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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]

Law

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.

Law

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.

Law

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.

 

The CROWN Act

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.

Law

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]

Law

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.”

 

Takeaways

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]

Law

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.

Law

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.

Law

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].

Law

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.

Law

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]

Law

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]

Law

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.

Law

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]

 

Law

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]

Law

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]

Law

Discipline for Social-media Speech

By Kevin Maynard

 

In any given week, a news outlet or website will spotlight an employee being suspended or fired by an employer for a social-media post. These posts range from expressions of political sentiments and individual beliefs to commentary on the employee’s workplace or even the employer itself.

With the prevalence of social media in the daily lives of most individuals, employers are increasingly disciplining their employees for off-duty social-media posting, and employees are pushing back with legal actions.

In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action. While public employers have a First Amendment obligation to respect some of their employees’ speech, private individuals and employers generally have no such constitutional obligation.

 

Public Employee Speech

Generally, a public employee’s speech is protected when it relates to a matter of public concern or importance. However, this is not an absolute, and a court must balance an employee’s right to free speech against an employer’s interest in an efficient, disruption-free workplace.

For example, a public-school teacher brought a lawsuit against her school district after being fired for making negative blog posts regarding supervisors, union representatives, and fellow teachers. In upholding the termination of employment, the Court of Appeals in the Ninth Circuit ultimately held that the blog posts harmed the Washington State public-school district’s legitimate interest in the efficient operation of its workplace because other teachers refused to work with the former teacher, and the termination was, therefore, appropriate.

Kevin Maynard

Kevin Maynard

“In the resulting legal disputes, employees often mistakenly believe that the First Amendment protects all in-person and online speech. In reality, the First Amendment’s free-speech protection is limited to protection against government action.”

Earlier this year, a public-school teacher in Fall River was fired for posting allegedly political and racist comments on social media. The teacher filed a lawsuit in Massachusetts federal court, claiming the city did not have “good cause” to terminate her employment and that her teachers’ union breached its duty of fair representation by not providing her any representation following the termination of her employment. An arbitrator to whom the matter was referred by agreement has reportedly found in the teacher’s favor, ordering reinstatement to her position and payment of all back wages. According to her attorney, the teacher intends to sue for retaliation and defamation.

 

Private Employee Speech

Unlike in the public sector, the First Amendment generally does not apply to the actions of private employers. However, private employers even in a non-union setting must be compliant with the National Labor Relations Act, which gives private employees the right to engage in “concerted activities” for the purposes of collective bargaining.

Examples of concerted activities include an employee talking with co-workers about working conditions, circulating a petition about improving working conditions, or joining with co-workers to talk directly to their employer. Regardless of whether the concerted activity occurs in person or over social media, an employer cannot interfere with such an activity taking place during or after work hours. Beyond this concerted-activity issue, the concepts of ‘at-will employment,’ ‘good cause’ for termination, or other common law or contractual issues may be relevant.

 

State-specific Protection for Lawful Off-duty Activity

Some states have laws that protect lawful off-duty activities of both public and private employees. In Colorado, an airport-operations supervisor was terminated for posts on her Facebook page regarding her support for preserving the ‘Rebels’ mascot of her high school, particularly one post that depicted the mascot with the Confederate flag.

A Colorado court vacated her termination of employment because it violated a Colorado statute making it unlawful to terminate an employee for engaging in a lawful activity outside of work. California, Louisiana, New York, and North Dakota have similar laws prohibiting employers from taking adverse employment actions based on lawful off-duty activities. Massachusetts has not enacted such a law.

 

Advice for Employers

Employers may choose to adopt social-media policies that address off-duty conduct. Anti-harassment and anti-discrimination policies should also address off-duty social-media activity. Any social-media policies should be enforced reliably to ensure the consistent treatment of employees.

In enforcing a social-media policy, employers must assess the effects of an employee’s social-media post on a workplace, including its impact on the ability of employees to work with one another. Social-media policies can be a helpful way for employers to set clear expectations regarding the standard of online conduct they expect of employees. The absence of such a policy can make the results of an employee’s challenge to an employer’s disciplinary action for inappropriate social-media posts much more unpredictable.

 

Kevin Maynard is an employment law and litigation partner at Bulkley Richardson; (413) 272-6200.

Law

Remodeling Woes

Joshua L. Woods, Esq.

 

Many of us love watching home renovations on television. Whether the redos are taking place at a beach-house bungalow, a tiny apartment, or a Victorian mansion, it’s always entertaining to live vicariously through people remodeling a house or building their dream home.

But what happens when opportunity knocks in real life, and you have the chance to create a space of your own design? Perhaps you envision a beautiful, blue-tiled backsplash against white kitchen cabinets, heated bathroom floors, or a cozy living room with a gas fireplace. With a reliable and trustworthy contractor, all things are possible.

Unfortunately, not all contractors are reliable and trustworthy. Someone close to me recently experienced firsthand the horrors of hiring the wrong renovation company. My friends lived to tell the tale, but along the way, their family suffered through considerable delays, shoddy work resulting in added expenses and additional repairs, and the all-consuming worry of working with an uncommunicative contractor. Here is the story of a ‘craftsman’ remodeling company whose primary craft proved to be collecting payments for unperformed work.

It all began when my friends, first-time homebuyers, hired a local contracting company to perform a complete restoration and remodel of a charming 1930s colonial-style house. After interviewing five separate contractors, my friends decided to work with ‘Craftsmen’ (the company’s name has been changed to protect their anonymity). The contractor was extremely charismatic, proposed a comparable bid, and seemed to have just the right can-do attitude needed to complete the project. Craftsmen provided three references who, when contacted, sang the company’s praises. Craftsmen also had great online reviews. My friends decided to move forward and agreed to the terms of a proposal from Craftsmen, officially hiring the company for their project.

Joshua L. Woods

Joshua L. Woods

“They had to live through an enormous amount of stress, the upheaval of an unfinished living space, hideously long delays, and considerable additional expenses. You can learn from their mishaps.”

Craftsmen requested a down payment, and upon receiving the funds, the first step of the project — demolition — was scheduled. Pursuant to the payment schedule on the written proposal, the second payment would be due on demolition day, the third would be due when rough plumbing was installed, the fourth upon installation of rough electrical, the fifth upon installation of drywall, and the sixth and final payment would be due when the project was completed.

To their chagrin, my friends soon discovered the problem with this payment schedule: the majority of the fees would be paid prior to the rebuilding. That is, four hefty payments were required before the demolished spaces would be fully rebuilt.

At first, the contractor completed the demo work on schedule, but then they went silent. The house sat in disarray, unfinished, for months after the first payments were made. Nothing was accomplished properly. The plumbing was installed incorrectly, there was an old toilet left in the dining room for months, the trim was unfinished, the hardwood floors were ruined, exposed electrical wires dangled from the walls, and the list went on. My friends finally decided they could no longer tolerate the situation and made the decision to fire Craftsmen.

For anyone considering renovations, keep the following steps in mind, which can help protect you from a similar experience:

• Verify the contractor is in good standing. Ask for the contractor’s business-license number and research it on the state’s website to ensure there are no lawsuits against the company. You should also search the Better Business Bureau for complaints.

• Look into the contractor’s partners and vendors. Request a copy of the business license for all subcontractors who may work on your project.

• Contact references. Before hiring a contractor, always ask for multiple references and contact as many as you can. Listen closely to what they say. When speaking with references, you will certainly wish to inquire about the ‘big stuff,’ including satisfaction with the final project and pricing, but it may also be wise to inquire about smaller details including punctuality, cleanliness on the job site, responsiveness to calls and requests, etc. Looking back, my friend should perhaps have seen a red flag when Craftsmen provided only three references. A reputable company should be able to provide evidence of a great many satisfied customers.

