Home Sections Archive by category Law

Law

Law

What’s Next for the Cannabis Industry?

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

By Isaac C. Fleisher, Esq.

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

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

Isaac C. Fleisher

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

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

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

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

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

Social Consumption

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

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

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

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

Home Delivery

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

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

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

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

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

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

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

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

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

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

Law

Date with Destiny

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

Timothy M. Netkovick

Timothy M. Netkovick

Daniel C. Carr

Daniel C. Carr

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

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

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

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

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

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

Worrisome Results for Employers

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

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

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

Proactive Steps

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

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

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

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

Bottom Line

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

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

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

Law

The Neutral Patent Evaluation

By Mary Bonzagni

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

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

Neutral Patent Evaluation

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

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

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

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

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

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

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

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

Amazon’s Other Programs

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

Conclusion

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

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

Law

Passion for Practice

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

Stand Up and Represent

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

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

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

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

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

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

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

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

Kate Malone — pictured, at center

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

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

Taxing — but Fascinating

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

That field is tax law.

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

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

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

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

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

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

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

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

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

Emily Eash

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

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

Broad Outlook

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

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

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

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

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

Zac Broughton

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

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

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

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

In short, it’s good to have options.

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

A Passion on Hold

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

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

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

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

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

Sara Idris

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Law

Paid Family and Medical Leave

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

John S. Gannon

John S. Gannon

Amelia J. Holstrom, Esq.

Amelia J. Holstrom

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

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

Decide How to Handle Tax Contributions

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

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

Provide the Required Notices

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

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

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

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

Consider Private-plan Options

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

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

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

Review Current Time-off and Attendance Policies

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

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

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

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

Plan for Increased Staffing Challenges

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

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

Bottom Line

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

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

Law

Navigating Short-term Rentals

By Ryan K. O’Hara, Esq.

Ryan K. O’Hara

Ryan K. O’Hara

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Law

A Sometimes Fine Line

By Marylou Fabbo, Esq.

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

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

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

Marylou Fabbo, Esq

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

Sexual Harassment Defined

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

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

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

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

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

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

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

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

Subjective and Objectively Offensive

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

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

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

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

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

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

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

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

False Accusations of Sexual Harassment

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

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

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

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

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

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

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

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

Law

Attention to Details Matters

By Timothy Netkovick, Esq.

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

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

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

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

Timothy M. Netkovick

Timothy M. Netkovick

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

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

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

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

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

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

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

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

Law

Firm Resolve

Managing Partner Kenneth Albano

Managing Partner Kenneth Albano

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

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

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

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

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

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

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

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

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

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

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

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

Time to Change

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

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

Donna Wexler and Hyman Darling

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Well Suited

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

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

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

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

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

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

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

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

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

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

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

Joe Bednar can be reached at [email protected]