally varied and ever-evolving legal landscape, consider utilizing the law to protect your family so you know what to expect when the unexpected happens.


Julie Dick is an attorney at Bulkley Richardson, where she leads the firm’s family-law practice.

Law Special Coverage

Working in Concert

Managing Partner Seth Stratton with recently named Shareholder Andrea O’Connor.

Managing Partner Seth Stratton with recently named Shareholder Andrea O’Connor.



That’s not a term you hear often in reference to a law firm. That’s because … well, the vast majority of them would still be considered the opposite — traditional, operating pretty much the way law firms have operated for decades now.

But Seth Stratton uses the word quite liberally as he talks about the firm he serves as managing partner, Fitzgerald Law, P.C., which is based in East Longmeadow but also has an office in downtown Springfield.

He says it applies to the firm’s founder and still very active partner, Frank Fitzgerald — “he’s always marched to a different beat when it comes to the practice of law; he’s a businessperson first and lawyer second” — and also how the firm’s members go about team building. Most recently, it was at a Bruno Mars concert at MGM Springfield (Stratton formerly served as vice president and legal counsel of MGM Resorts’ Northeast Group, and still had the requisite connections to buy 40 seats to the show), preceded by some bowling in the casino’s alleys.

That term also applies, to one degree or another, to how the firm is expanding, adding lawyers, and even making them partners.

Indeed, Andrea O’Connor, a bankruptcy and insolvency specialist who joined the firm in 2020 (not long before Stratton left MGM and rejoined Fitzgerald), was recently made a shareholder, continuing a pattern of growth and what Stratton called “re-invention.”

“More people have gotten involved as shareholders in the firm,” he explained. “And we’ve also been bringing in mid-career lawyers who have considerable experience and a lot that they can bring to the firm. We’re bringing people in non-traditionally to grow our firm, and as we grow, we’ll talk out ownership opportunities in the firm.”

The addition of O’Connor, as well as Christina Turgeon, another bankruptcy specialist formerly in solo practice, and Daryl Johnson, who specializes in everything from commercial lending to zoning, further diversify a firm focused mostly on business advisory work, said Stratton, noting that it handles a wide array of legal issues, including commercial real-estate development, acquisition, and sale; zoning, permitting, and licensing; and business succession and estate planning.

Bankruptcy and restructuring are now part of that mix, and an important part, he said, because, while the economy remains strong and bankruptcies have generally been on the decline in recent years, businesses do fail, and such work is part of providing the full range of services that businesses might need.

“We’re trying to figure out a model that allows us to capitalize on talent but not be wed to a traditional law-firm model. We are a little different, and we think this is what many of our clients like about us.”

Meanwhile, there are few firms in this region that have such expertise, he went on, adding that this is a key component of the firm’s overall growth strategy.

As he talked about that strategy, Stratton said the broad plan is to continue to grow and diversify the firm — it has added several new lawyers over the past few years and now boasts 10 attorneys and five partners — and take its expertise to different markets.

The Fitzgerald firm has opened a satellite office in Worcester, he noted, enabling it to better serve clients and potential clients in that part of state, and O’Connor and other attorneys in the firm are serving a growing number of clients in Boston and other metropolitan areas, as clients take advantage of the firm’s deep portfolio of services — and at Springfield-area rates.

Overall, Stratton said the firm is still trying to determine the “sweet spot” when it comes to the desired size of the firm, and hinted strongly that it will essentially know what that size is when it gets there.

In the meantime, it will continue to look for opportunities to add some rock stars to the roster and continue to grow and diversify in a way that could, indeed, be called ‘non-traditional.’


Additions of Note

O’Connor told BusinessWest that she would consider her own career path non-traditional.

She started with the Springfield-based firm Hendel & Collins, which specializes in bankruptcy and related work, after graduating from law school. After six years there, she left to serve as a clerk for the bankruptcy court.

She then returned to the firm, which became Hendel, Collins & O’Connor, P.C. While her partners eventually started winding down their practices, she was looking to take hers to the next level. The question was … where?

She said she had a number of options, but eventually decided to join the Fitzgerald firm in August 2020, the height of the pandemic.

“I started my last firm when I was eight months pregnant, so I make bold choices sometimes,” she said with a laugh. “But when the opportunity comes, you have to seize it; it was a huge opportunity for me to come here and work with this team.”

Fitzgerald has been creating such opportunities for other mid-career lawyers, said Stratton, adding that the traditional path that lawyers took for years — one where they would join a firm as an associate; make partner after six, seven, or eight years; get a bigger office; and stay with that firm for the next several decades — is increasingly not the norm.

Especially at Fitzgerald, a firm that was founded in 1992.

“There is a sweet spot in terms of size, and we’re all trying to figure out what it is.”

“We’re trying to figure out a model that allows us to capitalize on talent but not be wed to a traditional law-firm model,” said Stratton, who was on the partnership track at a large regional law firm but ultimately rejected that path and left for Fitzgerald and ultimately returned to it after a six-year stint with MGM that eventually saw him become the face of the casino. “We are a little different, and we think this is what many of our clients like about us.”

And when he returned, as managing partner, he continued and accelerated that process of reinvention, adding that it involves expansion and diversification of the firm, while focusing on what it does well.

Elaborating, he said the firm moved on from the work it was doing in such areas as family law and personal injury, and focused all its talent and energies on serving businesses and their families in all the ways they need to be served, including areas such as bankruptcy and insolvency.

Work in that realm has been relatively slow in recent years, said O’Connor, adding that an expected surge — or wave, or tsunami — of personal and business bankruptcies, one that would accompany an end of COVID-related relief efforts, has yet to materialize, and now there are doubts that it will.

“We’ve had a really good economy for a very long time,” she told BusinessWest, adding that the high-water mark for bankruptcy work came at the height of the Great Recession, some 15 years ago, and has been fairly tepid ever since, to the point where she believes fewer people are entering this specific specialty.

But there is always work in this realm, she said, adding that most of hers involve businesses in distress. Recently, she was appointed a Chapter 7 panel trustee in Connecticut, administering bankruptcy cases, primarily in New Haven, but also in Bridgeport and Hartford.

This additional focus on bankruptcy and insolvency enables the firm to better navigate the cyclical nature of the economy, said Stratton, adding that it also helps separate it from many competitors.

“This allows us to be more diversified and recession-proof in our own business,” he explained. “When the economy is good, the bread and butter of our business — transactional work, real-estate development work, loans and financing — is busy. When the economy goes in the other direction, some of that work dries up, but then, bankruptcy and insolvency work picks up, so it allows us to diversify.”

The recent staff additions to the firm have enabled it to get both younger and more gender-diverse, said Stratton, adding that he anticipates this growth pattern to continue in the years to come.

“I expect that the approach we’ve taken over the past two years will continue over the next several years,” he said. “But there is a sweet spot in terms of size, and we’re all trying to figure out what it is. We want to have enough lawyers to service the business, without growing too big to where we take on additional overhead, which pushes rate structures higher and you feel less competitive with clients.

“We don’t know what that sweet spot is yet,” he went on, “but we will find it.”


Bottom Line

Getting back to the Bruno Mars concert, Stratton said he still has a few MGM employees on speed dial who were able to make it happen.

The concert, bowling, and dinner in the sports bar before the show was a decidedly different course for the firm’s annual summer outing, and one that provided another example of how Fitzgerald is different and — here comes that word again — non-traditional.

Thus far, that character trait is serving it well, and Stratton and his growing team are committed to staying on this course moving forward.

Where it will take them is a question to be answered later — when they find that aforementioned sweet spot. For now, it’s a path toward continued growth and diversity, in every sense of that word.



Managing Hybrid or Remote Workers

By John S. Gannon, Esq.


Prior to the COVID-19 pandemic, working remotely and other flexible work models like hybrid schedules were fairly uncommon. Now, allowing employees to work remotely at least a few days a week has become the norm for jobs that can be done from home.

One research summary suggested that 74% of U.S. companies are using, or plan to implement, a permanent hybrid work model in 2023, and 55% of employees want to work remotely at least three days a week. With remote work becoming more and more common, businesses need to be aware of employment-related legal issues that can bubble up when employees are working from home (and probably in their pajamas).


Wage and Hour Issues

One of the biggest challenges for businesses with teleworkers is compliance with wage and hour laws, which are laws that govern issues like payment of wages and meal breaks. Federal and state laws can differ considerably on these topics.

For example, federal law, and many state-law equivalents, do not require that an employer provide employees with meal breaks. Here in Massachusetts; however, state law requires employers to provide a 30-minute unpaid meal break to those who work more than six hours in a work day. In New Hampshire, workers are required to get a meal break after working five hours, unless it’s feasible to eat while working. Massachusetts does not have this ‘feasibility’ exception to its meal-break statute.

“With remote work becoming more and more common, businesses need to be aware of employment-related legal issues that can bubble up when employees are working from home.”

Similarly, some states (including Massachusetts) require the payout of accrued, unused vacation time upon separation from employment. Most states do not have this requirement. Other states require employers to reimburse employees for home-related business expenses, such as a laptop, upgrading home internet, or phone service.

Although this is type of reimbursement is technically not required in Massachusetts, the state attorney general’s office has suggested that employers should reimburse expenses that are “unavoidable and necessary” (whatever that means). Bottom line, businesses need to be familiar with the wage and hour laws of each state where employees live if remote work is allowed.

One wage and hour issue that does not vary from state to state is the requirement to pay non-exempt workers for all hours worked. This can be a problem with remote workers, regardless of where they live. Consider an hourly employee who answers a few emails from home during non-core working hours. This is working time, even if the employee has signed out for the day.

Employers need to have policies and practice in place to make sure all working time at home is recorded and paid for. Otherwise, they might be looking at a costly failure-to-pay-wages lawsuit.


Family and Medical Leave Laws

Similar to wage and hour laws, employee family and medical leave entitlements can vary considerably from state to state. As readers are likely aware, in Massachusetts, employees are allowed to take up to 20 weeks of paid leave per year to care for their own medical condition. Full-time employees also earn an additional 40 hours of sick time to use during the year. Employees working from home who live outside of Massachusetts may not be entitled to this leave. However, if they live in Connecticut or New York, they would be entitled to paid medical leave and sick time required by their home state’s laws. Because this issue can be confusing for employees, leave entitlements absolutely need to be addressed in your company handbook and/or policy and procedure manual.


Poster and Notice Requirements

Numerous labor and employment laws, including wage and hour laws and family and medical leave laws, require employers to put a poster up in the workplace and provide informational notices to employees in places like a handbook. This obligation does not vanish when employees are working from home. If employees rarely visit the office, the required postings need to be distributed via email or posted on an employee-accessible intranet.


Health and Safety Requirements

Even for remote employees, businesses must ensure a safe and secure working environment. This means identifying risks and hazards associated with working in the home and requiring employees to report any work-related injuries or incidents. Even employees working from home are entitled to workers’ compensation for job-related injuries.


Consider an Employment-practices Audit

An employment-practices audit is a complete risk-and-liability assessment of your human-resources and compliance operations. Audits are a cost-effective way for employers to confirm that they are meeting their legal requirements under federal, state, and local laws and regulations. Employers with a hybrid or remote workforce should consider engaging labor and employment counsel to conduct an employment-practices audit to detect and fix any of the problems identified in this article (and more).


John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected]


Case in Point

By Mary Jo Kennedy and Briana Dawkins


A recent decision by the National Labor Relations Board (NLRB), McLaren Macomb, has employers in both union and non-union settings reviewing non-disparagement and confidentiality provisions used in their employee-separation agreements for possible legal challenges.

Mary Jo Kennedy

Brianna Dawkins

Brianna Dawkins

In February of this year, the NLRB held that the severance agreements at issue in McLaren Macomb violated the National Labor Relations Act. The employer, a hospital, offered severance agreements to union employees being furloughed that required them to waive certain rights under the act. The agreements included provisions that prohibited furloughed union employees from making statements that could disparage or harm the image of the hospital and prohibited employees from disclosing the terms of the agreement.

The NLRB found that those provisions were overly broad, unlawfully restrictive, and coercive on the employees’ ability to exercise their rights under Section 7 of the act. Section 7 protects the ability of employees and former employees to discuss terms and conditions of employment with co-workers. More broadly, Section 7 affords employees a wide range of protection, including communications with third parties “where the communication is related to an ongoing labor dispute and when the communication is not so disloyal, reckless, or maliciously untrue.”

The NLRB’s decision in McLaren Macomb makes clear that a severance agreement that has a reasonable tendency to interfere, restrain, or coerce the exercise of Section 7 rights by employees is unlawful. An employer that proffers a severance agreement with provisions that would restrict employees’ exercise of their rights under the act may be found in violation of the act. The decision states that it is immaterial whether an employee accepts the agreement. It remains uncertain whether any courts will uphold McLaren Macomb.

“The NLRB’s decision in McLaren Macomb makes clear that a severance agreement that has a reasonable tendency to interfere, restrain, or coerce the exercise of Section 7 rights by employees is unlawful.”

One month after issuance of the McLaren Macomb decision, the NLRB’s general counsel issued a guidance in response to inquiries about the McLaren Macomb decision, which responded to some inquiries regarding the decision’s impact. While not binding or controlling, some key points referenced in this guidance are:

• The McLaren Macomb decision applies to existing separation agreements. The general counsel suggests employers should proactively consider contacting those subject to severance agreements with overly board provisions in order to advise them that the provisions are null and void and that the employer will not seek to enforce the agreements or pursue any penalties;

• Because of the inequality of bargaining power between employees and their employers, it is the role of the NLRB to act “in a public capacity to protect public rights to effectuate the public policy of the act.” Even if the employees agree to broad confidentiality or non-disparagement provisions, the rights of the public may not be waived in a way that precludes the future exercise of Section 7 rights;

• Provisions in any employer communication to employees that tend to interfere with, restrain, or coerce employees’ rights under Section 7, if not narrowly tailored, may also be prohibited under Section 7 of the act;

• Confidentiality provisions that are narrowly tailored to restrict the disclosure of proprietary or trade-secret information, and include a time frame on such a restriction, may be considered lawful; and

• Non-disparagement clauses that are narrowly tailored and limited to employee statements about the employer that meet the definition of defamation, as set forth in McLaren Macomb, may be lawful.

With regard to supervisors who are generally not protected under the act, the guidance notes that they would be covered in situations in which an employer retaliates against a supervisor for refusing to act on the employer’s behalf in committing an unfair labor practice under the act. Supervisors, as defined by the act, are individuals who have authority requiring independent judgment to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees in the interest of the employer, or to adjust their grievances, or to effectively recommend such action.

Accordingly, to ensure enforceability of its severance agreements, it is important for employers to classify its employees appropriately with respect to their responsibilities and not solely based on their job titles. Nonetheless, employers may continue to negotiate broader non-disparagement and confidentiality agreements in communications with supervisory employees, which remains unaffected by the McLaren Macomb decision.

Although McLaren Macomb involves union employees, the risk of non-compliance following this decision extends to all employers subject to the act, including non-union employers. Small businesses with non-union employees, while least likely at risk of a claim of unfair labor practices, are also subject to this decision. While employers may choose not to follow the proactive advice of the NLRB general counsel, employers should consider reviewing their current severance agreements and consider revising the non-disparagement and confidentiality clauses to avoid possible non-compliance.

Employers with questions regarding the enforceability of their non-disparagement and confidentiality clauses may wish to seek advice from their legal counsel.


Mary Jo Kennedy is a partner, and Briana Dawkins is an associate, with the law firm Bulkley Richardson, which has offices locally in Springfield and Hadley.

Law Special Coverage

Return-to-office Mandates and Related Woes

By Trevor Brice

As pressure increases on companies to have an in-person presence post-pandemic, many companies have issued return-to-office mandates. Some of these, if they are not heeded by employees currently working remotely, can result in severe penalties, including loss of compensation, bonuses, even termination.

While these companies can impose these penalties on their wayward employees, it is now the time to remember one of the reasons why employees request to work from home: as a disability- or age-related accommodation.

On March 28, the Equal Employment Opportunity Commission (EEOC) announced suit against an employer who disciplined an employee in relation to one of these policies. This serves as a reminder of what employers’ responsibilities are to employees with age- or disability-related accommodation requests, despite being able to pressure employees to come back to the office.


COVID-19 Policies and Protected Class

In general, employers can impose any sort of discipline or policy on their employees. However, there are exceptions to this general rule, specifically that employers cannot discipline or impose policy that is either directly or indirectly based on the employee’s protected class (e.g., race, color, disability, age, sex, or ancestry).

“When an employee requests a reasonable accommodation, the employer has a duty to engage in an interactive dialogue with the employee and attempt to come up with a reasonable accommodation that does not impose an undue hardship on the employer.”

As we come out of the COVID-19 pandemic, most employers are setting up policies mandating that employees come back to the office, some of them with penalties attached if employees do not comply. For example, Apple recently threatened disciplinary action for employees that are not coming into the office at least three days per week. Policies like these are facially neutral and non-discriminatory in their purpose. Every employer has a legitimate business interest in enforcing attendance, and policies like these have become more commonplace.

However, these policies run the risk of disability or even age discrimination. Some employers might ask why this is the case if they are enforcing a neutral policy. The usual issue will be that a policy like this will be imposed on an employee who is older or has disabilities that make them more at risk of contracting COVID-19. As such, when a policy like this is imposed, the employee will ask, due to their disability or age, to continue to work from home as a reasonable accommodation. If and when this happens, employers have a duty to engage in an interactive dialogue with the requesting employee and try to fashion an accommodation that will allow the worker to continue their work without undue hardship to the employer.

As long as this conversation, the interactive dialogue, is had with the requesting employee, it will be difficult for the employee to say that they have been subject to discrimination or that the employer failed to provide a reasonable accommodation. However, the problem arises when the employer does not initiate this conversation.


The EEOC Lawsuit

On March 28, the EEOC sued a company for allegedly denying repeated requests by an employee for remote work as a reasonable accommodation due to the increased risk of COVID-19 and further was alleged to violate the law by retaliating against the employee for taking medical leave to avoid exposure.

The facts in the case, EEOC v. Total Systems Services Inc., involve a customer-service representative who repeatedly requested to work remotely as a reasonable accommodation starting at the beginning of the pandemic in 2020 to decrease the risk of her exposure to COVID-19. The employer, in response, without engaging in an interactive dialogue with the disabled employee, repeatedly denied the requests despite granting remote-work requests to other employees.