• Have an attorney review the fine print. Another red flag should have been the lack of a formal contract at the outset and the lack of itemized billing during the project. Craftsmen provided only a written proposal, which is not sufficient for a project of this magnitude. When hiring a contractor, be sure to protect yourself by having a qualified attorney review all documents, proposals, and contracts before you sign. All contracts should include a clear payment schedule in which the final payment is typically 25% of the entire fee, provided only upon completion of the project and a satisfactory final walk-through with the contractor. Once hired, all communication should be in writing, and you should request regular written updates from the contractor, so there is a clear understanding of the status of work completed and work to be done.

• Document the process. As the saying goes, a picture is worth a thousand words, and that is certainly true where renovation projects are concerned. Be certain to take many photos of your project, including shots of the site before, during, and after the renovation is complete.

My friend and his family were ultimately able to pivot their renovation to another contractor, who repaired Craftsmen’s mistakes and finished the project. The family is now happily enjoying their beautiful, freshly remodeled home.

If my friends had only done more diligent research and consulted with an attorney before working with Craftsmen, they could have potentially avoided the entire awful experience. Instead, they had to live through an enormous amount of stress, the upheaval of an unfinished living space, hideously long delays, and considerable additional expenses. You can learn from their mishaps and use the steps above as important preventive measures. They may be your — and your house’s — saving grace. v

 

Attorney Joshua L. Woods is an associate with Bacon Wilson, P.C. and a member of the firm’s business, corporate, and commercial law team. He has extensive experience in matters of business law, including all aspects of corporate formation, franchising, joint ventures, leasing, and business and commercial litigation. He is licensed to practice in both Massachusetts and Connecticut; 413-781-0560; [email protected]

Law Special Coverage

Firm Commitment

Peter Shrair

Peter Shrair says the two firms saw “some real synergies” when they started talking.

Springfield-based Cooley Shrair and Hartford-based Halloran Sage have a lot in common, including histories that span more than 75 years and a focus on the broad needs of business clients. But their philosophies and cultures also have a lot in common, as their leaders discovered during discussions that led to Cooley Shrair joining the Halloran Sage family last month. The result, they hope, will be more inclusive service to clients, as well as a more attractive landing spot for the young talent all law firms need to grow.

When asked what Halloran Sage and Cooley Shrair bring to each other’s table, David Shrair had to think back only 15 minutes.

“We’ve got a new, West Hartford-based client who called me and said, ‘I tried to trademark a logo myself, and I got lost. Can you help us?’” said Shrair, a partner at his namesake Springfield firm, which recently joined the much larger, Hartford-based Halloran Sage law group.

“We normally would have referred him to a firm we did business with in Hartford, who did all our intellectual-property work,” Shrair continued. “But I got on the computer and sent out a blast e-mail to partners and counsel at Halloran Sage. Within three minutes, I got one name from five different partners. I’ve connected that partner, he’s got the logo, and we’re working on it.”

In other words, by joining forces with 86-year-old Halloran Sage, an 80-attorney practice whose law expertise in the realm known as transactional business runs deeper in some areas than Cooley Shrair’s, the firm can keep its clients in house for a much wider range of matters, instead of farming them out, he noted.

“We can keep an eye on the case and make sure it’s being handled properly, which is very difficult to do when you’re sending it out to somebody else, and you have no idea whether your client is being taken care of,” said Peter Shrair, another partner with the firm. “If we’re looking at the client’s interest first, then the client gets a much better product.”

That’s one of the ideas behind what both firms aren’t calling a merger or an acquisition, but a joining together of the two entities under the Halloran Sage umbrella.

“We started talking, and we saw some synergies between what we do and what they do. And I had a thought that one plus one could equal three, with a really good group of smart people working together.”

Peter said he started talking informally to Bill McGrath, a partner at Halloran Sage, about such a relationship last year.

“Another lawyer in their office, Sue Scibilia, and I were talking about something else. She said to me, ‘you really should meet Bill McGrath. He’s a good business person and one of the smartest lawyers I’ve ever known.’ And I consider Sue to be one of the smartest lawyers I’ve ever known. So, we started talking, and we saw some synergies between what we do and what they do. And I had a thought that one plus one could equal three, with a really good group of smart people working together.”

Casey O’Connell, another partner at Halloran Sage, agreed.

“This has always been a Connecticut-based firm with a regional focus,” he told BusinessWest. “We’re always looking to find ways to better serve our clients and to provide the best possible legal services that we as a legal firm can provide. So we’re always on the lookout to have talented attorneys with complementary practices and similar philosophies to join our firm.”

David Shrair says the combined firm will be able to keep more clients completely in-house.

David Shrair says the combined firm will be able to keep more clients completely in-house.

After informal discussions turned more specific over several months, he went on, “there were some meetings among people with the firms, and it was determined it would really be a great fit and a way for us to collectively be bigger than we both were separately and, most importantly, to provide additional resources to our client base and Cooley Shrair’s client base to better serve our clients.”

For this issue’s focus on law, BusinessWest sat down with O’Connell and the two Shrairs to talk about why this relationship makes sense, and why both firms feel they — and their business clients — are better off because of it.

 

One-stop Shop

Business clients, after all, are at the heart of both firms’ work. Besides a shared focus on transactional law, which incorporates activities like contracts, finance, construction and real estate, risk management, restructuring and bankruptcies, board governance, intellectual property, and a host of others, Halloran Sage also boasts broad expertise in business litigation.

“That’s a service that we had not been offering for a number of years,” Peter Shrair said. “Even when we offered it, it clearly wasn’t with that depth of people. We had one or two, maybe at one point three people doing litigation, but they might have 30. And depending on the size and complexity of the matter, they have the skill, knowledge base, and depth of people to handle it.”

The firms are similar in other ways — for instance, both have a large banking practice, representing different banks, “so there’s a synergy right there,” David added.

“We collaborate very well across practices,” O’Connell said, “and that is one way where the firms can mutually help each other, with the Cooley Shrair folks bringing a wealth of transactional and business banking knowledge that really strengthens our practice areas. But we also have a very robust litigation practice.

“I would say Halloran is a full-service firm, and our litigation portion of the firm is very large and robust — we’re one of the biggest firms that focuses on litigation in Connecticut,” he went on. “And one of the reasons we have such a long history in Connecticut is our ability to provide clients with essentially one-stop shopping.”

Joining a Connecticut-based firm — Halloran Sage has five offices in the Nutmeg State — also makes sense in that three of Cooley Shrair’s attorneys were already admitted to the Connecticut bar, and the firm has worked with many clients from across the border.

This isn’t the first time Halloran Sage has taken on an established group of attorneys all at once, but most of its growth over the years has been organic, O’Connell said. For instance, it launched a New Haven office with two attorneys in 2012, and has since grown that site to 12 attorneys.

“It was a big success story to build and maintain a presence in that part of the state,” he noted. “We have an office Washington, D.C., but [Springfield] is our first office outside Connecticut with a large presence. This really broadens our reach to become not just a Connecticut firm, but a Southern New England firm.”

Client relationships won’t be disrupted, Peter Shrair said, but may shift over time.

Casey O’Connell

Casey O’Connell

“We collaborate very well across practices, and that is one way where the firms can mutually help each other, with the Cooley Shrair folks bringing a wealth of transactional and business banking knowledge that really strengthens our practice areas.”