While there has not been a ruling in this case yet, it is clear why the EEOC sued the company in question. As a reminder, when an employee requests a reasonable accommodation, the employer has a duty to engage in an interactive dialogue with the employee and attempt to come up with a reasonable accommodation that does not impose an undue hardship on the employer. Here, the employer did not attempt to engage in an interactive dialogue, denying the request (in this case, repeatedly) outright.

Further, even if the company had attempted to engage in an interactive dialogue with the disabled employee (which it did not), the employer would still potentially be liable because it would be more than likely that the employer could not show that the accommodation request was an undue hardship.

As the EEOC’s lawsuit notes, most of the employee’s department was allowed to work remotely, despite denying the employee’s request to also work remotely. The company could have possibly shown that the employee’s request was an undue hardship if other employees in the employee’s department were not allowed to work remotely or if a compelling reason was given why the employee and other employees in her department needed to be on site. However, this was not the case here.



As it becomes more and more commonplace for employers to require their employees to come into the office post-pandemic, there will increasingly be more litigation from employees who suffer from disabilities or are older, who ask to be given accommodation to work from home in order to avoid COVID-19 exposure.

As shown above, employers, once a reasonable accommodation has been made, must engage in an interactive dialogue with the employee to see if there is a reasonable accommodation that can be granted without undue hardship. It is possible to show that the employee’s request is an undue hardship, but there needs to be an interactive dialogue with the employee first.

If your company is imposing these return-to-work policies and it is questionable whether there is an undue hardship with an employee’s request for a reasonable-accommodation request, it is prudent to seek out representation from employment counsel.


Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.

Law Special Coverage

Change at the Top

Jeff Fialky

Jeff Fialky

It’s called Service at the Pleasure of My Partners: Advice to the New Firm Leader.

And as that title might suggest, this book by Patrick McKenna and Brian Burke is intended for those lawyers who have, or soon will have, the title ‘managing partner’ affixed to their business card.

Jeff Fialky, a partner at Springfield-based Bacon Wilson, bought a copy of the book, which presents content built around real-life issues and questions, several weeks ago, after initial talks with Ken Albano, longtime managing partner at the firm, about passing the torch.

He said he’s read it, marked several passages, and dog-eared several of the pages, an exercise he described as just part of the transition process at the firm, one that should be completed by the spring.

“It’s a good resource to hear from other managing shareholders about coping with some of their challenges — what they encountered and what they had to overcome,” he said of the book.

As he takes the helm at Bacon Wilson, Fialky said he believes the firm is well-positioned for the future. It has what all firms this size — roughly 40 lawyers — are looking for in a solid mix of young lawyers, those at the mid-career stage, and several older, veteran lawyers. It also has an established presence in the region through its main office in Springfield and smaller locations in Westfield, Amherst, Northampton, and Hadley.

“The firm is in a phenomenal place,” he said. “We’ve been here for 135 years, and we have a solid foundation for the firm to succeed well on into the future — for another 135 years.”

There are challenges, though, especially when it comes to hiring young lawyers and maintaining that mix of talent. Indeed, there are fewer people graduating from law schools, and the competition for those who do is considerable and becoming more intense with each passing year.

“I felt the time was right for some new leadership, some younger leadership. Jeff is respected by everyone in the firm, and he’s the one that take the firm to the next level.”

“We’ve had significant challenges in retaining and identifying new talent,” he said. “The past few years have been really difficult to find people; it’s been very competitive, with all forms of employees, be it staff members, legal secretaries, administrative assistants, and lawyers. It’s all about supply and demand.”

Fialky said he is looking forward to leading the firm through these intriguing times and continuing a pattern of strong leadership that has enabled Bacon Wilson to continue to grow and expand its presence over the past few decades.

“I’m really excited for the opportunity,” he said. “My first reaction was just humility and comprehending the enormity of the responsibility and feeling really honored and humbled by it. When I came back to Springfield to Bacon Wilson, I was a mid-career transfer; I’d been practicing for a number of years at that point. I was so fortunate to be given an opportunity to start a career, and to think that, all these years later, I’d be in this position is something I would never have contemplated.

“But now that I’m here, I’m really appreciative for the level of responsibility that’s been given to me by my partners and my colleagues,” he went on. “And it’s something I take very seriously, but also with great energy and enthusiasm; I’m really excited.”

For this issue and its focus on law, BusinessWest talked at length with Fialky about his new role and what comes next for one of the most venerable firms in the region.


Firm Resolve

As he talked about his practice and large case load, his work in the community, the additional burdens that come with managing partner, and how he will manage it all, Fialky summoned that time-honored axiom ‘if you want to get something done, ask a busy person, and they’ll get it done.’

He has certainly been busy in recent years as chair of the firm’s corporate and commercial department, and also a member of the municipal department. He has also been involved in the firm’s governance and was one of the founders of its executive committee.

Overall, he specializes in sophisticated business, financing, and commercial real-estate transactions, representing the interests of business owners and lending institutions, as well as municipalities and landowners.

A BusinessWest Forty Under 40 honoree in 2008 and consistent finalist for the Alumni Achievement Award established several years later, Fialky joined Bacon Wilson in 2006 after nearly a decade in Eastern Mass., where he held senior attorney positions with some of the country’s most prominent Fortune 100 telecommunications and cable-TV companies. Prior to that, he served as an assistant district attorney in Hampden County after earning juris doctor at Western New England School of Law in 1994.

Albano told BusinessWest that, after six years as managing partner, including the three long and very challenging years defined by the pandemic, he felt it was time for a change at the helm. And he considers Fialky to be a logical and well-qualified successor.

“I felt the time was right for some new leadership, some younger leadership,” he explained. “Jeff is respected by everyone in the firm, and he’s the one that will take the firm to the next level.”

Fialky acknowledged that he takes the helm at an intriguing and challenging time for law firms, which are coping with everything from a difficult hiring market to transitioning to new ways of doing work in the wake of the pandemic, to new technology that tempts consumers to find their legal answers online instead of from a trained attorney.

“Technology, as it pertains to the law, is really interesting and difficult to predict,” he noted. “The legal industry is a trailing indicator of technology; we’re never at the forefront of innovation. The next big question is what happens with artificial intelligence down the road. There’s been quite a bit of recent press of artificial intelligence and service professions like the law and accounting. What’s so interesting about the law is that technology is a platform to accomplish the outcome, and how personal the law is relative to an attorney-client relationship.

“With so many of our clients … while they can pick up the phone, while we can Zoom from 15 miles away, they want to come in, they want to sit down, and they want to talk to their attorney,” he went on. “These are relationships that last decades, throughout people’s lives … you can’t replace that with technology.”

When asked about the management style he will take as he addresses these and other issues, Fialky said it will be one grounded in collaboration.

“That’s how I’ve engaged in our commercial department, where we ask for many opinions before we make a decision,” he explained. “But then, when decisions need to be made, we make a decision and stand by it. That’s how I intend to manage.”


Case in Point

Getting back to that book he’s been reading, Fialky said it’s a collection of thoughts from managing partners on subjects ranging from following a successful leader to keeping up morale when a firm is under duress; from creating performance standards to managing one’s time.

Soon, he won’t be reading about such matters, but coping with them in real time.

It’s a challenge he’s looking forward to, one he’s spent a career preparing for, and he knows he will take it on not by himself, but in collaboration with others.


Sound Advice


By Trevor Brice, Esq.


Trevor Brice

Trevor Brice

On Jan. 24, the Equal Employment Opportunity Commission (EEOC) released new guidance for employers on how and when to accommodate applicants and employees with hearing disabilities.

The guidance covers when an employer may ask an applicant or employee questions about a hearing condition and how it should treat voluntary disclosures of a condition, what types of reasonable accommodations applicants or employees with hearing disabilities may need, how an employer should handle safety concerns about applicants and employees with hearing disabilities, and how an employer can ensure that no employee is harassed because of a hearing disability or any other disability.

This guidance is an update to the original guidance that the EEOC released regarding accommodations for deafness and hearing disabilities in the workplace on May 7, 2014.


Questioning Employees and Applicants on Hearing Disabilities

In general, before offering an individual a job, avoid asking the applicant about hearing disabilities or any disabilities or requiring an applicant to have a medical examination before a conditional job offer. However, the limited exception to this general rule is if an applicant has an obvious impairment or has voluntarily disclosed an impairment, and the employer reasonably believes that the applicant will require an accommodation to complete the application process or to perform the job because of the condition.

If this is the case, the employer may ask if the applicant will need an accommodation and what type. However, as a best practice in the pre-offer stage, it is prudent for an employer to stick to questions about the applicant’s ability to perform the position’s essential functions, with or without reasonable accommodation, such as whether the applicant can respond quickly to instructions in a noisy, fast-paced work environment.

After making a conditional job offer, an employer may ask questions about the applicant’s health (including questions about an applicant’s disability, including deafness and hearing disabilities) and may require a medical examination as long as all applicants for the same type of job are subjected to the same requirement.

For current employees, an employer may ask disability-related questions or require an employee to have a medical examination when the employer knows about a particular employee’s medical condition, has observed performance problems, and reasonably believes that the performance problems are related to a medical condition. However, the EEOC notes that employers should take precautions in this situation, as performance problems often are unrelated to a medical condition, and the problems should be handled in accordance with the employer’s existing policies regarding performance.

Regarding hearing conditions for current employees, an employer also may ask an employee about a hearing condition when it has a reasonable belief that the employee will be unable to safely perform the essential functions of the job because of it. Further, an employer may ask an employee about their hearing to the extent necessary to support the employee’s request for accommodations, to enable the employee to participate in a voluntary wellness program, or to verify the employee’s use of sick leave related to a hearing condition if the employer requires all employees to submit a doctor’s note to justify their use of sick leave.


Possible Accommodations and Safety-Related Exclusions

The EEOC suggests several reasonable accommodations that could be suggested or employed for hearing-disabled individuals. This non-exhaustive list includes a sign-language interpreter for use in interviews or during employment, assistive technology (including video relay or video remote interpreting services, hearing-aid-compatible telephone headsets, etc.), appropriate written memos and notes, note-taking assistance, work-area adjustments (moving a desk away from a noisy area, for example), time off, altering non-essential job functions, and reassignment to a vacant position.

Employers should remember that there is no magic word for requesting a reasonable accommodation; an individual simply has to tell the employer that he or she needs an adjustment or change at work because of an impairment. Employers do not have to provide reasonable accommodations if doing so would be an undue hardship, meaning that providing reasonable accommodation would result in significant difficulty or expense. Additionally, employers do not have to eliminate an essential function of a job, tolerate poor performance, or excuse violations of conduct to provide reasonable accommodations.

There is another consideration for employees with hearing disabilities. Employers may also exclude an individual with a hearing disability from a job for safety reasons when the individual poses a direct threat, which is defined as a significant risk of substantial harm to the individual or others because of a disability that cannot be eliminated or reduced through reasonable accommodations. If an employer believes there is such a direct threat, the employer should conduct an individualized assessment of the individual’s present ability to perform the essential functions of the job.

Considerations should include the duration of the risk, the nature and severity of potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm. The harm must be serious and likely to occur, not remote and speculative. Finally, the employer must consider whether any reasonable accommodations, such as the ones above, would reduce or eliminate the risk of direct threat. The EEOC provides examples of how this balancing test should work.

If employers have questions relating to this balancing test, or regarding the new guidance for hearing disabilities or disabilities and reasonable accommodations in general, it is prudent to contact legal counsel in order to avoid any potential liability.


Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


Five Important Things to Know Going into 2023

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


Massachusetts employers are used to the ever-changing employment-law landscape. As we close out another year and ring in a new one, it is clear that 2023 will bring new challenges and new requirements for employers throughout the Commonwealth.

AMelia Holstrom

Amelia Holstrom

John Gannon

John Gannon

We’ve rounded up the top five things employers need to know and keep an eye on as we turn the page to 2023.


Decision on Micro-units May Be Troubling for Employers

When a union attempts to organize a group of employees at a business, it files a representation petition with the National Labor Relations Board (NLRB), identifying the proposed bargaining unit, which is the group of employees the union seeks to represent and who will be eligible to vote on whether it gets to do so. Sometimes, employers will seek to add additional employees to the union’s proposed bargaining unit, as larger proposed bargaining units may be favorable for employers in representation elections.

In a recent decision, American Steel Construction, the NLRB, which interprets and enforces the National Labor Relations Act (NLRA), gave a powerful tool to unions by clearing the way for small bargaining units, often called ‘micro-units.’ Specifically, the board decided that it will approve a smaller subdivision of employees as a bargaining unit if they meet certain criteria.

Under this standard, unions are likely to be very successful in getting the NLRB to approve micro-units. As a result, employers are placed at risk of having to bargain with several small units of employees in one workplace.


NLRB to Surveil Employers’ Surveillance Measures

Businesses regularly monitor employees in the workplace. For example, employers may monitor telephone calls for quality-assurance purposes, install cameras in the workplace or dashcam systems in vehicles, or monitor communications sent and received on employer-owned devices. Such monitoring appears be under attack by the NLRB.

In early November 2022, the general counsel of the NLRB issued a memorandum regarding employee surveillance, in which she urges the NLRB to adopt a “new framework” for determining whether employer surveillance violates the law. Under this framework, violations may occur when the surveillance would tend to interfere with an employee’s rights under the NLRA or “prevent a reasonable employee from engaging” in activity protected by the NLRA.

“In a recent decision, American Steel Construction, the NLRB, which interprets and enforces the National Labor Relations Act (NLRA), gave a powerful tool to unions by clearing the way for small bargaining units, often called ‘micro-units.’.”

This could involve employee surveillance of suspected organizing activity. The employer will then get the opportunity to explain their legitimate, business-based reasons for the surveillance. At that point, the new proposed framework would require the NLRB to weigh the employer’s business needs for the surveillance against the rights afforded to employees under the NLRA. If the NLRB determines that the employer’s reasons outweigh the rights of employees, the NLRB will require the employer to disclose all electronic monitoring, the reasons for doing so, and how the employer uses the information it obtains. This crackdown on employee surveillance impacts unionized and non-unionized workplaces alike.


Update That Handbook for New Protected Characteristics

Massachusetts law prohibits employers from discriminating against employees based on a number of protected characteristics, including but not limited to race, color, sexual orientation, and gender identity. Effective Oct. 24, 2022, Massachusetts added natural and protective hairstyles to the list of protected characteristics under the law.

Accordingly, employers need to update their handbooks and other policies to reflect the additions. Your handbook should also include language on many other employment laws, including the state Paid Family and Medical Leave Act.


Changes to Paid Family and Medical Leave

Speaking of the Massachusetts Paid Family and Medical Leave Act, last month the Department of Family and Medical Leave released updated model notices reflecting new contribution rates effective January 1, 2023. If you have not already done so, those new notices need to be distributed to your entire workforce as soon as possible. Employers should also ensure that their payroll providers are planning to implement this change.

The department also updated the mandatory PFML workplace poster, which should be posted in a location where it can be easily read by your workforce. The poster must be available in English and each language which is the primary language of five or more individuals in your workforce, if these translations are available from the department.

The department is also considering changes to the PFML regulations intended to clarify employer obligations to maintain employment-related health-insurance benefits while employees are out on leave. Stay tuned in 2023 for developments on these proposed regulations.


Speak Out Act Requires Changes to Employment Agreements

On Dec. 7, 2022, President Biden signed the Speak Out Act into law (see story on page 27). The new law prohibits employers from including non-disclosure and non-disparagement provisions applicable to sexual-assault and sexual-harassment allegations and claims in agreements executed before the allegation or claim arises. It does not impact agreements with those provisions entered into after such a claim arises.

Although it may seem insignificant because it only applies to pre-dispute agreements, employers need to carefully review their confidentiality, employment, and other agreements executed by employees and ensure that the non-disclosure and non-disparagement paragraphs in those agreements do not prohibit the employee from disclosing or discussing sexual-assault or sexual-harassment allegations or claims. Employers would be prudent to include language carving out those claims.

Businesses are encouraged to continue to consult with counsel regarding these changes in labor and employment laws. The team at Skoler Abbott also wishes readers a happy and prosperous new year.


Amelia Holstrom and John Gannon are attorneys at Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]; [email protected]


Talking Points

By Briana Dawkins, Michael Roundy, and Mary Jo Kennedy


Effective Dec. 7, 2022, a new federal law, the Speak Out Act, limits the enforceability of pre-dispute non-disclosure and non-disparagement agreements relating to sexual-harassment or sexual-assault disputes in the workplace. Such agreements that were entered into before an actual dispute arises are now unenforceable.

Brianna Dawkins

Brianna Dawkins

Michael Roundy

Michael Roundy

Mary Jo Kennedy

Mary Jo Kennedy

The Speak Out Act defines a pre-dispute agreement as one that is entered into between an employer and an employee before a sexual-harassment or assault dispute ‘arises’ — that is, before an allegation of sexual assault and/or harassment is made. Often, employers require employees to sign non-disclosure and non-disparagement agreements upon commencement of employment in order to protect confidential or otherwise private employer information. Under the Speak Out Act, these clauses can no longer be enforced with respect to any sexual-harassment or sexual-assault claim that may arise in the future.

A non-disclosure clause is defined in the act as “a provision in a contract or agreement that requires the parties to a contract and/or agreement not to disclose or discuss conduct, the existence of a settlement involving conduct, or information covered by the terms and conditions of the contract or agreement.” A non-disparagement clause is “a provision in a contract or agreement that requires one or more parties to the contract or agreement not to make a negative statement about another party that relates to the contract, agreement, claim, or case.”

A sexual-harassment dispute involves “conduct that is alleged to constitute sexual harassment under the applicable federal, tribal, or state law.” A sexual-assault dispute involves a “non-consensual sexual act or sexual contact, as such terms are defined in [federal criminal law] or similar applicable tribal or state law, including when the victim lacks capacity to consent.”

The act’s protections apply not only to complaints of sexual harassment or sexual assault towards an employee, but also to complaints about sexual harassment and assault involving other individuals. The act’s provisions do not prohibit an employee and an employer from entering a non-disclosure or non-disparagement agreement after a complaint of sexual harassment or assault has arisen. Thus, the act does not prohibit such clauses, for example, in agreements settling sexual-harassment or sexual-assault claims after they are asserted. However, employers should exercise caution, as such clauses in settlement agreements may have significant tax implications for employers under the 2017 Tax Cuts and Jobs Act.