“If it’s a more natural fit for someone from Hartford to handle something, they’ll handle it,” he explained, noting, as an example, a litigation case that came in just that morning and was referred to attorneys in Hartford. “We’re looking for whatever is best for the client — if a client can be handled better out of New Haven, we want to handle that out of New Haven. If it can be handled better in Springfield, presumably we’ll handle it in Springfield. “Really, it deals with whose practice area it fits best in.”

 

Business as Usual, Sort Of

For two firms that deal heavily with business clients — at a time when the business world has been rocked by COVID-19 — the past 18 months have gone surprisingly well, Peter noted.

“At least as far as my practice goes, there was very little change,” he said. “In fact, with the advent of Zoom and Microsoft Teams and everything else, it was probably easier because you could get different people online together quickly and have a discussion.”

David Shrair was stranded in Florida in March 2020 when the economy first began to shut down — so his firm shipped him a computer and double-screen monitor.

“I closed one of my largest transactions in years from Florida; I did Planning Board meetings from Florida, just like I was sitting in Springfield or wherever; it mattered not,” he recalled. “It’s interesting — with the shutdown and all the issues that went with it, most of our business clients continued very much along the same vein. They had their own internal problems, but the sales and acquisitions and all that still continued to go on. We have been extremely busy.”

After an initial slowing of work in the pipeline last spring, Halloran Sage’s team adjusted quickly to the pandemic as well, O’Connell said, and business has been strong from the second half of 2020 to the present. The transactional work has been more robust than litigation because court activity slowed to a crawl last year, but overall, business has been brisk, and the firm is on a growth trajectory.

“We’re always looking for new opportunities and ways to serve our clients. That includes having new attorneys come in with different specialties or outlooks or just to grow our bench and have more resources to grow our client base,” he went on. “We’re always looking to figure out how we can modify our firm or business to better serve our clients. That’s what the current combination of Cooley Shrair and Halloran Sage is all about, and certainly where Halloran wants to continue to go, to make sure we’re staying ahead of the curve and in the best position to serve our clients.”

The broader geographic reach will also benefit the combined firm in attracting talent, as attorneys will be able to access opportunities across Connecticut as well as into Massachusetts, and move around as their life circumstances change, Peter Shrair said. And David noted that being part of a much larger organization broadens the partnership track, which can also be a draw for young attorneys to settle in this region.

But in the end, O’Connell said, what the discussions really came down to was a perceived alignment in the firms’ client-first philosophies.

“We went through some internal discussions, not really to create a new philosophy, but to figure out a way to better articulate our firm’s philosophy, and we have determined that our firm’s philosophy is ‘client, firm, self,’ in that order,” he said. “In talking to the Cooley Shrair folks, we found there was a great alignment with how they deliver service, and our philosophies really align, so seemed like a natural fit when we pursued it.”

Peter Shrair agreed. “For 75-plus years, that has always been our mantra — our response time and our response to clients’ needs.”

 

Joseph Bednar can be reached at [email protected]

 

 

Law

Examining PFML

Paid family medical leave is now the law in Massachusetts. And while most all employers know that, they may not know all the provisions and eligibility rules for this important piece of legislation. They need to know, because failure to abide by all those provisions may be costly, in more ways than one.

By Katharine Shove, Esq.

 

Back in 2018, Gov. Charlie Baker signed the Massachusetts Paid Family and Medical Leave program (PFML) into law. That legislation has now taken effect, and many employers have questions about exactly how the law works and to whom it applies.

Beginning Jan. 1, 2021, most eligible employees who work in Massachusetts are entitled to paid, job-protected time off from work to manage a serious health condition of their own; to bond with a child following the child’s birth, adoption, or foster placement; or to care for a family member suffering from a serious health condition.

Katharine Shove, Esq

Katharine Shove, Esq

“The PFML law has strict notice requirements. Employers must provide written notice of the PFML program to all employees within 30 days of the employee’s start date.”

The PFML program is run by the state’s Department of Family and Medical Leave, providing income replacement benefits to eligible employees. PFML benefits are funded by a payroll contribution deducted from employees’ wages. Under the PFML law, employers were required to begin such contributions on Oct. 1, 2019.

 

 

Who Is Eligible?

Leave under the PFML program applies to most W-2 employees in Massachusetts, regardless of whether they are full-time, part-time, or seasonal. Unlike the federal Family and Medical Leave Act (FMLA), the Massachusetts PFML law says an employee is not required to work for a minimum length of time in order to be eligible for leave under the PFML law. However, an employee must meet the minimum-threshold earning requirements in order to be eligible for leave under the law.

 

How Many Weeks of Leave Are Available?

The PFML law requires employers to provide eligible employees up to 26 weeks of leave in a benefit year. Beginning Jan. 1, 2021, eligible employees may be entitled to up to 20 weeks of paid leave to manage their own serious health condition. Eligible employees may also receive up to 12 weeks of paid leave to bond with a child who is newly born, adopted, or placed in foster care, and up to 26 weeks to care for a family member in the Armed Forces.

On July 1, 2021, employees will be able to receive up to 12 weeks to care for a family member with a serious health condition. Under the Massachusetts PFML law, a family member could be an employee’s spouse, domestic partner, child, parent, sibling, grandparent, parent of a spouse, or parent of a domestic partner.

In the aggregate, eligible employees may not receive more than 26 weeks of paid leave in a benefit year, even if they have more than one family member who may need care.

 

Requirement of Written Notice to Employees

The PFML law has strict notice requirements. Employers must provide written notice of the PFML program to all employees within 30 days of the employee’s start date. Such notice must include information about the benefits under the PFML program, contribution rates, and job protections under the law. The notice to employees must also include an opportunity for an individual to either acknowledge or decline receipt. In addition to written notice, employers must display posters (issued or approved by the Massachusetts Department of Family and Medical Leave) that explain the benefits available to eligible employees under the PFML law.

 

Application Process

Employees must inform their employers of their need to take leave under the law at least 30 days before the start of the leave, and before filing an application for leave with the state. Where reasons beyond an employee’s control prevent them from giving such advance notice, they must inform their employer as soon as is practical. It is then the employee’s responsibility to apply for leave through the Department of Family and Medical Leave, and the department will make the decision as to whether the leave is approved or denied. Once the department receives the employee’s application, the department will request information from the employer relative to the employee’s job status.

 

Important Considerations for Employers

It is illegal for an employer to discriminate or retaliate against an employee for exercising any right to which he or she is entitled under the law, including the right to request PFML leave. To this end, the PFML law has a strict anti-retaliation provision. If an employer takes adverse action against an employee during the employee’s leave, or within six months after their return to work, there is a presumption that the employer retaliated against the employee for exercising his or her rights under the PFML law.

It is then the employer’s burden to prove there was some independent and justifiable reason for taking the adverse employment action. Adverse employment action can include termination of employment, disciplinary action, or reduction in status, pay, or benefits.

The PFML law runs concurrently with other applicable state and federal leave laws, such as the federal FMLA and the Massachusetts Parental Leave Act. Similar to the federal FMLA, a Massachusetts employee who returns to work after taking leave under PFML law must be returned to same or similar position as he or she had prior to their leave.

If an employee files a lawsuit against his or her employer for violation of the PFML law and the employer is found to be in violation of the PFML law, numerous remedies are available to the employee. These remedies include reinstatement of the employee to the same or similar position, three times the employee’s lost wages and benefits, and the employee’s attorney’s fees incurred in bringing the action.

 

Can Employers Opt Out of the Program?

Some Massachusetts employers can opt out of the PFML program and apply for an exemption from paying PFML contributions if they purchase a private plan with benefits that are as generous as the state’s plan, and which provide the same protections.