“The act’s protections apply not only to complaints of sexual harassment or sexual assault towards an employee, but also to complaints about sexual harassment and assault involving other individuals.”

The congressional rationale expressed through the language of the act is clear. Many women who experience sexual harassment in the workplace are forced to leave their jobs or their industries, or to pass up opportunities of advancement. According to the congressional findings identified in the act, one in three women face sexual harassment or assault in the workplace, approximately 90% of whom never file a formal complaint.

The congressional findings also state that non-disclosure and non-disparagement agreements between employers and current and former employees, prospective employees, and independent contractors can perpetuate illegal conduct by silencing survivors of illegal sexual harassment and assault. Therefore, Congress finds that prohibiting such non-disclosure and non-disparagement clauses will empower survivors to speak out, hold perpetuators accountable, improve transparency around illegal conduct, and make workplaces safer and more productive for everyone.

The Speak Out Act complements the enactment earlier this year of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA). That act, which applies to employers subject to the Federal Arbitration Act, prohibits mandatory arbitration agreements between employers and employees for sexual-harassment and sexual-assault disputes. It also applies retroactively to arbitration agreements between employers and employees that have already been entered into containing such mandatory arbitration provisions.

Following the enactment of the Speak Out Act and the earlier EFASASHA, employers are encouraged to be proactive about compliance and should review their template releases and agreements to ensure that pre-dispute non-disclosure and non-disparagement agreements do not violate these laws.

It bears noting that the Speak Out Act does not invalidate non-disclosure and non-disparagement agreements relating to claims which do not involved sexual harassment or sexual assault. Thus, employers may consider including ‘carve-out’ language for pre-dispute non-disclosure and non-disparagement agreements to make clear that the pre-dispute agreements do not apply to later-arising sexual-harassment or sexual-assault claims.

Employers should review their arbitration agreements and any language pertaining to future mandatory arbitration agreements to ensure sexual-harassment and assault claims are carved out from those provisions as well. Such agreements may be revised to include clear language indicating that, with regard to claims of sexual harassment or sexual assault, employee signatories will have a choice — they are not required to submit to arbitrations and may bring their claims in court. Employers may also wish to consider updating sexual-harassment policies in their employment handbooks to include similar clarifications.

In reviewing such employment agreements, confidentiality agreements, arbitration agreements, and employee handbook policies as they relate to sexual harassment and sexual assault for compliance with the Speak Out Act and the EFASASHA, it is recommended that employers seek legal advice and guidance from an experienced employment-law attorney.


Briana Dawkins, Michael Roundy, and Mary Jo Kennedy are attorneys in Bulkley Richardson’s Employment Law practice.

Law Special Coverage

Processes, Procedures, Practices, and Protocols Are Kings

By Tanzania Cannon-Eckerle, Esq.

In this new, enlightened era of increased employee rights and employee shortages, many employers are scared to terminate employees in fear of litigation — or of not having enough staff to enable the company to produce at the desired level.

The second question we can save for later, but I will mention now that additional widgets will most likely never justify the havoc that a toxic employee will create.

In my opinion, the answer to the first question is simple: do not fear what you cannot control. You cannot control who goes down to the courthouse to file a complaint. Just be prepared for the battle. So, yes, you can fire that guy (or girl, or them). The question is, should you?


Don’t Shoot Before Aiming — Consider Your Goal First

Don’t respond emotionally or consider someone else’s emotional response. Stop and think. Ask, why is this employee on the chopping block (i.e., what did they allegedly do)? How did they get there (was the proper process followed)? Who placed them there (who is bringing this up? Does the person have the authority to raise this issue? Anything nefarious here)?

Notice that I did not ask ‘who’ this employee is. We don’t assess the ‘who’ on the chopping block. It doesn’t matter who did it. It matters what was done, why it was done, whether it was actually done, and whether it rises to the level of termination.

Essentially, assess the conduct. What do you hope to attain by terminating this employee? A safer workplace? Good. To stop disruptions in operations or the beginnings of a hostile work environment? Good. Now prove it.


Prove It (in Preparation for the Battle)

If you can’t prove it, abort the mission. Go back to the drawing board. Go to plan B. Joking aside, preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.

Consistent application of the ‘four Ps’ over time may take an investment of time and money into creating them if you don’t already have them, and training managers and supervisors in the art of holding employees accountable.

“Preparing for appropriate employee terminations is a long game. It starts with consistent application of procedures, processes, policies, and practices. Probably the most important thing is documentation.”

Tanzania Cannon-Eckerle

Tanzania Cannon-Eckerle

Among other things, there should be consistent application of all conduct and performance-related policies. There should be consistent application of all of the policies, procedures, and practices associated with managing human-resources functions such as leaves of absence and request for accommodations, as well as employee complaints made and investigated.

All of these should contain a component that enables tracking the underlying data and providing the ability to obtain and distribute the underlying information that supports assertions made. So you want to terminate an employee because he has been to work only seven out of 19 days, and on the seventh day he violated a safety policy and then stole your candy bar? You should be able to show documentation of these occurrences that were created in real time — including, of course, when the company had the initial conversation with him for being absent the first few times, checking to make sure it wasn’t actually a protected leave of absence.

Once you have the documentation, sit him down and tell him that he is being terminated from the job because of his inability to perform and because of his violation of the attendance policy. Have a witness. If you don’t have the documentation, sit him down, put him on notice that he is in the line of fire, and start documenting. Provide him with expectations, and then document it thereafter. Most likely, this will just delay the inevitable, but you never know. Regardless, at least you will have something to take with you into battle.

Make the Business Decision Informed by the Data, and Document It

Please know, you can terminate an employee for any reason at any time so long as it is not an illegal reason. That means you cannot terminate because of an employee’s protected status or activity or in a manner inconsistent with a collective bargaining agreement or other employment agreement.

As such, if you want to terminate a person for business reasons that have nothing to do with the person and everything to do with your business needs, that is OK too. But you should prove it. Do you have the data to back up your decision? You don’t have to have it, but if that person files a complaint, you will want it, and you will want to be able to attest that the business analysis was done prior to the termination. Otherwise, they will scream ‘pretext,’ meaning you just made that up. Plus, doing the analysis first may help you assess the risks of terminating an employee for business reasons.

There are always risks. Is it cheaper to keep him after assessing those risks, or not? That is a legitimate fiscal business concern. There are risks associated with not terminating employees as well. Be sure to document those, too — not just in the business case (e.g., budget concerns), but also in the ‘do I have enough to terminate this employee for conduct?’ case. Some examples: if I don’t terminate, there will be allegations that I did not maintain a harassment-free workplace; or, I terminated another employee for this same behavior last year, and there is no legitimate reason distinguishing this employee from being terminated for the same; or, he keeps violating safety procedures, and someone may get hurt.


Terminate with Grace and Pay What You Owe

Be respectful to all employees, including those who are coming and going. He knows what he did to get terminated (if you have done it right). There is no legitimate reason to be rude about it.

Terminating with dignity or grace does not mean that you should not terminate an employee. Once an employee gets to termination, he should have already had an opportunity to cure the conduct or behavior for which he is getting terminated. As such, by the time the writing is on the wall, he should not be surprised. If he is, that might partly explain why he is getting terminated.

Next, make sure you reach out to your employment counsel for assistance with properly preparing a termination package (necessary correspondence, pay requirements, and timing considerations). A misstep here can get you in hot water — triple hot water. Failure to pay an employee what is due at termination has no defense, and the remedy to the employee includes three times the wages due. Call your counsel before terminating.

I know this article is not going to make me popular among some folks. I am not trying to be cold. I am just being practical. Your employees are your life force. I get it. I am one. But they are also human capital. If you manage your human capital like you manage your non-human capital, then you should be able to terminate employees without fear.

Processes, procedures, practices, and protocols are kings. Remember, keeping a toxic employee is more costly, in a variety of ways, than the cost of defending a claim — that is, if you have your ducks in a row. So get your ducks in a row. Plus, the remainder of your staff will appreciate the decision. Heck, the terminated employee may appreciate it in time; sometimes it just isn’t a good fit. Cut them free to find their better role. In the case of the business decision, your shareholders or business partners will appreciate your fiscal responsibility.


Tanzania Cannon-Eckerle, Esq. is chief legal and administrative officer for the Royal Law Firm; (413) 586-2281.


A Heads Up

By Briana Dawkins


Effective Oct. 24, Massachusetts joined 17 other states in passing the Creating a Respectful and Open World for Natural Hair (CROWN) Act, which bans discrimination against employees, students, and other individuals on the basis of natural or protective hairstyles historically associated with race.

The act applies to Massachusetts employers as well as all Massachusetts school districts, school committees, public schools, non-sectarian schools, and places of public accommodation. At the federal level, CROWN Act legislation has passed the U.S. House of Representatives and is pending in the U.S. Senate.

The Massachusetts version of the CROWN Act amends the definition of ‘race’ contained in the state’s Fair Employment Practices Act, as well as other Massachusetts laws specifically applicable to schools, to include protection against such discrimination on the basis of traits historically associated with race, including, but not limited to, hair texture, hair type, hair length, and ‘protective styles,’ which include braids, locks, twists, Bantu knots, hair coverings, and other formations.

Briana Dawkins

Briana Dawkins

“To ensure compliance with the CROWN Act, employers and schools may want to consider avoiding language in their grooming or personal appearance policies that categorizes specific hairstyles or textures as ‘unkempt’ or, in the alternative, ‘socially acceptable.’ Such choice of words can create a presumption that some hairstyles or textures are less socially acceptable than others.”

The enactment of the CROWN Act in Massachusetts was founded in an incident that occurred at a Greater Boston charter school. In 2017, two Black 15-year-old sisters, Deanna and Mya Cook, were reprimanded at the Boston-area high school in Massachusetts for wearing braided hair extensions. At the time, the school had a hair and makeup grooming policy that prohibited hair extensions. The Cook sisters faced several hours of detention, were threatened with suspension, and, among other reprimands, were even barred from participating on the school’s sports teams after they refused to take down their protective hairstyles.

Thanks to the tenacity and grace of the Cook sisters, the issue reached a very public audience. The Massachusetts attorney general wrote a letter to the school informing the school that the grooming policy was discriminatory and in violation of state and federal law. The Cook sisters’ case also caught the attention of the American Civil Liberties Union of Massachusetts, as well as the NAACP. Then California state Sen. Holly Mitchell drafted the first CROWN Act legislation in 2019, empowering California to take the lead as the first state to enact this legislation.

Massachusetts Gov. Charlie Baker signed the CROWN Act into Massachusetts law earlier this year. While Massachusetts has not yet been confronted with a suit under the CROWN Act, a violation under the expanded protection may result in liability under the state’s anti-discrimination statutes (which provides for the award of lost wages, emotional distress, punitive damages, and attorney’s fees).

Going forward, the Massachusetts Commission Against Discrimination (MCAD) has been tasked with promulgating rules or issuing guidelines regarding the discrimination protections expanded by the CROWN Act. In addition, the Massachusetts Department of Elementary and Secondary Education (DESE) has been authorized to provide written guidance interpreting the Act. Nonetheless, employers and schools should not wait for the MCAD or DESE guidelines and should amend their equal employment opportunity policies, anti-discrimination policies, and any grooming or other appearance-related policies to ensure that the language appropriately reflects the added protections to race as a protected class.

To ensure compliance with the CROWN Act, employers and schools may want to consider avoiding language in their grooming or personal appearance policies that categorizes specific hairstyles or textures as ‘unkempt’ or, in the alternative, ‘socially acceptable.’ Such choice of words can create a presumption that some hairstyles or textures are less socially acceptable than others.

Instead, employers can enforce grooming requirements specific to a certain position or function of the job that apply to all employees regardless of race, hairstyle, or texture, such as a requirement to keep hair away from the face or pulled back. This same approach can apply to school grooming and uniform policies as well. Employers and schools should make efforts to ensure that the policies are enforced equally to all employees, students, and other individuals rather than selectively.

Employers and schools should also inform their managers, teachers, and other employees regarding policy changes and provide training on how to address potential policy violations. These preventive measures will help to ensure a welcoming environment for all hairstyles, textures, and the like that are historically associated with race in the work and school settings as required by the CROWN Act.


Briana Dawkins is an associate in Bulkley Richardson’s Employment and Litigation practices.


This Developing Trend Is Moving in the Wrong Direction

By John Gannon, Esq.


Quiet quitting is a term many employers are familiar with — it involves a situation where an employee disengages from work and does only the bare minimum in order to get fired and collect unemployment.

Now, employers are firing back with quiet firings.

Quiet firing involves intentionally creating a difficult work environment and/or cutting pay or hours in a way that encourages people to leave voluntarily. In theory, the employee will quickly realize they need to get out and try to find alternate work elsewhere.

On the surface, ‘quietly firing’ a problematic or difficult employee might sound like a good idea. For starters, the manager or supervisor gets to avoid an uncomfortable conversation that will certainly lead to bad feelings and possibly boil over into a confrontation. Second, if the employee who is getting quietly fired is not meeting performance expectations, managers and supervisors avoid needing to coach them and give feedback.

John Gannon

John Gannon

“Managers and supervisors may prefer this method so they do not feel guilty about the end of the employment relationship. And quiet firing can be more easily accomplished in a remote or hybrid environment, as disengaging is easier when you do not have to see someone in the office.”

They can also avoid discussions about the consequences of continued poor performance. Managers and supervisors may prefer this method so they do not feel guilty about the end of the employment relationship. And quiet firing can be more easily accomplished in a remote or hybrid environment, as disengaging is easier when you do not have to see someone in the office.

Finally, some employers may see this as an opportunity to avoid unemployment compensation claims or claims of unlawful termination because employees who resign normally have trouble succeeding with such claims.

Despite what may appear to be advantages for employers who quietly fire employees, employers should resist the urge to utilize use this strategy for a number of reasons. First, creating a hostile work environment could lead to a lawsuit. It is unlawful for an employer to create a hostile work environment that is tied to an employee’s protected characteristics, such as gender or race. Creating a hostile work environment or reducing an employee’s hours could also be considered an adverse employment action, which can lead to claims of discrimination or retaliation.

Employees who are successful with these claims can sometimes recover big damage awards. For example, back in 2018, a jury awarded $28 million in damages to a nurse who succeeded in a retaliation claim against her employer. Part of her claim was that she was being verbally abused by her supervisor. The jury agreed, and the employer had to pay — a lot — for this supervisor’s mistake.

Employees who feel as though they are being squeezed out might resort to avenues other than the courtroom to air their grievances. It is not hard to leave damaging feedback on Glassdoor, a website where current and former employees anonymously review companies. Employees can (and probably will) share their negative feedback with co-workers, which could serve as the catalyst for good employees to start looking for a new job. It’s no secret that hiring and retaining qualified employees seems to be getting harder and harder each day.

Moreover, quiet firing is often the byproduct of a poor manager or supervisor who is unwilling to do one of the more difficult parts of their job — performance management.

So what should employers do? First, leaders should insist on managers and supervisors using traditional methods to address problematic behavior, such as coaching and progressive discipline. Should those efforts prove unsuccessful, managers and supervisors need to be ready to have the difficult conversation necessary to terminate the employee.

HR leaders should also be stepping in to prevent quiet firing from becoming a thing. This should involve regular check-ins with managers to talk about difficult employees and proactively asking how they are trying to solve the problem. Hopefully, the answer is performance management. If it’s not, maybe the manager is the one who needs some coaching and/or discipline. u


John Gannon is a partner with the Springfield-based law firm Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including family and medical leave laws, the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected]

Law Special Coverage

A 2022 Year-end Wrap Up and a Look Ahead to 2023

By Justin Goldberg, Esq.

Within the broad realm of employment law, this past year was marked by increased protections to employees through changes to independent-contractor classifications, raising of minimum and service wages, increasing benefits for family and medical leave, safeguarding hairstyles of protected classes, and other changes.

Looking ahead to 2023, it certainly appears to be headed down a similar path, with employee safeguards continuing to solidify. Employee security and compensation guarantees to be a highly litigated issue in the coming year.

Here is a look back — and ahead:


U.S. Department of Labor Publishes Independent Contractor Proposed Rule

On Oct. 11, the Biden administration, via the U.S. Department of Labor (DOL), proposed to modify Wage and Hour Division regulations so as to revise its analysis for determining employee or independent-contractor classification under the Fair Labor Standards Act.

This was done with the aim to be more consistent with judicial precedent and the act’s text and purpose. This will mark the administration’s second attempt at undoing the Trump-era standard, which it claims denies basic worker protections such as minimum wage and overtime pay.

Justin Goldberg

Justin Goldberg

“Operating costs will undoubtedly increase if they are required to reclassify their independent contractors as employees, due to the tax liabilities and minimum-wage, labor, safety, and other legal requirements that apply to employees.”

Secretary of Labor Marty Walsh was quoted as saying, “while independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers,” and that “misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages.”

Industries such as gig companies, construction, trucking, home care, janitorial services, delivery, personal services, hospitality, and restaurants that use independent contractors as staff should pay close attention to this anticipated development. Their operating costs will undoubtedly increase if they are required to reclassify their independent contractors as employees, due to the tax liabilities and minimum-wage, labor, safety, and other legal requirements that apply to employees.

The Trump-era rule outlined a multi-factor test (five total) to determine if the worker is an independent contractor or an employee; however, it gave far greater weight to two core factors: the nature and degree of the worker’s control over the work, and the worker’s opportunity for profit or loss based on personal initiative or investment.

The Biden administration’s proposal would consider those two factors, but include four others for a total of six: investments by the worker and the employer, the degree of permanence of the working relationship, the extent to which the work performed is an integral part of the employer’s business, and the degree of skill and initiative exhibited by the worker.

These six factors guide the analysis of whether the “economic realities of the working relationship” show a worker to be either dependent on the employer for work or in business for themselves based on a “totality of the circumstances.”

Under the proposed modification, no one factor or set of factors is presumed to carry more weight, and the DOL may also consider additional factors beyond those six, if they indicate the worker may be in business for themselves.


Increases in the Minimum Wage and Service Rate

Massachusetts employees making minimum wage are going to see a pay increase of 75 cents per hour, effective Jan. 1, 2023, bringing their pay to $15 per hour. This does not include agricultural workers, whose pay remains at $8 per hour. Workers under the service rate (those who provide services to customers and make more than $20 a month in tips) will see an increase of 60 cents per hour, beginning in 2023, as the service rate is now $6.75.


Changes to Massachusetts Paid Family and Medical Leave

In 2022, the maximum weekly benefit for Massachusetts Paid Family and Medical Leave is $1,084.31; however, in 2023, it will increase to $1,129.82. Also beginning in 2023, the contribution rate for employers with 25 or more covered individuals will decrease from 0.68% of eligible wages down to 0.63% of eligible wages. Employers should ensure that their wage deductions and contributions are adjusted accordingly. This is the second straight year the contribution rate has decreased.

Employees are still not permitted to use their accrued sick or vacation leave to ‘top off’ their weekly benefit. While there may have been rumors that Massachusetts was planning to change this in 2023, no such change appears forthcoming.



In 2022, Massachusetts enacted the Creating a Respectful and Open World for Natural Hair (CROWN) Act, making it the 18th state to pass similar legislation (see related story on page XX). This law is aimed at quashing discrimination on the basis of “traits historically associated with race, including, but not limited to, hair texture, hair type, hair length, and protective hairstyles.”

The law further defines “protective hairstyles” to include “braids, locks, twists, Bantu knots, hair coverings, and other formations.” Employers who violate the CROWN Act will be liable for compensatory damages, as well as possible punitive damages and attorneys’ fees.

The CROWN ACT was inspired by two teenage twin sisters’ alleged violation of a school hair and makeup policy that prohibited extensions.


Bottom Line

Given the changes that have taken place — and the changes to come — it is a good idea to have your business schedule a check-in with an employment-law firm as we approach 2023.


Justin Goldberg is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


Giving Them the Business

By Gina M. Barry, Esq.


More often than not, a family business is doomed by the failure of the owners to plan for its continuation. Currently, only 30% of family-run companies succeed into the second generation, and only 15% percent survive into the third generation. Fortunately, with proper planning, most business owners can ensure the continued operation of their business should they become incapacitated or pass away.

Contemplating one’s mortality is not a pleasant activity. Most believe they have plenty of time to plan. Some business owners identify so closely with their business that they simply cannot comprehend the idea of their business being operated by anyone other than themselves. However, when a business owner becomes incapacitated or passes away without a plan in place, the business always falters and often fails.

Gina Barry

Gina Barry

“Currently, only 30% of family-run companies succeed into the second generation, and only 15% percent survive into the third generation.”

The general recommended time to plan for business succession is between the ages of 55 and 65. This timeframe is recommended because most successful business-succession plans include several steps carried out over time. Some succession consultants recommend a three- to five-year plan, while others advocate a five- to 10-year plan. Adequate planning time allows a business owner to test potential successors in different roles and to evaluate their maturity, commitment, business acumen, and leadership abilities. Further, once a successor is chosen, adequate lead time allows the successor to gain expertise so that the business does not falter when the former business owner leaves the business.

More often than not, the head of a family-owned operation chooses a child as a successor. Commonly, more than one child is competent to step into the parent’s shoes, which makes the selection process even more difficult. When a family member is not available, a key employee often fits the bill. Typically, these employees have already displayed the abilities necessary for operating the business.

The business owner should begin by determining three things: when they want to step away from the business, for how long they want to remain active in the company thereafter, and in what capacity they wish to remain involved. Next, the business owner needs to discuss their ideas about the future with their family, senior management team, and key employees. Thereafter, the business owner should begin working with the successor to revise their business plan, thereby allowing them to include any future new products, plans for expansion, growth, or new investment, as well as a candid assessment of the company’s current environment and competitive positioning.

The business owner will also want to develop a financial strategy for actually stepping fully away from the business. A financial strategy, which is perhaps the most significant activity associated with succession planning, protects the company, the family, and the employees against a monetary burden that could doom the entire process to failure. For example, if a business owner intends to leave the business to their children, they must consider any estate taxes their estate may face upon their passing that may require the liquidation of the business, despite best intentions.

It is also critical to obtain an accurate valuation of the business regardless of who will take over or inherit the enterprise. Such a valuation encompasses tangible assets, such as real estate, buildings, machinery, and equipment, as well as intangible assets, such as employee loyalty, manufacturing processes, customer base, business reputation, patents on products, and new technologies. Employing a professional valuation company is recommended, as there are many different factors that affect the value of a business.

Once the business has been valued, it is necessary to determine the method of transferring the business. Some options for transferring a business include gifting, the use of a trust, buy-sell agreements, and life-insurance-funded plans. The choice of successor will strongly influence this decision. Surely, a plan that gives the business to children or family members would differ greatly from a plan that requires a third party to purchase the business owner’s interest. When transferring to a child or related party, the business owner may gift some of the company’s value, whereas, when transferring to an independent third party, the business owner would most likely want to be paid the full fair market value of the business.

As various plans may be established and the specifics of the business must be considered, each different plan must be reviewed on its own merits. The process of choosing a succession plan involves numerous factors, and there are many pitfalls along the way. Thus, it is best to consult with the necessary professionals, such as attorneys, financial advisors, and accountants, to assist with the transition and to allow as much time as possible to plan and make the transition. By doing so, business owners can ensure the vitality of their business for many years to come.


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


Case in Point

By Justice Mary-Lou Rup and Briana Dawkins, Esq.

A recent decision from the Massachusetts Supreme Judicial Court (SJC), Commonwealth v. K.W., clarifies the standard for persons seeking to expunge records of criminal court appearances and dispositions from their state criminal records (known as Criminal Offender Record Information, or CORI) and court and criminal justice agency records.

By way of background, it is important to first understand that in Massachusetts, individuals may seek to clear their CORI in one of two ways: through sealing or expungement. If sealed, the record still exists but is unavailable to the general public. If expunged, the record no longer exists.

Petition to Seal Record (Mass. General Laws, Ch. 276, Secs. 100A-100D)

With some exceptions, one can petition the commissioner of Probation to seal disposed cases after a period (three years for misdemeanors and seven years for felonies) beginning on the later of the date of a guilty finding or release from incarceration, with no intervening criminal convictions. A judge can allow immediate sealing if the charge ends with a finding of not guilty or no probable cause, dismissal, or nolle prosequi, and must allow a petition to seal for first-offense convictions (with successful completion of probation), not-guilty findings, dismissals, or nolle prosequi of possession of marijuana or Class E controlled substances or in the presence of a person in possession of heroin, as well as decriminalized offenses.

For other offenses, sealing is discretionary, and the petitioner must show ‘good cause’ — that continued public availability of the record creates a current or foreseeable future disadvantage. If sealed, the courts will report ‘no record’ to criminal background checks, and the individual, if asked (such as on an employment application), can report having no record as to the sealed offense. However, courts, police, criminal-justice agencies, and certain other entities still have immediate access to sealed records.

Petition to Expunge Record (Mass. General Laws, Ch. 276, Secs. 100F-100P)

In 2018, as part of the Criminal Justice Reform Act, the state Legislature created two pathways for individuals to seek expungement. Following the first pathway (referred to as ‘time-based’ expungement), individuals who, before age 21, committed certain low-level offenses may apply to expunge those records.

Following the second pathway (known as ‘reason-based’ expungement), an individual can seek expungement of juvenile and adult criminal court appearances and dispositions by presenting ‘clear and convincing evidence’ that the record was created as a result of false identification or unauthorized use or theft of identity of the petitioner; fraud perpetrated on the court; ‘demonstrable’ error by law enforcement, witnesses, and/or court employees; or an offense that is no longer a crime.

There is a ‘strong presumption’ in favor of expungement of records created as a result of one of the statutory factors. That said, expungement is not automatic. A judge has discretion and must still balance that presumption against any ‘significant countervailing concern’ that may be raised when deciding if expungement is ‘in the best interests of justice.’ If none are raised, the judge must order expungement.

An expungement order results in permanent erasure and destruction of the record of the qualifying offense. Expungement of the record for a qualifying offense will have no effect on the existence of other records related to the same or other incidences.

Sealed or Expunged Records

It is important to understand the policy reasons that support the sealing and expunging of records. As the SJC noted in its recent decision, whether to seal a record ultimately relies on a defendant’s and the Commonwealth’s interests in keeping the information private, which includes “reducing recidivism, facilitating reintegration, and ensuring self-sufficiency by promoting employment and housing opportunities for former criminal defendants.”

With regard to expungement, the SJC stated that by specifically creating the qualifying reason-based factors, the Legislature itself had identified a good cause basis for expungement. Records created as a result of one of those factors “have virtually no bearing on whether the petitioner might commit a criminal act in the future, and their value to society therefore is vanishingly small.”

Once sealed or expunged, a record cannot disqualify a person from examination, appointment, or application for employment with any government agency, or in determining if that person is suitable for the practice of any trade or profession requiring a license.

Any application for employment that seeks information concerning prior arrests or convictions must contain the statements required by the statutes relating to sealing records and expungement of records regarding the applicant’s ability to answer ‘no record’ when records have been sealed or expunged. Employment applications should be reviewed to ensure compliance with the required language.

This article gives a general description of sealed and expunged criminal records. However, procedures for and the effects of sealing and expungement are complicated. Therefore, interested individuals should carefully review Massachusetts General Laws, Chapter 276, sections 100A-U, or seek advice from an attorney.

Justice Mary-Lou Rup is a retired Massachusetts Superior Court judge and now senior counsel at Bulkley Richardson. Briana Dawkins is also an attorney at Bulkley Richardson, where she practices in the employment and litigation groups.

Law Special Coverage

Recent Case Shows the Danger Lurking with ‘Stray Remarks’


A recent Massachusetts Appeals Court decision, reversing a lower-court decision to dismiss an age-discrimination complaint, may have repercussions for businesses of all kinds facing a transition in their workforce. The issue — and the ruling — go deeper than just the perceived discrimination itself, however, delving into questions about how much exposure an employer attracts by simply discussing matters of age in the workplace.

By Erica Flores, Esq. and John Gannon, Esq.


Erica Flores

Erica Flores

John Gannon

John Gannon

It is common knowledge that older workers are a major part of this country’s workforce. According to U.S. Census Bureau statistics, more than 35% of all essential workers are over age 50, and nearly 15% are over age 60. As the Baby Boomer generation approaches retirement age, employers often wonder whether they can talk to their employees about their retirement plans. Is this allowed, or does it run afoul of age-discrimination laws?

The short answer is that general discussions about retirement plans are fair game. However, the conversation should always be about succession planning and/or transitioning of job duties. And, of course, suggestions about needing “younger” workers must be avoided.

A recent decision from the Massachusetts Appeals Court demonstrates the risks associated with subtle remarks about an aging workforce population coupled with an organizational need to make room for “junior-level talent.”

In Adams v. Schneider Electric USA, the Appeals Court reversed a lower-court decision that dismissed an age-discrimination lawsuit of a 54-year-old employee. The plaintiff in that case was an employee who worked for his employer for many years as an electrical engineer. In January 2017, the employer laid off the employee as part of a larger reduction in force (RIF) related to cost-cutting strategies. The RIF laid off a total of eight employees, all of whom were over age 50. In fact, the employer conducted a series of RIFs over a period of just 10 months that, when combined together, cut 24 employees, all but two of whom were over age 50.

“General discussions about retirement plans are fair game. However, the conversation should always be about succession planning and/or transitioning of job duties. And, of course, suggestions about needing “younger” workers must be avoided.”

The employee sued, claiming his employer terminated him on the basis of his age in violation of Massachusetts law. The lower court dismissed the case before trial, but a divided Appeals Court reversed that decision, concluding that the employee had pointed to enough evidence of age discrimination to require a jury to decide the case.


Evidence of Age Discrimination

The majority opinion, joined by three of the five judges who decided the case, found that the Trial Court should not have dismissed the case for multiple reasons. First, the court concluded that there was evidence of a high-level plan to replace aging employees with “early-career” talent and recent college graduates, “from which a jury could find that the RIF itself was tainted even if the person who selected the employees for the RIF [did so] neutrally.” Among this evidence was an October 2015 email from a vice president in the IT department telling an HR professional that the employer needed “age diversity” and “young talent.”

Notably, the comments relied on by the court — including the references to “creating space” for “junior-level talent” and a potential early-retirement program — did not reflect age bias on the part of the person who actually made the decision to include the employee in the RIF. The decision maker had completely neutral, business-based reasons for laying off the plaintiff. In fact, there was evidence in the record that suggested the decision maker and the plaintiff were long-term friends.

Even so, the court felt that there was also evidence demonstrating that, although the decision maker himself did not harbor discriminatory motives, he did have meetings with higher-level managers who were the supposed “architects” of employer’s plan to clear out older employees. Finally, the court pointed to the all-to-obvious fact that all of the employees selected for the January 2017 RIF were over age 50. This fact alone suggested the decision maker “understood the company strategy to discriminate.”



Interestingly, the Adams decision was the subject of a strong dissenting opinion joined by two members of the five-judge Appeals Court panel. Among other things, the dissent argued that the majority had departed from the long-standing legal rule that “stray remarks” are insufficient to prove discriminatory bias by holding that the rule can never apply to a manager who has the power to make employment decisions. The dissent also took issue with its apparent intolerance for modern succession planning in industries dominated by aging employees.

For now, though, the majority opinion remains the law, and it will certainly be relied upon by attorneys trying to avoid dismissal in employment cases. What does this mean for employers? For one, it means that management-level employees who have the authority to hire, discipline, promote, terminate, or make other employment decisions must be even more careful about remarks they make in the workplace. Comments that may have previously been brushed aside by courts as nothing more than “stray remarks” may now be considered evidence of a high-level corporate strategy to discriminate against employees in all manner of employment decisions, not just RIFs.

Also, employers who are thinking about succession planning need to be extra careful about the rhetoric they use to describe their concerns, needs, wants, and strategies, especially if their plans involve eliminating jobs. Partnering with employment counsel at an early stage can help reduce legal risk and shield sensitive conversations from being used in any ensuing litigation.


Erica Flores and John Gannon are partners with the Springfield-based law firm of Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including the Age Discrimination in Employment Act; (413) 737-4753; [email protected]; [email protected]


Use with Caution

By Amelia J. Holstrom, Esq. and Trevor Brice, Esq.


Over the past several years, employers have turned to various software-based recruitment and employment screening tools to evaluate applicants and employees. The software, which uses artificial intelligence and various algorithms to make decisions, often helps employers evaluate more applicants in a shorter period of time, select individuals for interviews, or evaluate current employees for raises or advancement at the business.

But could the use of this software be creating legal liability for your business? Maybe.

In May, the Equal Employment Opportunity Commission (EEOC), the federal agency that enforces federal anti-discrimination in employment laws, issued guidance to employers, titled “The Americans with Disabilities Act and the Use of Software, Algorithms, and Artificial Intelligence to Assess Job Applicants and Employees.” The guidance addresses three main areas, or ways, in which software-based screening tools may violate the Americans with Disabilities Act (ADA), if employers are not careful.

First, the EEOC guidance reminds employers that if their software-based screening tool does not have a process for individuals to request accommodations that may be necessary for an individual with a medical condition to be fairly and accurately rated by the software or use the software, it may violate the ADA. Under the ADA, employers are required to provide reasonable accommodations to applicants and employees. For example, it may be a reasonable accommodation to allow a visually impaired applicant or employee to be evaluated through a non-computer-based screening tool.

Amelia J. Holstrom, Esq.

Amelia Holstrom

Trevor Brice

Trevor Brice

“The EEOC warns employers that without proper safeguards, a software-based screening tool may unintentionally (or intentionally) screen out individuals with disabilities.”

Second, the EEOC warns employers that without proper safeguards, a software-based screening tool may unintentionally (or intentionally) screen out individuals with disabilities. The EEOC specifically referenced ‘chatbot’ screening tools, which are designed to engage in communications online through texts and emails. A chatbot might be programmed with an algorithm that rejects all applicants who mention in conversation with the chatbot that they have a gap in their employment history. If this gap in employment is due to a medical condition, then the chatbot may function to screen out the applicant unlawfully due to their disability, even though the individual would be capable of performing the essential functions of the position for which they were applying with (or without) an accommodation.

Finally, the EEOC guidance reminds employers that if a software-based screening tool asks questions that require employees to disclose medical conditions or other disability-related information, it may be an unlawful, disability-related inquiry that violates the ADA.

The guidance also cautions employers that they can be liable for discrimination caused by software-based screening tools, even if the employer did not create the tool. In other words, utilizing software developed by an outside vendor does not insulate an employer from liability.

Although the EEOC highlighted several issues that might make the use of software-based screening tools problematic under the ADA, it also provided employers with guidance on steps they can take to help mitigate their risk, including, but not limited to: making it clear how an individual may request an accommodation related to the screening tool or the use of the software; promptly and appropriately responding to all requests for such accommodations; thoroughly questioning the methodology used by the software the businesses uses, including asking the software provider whether it was developed with individuals with disabilities in mind and what the software provider did to make the interface accessible to individuals with disabilities; and asking the software provider if it attempted to determine if any algorithm used by the software disadvantages individuals with disabilities.

Employers should not expect the concerns raised by the EEOC over the use of software-based screening tools to stop at the ADA. Just weeks before the EEOC issued this guidance, the EEOC filed a lawsuit against iTutorGroup Inc., Shanghai Ping’An Intelligent Education Technology Co. Ltd., and Tutor Group Ltd., alleging that the companies’ online recruitment software was programmed to automatically reject female applicants over age 55 and male applicants over age 60 in violation of the Age Discrimination in Employment Act.

Given the growing use of software-based screening tools, it is imperative that employers thoroughly evaluate their own software and their vendor-provided software for any possible discriminatory bias and seek legal advice with regard to their evaluation whenever appropriate. u


Amelia Holstrom is a partner with the Springfield-based law firm Skoler Abbott, and Trevor Brice is an associate with Skoler Abbott; (413) 737-4753.


Rallying Cry

On July 13, the Massachusetts State Senate unanimously passed a bipartisan bill protecting providers, residents, and visitors to the Commonwealth who engage in legally protected reproductive and gender-affirming healthcare.

“An Act Expanding Protections for Reproductive and Gender-affirming Care” includes provisions preventing the Commonwealth’s cooperation with ‘bounty-style’ anti-abortion and anti-gender-affirming care laws in other states, mandates health-insurance coverage for abortion and abortion-related care with no cost sharing, ensures access to emergency contraception, and provides confidentiality to providers of reproductive and gender-affirming care.