 

Get Assistance with Making Policy

The PFML rollout presents a great deal of new information to navigate both for employees and employers. A qualified attorney will be able to assist with interpretation of the PFML, amending current leave policies, and practical matters of doing business in this new benefit environment. For those with questions about the Massachusetts PFML program, the best protection is to seek guidance from an experienced employment-law attorney.

 

Attorney Katharine Shove is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. She works on matters of employment law involving discrimination and retaliation, wage-and-hour laws, and workplace policies and compliance; (413) 781-0560; [email protected]

Law

Policy Decisions

By Timothy M. Netkovick, Esq.

The COVID-19 pandemic has caused many businesses to examine their balance sheets. One of the areas that could be looked at is how much benefit a business is getting from its current insurance portfolio, and whether downsizing coverage could be an option.

In today’s world, a common feature of a business-insurance portfolio is employment-practices liability insurance (EPLI), which is different than traditional liability insurance and provides coverage for discrimination, wrongful termination, and other workplace issues.

EPLI typically covers discrimination claims based upon sex, race, national origin, age, and all other characteristics prohibited by law. This includes claims made under the Americans with Disabilities Act, the Family Medical Leave Act, associated state discrimination statutes, and other federal laws. EPLI policies usually provide coverage to the company, management, supervisors, and employees from claims that arise under the policy. EPLI typically does not cover wage-and-hour law violations, unemployment issues, ERISA, or COBRA matters.

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

“COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.”

Perhaps your business has been fortunate enough to avoid employment litigation over the past few years. Therefore, the cost/benefit analysis to your business will be different than a business that has been tied up in employment litigation in the recent past. The first obvious cost is the cost of purchasing the policy. Higher insurance coverage costs more than a policy with a lower-policy limit. In addition to the cost of purchasing the policy, businesses will also need to factor in the cost of the ‘retention’ it is required to pay in the event of a claim.

Retention is similar to a deductible in other insurance policies, and is the amount of expenses for which the business is responsible before the insurer will begin paying for the cost of defense. Insurers use retention as a way to avoid incurring the expense of defending against nominal or frivolous claims by passing on that expense to the business. Conversely, the business will also want to evaluate the amount of their retention prior to obtaining EPLI.

A business will need to evaluate its options if it is faced with a high retention and a small amount of discrimination claims that are usually resolved at the administrative level. Has your business had EPLI for several years and never exhausted its retention? Or does your business have a high volume of discrimination cases at the administrative level and also never exhausted its retention?

Another factor to consider in evaluating the cost of EPLI is your company’s approach to employment lawsuits. Businesses will need to have a consistent strategy when it comes to employment lawsuits. Is your company going to vigorously defend against all claims? If so, that may impact your decision on the cost of the EPLI policy you intend to purchase. How many claims are made against your company? The more claims are reported, the more the policy will cost, and the higher the retention amount will be. The increased retention will have an impact on the company’s budget for the next policy period.

COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.

 

Timothy M. Netkovick, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm 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]

 

Law

Changing the Dynamic

By Jeremy M. Forgue

 

The COVID-19 pandemic has impacted the workplace forever.

According to a report titled “Women in the Workplace – 2020,” women have been hit especially hard. As the report explains, “the COVID-19 crisis has disrupted corporate America in ways we’ve never seen before. No one is experiencing business as usual, but women — especially mothers, senior-level women, and black women — have faced distinct challenges. One in four women are considering downshifting their careers or leaving the workforce due to COVID-19.”

Gender and racial diversity are unquestionably beneficial to the workplace as it can lead to a wider talent pool with people who provide different perspectives and skill sets to utilize. With job rates slowly climbing back towards pre-pandemic levels, businesses need to put a conscious effort on recruiting and retaining female employees, and females of color in particular. Businesses small and large should re-evaluate their current practices and consider several ways to increase or maintain women in the workforce. Here are some suggestions from an employment-law attorney.

 

Flexible Schedules and Core Hours

This can be the easiest strategy, depending on your business. Allowing employees to establish their own schedules or flex the typical 9-5 business model can assist them in better balancing their home and work responsibilities. This option can allow parents to mold their schedule around daycare availability (e.g., 7 a.m. to 3 p.m. or 10 a.m. to 6 p.m.) or split their shift around home responsibilities.

 

Forgiving Gaps in Workers’ Employment History

According to a study by ResumeGo, applicants with work gaps of greater than six months have a 45% lower chance of receiving job interviews. Millions have lost their jobs during the pandemic and remain unemployed. With so many individuals forced to exit the workforce over the past year, accepting gaps in employment is critical to eliminating these hiring barriers.

 

Offering Job Training or Cross-training

The COVID-19 pandemic has made it clear that new job skills are critical in a more digitized working environment. Remote work and Zoom meetings are here to stay. Offering initial job training for skills and requirements that do not require certification or a degree will allow displaced workers a chance to gain useful skills in a new working environment. Similarly, cross-training employees to learn each other’s responsibilities (so long as their positions have enough overlap) can be effective when emergencies arise due to absences from work or other staffing challenges.

 

Create Mentorship Programs or Opportunities

A female-led or minority-led mentorship program can support and promote the advancement of under-represented groups within the workplace. Seasoned women employees can be great support structures for other women trying to begin their careers or advance within the company. Women who are currently excelling at their position or working in an executive-level position can assist other women dealing with similar daily challenges, such as work-life balance.

 

Re-evaluate the Businesses Culture

This one is more abstract and requires internal inquiries, but you should ask if your business provides a culture where women are valued or has a diverse demographic that is often desired by applicants. Ask yourself: is your workforce gender-diverse? What about the leadership positions? If the answer to these questions suggests unequal gender representation in the workplace, ask whether it is because of a culture that does not support women. Perhaps it’s more of a recruiting issue. In any event, you should dig deep for answers and insist on change.

 

 

Childcare Options

Providing on-site childcare is probably an option only for larger businesses. However, here are a few suggestions for all businesses to consider:

• Revisit your employee benefits. Do you already, or can you afford to, provide a childcare subsidy, childcare referral services for nearby locations, or extended paid leave?

• Partner with surrounding businesses. If your business space is too small to provide on-site childcare, reach out to nearby childcare locations and discuss rates and hours that could create a partnership between the businesses or, at the very least, a referral resource.

• Offer extended FFCRA benefits, which are available until Sept. 30, 2021, and can be used by employees to take time off for childcare or other COVID-19-related reasons.

 

Final Thoughts

After making positive strides in the workforce over the past decade, women’s participation in the workforce declined over the last year. To correct this trend, businesses will need to put a conscious effort toward recruiting women into their workforce.

 

Jeremy M. Forgue is an attorney with the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

Law Special Coverage

A Challenging Docket

Sudha Setty says the field of law continues to evolve

Sudha Setty says the field of law continues to evolve and create new opportunities, even during the pandemic.

It’s been a challenging year for businesses of all kinds, and the profession of law is no exception.

But in many ways, the pandemic set the critical role of lawyers in even sharper relief, says Sudha Setty, dean of the   (WNEU) School of Law.

“I hear, anecdotally, from our alumni that they’re busy; they have a lot of work going on. Frankly, the legal work coming out of the pandemic is substantial,” she told BusinessWest, and it extends far beyond business disruptions.

“The pandemic has hit very unevenly in a lot of communities, including Western Massachusetts, and you have issues of trying to get unemployment benefits or ensuring against foreclosure of homes or eviction,” she noted. “A lot of legal needs have come out of all that. Those needs existed previously, of course, but the pandemic has exacerbated them. So the need for lawyers to help in those capacities has increased exponentially in the past year.”