“We cannot let other states threaten Massachusetts pregnant and transgender people or the providers who take care of them,” said Senate President Karen Spilka. “Massachusetts will not waver in protecting our residents’ rights. The Legislature prepared for the end of Roe v. Wade by passing the ROE Act in 2020, which ensured the continuation of reproductive healthcare services when we could no longer count on the federal government. Now, we must prepare our Commonwealth for the potential further erosion of our rights and protections at the federal level. I want to thank my colleagues in the Senate for their swift and decisive action.”

The bill, filed by state Sen. Cindy Friedman, expands on her amendment to the Senate FY 2023 budget, which was filed in response to the leaked U.S. Supreme Court opinion on Dobbs v. Jackson and adopted by the Senate in late May.

Friedman, Senate chair of the Joint Committee on Health Care Financing and the lead sponsor of the bill, called the legislation “a monumental step forward in Massachusetts, as we are seeing increasingly more anti-abortion and anti-gender-affirming care legislation rise across the country. We must do everything to protect the rights of our providers, patients, and visitors to the Commonwealth. As we further realize the impact of the U.S. Supreme Court’s decision in Dobbs v. Jackson in our Commonwealth, we will continue to fight these attacks on reproductive and gender-affirming care with meaningful action.”

State Sen. Adam Gomez added that the bill sends a clear message: “we will not let the rights of pregnant or transgender people be threatened in our state. The decision handed down a few weeks ago from the United States Supreme Court means the criminalization of a deeply personal healthcare decision made between a child-bearing person and their doctor. This criminalization will disproportionately impact low-income communities, communities of color, and single parents. This legislation will ensure that these vulnerable groups will not have to worry in our state when it comes to their reproductive health.”

Under the legislation, physicians, nurses, physician assistants, pharmacists, psychologists, genetic counselors, and social workers are insulated from legal action in Massachusetts courts as a result of providing healthcare services that are legal in Massachusetts. This language specifically protects reproductive and gender-affirming healthcare, which has been the target of laws passed in states like Texas and Oklahoma that seek to limit this critical care beyond their states’ borders. This bill also allows anyone who faces abusive litigation in another state for providing legally protected reproductive and gender-affirming care services to sue in Massachusetts court to obtain a judgment, including actual damages, expenses, costs, and reasonable attorney’s fees.

The governor would be prevented under the legislation from extraditing someone to another state to face charges for an abortion, gender-dysphoria treatment, or another protected service, except when required by federal law or unless the acts forming the basis of the investigation would also constitute an offense if occurring entirely in Massachusetts. Law-enforcement agencies in Massachusetts would also be prohibited from assisting any investigation by federal authorities, another state, or private citizens related to legally protected reproductive and gender-affirming healthcare provided in the Commonwealth.

Courts would similarly be barred from ordering anyone in Massachusetts to testify or produce documents for lawsuits involving those practices, and judges could not issue any summons in a case concerning those healthcare services unless the offense in question would also violate Massachusetts law.

An amendment was adopted during debate requiring public higher-education institutions to work with the Department of Public Health (DPH) to create a medication-abortion readiness plan which must provide medication abortion at a health center on campus or provide a referral to a nearby healthcare facility offering abortion care. It also creates a trust fund for public higher-education institutions to support the implementation of their medication-abortion readiness plans.

“The Senate has taken important steps to confront the threats posed reproductive and gender-affirming healthcare in our state posed by new, draconian laws being passed across the nation,” said state Sen. Michael Rodrigues, chair of the Senate Committee on Ways and Means. “Though these changes are unprecedented, we in Massachusetts are continuing to demonstrate that we are prepared to defend the rights of all of our residents.”

In response to stories about women not receiving access to abortion care in Massachusetts currently allowed under the existing state law, an amendment was adopted to clarify the circumstances that treating physicians must consider when determining whether to provide later-in-pregnancy abortion care. The amendment requires such determinations to be made by the treating physician and patient. To ensure hospitals are complying with the law, the amendment also requires healthcare facilities providing these services to file their procedures and processes for providing services consistent with the law with DPH.

Additional amendments would identify areas of the state with limited abortion access to increase care to those areas and allow pharmacists to prescribe and dispense hormonal contraceptive patches and self-administered oral hormonal contraceptives. The bill implements a statewide standing order to ensure that emergency contraception can be dispensed at any pharmacy in the Commonwealth.

In addition, the legislation requires the Group Insurance Commission and commercial health-insurance carriers to cover abortions and abortion-related care and ensure Massachusetts patients are not charged a cost-sharing amount, such as deductibles, co-payments, or similar charges, for such coverage. It also requires MassHealth to cover abortion and abortion-related care and ensures enrollees are not charged a cost-sharing amount for prenatal care, childbirth, postpartum care, abortion, or abortion-related care.

The bill also allows individuals engaged in the provision, facilitation, or promotion of reproductive and gender-affirming healthcare to enroll in the Secretary of the Commonwealth’s Address Confidentiality Program. This action will increase the safety of those who may face threats or violence outside of the workplace in their personal lives or at their residences.

With a version of a bill expanding protections for reproductive and gender-affirming care having passed both branches of the Legislature, a conference committee will be appointed to resolve differences between the bill’s two versions.

“I was proud to vote yes on comprehensive legislation to strengthen reproductive and gender-affirming protections in Massachusetts,” state Sen. Jo Comerford said. “Safe, legal, and affordable reproductive and gender-affirming healthcare are public-health necessities. I’m grateful to Senate President Spilka, Senator Cindy Friedman, and Senate colleagues for leading a robust response to the national assault on reproductive and trans rights, and I look forward to beginning work on the Senate Reproductive Health Working Group with a strong focus on equity.”

Law Special Coverage

Implementing Such an Initiative Can Provide a Number of Benefits

By Kylie Brown and Tanzania Cannon-Eckerle

Diversity, equity, and inclusion (DE&I) initiatives are being discussed more than ever in conference rooms, boardrooms, human-resources departments, and administrative offices. This is exciting, and for companies implementing these initiatives, one of the benefits incurred will be the creation of internal processes and procedures that will mitigate perceptions of discrimination and harassment in the workplace.

Massachusetts law requires that businesses maintain a harassment- and discrimination-free workplace. The law states, in summary, that it is unlawful to discriminate or harass in the workplace because of race, color, religious creed, national origin, or sex.

According to the related laws, a Massachusetts company has a duty to maintain a workplace that is free of discrimination and harassment. It would be fiction to state that it is possible for a company to ensure that it maintains an idyllic workplace for everyone. There are too many unique and diverse humans, too many variables. The good thing is the law does not require a company create an idyllic retreat.

However, it does require companies to do their due diligence to create and maintain a discrimination- and harassment-free workplace, and if something does occur that might meet the definition of discrimination or harassment, a company must address the matter in a timely fashion and implement remedial measures when and where necessary. As such, companies must prepare to manage the possibility of these occurrences. It would be most beneficial if a company did not wait to implement remedial measures in response to wrongdoing or after an incident has occurred; the programs should already be in place.

DE&I initiatives provide a multitude of benefits to an organization with returns that are both ethically and financially calculable, including assisting in the creation of discrimination- and harassment-free workplaces.

It can be difficult to calculate a financial return on prevention; however, in the realm of discrimination and harassment, prevention can be calculated by the declining costs of litigation. Creating a workplace that assures that policies are created to prevent harassment and discrimination, and that procedures are implemented to enable the consistent and equitable application of policies to all employees, will cause a decline in the appearance of harassment and discrimination and will diminish legal costs to a company — and costs to the company’s reputation.

The reason why DE&I initiatives work so well in this manner is because DE&I initiatives foster equity in the application of all workplace mechanisms and thus, once firmly established, naturally create a workplace environment free of discrimination and harassment, to the extent practicable. This is because, once DE&I initiatives are firmly established, most employees will feel a sense of belonging as they will feel heard and have a sense of empathy for their colleagues which fosters a team-oriented culture and problem-solving mindset. That not only prevents lawsuits, but it will also save money in the form of retention. Furthermore, data has shown that productivity and creativity increase, as does employee wellness.

Kylie Brown

Kylie Brown

Tanzania Cannon-Eckerle

Tanzania Cannon-Eckerle

“It can be difficult to calculate a financial return on prevention; however, in the realm of discrimination and harassment, prevention can be calculated by the declining costs of litigation.”

Unfortunately, many companies have leaders who have not identified DE&I as a cost-savings measure, or many leaders don’t know where to start. This article cannot, in the limited space provided, cover the entirety of what can be discussed in the realm of DE&I. However, we seek to plant a ‘can-do’ seed of desire to create DE&I initiatives in one’s workplace as a means of creating safe and discrimination- and harassment-free workplaces, by showing that creating such a workplace just takes a plan and a commitment to execute.

This article is one of a series that seeks to assist businesses with an inside-out approach, using existing resources to set up a sound foundation to grow a robust DE&I initiative within their company, and to create a workplace that is discrimination- and harassment-free while also becoming more ethical and more financially successful. It doesn’t have to be perfect. It can be tweaked along the way.

First, we start at the beginning. Let’s demystify DE&I.


What Does DE&I Even Mean? And What About Belonging?

Let’s broaden the concept to DE&I and B, or belonging.

Diversity means to be composed of different elements or offer variety. In application to the workplace, this translates to different people, through race, gender, and/or sexual orientation, with different cultural, social, and economic backgrounds, bringing their thoughts and ideas to the table.

Equity is the act of giving everyone in your pool of diversity fair treatment in access, opportunity, and advancement in the workplace, through processes and procedures implemented in a consistent manner. It’s recognizing we don’t all start from the same playing field and carries an idea of fairness and neutrality. That’s the difference between equity and equality.

Inclusion means being included in or involved in material decision making in the workplace at the appropriate level, and having the freedom or enterprise-level permission to weigh in on items of import that are relevant to one’s job and actually being heard. Identification of stakeholders are important here.

Belonging is what happens when a company has a strong foundation of continued diversity, equity, and inclusion processes, protocols, habits, and other customs of practice, and having a sense of being accepted as one’s authentic self at work that is supported by equity and inclusion. The goal should be to have an engrained DE&I model that is engrained in every aspect of the company so that it becomes common practice.


Where to Start?

First and foremost, focusing on DE&I must be in line with the overall business mission, values, and objectives in order to be successful. Second, there must be buy-in from all levels of the organization. Identifying what it will take to get that buy-in is important and will vary depending upon the audience. Third, identify the DE&I goals and why these are the goals. This is most likely dependent on what industry your company belongs to and how your company is structured.

Fourth, create a DE&I committee and identify who should be on the committee, and provide them with defined authority to act. This will create company accountability for continuing on with the initiatives. Fifth, do gap assessment. Where is the company now? Where does the company hope to be? What needs to be accomplished get there? What are the potential obstacles? How will they be overcome?


Gather Data

Focus on the return on the investment (know your audience). The return on investment might look different for the frontline supervisors than it does for procurement or accounting. Analyze the upfront costs, such as change in recruitment tactics, utilizing more networking forums, and potentially creating new roles to support the new business outlook

Where can we implement DE&I initiatives? DE&I can be external, by using diverse vendors, or internal, by establishing an equitable approach to handing out assignments. Every time a new business development is discussed, whether internally or externally, it creates another opportunity to include DE&I.

Identify stakeholders and talk to them. Encourage discussion on the topic of DE&I. Discuss their opinions on issues that impact them in the workplace. Gathering employee opinions and concerns will enable the company to make positive changes that will prevent issues and increase employee engagement. Hold open-forum discussions such as town-hall listening sessions — not talking sessions, where company executives talk at employees. These are great opportunities to listen to others and allow all staff to be heard.

A review of company documentation should be conducted to find existing areas where improvements may be needed. Obtaining statistical knowledge and data of the current demographics throughout the general workplace, as well as upper-level management, will help assist you in realizing where there is a need to implement DE&I.


Sell It

Make DE&I identifiable in the company mission. Make it a part of the company brand if possible. Involve company leaders in the celebration of meeting goals around DE&I initiatives. It is vital to get leadership support for the success of any DE&I initiative. Sell it to all employees. Create a well-thought-out communication plan. It is important that companies are knowledgeable about the prospective initiatives so they can answer any and all questions that may arise.

The company should support its initiatives by marketing them internally and externally to the general population, which could lead to potential exposure to overall business growth and development.


Implement It

At the core of implementing a successful DE&I program is implementing it in a manner consistent with the company mission, vision, and strategy. Including DE&I initiatives in your business model provides business growth opportunities and positive employee relations.

Implementation can start with recruitment, attracting different people from different backgrounds in order to bring new ideas to the table. Infuse DE&I in the employee-relations program by creating policies that are developed with the input of a cross-section of stakeholders and are consistently applied in an equitable manner.

Infusing all company mechanisms with DE&I approaches will be justified by the quantifiable growth and development it produces, as well as the prevention of discrimination and harassment lawsuits — and by the sense of belonging the company’s workforce maintains.


Kylie Brown is an associate attorney at the Royal Law Firm who specializes in labor and employment-law, and Tanzania Cannon-Eckerle is the firm’s chief administrative and litigation officer, who specializes in business and labor and employment law with certifications in Diversity, Equity and Inclusion and Workplace Investigations. The Royal Law Firm is a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


A Matter of Policy

By Michael Roundy


Since early in the COVID-19 pandemic, businesses small and large have been seeking insurance coverage for business losses incurred when the virus or governmental orders forced them to close their doors. Although policyholders have enjoyed mixed results, the outcome of insurance coverage lawsuits ultimately turns on the particular language of the policy at issue.

Two common provisions have become the primary focus of many of these suits: The physical damage requirement, and the virus exclusion. Cases continue to turn on the precise language used in these provisions, or on the absence of the provisions from the policy at issue. As more cases work their way through the state and federal courts, certain outcomes have become more predictable.

“Two common provisions have become the primary focus of many of these suits: The physical damage requirement, and the virus exclusion. Cases continue to turn on the precise language used in these provisions, or on the absence of the provisions from the policy at issue.”

Many cases have turned on the requirement, included in most but not all policies, that the coverage-triggering event must have caused “direct physical loss of or damage to” the property. Policyholders have argued that the physical harm or loss requirement is met in the COVID context because the virus itself is in the air at the business and physically changes the air, airspaces, property, and property surfaces, that require cleaning to remediate the harm, which has directly led to the loss of use of the property for its intended business purposes.

Insurers, on the other hand, have repeatedly argued that physical loss or damage must include some form of tangible damage or physical alteration to the property itself, rendering the property damaged or unusable such that it must be either discarded, replaced, or repaired.

For the most part, courts have agreed with the insurers on the interpretation of physical damage provisions, and have dismissed COVID coverage suits on the grounds that while the virus may contaminate surfaces, it does not damage them and therefore does not trigger the business interruption coverage that policyholders are seeking. Courts have held that even if the virus has contaminated certain surfaces, the contamination can easily be eliminated by ordinary cleaning and disinfection and the need for cleaning does not constitute a “direct physical loss.”

Even so, not all policies include the same “direct physical loss” language.

Courts, in their analyses, have placed emphasis on the immediacy of the word “direct” such that the absence of the term — a policy requiring only “physical loss” — may provide an opening for insured parties to argue for coverage despite the ever-expanding string of losses on the issue.

Other policies, less commonly, may lack the “physical loss” or “physical damage” requirement altogether. Careful and thorough analysis of policy language may reveal the availability of claims typically dismissed, depending on the specific language used.

However, even those cases that survive the physical-loss inquiry may often be dismissed by courts because of a so-called virus exclusion. In the wake of the SARS epidemic of 2002-2003, many insurers added specific virus exclusions to their policies, adopting language developed by industry groups.

Although SARS infected only a few thousand people, it led to millions of dollars of successful claims against commercial insurance policies for business-interruption coverage. Having been, in effect, forewarned, insurers were better prepared for the litigation arising from the COVID pandemic. Thus, even if a policyholder can demonstrate physical loss or circumvent the physical damage requirement, if there is one, many suits are also being dismissed on the basis of the virus exclusions that are now present in many policies.

Virus coverage cases have faced a particularly difficult time in federal courts, with almost half of them being dismissed on the basis of a lack of physical damage, the presence of a virus exclusion, or similar grounds. Roughly a third of the federal cases continue to work their way through the litigation process, and most of the remainder have been voluntarily dismissed. State courts have generally been more forgiving and provided policyholders with occasional victories.

For example, several state courts in Pennsylvania have either permitted claims to survive motions to dismiss or even granted plaintiffs summary judgment on the issue of the physical damage requirement, one finding that the loss of use was enough to satisfy the requirement. An Oklahoma court found that “direct physical loss” was satisfied where the property was rendered unusable for its intended purpose by the presence of the virus, without requiring any physical alteration of the property. Plaintiffs’ claims have survived dismissal in several California cases as well, where the courts concluded that the phrase “any physical loss” includes the loss of the ability to access or use the property.

Thus, it remains clear that the issues have not been definitively decided in all cases or all jurisdictions. Cases will still turn on the language used in the specific policy before the court and the court’s receptiveness to broader readings of the meaning of “loss.” Prosecuting and defending COVID coverage suits requires counsel adept at reviewing and interpreting policy contract language and conversant in the broader landscape of coverage suits playing out in multiple jurisdictions across the country. u


Michael Roundy is a partner in Bulkley Richardson’s litigation department; (413) 272-6200.

Law Special Coverage

Common Compensation Blunders

By John Gannon, Esq.

Wage-and hour-compliance is never easy for businesses, and a recent decision from the Massachusetts Supreme Judicial Court (SJC) just made things harder.

In ˆ, No. SJC-13121 (Mass. April 4, 2022), the Massachusetts Supreme Judicial Court (“SJC”) ruled that paying employees late is equivalent to not paying at all. This means employees are entitled to triple damages if they are not paid on time, because under the Massachusetts Wage Act, employers who fail to pay wages are liable for three times the unpaid wage amount (treble damages). With that case in mind, here are a few common compensation mistakes employers should avoid to ensure solid wage and hour compliance.

Failure to pay wages on time: The Massachusetts Wage Act requires employers to pay all wages, including any accrued, unused vacation time, to employees who are terminated on their last day of work. For employees who voluntarily resign, all wages are due on or before the next regularly scheduled pay date.