Or take the growing (literally and figuratively) field of cannabis; a course on “Cannabis and the Law” is hugely popular, Setty said, because students see legal opportunities in an industry that still has plenty of room to expand.

“I hear, anecdotally, from our alumni that they’re busy; they have a lot of work going on. Frankly, the legal work coming out of the pandemic is substantial.”

“It’s a new field, and it’s not going away. It’s a way to think about new opportunities as a lawyer, but you’re also learning nuts and bolts you can apply to other fields as well, like regulatory law and how to navigate state bureaucracy and a lot of other pieces that will be helpful even if your practice isn’t in cannabis law in the long run.”

In short, the world will always need lawyers, and after a very uneven past two decades when it comes to the job market and law-school enrollment, colleges across the U.S. have reported an uptick in applications over the past few years, one that hasn’t been slowed by the pandemic.

WNEU welcomed an incoming class of 130 last fall, well over the 88 who started classes in the fall of 2018, Setty’s first year as dean. While the fall 2021 numbers won’t be finalized until the summer, she hears from Admissions that applications are still strong.

“Nationwide, I know most law-school applications are up significantly,” she added. “In this region, it’s up about 20%, and we’re about the same. So I feel cautiously optimistic.”

Programs she has shepherded have only made WNEU a more attractive destination — for example, the Center for Social Justice, launched in the spring of 2019, has offered a robust series of community conversations, pro bono opportunities, and other initiatives aimed at giving students real-world experience in making a difference, even while in school.

“Students have always been interested in that mission, but now we have this focal point and can shepherd students toward job opportunities, toward scholarships, toward career paths, thinking about what they need to be a social-justice lawyer,” she said, noting, as one example, the Center’s Consumer Debt Initiative, which helps area individuals who are unrepresented in debt collection, sometimes over a few hundred dollars, sometimes a few thousand.

“We’ve heard a lot of discussions over the last few years about income inequality and economic justice, and I think we’re in a really good place in meeting the interests students have when they come into the law school.”

“They can make a difference in someone’s life. It’s a way for students, faculty, and lawyers from the greater community to address this economic-justice issue. We’ve heard a lot of discussions over the last few years about income inequality and economic justice, and I think we’re in a really good place in meeting the interests students have when they come into the law school.”

Add it up, and the WNEU School of Law hasn’t slowed down its pursuit of building a program that will remain relevant in the ever-changing field of law, well after life — and the educational experience — return to something resembling normal.

 

Back to School

Like every college and university, WNEU had to scramble last spring to get students learning remotely, and faculty and staff spent the summer raising their online competencies to make sure courses would be even more effective in the fall.

“Some of them were already ahead of the curve,” Setty said. “For some of us, including me, it was a lot of learning, a lot of training, a lot of mock classrooms we did with each other to build up our ability. This place is about good teaching, and that was the really important thing to drive home — that, by the time we got back in August, everyone had to continue this excellence in teaching as part of the ethos of the law school — in a hybrid format, if they had to.”

The 2020-21 year has, indeed, taken a hybrid form, with students alternating between learning remotely and in classrooms at the Blake Law Center, due to social distancing and capacity limits. “The largest classrooms normally hold more than 100, and now they’re at 40-something. So the students are rotating through,” she added. “Some students, for health reasons, can’t come at all, so they’re fully remote. That’s the way we’ve been operating.”

The law school has long been known for its use of clinics — in areas such as criminal defense, criminal prosecution, elder law, and family-law mediation — in which students blend classroom instruction with work on real cases, under the guidance of local attorneys. The vast majority of students get involved in clinics and externships, understanding the value of developing not only real-world legal knowledge, but the soft skills that will make them more employable.

Those clinics are still operating, Setty said, but they now feature a strong remote component as well.

“Lawyering these days is largely remote,” she noted. “Client counseling is remote. Witness interviews are remote. We have remote hearings in front of judges. So there’s a separate and related set of competencies that our students are learning, which deal with remote client presentation. It’s very different than what they’ve had to do before, and it has its challenges.”

However, she continued, “the flip side is that this is going to be a part of lawyering going forward. Everything’s not going back to fully in person after the pandemic fades. There are going to be some elements of remote trial work and remote client counseling, so I feel like our students are on the cutting edge of learning this stuff, so when they’re out looking for jobs, they can say, ‘not only do I have this skill set, I also have remote competencies in client representation; I’ve been a remote mediator, I’ve represented people in a criminal proceeding remotely.’ These are remarkable experiences they’re having — they’re very different, but absolutely what we need to do.”

Those graduates are entering a job market that has proven resilient during the pandemic, Setty said, noting that the contraction of law-school enrollment nationally a decade ago has gradually increased demand for talent.

“A lot of law schools were fully online for the full year, but we made a commitment and said, ‘we want to see our students in person and make this work.”

“The employment piece for the folks graduating during the pandemic, I think there’s still uncertainty around that,” she said. “But for the most part, our graduates have kept their jobs.”

The school has added some faculty members in the past two years, most recently Jennifer Taub, who specializes in white-collar crime, criminal procedures, and other business-law subjects, and authored the book Big Dirty Money: the Shocking Injustice and Unseen Cost of White Collar Crime.

“We’re on a positive swing,” Setty said. “The energy of our students, our faculty, and our staff has been terrific. Working through a pandemic requires a lot in terms of navigating the uncertainty and the need to adapt, but also all the hours it takes for faculty and staff to dig in and collectively make this work so we can have in-person education here.”

 

Community Focus

Setty took the reins as dean of the School of Law in 2018 after 12 years as a professor at WNEU. She first joined the faculty in 2006 as a professor of Law and associate dean for Faculty Development and Intellectual Life, and has produced notable scholarship in the areas of comparative law, rule of law, and national security.

Through her career, she has maintained that law schools are in a unique position to impact the future of a just society, and she has always seen WNEU as a place that launches the careers of thoughtful lawyers who work for the betterment of both their clients and society as a whole. The Center for Social Justice has been an important part of that philosophy over the past two years.

“I really wanted to establish this center and get it off the ground, and it has been terrific,” she said, crediting grants from MassMutual, individual law firms, and other entities to help fund its programming. “Not only is it a way to help our students and meet the social-justice mission of the law school, but it does such good work in the community. It’s great for attracting new students, but it’s also great for the work it does.”

Areas of focus have included economic justice, racial justice, and a recent effort, funded by a WNEU alum, to create an LGBTQ speaker series and support summer work in that realm for two students each year.

“It draws people in with a lot of interests,” she said of the center. “People come to law school wanting to make the world a better place, and they’re wondering how to do that — this speaks to them in a way that’s really profound.”

In fact, the law school as a whole has taken a hard look at its own efforts toward racial justice and diversity, equity, and inclusion issues, Setty said, from the coursework to how it connects with the outside community on issues like police practices.

“We have made an effort to think more about this and integrate it into our curriculum and how we engage in the larger community, but I want to do it in a sustained fashion so it’s not like, ‘oh, that was the focus for 2020; we don’t have to think about it anymore.’ The idea is to integrate it into who we are as a law school and focus on it going forward as well. It shouldn’t be a flavor-of-the-month issue, and then we move on.”

Setty is, however, more than ready to move past the pandemic and welcome students back on campus full-time, but she’s proud of what has been accomplished during the past unprecedented year.

“A lot of law schools were fully online for the full year, but we made a commitment and said, ‘we want to see our students in person and make this work,’” she told BusinessWest. “And we’ve been relatively successful. I continue to be really grateful to be the dean — particularly at a time when it’s required so much collective effort to make this happen.”