Too often, employers pay final wages a day or a week too late. This is especially common with unpaid commissions. The problem here is that under the Reuter v. City of Methuen case, those wages are not paid on time. Therefore, the employee is due triple damages under the Wage Act.

This is what happened to the City of Methuen; the city paid an employee her final paycheck of about $9,000 (including unused vacation time) about three weeks late. The court ruled that the employee was due almost $30,000 because the city paid the employee a few weeks late. Professional tip: Don’t make this same mistake. Make sure employees who are separated from work are paid all wages on their last day of work. If the final check is not ready the day you need to let someone go, have a process in place to suspend the employee while you work out cutting the final paycheck.

Misclassifying employees as independent contractors: It can be tempting to “contract” with an individual to provide services that are similar to what your employees do. This relationship has tax advantages, no need to worry about leave laws and other employment regulations, and a perceived sense of freedom to easily terminate the relationship if it does not work out.

“The Massachusetts Wage Act requires employers to pay all wages, including any accrued, unused vacation time, to employees who are terminated on their last day of work. For employees who voluntarily resign, all wages are due on or before the next regularly scheduled pay date.”

The problem is that classifying individuals as independent contractors (“I/C”) in this situation can be risky. This is because the I/C classification may violate the Massachusetts Independent Contractor statute, which requires workers to be classified as employees, not I/Cs, when the work being performed is similar to that of other employees.

The Massachusetts Independent Contractor statute also requires true contractors to: (1) be free from control and direction from the business (meaning, the contractors sets their own hours and performance standards); and (2) have their own independently established profession or business (meaning, the contractor has their own LLC, PC, or other established business entity). Even where an individual agrees to be classified as an independent contractor and paid via a1099, businesses run a risk of violating the Massachusetts Independent Contractor if all of the above-mentioned factors are not satisfied.

Travel time troubles: Both Massachusetts and federal law require employers to pay employees for non-commuting travel time during the day. This is commonly referred to as intraday travel. Here is the example provided by the federal Department of Labor: Barbara is a personal care aide providing assistance to Mr. Jones. Barbara drives him to the Post Office and grocery store during the workday. Barbara is working and the travel time must be paid.

What employers in Massachusetts might not know is that under state law you also have to reimburse Barbara for all “associated transportation expenses.” This means you need to pay her for costs like mileage, tolls, and parking (if applicable). It is unclear what employers have to pay for mileage, but the safe bet is paying in accordance with the IRS standard mileage rate, which is currently 58.5 cents per mile.

Meal break miscues: Massachusetts law requires employers to provide a 30-minute meal break to employees when they work more than six hours in a day. The break does not need to be paid; however, if an employee does any work during an unpaid break, the employee needs to be compensated for their time. This could be as little as answering a work-related phone call or making a few copies on the copy machine during a break.

Meal break time may be used by employees for activities other than eating, such as running an errand or taking a walk outside. The key here is that if the meal break is unpaid, workers must be allowed to use the time as they choose, including leaving the building/work premises.

Illegal deductions from pay: When it comes to paychecks, the general rule is that employers cannot make any deductions, with a few exceptions. Some deductions are federal or state mandated, such as any deductions for taxes or child support. Other deductions are consented to by employees, including money put toward insurance premiums and retirement benefits. Other than that, employers should not be deducting money from paychecks under almost any circumstances.

One common scenario where employers want to make a deduction is a situation involving a wage overpayment. In this case, a deduction might be ok if: (1) the employee agrees in writing to the overpayment and deduction; and (2) the deduction does not bring the employee’s earnings below minimum wage. Be sure to check in with employment counsel before making a deduction for an overpayment though, as it does have some potential risk. Also, be sure to never make deductions associated with damaging or failure to return company property (such as a cell phone or laptop). This is not allowed in any circumstances, and can lead to triple damages under the Massachusetts Wage Act.


John Gannon is a partner with the Springfield-based law firm of Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act; (413) 737-4753; [email protected].


Case in Point

By Alexander Cerbo, Esq.


As most employers are aware, non-payment of wages claims can be made under both state law, the Massachusetts Wage Act (“MWA”), and federal law, the Fair Labor Standards Act (“FLSA”). Although similar in many respects, the MWA and FLSA have several important differences.

First, under the FLSA, either a two-or three-year statute of limitations applies, depending on whether the claimant can demonstrate that the employer acted “willfully.” On the other hand, the MWA provides for a strict three-year statute of limitations. Also, the FLSA allows a prevailing plaintiff to recover costs, attorney’s fees, and potential liquidated damages (i.e. damages collected as a result of a breach of the contract) equal to the amount of lost wages.

Essentially, employees can recover “double damages” or double the amount of back pay damages for unpaid overtime. On the other hand, remedies under the MWA are even greater. Plaintiffs can recover attorney’s fees and costs, both of which are subject to treble, or triple, damages.

When deciding which law to bring a wage claim under, Massachusetts plaintiffs often file under the MWA because of the greater remedies available to them under the MWA. However, this is not always the case.

In a recent matter before the highest court in Massachusetts, several restaurant workers asserted unpaid overtime claims under the FLSA. But these plaintiffs cannot assert these claims under the MWA because restaurant workers, as well as other service-industry employees, as a matter of law, are not entitled to overtime wages. Nevertheless, they attempted to argue that violations of the FLSA entitled them to damages under the MWA. The SJC disagreed, holding that remedies afforded under the state MWA are to be preempted by the federal FLSA where employees’ claims for unpaid overtime wages arise exclusively under federal law.

While this decision is good news for employers, the remedies available under the FLSA remain considerable. To avoid these substantial damages, employers should ensure internal procedures are in place, and consistently followed, so as to guarantee all employees are paid wages owed to them.


Alexander Cerbo is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.


The EO on PLAs

By Alexander Cerbo, Esq.


Keeping his promise of being “the most union-friendly president in American history,” President Biden and his administration issued Executive Order (EO) 14063, which mandates project labor agreements (PLAs) on “large-scale construction projects.”

Alexander Cerbo

A project labor agreement is a collective bargaining agreement between a contractor and the building trade union. A large-scale construction project is one within the U.S. that has an estimated total cost of $35 million or more, and usually refers to construction, rehabilitation, alteration, conversion, extension, repair, or improvement of a ‘vertical public works’ project. Famous examples of large-scale construction projects that were governed by PLAs include Disney World, the Kennedy Space Center, and Yankee Stadium. The EO is estimated to impact more than 200,000 workers and $262 billion in federal funding. For those in the industry, you should become familiar with the PLA.

PLAs are negotiated before any workers are hired, and they establish the terms of employment on a project, including wages, hours, working conditions, and dispute-resolution methods, among other things. If a business is unionized, the PLA must coexist with the business’ existing collective bargaining agreement. Biden’s EO contains several additional requirements of PLAs going forward. For example, all contractors and subcontractors related to the project must be allowed to compete for work, unionized or not. In addition, these PLAs must contain mutually binding dispute-resolution provisions as well as provide alternative mechanisms for cooperation between labor and management.

But what does this mean for small businesses that are not unionized going forward? Maybe, not a whole lot of good. But that depends on your business model.

What is considered ‘small’ typically depends on what industry you are in, and could range from fewer than 500 employees or up to 2,500 employees, or even more. Essentially, you are a small business if you are a privately owned corporation, partnership, or sole proprietorship that has fewer employees and less annual revenue than a public corporation or regular-sized business. According to the Small Business Administration, the construction industry has one of the highest concentrations of small business participation, well over 80%. Some argue that PLAs put small non-union construction businesses at a disadvantage because they increase the cost of doing business. Considering the fact that most small businesses in the construction industry are non-union, PLAs put them at a great disadvantage.

“Some argue that PLAs put small non-union construction businesses at a disadvantage because they increase the cost of doing business. Considering the fact that most small businesses in the construction industry are non-union, PLAs put them at a great disadvantage.”

While PLAs are often applauded by many labor analysts for creating long-term project stability, opportunities to include minority contractors and small ‘mom-and-pop’ contractors, and better training for workers, PLAs also increase the cost of construction by requiring payment of union wages to non-union workers, something greatly detrimental to the financial interests of small businesses that wish to partake in these construction jobs.

In addition, PLAs generally require non-union contractors to pay employee benefits twice — once to their employees and once to the unions that oversee the project, often making it too costly for non-union businesses to compete for these jobs in the first place. Non-union contractors often must pay into underfunded and mismanaged union pension plans, of which their employees wouldn’t see the benefits unless they joined the union. A small business must look at these costs associated provisions, among other things, to assess the risks and costs of entering into this type of arrangement. All businesses at all levels should make sure to do the short-term and long-term math before deciding whether to get into one of these arrangements.

It is important to note that the Biden EO does not require construction companies to unionize and does not apply to construction projects controlled by local or state governments, even if they receive federal funding. Nevertheless, the PLA mandate could be catastrophic for many small businesses, often touted by many politicians as the backbone of the American economy.


Alexander Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]


Risky Business

By Michael Roundy and Scott Foster


Michael Roundy

Scott Foster

Scott Foster

Running a business in the legalized cannabis space is something in which hundreds of owners around the Commonwealth are now engaged. On most days, the fact that cannabis remains illegal federally is not on the top of the minds of these owners. However, a recent decision by the First Circuit Court of Appeals reminds us that the cannabis industry is not entirely free of the risks of federal prosecution and provides useful guidance on how best to avoid those risks.

Maine legalized medical marijuana in 2009, subject to stringent conditions and governed by detailed regulations. While state law permitted the medical use of marijuana, the federal Controlled Substances Act does not. However, each year since 2015, Congress has attached a rider to its annual appropriations bill that prohibits the Department of Justice from using appropriated federal funds to prevent any of the states “from implementing their own laws that authorize the use, distribution, possession, or cultivation of medical marijuana.”

In United States v. Bilodeau and two related cases, the two individual defendants and the companies they owned operated sites in Auburn, Maine, where they grew marijuana purportedly for use as medical marijuana. The operations were carried out under the color of facially valid paperwork as a Maine Medical Marijuana operation, and state inspectors found the site to be in compliance with Maine’s law.

Following an investigation by federal law enforcement, the defendants were indicted for knowing and intentional violation of the Controlled Substances Act. The government asserts that the illegal marijuana-distribution operation merely used the Maine Medical Marijuana program as a cover for its illegal, black-market marijuana operations, which included distribution of marijuana to individuals in several other states who were not qualifying medical-marijuana patients under Maine’s law.

“On most days, the fact that cannabis remains illegal federally is not on the top of the minds of these owners. However, a recent decision by the First Circuit Court of Appeals reminds us that the cannabis industry is not entirely free of the risks of federal prosecution and provides useful guidance on how best to avoid those risks.”

The defendants challenged the prosecution on the grounds that the government was prohibited from using federal funds to prosecute them, because of Congress’s appropriations rider, and sought an injunction from the District Court. The court denied the request because the Maine medical-marijuana law did not authorize the sort of conduct alleged. The defendants appealed.

The Court of Appeals considered the arguments raised by both parties. The government advocated for a view of the appropriations rider that would permit any prosecutions unless the defendants were in full, strict compliance with the state’s medical-marijuana laws. Any minor non-compliance would bring the case outside the rider and permit the Department of Justice to prosecute.

The court rejected this approach, finding that federal prosecution would hang as a sword of Damocles over participants in Maine’s medical-marijuana market, ready to drop at the occurrence of any minor, “even tiny” non-compliance or unintentional violations, and would likely deter market participation, which might also lead the state to water down its regulatory scheme and otherwise serve to thwart the state’s implementation of its laws relating to medical marijuana.

The defendants argued that the rider should prevent prosecutions of those who have valid state licenses to participate in the state’s medical-marijuana industry. The court rejected this other extreme as well, concluding that Congress did not intend the rider to create a safe harbor for blatantly illegitimate activity outside the scope of the state’s own medical-marijuana laws, merely because the defendants possess facially valid documents.

The court thus rejected the approach advocated by both the government and the defendants. The court adopted a middle-ground approach and declined to define its precise boundaries. It found that the conduct in the case at hand was clearly aimed at supplying marijuana to persons “whom no defendant ever thought were qualifying patients under Maine law” and that the medical-marijuana licenses were façades for such unauthorized sales.

The court also noted that Maine’s own medical-marijuana law expressly criminalized distribution to those not authorized to possess marijuana (medical patients) under the law. As such, federal prosecution for such conduct was considered unlikely to have any unwelcome effect on Maine’s implementation of its medical-marijuana laws. The Appeals Court therefore affirmed the District Court’s denial of an injunction, and the prosecution is permitted to proceed.

What this decision does not do is provide sufficient clarity for Massachusetts operators or regulators, especially around the question of what degree of non-compliance with the Massachusetts regulatory scheme may expose Massachusetts operators to federal prosecution.

While it seems unlikely that mere technical violations would lead to federal prosecution, could an operator faced with a summary suspension order (which occurs when there is “an immediate threat to public health, safety, and welfare”) find that not only is their license suspended, but they now face federal prosecution as well? Hopefully the Cannabis Control Commission will take this potentially serious threat into consideration as they weigh future enforcement actions in Massachusetts.


Michael Roundy and Scott Foster are both partners at Bulkley Richardson and members of the firm’s cannabis practice.

Law Special Coverage

An Employment-law Roundup

By Marylou Fabbo, Esq. and John S. Gannon, Esq.

Here is a quick review of a noteworthy new employment law that was signed by President Biden earlier this month, along with a summary of two significant cases that impact businesses in Massachusetts and beyond.


Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

On March 4, the president signed a new law that will prohibit agreements between employees and their employers that required them to settle sexual-harassment disputes by arbitration. For those who do not know, an arbitration agreement requires the people who signed the agreement to resolve any disputes by binding arbitration, rather than in court in front of a judge and jury. Employers often require employees to sign arbitration agreements at the beginning of their employment, but will no longer be able to enforce these agreements if an employee alleges they were sexually harassed.

Marylou Fabbo

Marylou Fabbo

John Gannon

John Gannon

“Forced arbitration silences survivors of sexual assault and harassment,” Vice President Kamala Harris said about the new law. “It shields predators instead of holding them accountable and gives corporations a powerful tool to hide abuse and misconduct.”

The law applies retroactively, meaning it applies to agreements signed before March 4. This means employers should revise old arbitration agreements to remove references to sexual-harassment claims. The new law does not impact cases that are already in arbitration, nor does it prohibit mandatory arbitration agreements in employment disputes that do not involve sexual-harassment allegations, such as race- or religious-discrimination claims, or disputes over payments of wages.


U.S. Supreme Court Decision Blocking Vaccine Directives

As many readers are likely aware, earlier this year, the U.S. Supreme Court ruled against the Biden administration in the back-and-forth legal battle over the OSHA ‘shot-or-test’ rule that required larger employers to put policies and procedures in place to ensure employees get vaccinated against COVID-19 or undergo weekly testing.

Does that mean employers do not have to worry about taking steps to protect workers against COVID? Absolutely not. Although OSHA announced it was withdrawing the shot-or-test rule in light of the Supreme Court’s decision, OSHA “strongly encourages vaccination of workers against the continuing dangers posed by COVID-19 in the workplace.” The agency also announced it will continue its COVID enforcement efforts through the “general duty clause,” which is a catch-all provision that allows OSHA to cite employers for failing to provide a work environment free from recognized hazards.

In order to protect against citations and fines from OSHA, employers should implement workplace-safety policies aimed at stopping the spread of COVID. This includes masking requirements consistent with CDC guidance and protocols that require employees to notify their employer immediately if they test positive for COVID. Finally, if employers want to mandate that employees get vaccinated and boosted, that is perfectly fine, as long as exceptions are made for employees who cannot get vaccinated for medical or religious reasons.


In Massachusetts, New Employee Protection Against Retaliation

Earlier this year, the Massachusetts Supreme Judicial Court (SJC) ruled that employees who contradict negative information in their personnel files may be protected against unlawful retaliation. The case stems from an employee who disagreed with his supervisor’s assessment of his performance issues, so he wrote a lengthy rebuttal to be included in his personnel file. The very same day, he was fired. The employee sued, claiming he was wrongfully discharged for writing a rebuttal to negative comments in his personnel file.

Like the employee in this case, most employees in Massachusetts are employed at will, which means they can be terminated for any reason (or no reason) as long as the reason does not violate a statute or other established rule of law, such as laws against discrimination. Prior to this recent case, the SJC had recognized a few narrow exceptions to this general rule based on certain public-policy interests, including the assertion of a legally guaranteed right. Under Massachusetts’ Personnel Records Law, employees have the legal right to respond in writing.

While the SJC has been reluctant to limit employment at will, it concluded that the right to rebut negative information in a personnel file is of considerable public importance. It relates not just to someone’s current employment, but also their ability to seek other employment. It assists potential employers in making informed hiring decisions, “thereby preventing terminated employees from becoming public charges.” In the SJC’s view, having a complete personnel file — reflecting both sides of an issue — also facilitates the evaluation of an employer’s compliance with the Commonwealth’s many other employment laws, including those that require timely payment of wages and forbid discrimination in the workplace.

This decision recognizes a new legal claim that a terminated employee can bring in court against their former employer. Obviously, this creates a new source of potential liability for employers. But it also creates a new source of protection for employees, and as a result, it may incentivize employees to exercise their right to file rebuttals more often, especially when their performance has been poor or they have other reasons to suspect that their employment is not secure. This makes it all the more important for employers to be diligent about performance management, as creating a documented record of performance problems (and efforts to address them) before pulling the trigger on termination is the best way to defend against any wrongful-termination claim.


Marylou Fabbo and John Gannon are attorneys at Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected][email protected]


No Breach January

By Lauren C. Ostberg


Along with the widely reported cyberattacks on behemoths like LinkedIn and Facebook, 2021 also saw cyberattacks on local governments, small businesses, school systems, nonprofit organizations, and other smaller, more vulnerable targets. For more than a decade, Massachusetts has enumerated a set of administrative, physical, and technological safeguards designed to protect consumer’s personal information.

“This personal information is what you are obliged to safeguard; access, use, or compromise of this personal information by an unauthorized person constitutes a reportable breach.”

For more than a decade, you — a natural person, corporation, association, partnership, or other legal entity who uses, stores, or otherwise accesses personal information in connection with the provision of goods and services or with employment — have been required by law to put such safeguards in place.