 

Joseph Bednar can be reached at [email protected]

Law

MREs and HCAs

By Mary-Lou Rup

Under Massachusetts’ recreational-marijuana statute, those seeking to operate a marijuana retail establishment (MRE) must obtain a license to operate from the Cannabis Control Commission (CCC). Municipalities exercise local control over MRE applicants through ordinances or bylaws setting ‘reasonable’ controls on the time, place, and manner of operations and limiting the number of MREs within their borders.

During the first step of the licensing process, MRE applicants must obtain approval from the municipality, and the municipality and applicant execute a host-community agreement (HCA), which sets forth the conditions under which the MRE can operate. During the second step, the CCC determines to which approved applicants it will issue licenses, which in part requires a one-page certification that the applicant and municipality have executed an HCA.

Municipalities may require that MREs pay a ‘community impact fee,’ statutorily capped at 3% of the MRE’s gross sales for five years, to cover a variety of actual costs to the municipality reasonably related to the MRE’s operations.

“An appeal now pending in the Supreme Judicial Court (SJC) may resolve issues related to the degree to which municipalities exercise control over which applicants move on to the second step.”

In HCAs, many municipalities require additional payments by the MREs, often based on an additional percentage of gross sales and/or charitable donations to entities selected by the municipality. These additional costs have, for the most part, gone unchallenged by MRE applicants anxious to obtain the HCA necessary in order to be licensed to operate.

An appeal now pending in the Supreme Judicial Court (SJC) may resolve issues related to the degree to which municipalities exercise control over which applicants move on to the second step. The case involves Mederi Inc., which sought to operate one of five MREs permitted by the city of Salem. Mederi received the necessary special permit and alleges it met all other requirements of the city’s application process. A city committee reviewed the applications before entering HCAs with four applicants; Mederi was not among them and sued. Dismissal of that suit lead to Mederi’s appeal.

Two arguments made by Mederi are of interest. Mederi challenges the city’s authority to select with which qualified applicants it would enter HCAs, effectively controlling those which the CCC could then consider for licensing. Mederi also argues that the city exceeded its lawful authority by, among other actions, imposing as a condition of its HCA fees in excess of the 3% community-impact fee. Specifically, the city required five annual payments of 1% of gross sales to a ‘traffic-enhancement fund’ and at least $25,000 in charitable contributions to local causes.

Mederi posits that allowing municipalities to utilize these ‘pay-to-play’ provisions and to pre-select which qualified applicants it will allow to advance to the CCC adversely impacts the statute’s provisions giving priority to economic-empowerment applicants — provisions intended to assist areas of disproportionate impact disadvantaged by high rates of criminal activity involving marijuana.

In opposition, the city argues that it could properly decide with which applicants to enter into HCAs. It asserts that the local-control step of the MRE-licensing process allows municipalities to weigh competing proposals and exercise discretion in choosing the most suitable applicants. The city argues that its selected applicants were the “strongest possible operators” based on experience in the marijuana industry and intent to operate in the “least impactful locations” in Salem.

The CCC filed an amicus brief in the case. Pointing to competing legislative mandates, it asserted that, while the statute does not authorize it to regulate or participate in the initial local-control portion of the licensing process, the statute also requires that it give MRE licensing priority to existent medical-marijuana treatment centers and economic-empowerment applicants.

It noted that municipalities’ exclusive control of the HCA process seemed to advantage more experienced and better-resourced applicants, leaving economic-empowerment applicants at a competitive disadvantage, and, in effect, controlled those whose license applications the CCC is able to consider. The CCC has recommended amendments to the statute, addressing, among other matters, this issue and the additional fees imposed in HCAs. Its recommendations are presently under consideration in the legislature.

Stay tuned. The SJC heard arguments on Feb. 3 and, under its usual 130-day timeline, may be expected to issue its decision by early summer.

 

Mary-Lou Rup served as associate justice of the Massachusetts Superior Court until her retirement in 2018, when she joined the litigation group of Bulkley Richardson as senior counsel.

Law

Knick-knack Knockouts

By Valerie Vignaux, Esq.

The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money. In my experience, the highest level of emotional warfare is reserved for tangible, personal property, or the ‘stuff’ that mom and dad, or grandma and grandpa, leave behind in the house.

The $7 porcelain ballerina that sat on the mantel for 50 years, the carbon-steel chef’s knife in the kitchen, costume jewelry, a crocheted Kleenex holder, photo albums, even the washing machine, if you can believe it — these are the objects that can send otherwise well-behaved, loving, and gentle family members to opposite corners of the boxing ring to steel themselves for a fight. And fight they do.

“Not me, and not my family,” we all say. But it can happen to the best of us, and the conflict has the potential to do serious damage to a family already grieving the loss of a loved one. Adult siblings revert to traits and behaviors not exhibited since ages 6 to 12. Beloved in-laws who were once an integral part of the family are now interlopers who deserve nothing. And only after mom is gone do we learn that she seems to have promised her cuckoo clock to all four of her children. (Pro tip: none of you should take the cuckoo clock. Your own families will thank you for letting that one go.)

How do we prevent such consternation at a time when we should be coming together in our shared sadness? A list. A simple, old-fashioned list. I call such a list a will memorandum, and Massachusetts General Laws recognizes such a “separate writing identifying [the] devise of certain types of tangible property.”

One of the most appealing aspects of the will memorandum is that this list can be updated, changed, thrown out, and begun anew at any time, without having to change the will itself. In fact, a properly written and executed last will and testament document typically provides that the author (the testator or testatrix) may leave such a memo, listing specific items for specific people.

“The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money.”

For any object of significant monetary value — jewelry, works of art, vehicles, and rare books are all such examples — I recommend providing for distribution directly in the will or trust document, as opposed to a separate memorandum. Similarly, a will memorandum is not an appropriate place to include gifts of money or real estate. But for all those personal belongings that have more emotional than dollar value, such a list is perfect.

Some of my clients have also placed notes on the backs or bottoms of objects around the house, stating who is to receive it upon the client’s death. This works, but I prefer a list that is dated and signed and kept with the client’s copy of his or her will. It is helpful, too, if I, as the client’s estate-planning attorney, have a copy in my file.

How does one start writing a will memorandum? Ask your family members what they want. Understandably, many people are not eager to have these conversations, but it is a gift to those you leave behind to prepare for your passing, and a gift to prevent discord in the family.

Want to achieve the next level of preparedness? Start giving possessions away before you die. If you know that your niece would enjoy your bamboo fishing pole, give it to her now so you can see her smile, hear her thank you, and forestall any arguments about it later. Further, giving away some of your possessions now will reduce the burden on those you leave behind to clean out your residence.

Take a look around your home. Is there decluttering that could be done now? (For almost all of us, the answer is assuredly yes). Start making a list of items that you can part with now, and ask your family and friends if they’re interested in any of them. By starting the process during your life, you are lessening the burden you might otherwise leave your loved ones.

‘But I’m only 40 (or 50 or 60),” you say. You’re not too young to start. Do yourself and your family members a favor and start making that list. Every one of us has at least a few things that would be meaningful to another. If you don’t have children, consider your siblings, nieces, nephews, and friends.

One last thing: although it can feel like tempting fate, please be assured that making a will memorandum (or having a will prepared, for that matter) will not cause your death. It will not court the agents of your demise. It will be an exercise of control over the uncontrollable. It will actually make you feel better, not worse. And it will make things markedly easier for those loved ones you leave behind.