Whether a genuine desire to comply with 201 CMR 17 or the breaches of 2021 motivates you, the new year is the perfect time to strengthen your cybersecurity position with three simple steps.


Inventory the Personal Information You Possess

Under applicable Massachusetts law, ‘personal information’ is a Massachusetts resident’s first and last name or first initial and last name combined with a Social Security number, driver’s license or state ID number, financial-account number, or credit- or debit-card number. This personal information is what you are obliged to safeguard; access, use, or compromise of this personal information by an unauthorized person constitutes a reportable breach. A useful first step in developing, or improving, your cybersecurity position, then, is compiling a list of every location where you keep this personal information.

Creating this list should make some security risks apparent — do you have Social Security numbers in your e-mail inbox, in an unlocked filing cabinet, or stored on the desktops of employees’ unencrypted laptops? In the event you experience a ransomware attack or another cybersecurity incident, knowing where personal information was stored can help you quickly determine whether the potentially compromised data contained ‘personal information’ and, thus, whether you have experienced a ‘breach’ reportable to regulators.

If you already have a well-developed written information security program (WISP) and feel confident in your cybersecurity posture, this step still applies to you. Reviewing and updating this inventory can (and should) be part of your annual review of that WISP’s scope and effectiveness.


Learn to Encrypt Personal Information

Massachusetts regulators require that personal information (when held by a person other than the consumer) be encrypted ‘in transit’ and ‘at rest.’ In transit refers to information when it is transmitted across networks — say, from one e-mail account to another. At rest refers to storage, on a flash drive, laptop, etc., or on an e-mail server.

If you comply with this regulation, an employee’s lost laptop or a compromised e-mail account will not impact consumers or raise the risk of identity theft because that sensitive information should be inaccessible to unauthorized parties. Encryption can be a simple process — in some cases, it’s a matter of a few well-placed clicks. Let this year be the one you figure it out.

If you have already enabled encryption on relevant devices and accounts, and have policies requiring the encryption of personal information, congratulations. After you pat yourself on the back, make sure your employees are aware of these policies and that they knew how and when to make use of these safeguards.


Train on Phishing

Massachusetts’s data-security regulations require employee training as both an enumerated administrative and technical safeguard. This is because internal policies regarding access to use of, and the transportation of, personal information required by 201 CMR 17 are of limited use if they are not consistently followed company-wide.

Similarly, the best malware protection and server encryption will not protect a business whose employees hand over the proverbial keys to the kingdom by providing their credentials or downloading malware by clicking a link in a phishing e-mail.

Because individuals responding to phishing e-mails is a known vulnerability, it is a useful place to start training. Phishing, which can take the form of e-mails or phone calls, is the fraudulent practice of attempting to obtain personal information or other valuable data from a person by pretending to be a reputable, and trusted, third party. Training employees to recognize, avoid, and report these scams is an initial step (and one endorsed by the FTC) to improving your cybersecurity hygiene.

While other safeguards in 201 CMR 17 and the Attorney General’s Compliance Checklist (like two-factor authentication) are important considerations, if you inventory your personal information, enable and use encryption, and train yourself and your employees to avoid phishing scams, you will be well on your way to a breach-free January and a compliant 2022.


Lauren Ostberg is an attorney in Bulkley Richardson’s cybersecurity group; (413) 272-6282.


A Development of Note

By Alexander J. Cerbo, Esq.


As COVID-19 continues to grow, mutate, and spread like a California wildfire, the Equal Employment Opportunity Commission (EEOC) has released guidance which outlines, in detail, just how COVID-19 may qualify as a ‘disability’ under the Americans with Disabilities Act (ADA).

Alexander J. Cerbo

Alexander J. Cerbo

In its recent report, the EEOC clarifies that employees who are either asymptomatic or have mild COVID symptoms that resolve in a matter of weeks are not considered disabled under the ADA. These cases are not found to substantially limit a major life activity as they do not restrict an employee’s bodily functions for a prolonged period.

However, ‘long COVID,’ or cases that persist for several weeks or even months after the initial infection, may qualify as an ADA-recognized disability. Symptoms include ongoing fatigue, brain fog, difficulty concentrating, difficulty breathing, or shortness of breath. In addition, other health conditions caused by COVID, or pre-existing health conditions exacerbated by COVID (such as heart inflammation), are considered a disability if they limit a major life activity.

The EEOC cautions that a determination as to whether an employee’s COVID-19 case constitutes a disability should always be made on a case-by-case basis.

While employers should be mindful as to how they handle employees with COVID, the ADA does provide employers with a ‘direct-threat’ defense by which an employer may require an employee with COVID, or its symptoms, to refrain from physically entering the workplace during the CDC-recommended period of isolation. An employer will risk violating the ADA if they exclude an employee from the workplace based upon “myths, fears, or stereotypes,” particularly if the individual is no longer infectious.

EEOC guidance is clear that an employer does not automatically violate the ADA in taking adverse action against an employee if they have COVID-19. Employees must meet the criteria of an ‘actual’ or ‘record of’ disability to be eligible for a reasonable accommodation. An actual disability is a “physical or mental impairment which substantially limits a major life activity.” Record of a disability is when the person has a history of that disability.

Eligible employees are not automatically granted a reasonable accommodation — their disability must require it, and the accommodation requested must not pose an undue hardship on the employer. Employers may also request supporting medical documentation in determining whether to grant an employee’s accommodation request.

With COVID-19 cases on the rise once again, and the inception of the new, highly contagious Omicron variant, employers should continue to remain alert for future guidance from the federal government in this ever-evolving pandemic.


Alexander J. Cerbo, Esq. is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]



Sobering Advice

By Ryan O’Hara


Hosted any parties recently? Hosting any in the weeks ahead? Whether you’re running a business and throwing a holiday shindig for your employees, having some folks over for a festive dinner party, or watching with friends as our new-look New England Patriots win the Super Bowl (why not this year?), it’s worth pausing to consider how you might avoid the risk of liability for any guests who might have a little too much fun.

I know, I know — maybe not the most pleasant thought, but what should you expect when you invite a litigator to the function? Like it or not, when hosting any get-together where guests may imbibe, a responsible host must take a moment to consider their legal obligations.

“You don’t want to be an innovator, so erring on the side of doing what you can to make sure your guests consume alcohol responsibly, and trying to make sure everyone has safe transport home, is the best practice.”

You’re likely familiar with the concept that, under Massachusetts law, bars, restaurants, and the like can be held civilly liable for damages caused by service of alcohol to an individual whom the establishment knew (or should have known) to be intoxicated. In practical terms, when an establishment serves someone showing recognizable signs of intoxication, and that person subsequently drives drunk, gets into an accident, and hurts someone, the establishment is held responsible for those damages.

“Good, sound policy,” you note as you sagely nod along. Agreed! But what you may not be aware of is that you — yes, you — are subject to the same obligations if you host an event and choose to serve your guests alcohol. This legal concept is known as ‘social host liability,’ and has been the law of the Commonwealth since 1986, via the Supreme Judicial Court’s decision in McGuiggan v. New Eng. Tel. & Tel. Co., 398 Mass. 152 (1986).

Social host liability provides that, where a private individual serves alcohol, or makes alcohol available while effectively controlling the supply, and that alcohol is served to a person the host knew (or should have reasonably known) to be intoxicated, the host is liable for any harm caused by that guest’s ensuing drunkenness. In essence, if you choose to provide guests with alcohol, you take on the duties (and potential liability) of a bartender. So, just as in the commercial context, if you serve a drink to somebody you already know is half in the bag, and that person then drives drunk and causes harm to people or property, you may be held responsible.

So, how can you be sure to avoid this kind of harm as a host? Since McGuiggan, Massachusetts courts have examined the scope of this liability, and some guiding principles have emerged. First, you should keep a close eye on your guests’ behavior if serving alcohol. Case law has largely limited liability to service of guests showing tangible signs of intoxication — slurred or loud speech, imbalance, inappropriate behavior, and the like. As a simple rule, if you notice a guest appears drunk, you shouldn’t provide them any more alcohol and should make sure they don’t drive. This will protect the public at large, protect you, and maybe even leave a happier guest the next morning.

Second, you can make sure your party is BYOB. Case law to date strongly suggests that you cannot incur any liability for guests who consume their own alcohol, even if it’s at your house or other premises, and even if you provide the atmosphere for a wild party. As long as you’re not providing the intoxicant, you’re probably not on the hook if something bad happens. If you are going to serve your own alcohol, try to stick to single-service amounts and control the supply, so that you can gauge a guest when they take it. Providing guests with carte blanche access to an open bar or leaving out a boozy self-serve punch bowl may make for a raucous time, but it’s also the riskiest approach.

This area of the law remains relatively new and undeveloped. You don’t want to be an innovator, so erring on the side of doing what you can to make sure your guests consume alcohol responsibly, and trying to make sure everyone has safe transport home, is the best practice.

If you plan on offering cannabis to your guests, you should know that no case law exists on service of cannabis products. However, you can reasonably anticipate that cannabis will be treated under a similar analysis. The issue could be complicated by varying tolerances and delayed onset of intoxicating effects, as well as differing impact if combined with alcohol. So, be extremely cautious if providing cannabis products (particularly edibles), especially to guests who have been drinking, or in any way appear intoxicated.

In short, a mindful, practical approach to alcohol service at private functions is good practice, period. No one wants to be a buzzkill; however, a little restraint and consideration makes for a great host — and a great guest, too. Most importantly, it will avert avoidable harm to your guests and the public, and any liability for yourself.

Note: this article is not intended to convey specific legal advice or to create an attorney-client relationship, and is provided for informational purposes only.

And, with that, cheers to a new year!


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


Law Special Coverage

What Can Business Owners and Managers Expect in 2022?

This past year was a busy one on the employment-law front, with a number of new measures and mandates for employers to follow and some emerging trends, such as unionizing activities, to watch. As the new year dawns, these matters will continue to be at the forefront, and obviously bear watching.

By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.

Last year, we saw legislators and employers trying to pivot from COVID-19 safety measures to more traditional labor and employment-law issues. However, with the Delta and Omicron variants wreaking havoc across the globe, businesses and lawmakers are once again looking for ways to stop the spread of the pandemic. Here are some labor and employment highlights from 2021 that are sure to impact employers in 2022.

John Gannon

John Gannon

Meaghan Murphy

Meaghan Murphy

Employer Vaccination Mandates

In September 2021, President Biden signed several orders requiring federal employees, federal contractors, and most healthcare workers across the country to be vaccinated against COVID-19. He also instructed OSHA to develop an emergency temporary standard directing private employers with 100 or more employees to implement COVID-19 vaccine mandates or require weekly testing for their unvaccinated employees. These mandates have been challenged in courts around the county, with varying results. For example, in early December, a federal court in Georgia issued a countrywide stay of the federal-contractor vaccine mandate.

The OSHA ‘shot-or-test’ rule was similarly blocked by one court late last year, but a few weeks later, a different court ruled in favor of the Biden administration and reinstated the emergency standard. It appears the U.S. Supreme Court will have to sort all of this out, and we expect they will rule on these issues early in 2022.

“Unionization campaigns at some of the country’s largest companies have been heating up.”

Here in the Commonwealth of Massachusetts, state mandates are in place for employees working in long-term care and assisted living, certain home-care workers, and executive-level state workers (including law enforcement). Legal challenges to the vaccine mandates were filed in Massachusetts courts, but to date all of them have failed.


Accommodations to Vaccination

In October, the Equal Employment Opportunity Commission (EEOC) released guidance making it clear that all employers, regardless of size or industry, can require that employees receive the COVID vaccine. There is one big caveat: federal and most state laws require employers to provide reasonable accommodations for religious beliefs, disabilities, or pregnancy-related reasons. These are commonly referred to as medical and religious exemptions. Employers that are considering a mandatory vaccination program should have policies explaining how these exemptions work, as well as exemption forms ready for employees to fill out.


Biden Administration’s Support for Unions

In June, President Biden appointed Jennifer Abruzzo as the National Labor Relations Board’s (NLRB) new general counsel. She quickly made clear her (and the new Democratic administration’s) pro-labor stance on various issues through a series of memoranda issued by her office. Not surprisingly, Abruzzo has vowed to undo much of the NLRB’s activity under former President Trump, which tended to be pro-business.

Unionization campaigns at some of the country’s largest companies have been heating up. Employees at a Starbucks in Buffalo, N.Y. voted to unionize. Starbucks has agreed to sit down at the table and bargain with the union. This is the first time organized labor has gained a foothold in one of Starbucks’ U.S. locations, but it certainly does not seem like it will be the last. Employees at Starbucks in several other states, including Massachusetts, Washington, and Arizona, are also seeking to unionize.

In addition, employees at an Alabama Amazon warehouse recently voted not to unionize, but the union trying to organize those employees alleged that Amazon intentionally interfered with its union-organizing efforts. In one of its biggest actions under President Biden, the NLRB announced that Amazon had committed to allow more room for employees to conduct union activity and to send an e-mail directly to current and former employees to inform them of their labor rights. It is the clearest example to date of how Democratic officials in this administration will seek to use federal power to help employees organize.


Paid Family and Medical Leave

Starting Jan. 1, 2022, most Connecticut employees will be able to take paid time off to attend to personal and family health needs. Under the program, employees are entitled to 12 weeks of paid-leave benefits, and up to 14 weeks if an employee experiences a serious health condition that occurs during a pregnancy.

This program is similar to the Massachusetts Paid Family and Medical Leave program, which went live at the beginning of last year. The Department of Family and Medical Leave published data stating that the department approved 43,440 applications between Jan. 1 and June 30, 2021. Benefits totaling $167,915,781 were paid out during this time. This was before employees could take PFML to care for family members, which became available on July 1.


Employee Mobility: Tackling the Labor Shortage

A record 4.4. million Americans quit their jobs in September 2021. The high quit rates were commonly dubbed the ‘Great Resignation,’ and made it clear that Americans are switching jobs for better pay, starting their own businesses, or continuing to struggle with child care and school schedules.

As the pandemic lingers, it’s likely that the quit rates will remain high for the next several months. As a result, employers will need to raise wages and/or offer more lucrative benefit packages to attract and retain talent. Businesses should also consider offering employees who do not physically need to be in the office every day some sort of a hybrid work-from-home schedule, a model that has dramatically increased in popularity over the last year.


John Gannon and Meaghan Murphy are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Law Special Coverage

A Changing Dynamic

Like all businesses, law firms have had to make adjustments in the wake of the pandemic, which has created both new opportunities and new challenges. Overall, firms have seen obvious changes in where people work and how. But there also may be new dynamics when it comes to recruiting and from where firms can attract new business.

Tim Mulhern in the ‘Zoom room’ at Shatz, Schwartz & Fentin.

Tim Mulhern in the ‘Zoom room’ at Shatz, Schwartz & Fentin.


They call it the ‘Zoom room.’ And for obvious reasons.

It’s the office of a retired partner with the Springfield-based law firm Shatz, Schwartz and Fentin that’s been converted into a small conference room equipped with a 60-inch screen for, or mostly for, Zoom meetings with clients that involve at least a few of the firm’s attorneys.

“If we have several of us who want to meet with a client or a couple of clients, we can have a multi-person meeting and have a few people in the room,” said Tim Mulhern, the firm’s managing partner, who said that, prior to the pandemic, there was obviously no need for a Zoom room. And the creation of one is just one of the many adjustments — that’s a word he and others we spoke with would use early and often — that law firms have made over the past 20 or so months. And some of them are more permanent in nature than temporary.

That can likely be said of the receptionist at Shatz — or the lack thereof, to be more precise. No one sits at that desk any longer, and, in fact, the door that leads to the reception area is now locked; a sign taped to it provides a number to call for people with inquiries.

The biggest change, though, is the number of lawyers to be found on the other side of the door — roughly half that from the days before the pandemic.

The rest are working remotely all or most of the time, something that took some getting used to — lawyers, especially, like the office setting, said Mulhern — but most have gotten over that hump.

“A number of our lawyers have learned how to work at home, myself included — I couldn’t have worked at home at all before, and I figured it out now. We’ve made that adjustment, and we have some lawyers who, either because of compromised health issues or simply because they have a long commute, are working predominantly from home.”

Ken Albano, managing partner at Springfield-based Bacon Wilson, agreed. He noted that it’s not uncommon to check his phone in the morning and hear from one or more of the firm’s attorneys letting him know they will be working remotely that day. As other firms have, Bacon Wilson has adjusted — there’s that word again — and become more flexible out of necessity, he said, adding quickly that the firm wants its lawyers and paralegals in the office at least some of the time.

“I’m old school,” he said. “I like the idea of being with a young lawyer or a young paralegal who needs mentoring and advice and has questions. It’s better for me to meet with them one-on-one, in person, with a mask on, as opposed to doing it via Zoom.”

In the grander scheme of things, though, where lawyers work, and whether there’s a receptionist or not, may well turn out to be some of the less significant adjustments, or changes, to result from the pandemic. The larger ones could involve recruiting young lawyers and the potential to add business as a result of the changing landscape.

Ken Albano says the pandemic has exacerbated an already-difficult situation

Ken Albano says the pandemic has exacerbated an already-difficult situation when it comes to hiring lawyers and paralegals.

Starting with the latter, Seth Stratton, managing partner of East Longmeadow-based Fitzgerald Attorneys at Law, summed things up effectively and succinctly when he said “we sell time.” And with some of the changes brought about by the pandemic — including less time commuting to work and less time traveling to meet clients — there is, in theory, at least, more time to sell.

Also, now that clients of all kinds, but especially business clients, have become accustomed to meeting with clients via Zoom and the telephone, there is potential to have such sessions with law firms based in the 413, which charge, on average, anywhere from one-half to two-thirds what lawyers in Boston and New York charge, and less than those in Hartford as well.

“COVID has resulted in more efficiencies, and, generally, efficiencies mean things take less time, and we sell time, so that means we’re selling less per client,” Stratton explained. “But it allows us to potentially work with more clients and work with clients who are more distant — we can expand the footprint of who we’re comfortable working with and who’s comfortable working with us.”

As for recruiting … the pandemic brings both opportunity and challenge, said Betsey Quick, executive director of Springfield-based Bulkley Richardson. She noted, as others have over the years, that it is difficult to recruit young lawyers to Western Mass. law firms, and it often takes a family connection to do so. With the pandemic and the ability to work remotely, there is now the possibility of recruiting lawyers not to Western Mass., necessarily, but to firms based here — and the young lawyers can live where they want.

But — and this is a significant ‘but’ — young lawyers who might want to come to Western Mass. because of the quality of life and comparatively low cost of living can now come here, but not necessarily to work for a firm based here — again, because of the options now available to them.

“Remote working options can help and hurt recruiting efforts,” Quick said. “We are now hearing from attorneys with great résumés who prefer more of a remote schedule. It has opened the doors to new prospects. The concept of urban flight is real, and professionals are considering their options. On the other hand, with remote work, attorneys who once flocked to big-city firms may now have the option to remain at that firm, with the big city salary, and relocated to a rural area.”

Seth Stratton says the changing dynamics

Seth Stratton says the changing dynamics presented by the pandemic could provide area firms with more opportunities to secure work from clients based outside the 413.

For this issue and its focus on law, BusinessWest looks at all of the various ways the pandemic has brought change to a sector that hasn’t seen very much of it over the past several decades.


Case in Point

Mulhern remembers when, at the height of the pandemic in mid-2020, he used to carry a small, foldable table in his car. It was for what came to be known as ‘driveway signings,’ among other names — the inking of documents in outdoor settings, including driveways, but also parking lots and parking garages, where each party would bring their own pen and bottle of hand sanitizer.

Those days seem like a long time ago, and in many respects they are, he said, adding that a large degree of normalcy has returned to the practice of law, although things are, in many ways, not at all like they were in February 2020.

As an example, Albano noted the recent end to Springfield’s mask mandate. While the city took that course, Bacon Wilson has decided to still require masks within its offices, a difference of opinion that has resulted in some confusion and even some harsh words for the receptionist from visitors not inclined to mask up.

Overall, changes have come to where lawyers work, how firms communicate (with clients and employees alike), how and to what extent they use paper (much less now), and how they show community support and engagement (turning out for auctions and golf tournaments has been replaced by other, more pandemic-friendly methods).

Changes have come to where lawyers work, how firms communicate (with clients and employees alike), how and to what extent they use paper (much less now), and how they show community support and engagement (turning out for auctions and golf tournaments has been replaced by other, more pandemic-friendly methods).

“You need to be in the office if you’re going to work in Springfield; if you’re a full-time person working remotely, it doesn’t work out, and it wouldn’t work out — not for us.”

Going back to that word used earlier, firms have been adjusting to a changed world, and the adjustment process is ongoing, especially when it comes to where and how people work.

At Shatz, Schwartz and Fentin, as noted, maybe half the lawyers continue to work remotely, said Mulhern, adding that the firm has not rushed anyone back, and it won’t, at least for the foreseeable future, in large part because the current work policies, if they can be called that, are working.

“A number of our lawyers have learned how to work at home, myself included — I couldn’t have worked at home at all before, and I figured it out now,” he told BusinessWest. “We’ve made that adjustment, and we have some lawyers who, either because of compromised health issues or simply because they have a long commute, are working predominantly from home.”

And there are variations on the theme, he said, noting that some lawyers work a portion of their day at the office and the rest at home.

At other firms, most if not all lawyers are back in the office. That’s certainly the case at Bulkley Richardson, which implemented a vaccine policy on Oct. 1, said Quick, noting that the firm recognizes the importance of in-person interaction with colleagues and the need for human connection.

That said, Bulkley Richardson and other firms have learned that remote working can and does work, and there is certainly room for — and, even more importantly, a need for — flexibility.

Betsey Quick says there has been a “transformation of the practice of law”

Betsey Quick says there has been a “transformation of the practice of law” because of COVID, and she believes there are many positives amid a host of disruptions.

“The transition to remote work was unprecedented, but what we learned by the unexpected lockdown was that flexibility is a viable option,” Quick said. “We have always offered attorneys some degree of flexibility and have worked with them to find an agreeable working model; until the pandemic, most attorneys worked traditional hours within a traditional office setting. But now, with the remote working more acceptable, and sometimes necessary, we have seen no change in productivity or efficiency doing work.”

Stratton agreed, noting that his firm, like most, had a degree of flexibility when it came to working remotely and allowed lawyers to do so; most didn’t, except when they had to (during snowstorms or when they were home sick), because they preferred to be in the office. Now that they’re used to it, and like it, more are taking advantage of the flexibility they have.

Indeed, before COVID, perhaps 10% to 15% of work was done remotely, and now the number is perhaps 25%, said Stratton, adding that this represents a new normal.

And the new ways of doing things have produced greater efficiency, he added, a dynamic that creates the potential for more billable hours in a business that, as he said, sells time.

Meanwhile, the pandemic and the resulting changes in how lawyers interact with clients present new opportunities for firms in the 413 to do business with those well outside it, Stratton noted.

Before, to get such business, firms would need a physical office in Worcester or Boston. Now, for many types of business law, where personal interaction is less necessary, services could be secured from lawyers in this market at rates far below those charged in those larger markets.

“With the increased use of remote communication and remote meetings, you can more easily tap those markets,” he said, adding that the firm is starting to market itself to such clients through professional networking.


Moving Target

Beyond where and how people work, the pandemic may have changed another important dynamic for local firms — the all-important work to attract and retain young talent.

As noted, it has long been a challenge to bring young lawyers to this market unless there is a connection, said Stratton, who offered himself as an example. He and his wife are both from this area, and it was a desire to return here (especially on his wife’s part) after some time spent in Boston that eventually brought him back to the 413.

Summing up the landscape as it has existed for some time, Stratton said the region has long faced what he called “depth of bench” challenges.

Elaborating, he said this is a “top-heavy” market when it comes to lawyers, with many of the leading players in their 60s or even their 70s. There are some rising stars coming up behind them, but not as many as the firms would like.

The reasons for this are many, said those we spoke with, but largely, it comes down to the fact that this market is not the big city — which means it doesn’t have the big-city lifestyle and, more importantly to most young lawyers, it doesn’t have big-city rates for legal services — or big-city salaries.

“Like many cities, Springfield is a proud community with historic charm and continued growth.  And yet, it is not Boston, New York, or Washington, D.C., and in most circumstances, one major difference may be the salaries,” Quick said. “As a Western Mass. firm, we are able to offer a healthier work/life balance and a unique geographic landscape. The challenge is communicating this value to candidates because, if they are not familiar with the business climate in Western Mass. and all it has to offer, attracting new talent to the area can be difficult.”

Stratton agreed. “If I were to have a job posting tomorrow for a junior lawyer with one to three years of experience that fits our practice and say, ‘you come to East Longmeadow, Mass., Monday through Friday, 9 to 5,’ I would get zero applications of qualified attorneys. That might be an exaggeration, but it would be close to zero.”

Albano agreed. He said the pandemic has exacerbated an already-difficult situation when it comes to attracting lawyers to Western Mass. He told BusinessWest the same thing he told Massachusetts Lawyers Weekly when it asked him the same question.

“It’s been very difficult to hire quality lawyers and paralegals during this COVID pandemic,” he explained. “The quality of résumés we’re getting in from people in Western Massachusetts and also outside the area is very weak.”

Moving forward, he noted, the number could be much higher because that lawyer doesn’t need to be in East Longmeadow, at least not Monday through Friday, 9-5, meaning recruiting might become easier — that’s might — because of the pandemic and the manner in which it has changed how people work. It’s also changed some opinions about urban living.

“Many lawyers are growing tired of the city life,” Quick noted. “They want to find a reputable firm where they can advance their career and continue to work with high-level clients. At the same time, they are realizing that work/life balance matters. Western Mass. offers the best of both worlds — a growing, professional city surrounded by the landscape of mountains, rivers, and forests right at your fingertips.”

These qualities may well help attract people to Western Mass., but will it attract them to Western Mass. firms? This is a big question moving forward as remote work becomes plausible and more attractive for those toting law degrees in their briefcases.

“You need to compete with markets that you didn’t have to compete with before for talent,” said Stratton, noting that someone drawn to the Western Mass. lifestyle, or who has family here and wants to stay here, no longer has to limit his or her options to Western Mass. firms. “As a young lawyer, you can, potentially, work out of the Boston or Washington, D.C. markets primarily, and the legal rates charged in those markets are higher, and the pay is higher.”

That’s the downside of the changing dynamic, he went on, adding that there is plenty of upside as well, including the ability to look well beyond the 25-mile circle around Springfield that most young lawyers are currently recruited from.

Much of this is speculation right now, he went on, adding that, over the next six to 12 months, firms like his will have a far better understanding of just how — and how much — the recruiting picture has changed.

Albano agreed, noting that, overall, Bacon Wilson will entertain a hybrid schedule, to one degree or another, but it would certainly prefer its lawyers and paralegals to be in this market.

“I got an e-mail with a résumé from a young man in New York, indicating that he was looking to apply for a job here, but he plans on living in Boston,” he recalled. “First of all, his résumé didn’t coincide with what we were advertising — and we’re seeing a lot of that — and, number two, there needs to be that one-on-one connection. You need to be in the office if you’re going to work in Springfield; if you’re a full-time person working remotely, it doesn’t work out, and it wouldn’t work out — not for us.”


Bottom Line

Looking ahead, those we spoke with said the process of adjusting to everything COVID-19 has wrought is ongoing. That includes looking at the amount of space being rented and whether downsizing might be in order.

“We’re talking about what the future looks like in terms of physical space,” Mulhern said. “And that’s one of the things we’ll talk about — do we still still need all the space we have?”

The firm has more than two years left on its lease, he went on, adding that the answer to that question will come at another time. The answers to some of the questions, especially those regarding recruitment and gaining additional business, including some from other markets, might be answered much sooner.

Overall, this is a time of change and looking at things differently than they been looked at for decades.

“There has undoubtedly been a transformation of the practice of law, and we believe that there are many positives amid all of the disruption,” said Quick, referring to those at Bulkely Richardson while also speaking effectively for all those we spoke with. “The pandemic taught us many things, including how to work more efficiently, utilize available resources, and communicate better to keep teams connected. I anticipate many changes will remain with us in a post-pandemic world.”


George O’Brien can be reached at [email protected]


The Answer Is No — But That Might Be Changing

By Mary Bonzagni


The term artificial intelligence (AI) is used to describe a machine’s ability to ‘think’ or carry out tasks that were once said to require human intelligence. Tasks such as learning, logic, reasoning, perception, and, yes, creativity are now being performed by machines used in every industry.

In fact, AI now forms a part of our everyday lives, from AI-powered search engines, spell checkers, and spam filters to self-driving cars to music-streaming services that use AI to assess your listening habits — with each advance making our lives easier for years to come.

In fact, AI looks like a revolutionary force that drives innovation — but can AI invent?

At least for now, the U.S. Patent and Trademark Office (USPTO) has provided us with an answer to this question — a categorical ‘no.’ The USPTO has held that the statutory language of the U.S. Code clearly defines ‘inventor’ and ‘joint inventor’ as natural persons. Further, the USPTO points out that the purpose of U.S. patent laws is to encourage invention by providing inventors with a limited term of exclusionary rights. The prospect of holding a patent would not motivate an AI — at least not yet.

Mary Bonzagni

Mary Bonzagni

“We are now at a crossroads, and staying the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not.”

In a similar vein, the relevant patent laws of the European Union and the United Kingdom are also said to require a human inventor.

But has the tide begun to turn? Perhaps.

The South African Patent Office and an Australian federal judge recently moved to clear the path for such inventions. The South African Patent Office now holds the noteworthy distinction of being the first patent office in the world to grant a patent listing to an inventor that is not a human being. The patent relates to a “food container based on fractal geometry,” and the sole inventor is an AI system called DABUS.

Within two days of this patent grant, Judge Jonathan Beach of Melbourne ruled that there was no reason why Stephen Thaler, the researcher who developed DABUS, could not protect inventions that list the machine as their sole inventor.

But will the U.S. and other countries around the world follow suit, or will they again turn down the idea of non-human inventors? For now, the answer to this question is unclear.

During this period of uncertainty, how does one go about protecting AI-generated inventions in the U.S. using patents, who should be listed as an inventor on U.S. patent applications for such inventions, and who owns these inventions and related patents? For now, the answer to these questions is also unclear.

The most likely inventor candidate(s) appears to be the person or people who developed the machine that simulates human-intelligence processes (i.e., the developers who made the machine that supplies analysis, triggers events based on findings, parses data contextually to provide the requested information, etc.). That same person(s) or their employer(s) would own the invention and related patent.

But are U.S. patents for AI inventions that list the wrong inventors valid and enforceable? The claim of patent inventorship is of fundamental importance to the validity of a U.S. patent. In fact, failure to name an inventor or naming an incorrect inventor can invalidate a patent.

So, as AI becomes more and more a significant part of U.S. companies’ research and development efforts, these are questions that need to be asked and answered. These companies, as well as individuals, need clarification, which likely will first require a reform of the U.S. patent laws. It appears to be up to the judicial system or, more likely, legislators to provide us with the necessary clarification and/or reform.

We are now at a crossroads, and staying the course is not the answer. Patents motivate people who develop, own, and use AI — uncertainty does not. Allowing patents on AI-generated inventions will promote the development of inventive AI, which will ultimately benefit society with more innovation.


Mary Bonzagni is a patent attorney and co-chair of Bulkley Richardson’s Intellectual Property and Technology practice group; (413) 272-6200.

Law Special Coverage

President Biden’s COVID-19 Action Plan

President Biden has issued a comprehensive plan that orders employers with 100 or more employees to mandate vaccination for their workers and requires other groups of employers to do the same. The clock is ticking on these orders, and there are many unanswered questions as well as lawsuits filed. Here’s what business owners and managers need to know.

By Marylou Fabbo, Esq. and John S. Gannon, Esq.


Last month, President Biden issued a bold new action plan aimed at attacking COVID-19 and fighting the dangerous Delta variant. The plan orders employers with 100 or more employees to mandate that their workers get vaccinated. Similarly, the president’s plan requires the following groups of employees to be vaccinated: those working on federal government contracts (or subcontracts), healthcare workers, and federal government workers.

Not surprisingly, many businesses and politicians are unhappy with these mandates, and one state has already filed a lawsuit against the Biden administration challenging the plan and asking the court to declare it unconstitutional. Here are some takeaways for businesses as they prepare for the novel vaccine mandate.


Biden Administration Mandates Vaccinations

On Sept. 9, the president announced steps that his administration is taking to boost the economy by reducing the spread of COVID-19. One step is called “Path Out of the Pandemic: President Biden’s COVID-19 Action Plan” (more information can be found at www.whitehouse.gov/covidplan).

Marylou Fabbo

Marylou Fabbo

John S. Gannon

John S. Gannon

The action plan directs the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA) to issue an emergency temporary standard (ETS) that requires all employers with 100 or more employees to ensure their workers are either fully vaccinated or get tested weekly for COVID-19. Employers will also be required to provide paid time off to employees to get vaccinated and recover from any side effects from the vaccine.

The Biden administration estimates this will impact more than 80 million workers in private-sector businesses. Employers that fail to comply with the ETS will face enforcement actions from OSHA, which may include fines up to $13,653 per violation. So, if a workforce with 100 or more employees has 10 unvaccinated workers who are not testing weekly for COVID-19, the business could be looking at a fine of well over $100,000. This is no slap on the wrist.

Additionally, the president signed two executive orders requiring federal employees and federal contractors (and subcontractors) to get vaccinated, regardless of employee size. There is no weekly testing exception for these employees. Employees working on or in connection with a federal contract, including subcontractors, must be fully vaccinated by Dec. 8.

Employees who cannot get vaccinated due to a sincerely held religious belief or disability may be entitled to an accommodation from these requirements. However, it is up to the employer to determine whether medical and/or religious exceptions are legally permissible.

Unfortunately, there are a lot of unanswered questions out there. For instance, who will pay for the testing and vaccinations — the employer or the employee? And if an employee decides to opt for the weekly testing option, is the time spent traveling to and from the vaccination site considered hours worked for payroll purposes? What about the time taking the test? Under Massachusetts law, there appears to be an argument that this is, indeed, time worked for wage-and-hour purposes. Also, will employers who pay for testing be eligible for some sort of tax break if this needs to be paid time? Stay tuned, as we expect more guidance on these topics.


When Can Employers Expect the OSHA Standard to Be Issued?

Right now, this is anyone’s best guess. It has been about a month since President Biden announced his action plan. Assuming OSHA has been working on the ETS for a few weeks now, we anticipate it will be released sometime next month, and almost certainly before the end of 2021. Once the ETS is released, employers will likely have a short window (maybe 30 or 45 days) to get into compliance.


What Should Employers Do Now?

Business with employees working on federal contracts or subcontracts need to act right away if they have not started taking steps to ensure compliance. The Dec. 8 deadline for federal contractors is not that far away, and anyone who takes a vaccine that requires two shots (i.e., a Pfizer-BioNTech or Moderna COVID-19 vaccine) needs to await several weeks after the first shot to get the second. And full vaccination, regardless of whether it’s a one-dose or two-dose vaccine, is not achieved until two weeks after the final dose.

We suggest that businesses with 100 or more employees put their workforce on notice soon that the OSHA emergency standard will require everyone to get vaccinated. Businesses need to gauge how challenging compliance might be if and when the mandate goes into effect.

If your workforce population is around 80% or 90% (or higher) fully vaccinated, compliance might not be daunting. If your rates are closer to 50% or 60% (or lower), you need to start thinking about implementing the mandate soon, and planning for weekly testing options now. You also want to give employees a head start if they need to raise medical or religious objections to vaccination. Employers should have medical and religious exemption forms on file to provide to provide to employees who raise objections.


Legal Challenges

As mentioned above, one state has already challenged the Biden vaccination plan in a legal forum. The state of Arizona filed a lawsuit last month asking a federal court in Arizona to declare the vaccine mandates unconstitutional. The lawsuit contends that the Biden administration does not have authority under the U.S. Constitution to require vaccines.

Similar challenges to past emergency OSHA standards have had mixed results. The legal standard is high: OSHA must demonstrate that workers are in “grave danger” to justify issuing emergency temporary standards. With global COVID-19 deaths recently hitting 5 million, it seems to these authors that OSHA will be able to satisfy the ‘grave danger’ standard.


Marylou Fabbo and John Gannon are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield, who both specialize in employment law and regularly counsel employers on compliance with state and federal law; (413) 737-4753; [email protected]; [email protected]