 

Valerie Vignaux is an attorney with Bacon Wilson, P.C., and a member of the firm’s estate-planning and elder-law team. She assists clients with all manner of estate planning and administration, including probate, and provides representation for guardianship and conservatorship matters. She received the Partner in Care Award from Linda Manor in 2017 and served on the board of directors for Highland Valley Elder Services; (413) 584-1287; [email protected]

Law

Non-competition Agreements

By Timothy M. Netkovick, Esq.

Everyone is aware of the honeymoon phase of the employment relationship — that time period when the employee begins work and both parties are filled with high expectations for the relationship.

Possibly, prior to beginning the relationship, an employer has the employee sign a non-competition agreement as a sort of prenuptial agreement, hoping to never have to use it. However, fast-forward a few years, the employment relationship goes sour, and the employee leaves the company. Not only does the employee leave the company, but they also begin soliciting clients, or maybe even fellow employees, to join them at their new place of employment.

As employers are aware, Massachusetts enacted the Noncompetition Agreement Act in 2018. Prior to the act, there was little restriction on the contents of a non-competition agreement other than what terms would be enforced by a court in the event of a dispute. That changed with the provisions of the act. Now, in the scenario above, if the employer sought to enforce the non-competition agreement, it would need to pay the former employee not to work during the competition period.

This is because the act mandates that, to be enforceable, a non-competition agreement must contain a ‘garden-leave clause,’ defined as 50% of the employee’s highest annualized salary within the two years preceding termination.

“While the Noncompetition Agreement Act requires employers to pay former employees not to work, there may be other options available to employers.”

Employers therefore must answer the question: what do I really want with a non-competition agreement? Is it to stop the former employee from working? Or is the goal to maintain the status of my business? If the goal is to maintain the status of the business, employers may be able to utilize non-solicitation and non-disclosure agreements, which can protect the former employer’s interests while also allowing the former employee to work.

Both such agreements are excluded from the definition of ‘non-competition agreement’ by the act, meaning they do not need to include garden-leave clauses.

A non-solicitation agreement does not prohibit a former employee from working for a competitor when the employment relationship ends. Instead, it serves to prohibit the former employee from soliciting clients and other employees of the former employer to join them at their new place of employment. A non-solicitation agreement can therefore be an effective tool in preserving the current status of the business by prohibiting a former employee from taking clients and other employees with them to their new place of employment.

A non-disclosure agreement also does not prohibit a former employee from working for a competitor when the employment relationship ends. Nor does it prohibit the former employee from soliciting clients and other employees from joining them at their new place of employment. Instead, it serves to prohibit the former employee from disclosing any confidential information from the former employer. The confidential information protected could be a trade secret or other highly sensitive material.

In short, while the Noncompetition Agreement Act requires employers to pay former employees not to work, there may be other options available to employers. It is therefore wise to consult with employment counsel to review your potential options to protect your business interests after the employment relationship has ended. u

 

Timothy M. Netkovick, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm 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]

Law Special Coverage

Ringing Out the Old

By Amy B. Royal, Esq.

Most of us are happy to leave 2020 behind.

It was a year wrought with struggles both at home and in the workplace. Many companies faced closures, near-closures, reduced capacities, and reduced business all because of the impact of the COVID-19 global pandemic. Companies were also hit with several new, COVID-related laws, such as paid emergency leaves of absence, furthering the burdens they were facing during an already-difficult time.

It isn’t surprising that we are ready to ring in and embrace this new year. And, with the new year here, v is a good time to shift gears, reboot and regroup, and return to building better business practices. With that said, the new year provides an opportunity to proactively take a look at your company’s current employment-law practices to ensure compliance with the myriad evolving employment laws affecting your company.

 

Paid Family and Medical Leave and Minimum Wage

Two noteworthy laws take effect in Massachusetts this January: the Paid Family and Medical Leave (PFML) law and the revised minimum-wage law.

PFML law takes effect in the Bay State this January. While employer obligations under PFML commenced on Oct. 1, 2019, as of Jan. 1, 2021, employees can begin to apply for and receive paid leave for most medical and family leaves of absence. The remaining leave provisions will take effect on July 1, 2021. Under PFML, employees can take paid leaves for their own serious health condition, to bond with a newborn child, to bond with a child after adoption or foster-care placement, to care for a family member with a serious health condition, or to manage family affairs when a family member is on active duty in the armed forces.

All private Massachusetts employers are covered under the law regardless of their size. Leave entitlements range from 12 weeks to 26 weeks depending on the type of leave needed, and employees can take leave intermittently, if medically necessary, for medical leave for an employee’s own serious health condition or take family leave to care for a covered service member or to care for a family member with a serious health condition.

Amy B. Royal

Amy B. Royal

“With the new year here, it is a good time to shift gears, reboot and regroup, and return to building better business practice.”

Intermittent leave cannot be used to bond with a child. PFML and federal FMLA run concurrently. The same is true for the Massachusetts Parental Leave Act. Employees can choose to use but may not be required to use other forms of paid time off. PFML provides job protection and restoration rights akin to the federal FMLA. Employers are required to restore employees who take leave to their previous position, or to an equivalent position, with the same status, pay, benefits, length-of-service credit, and seniority as of the date of leave.

On Jan. 1, 2021, the Massachusetts minimum wage increased from $12.75 to $13.50 per hour. The service rate also increased from $4.95 to $5.55 per hour. Premium pay for Sunday retailer workers decreased. The next step in our minimum-wage rise is to $15 per hou, slated to take effect in 2023.

 

Proactive Employment Steps

The new year can serve as a good reminder and placeholder for reviewing and auditing your employment practices. Doing so will enable you to be strategic about that piece of your business and move toward creating a detailed and updated personnel plan going forward.

A good plan starts with an annual review of employment policies and manuals, written job descriptions, and employee-training programs to ensure that your company is compliant with state and federal laws and that your employees are properly trained in your processes and procedures.

Well-crafted employment policies are important because they communicate expectations to employees and help insulate your company from certain legal liabilities. When crafting employment policies, know that certain ones are legally required, while others are good business practice. Depending on your company’s size, required employment policies may include anti-discrimination, anti-harassment, parental leave, paid family and medical leave, and sick time. The implementation of other policies may be a good idea, such as codes of conduct, discipline and termination, workplace safety, off-duty conduct and the use of social media, drug and alcohol use and testing, use of cell phones, and use of company computer equipment and other electronic resources.

Written job descriptions are also a good practice. While not legally mandated, they can be a good tool to assess and evaluate prospective and current employees and also can reduce your company’s exposure to certain lawsuits. Accurate job descriptions that set forth the essential functions of a position can minimize liability when your company is faced with either internal requests for accommodations or external disability claims. Providing an accurate job description to an employee’s medical provider can also help determine whether an employee can perform their job with or without an accommodation or qualify for a leave of absence.

Another good business practice is employee training. Training managers and supervisors is especially important. Indeed, such trainings can help them understand company policies and their roles and responsibilities under these policies. Particularly important trainings for managers include anti-discrimination and anti-harassment, employee disabilities and recognizing requests for reasonable accommodations, and effective employee discipline and documentation.

Many employment issues that eventually evolve into litigation stem from actions or inactions of managers or supervisors. Employers should regularly conduct trainings to give these key employees the knowledge and skills required to enable them to properly handle situations as they arise.

The cost of defending expensive litigation far exceeds the investment in taking proactive, preventive steps to reduce the risk of litigation. Therefore, employers should consider conducting an internal audit at the beginning of each and every new year.

 

Amy B. Royal, Esq. is a litigation 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]

Law

A Question of Mandates

By Timothy F. Murphy

 

Employers have a key role to play in ensuring the successful rollout of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

 

Can Employers Require Vaccinations?

Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

 

Can Employees Object to Vaccine Mandates?

Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.

Timothy F. Murphy

Timothy F. Murphy

“Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace.”

A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent guidance from the Equal Employment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.

 

Government Vaccine Mandates Appear Unlikely for Now

A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

 

Public-health Experts Warn Against Mandates for Now

Even if employers can legally mandate COVID-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”

 

Avoid the Backlash

A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

 

Reduce Potential Legal Liability

Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

 

Wait and See Is the Way to Go

Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.

In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; implement employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination.

 

Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor relations, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.

Law

To Contest or Not to Contest?

Benjamin Coyle, Esq.

 

None of us want to think that, after we pass away, our loved ones may someday fight over an inheritance. But as we all know, family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always gotten along well may find themselves at odds. Keeping peace in the family is often a vital consideration in estate planning.

One of the most important components of a person’s estate plan is the document that ultimately directs the final disposition of their property, both real and personal, upon their passing. In most circumstances, that document is either a last will and testament or a trust. A question that often arises during the drafting process is: “what can I do to make sure that no one fights over my estate?”

Benjamin Coyle

Benjamin Coyle

“Family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always gotten along well may find themselves at odds. Keeping peace in the family is often a vital consideration in estate planning.”

While an attorney can never guarantee that heirs or beneficiaries will not fight, there are provisions that can be made to deter an interested person from contesting the terms of a will or trust. For wills, Massachusetts law recognizes a provision purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate. For trusts, the courts in Massachusetts have upheld the enforceability of ‘no-contest’ (or ‘in terrorem’) clauses.

In 2012, Massachusetts adopted the Uniform Probate Code (UPC), a model code adopted by 18 states in order to standardize probate laws. However, in adopting the UPC, Massachusetts did not incorporate the model’s no-contest provision, which essentially allowed for challenges or contests where probable cause exists. Rather, Massachusetts determined that the Commonwealth would maintain its historic baseline regarding no-contest provisions, and, in doing so, the Legislature provided that such clauses are enforceable as a matter of law, subject to some limitations as determined by the court.

Generally speaking, a no-contest provision is a clause within a will or trust with specific language stating that any person who challenges the estate must then forfeit their share. One of the primary purposes of including such a provision is to deter an interested person from bringing a challenge against the estate.

Typically, if an interested person believes they are not receiving what they may consider to be their fair share of the estate, that perception can provoke a desire to fight the terms of the will or trust. Emotions tend to run particularly high if a sibling or family member may receive a larger portion, or if someone is left out of an estate altogether. These challenges are not often successful, so long as the creator of the will or trust complied with all statutory requirements, was not subject to undue influence or duress, and had the appropriate mental capacity to execute the document.

Occasionally, though, when an interested person is able to present evidence of duress or incapacity, a successful challenge to a will could result in the entire document being invalidated, which would naturally include the no-contest provision. If the no-contest provision is eliminated as a result of the challenge, the contesting party may then be eligible to receive a share of the estate or trust, depending upon the other circumstances at hand.

When administering any will or trust, whether a no-contest provision is included or not, the fiduciary in charge (that is, the trustee of a trust, or the personal representative under a will) must still comply with all the other terms of the document, and the fiduciary is still responsible to beneficiaries. They are required to account to the beneficiaries for the assets under their control, as this is a matter of public policy that the courts have determined cannot be avoided with a no-contest provision.

Typically, we might see no-contest provisions enforced within the discretion of the fiduciary, for frivolous matters involving the administration of the will or trust. Occasionally, a beneficiary may ask the court for an interpretation of the provisions of a will or trust, to make sure the fiduciary is complying with its terms. Provided they are not trying to challenge or change the provisions in the document, the court is unlikely to invoke the no-contest provision when a request for interpretation is made by an interested person.

If you are a beneficiary of a last will and testament or a trust, it is extremely important to review the document to see if it contains a no-contest provision. If it does, and if a challenger comes forward, the court is likely to uphold the no-contest clause, which could result in the forfeiture of an inheritance. One must carefully weigh the options and potential outcomes before asserting a challenge.

On the other hand, if you are preparing your own estate plan and are concerned that disagreements may erupt among beneficiaries, you may wish to consider including a no-contest provision in your documents. Keeping the family peace in the future is certainly worth spending some time and effort today.

 

Benjamin Coyle is a shareholder with Bacon Wilson, P.C. He specializes in matters of estate planning and administration and also has extensive experience with real estate, business, corporate, and municipal law; (413) 781-0560; [email protected]

Law Special Coverage

Is the Gig Up for Some Workers?

By Amy B. Royal, Esq.

Getty Stock Images

The number of gig workers has been on the rise over the past few years with the advent of many online-platform companies, such as DoorDash, Instacart, and Uber.

The notion of gig workers and a gig-worker-based economy, however, is not new. Whether one refers to such workers as gig workers, freelancers, or broadly as independent contractors, this area of employment law has been a thorn in the side of many businesses for several decades. With the significant and robust growth in the online gig-economy world, the restrictiveness of independent-contractor law on business and business growth, as well as on worker independence, has gotten a new look.

Both a recent victory in the state of California and a new proposed rule from the federal government may be signaling a change in the tide when it comes to the future of independent-contractor law.

Independent-contractor law, especially in Massachusetts, has been very restrictive when it comes to certain business models. Many industries have historically relied on the classification of workers as independent contractors to augment their operations and build capacity as well as to attract workers who want independence when delivering services for them.

For example, traditionally, the real-estate industry has classified real-estate agents as independent contractors. Similarly, tattoo parlors, hair salons, and transportation services have done the same. In these industries, oftentimes, the expectation of the worker is that he or she will be classified as an independent contractor and, thus, have the freedom and flexibility to maintain independence over their own schedule and their own craft.

Indeed, the benefit of such gig work is often mutual: the company can reduce its overhead costs in payroll, benefits, and expenses, while the workers can retain freedom and flexibility over their schedules while garnering higher compensation for the services they deliver.

Earlier this month, California voters sent a message to their lawmakers when they passed a ballot question that exempted app-based drivers working for companies like Lyft and Uber from a California law that had previously made them employees. Earlier this year, a law had taken effect in California that made it clear these drivers were to be treated as employees and, thus, were entitled to certain employment-related benefits and legal protections. The California ballot win is a significant victory for app-based companies that utilize gig workers to deliver services.

Amy Royal

“Whether one refers to such workers as gig workers, freelancers, or broadly as independent contractors, this area of employment law has been a thorn in the side of many businesses for several decades.”

The U.S. Department of Labor (DOL), our federal agency that enforces federal wage-and-hour laws, appears to be trending toward loosening its stance on independent-contractor law as well. This September, the DOL proposed a new rule that establishes two core factors as determinative ones in an overall five-part independent-contractor test. The two core factors are the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment.

Remember, this rule is pending approval and, therefore, is not the current federal law on this matter. Our current federal rule in effect for establishing independent-contractor status is based upon a multi-factor test, which can be confusing in its application, thus prompting the proposed change. The purpose behind the newly proposed rule is to bring clarity to the confusion in the application of the test itself.

Prior to the proposed rule, there was no definitive guidance on how to go about weighing and balancing the various factors and whether there was a prioritization among them. Now, the two core factors proposed should make it easier to assess a worker’s status and, arguably, pave the way for more workers to be classified as independent contractors. The proposed rule seems to recognize the prerogative of workers who want to work independently and maintain freedom from an employer’s day-to-day control over them.

For now, whether a worker is an independent contractor or an employee is a clear question in the Bay State. Massachusetts law utilizes a clear three-part test that is otherwise very restrictive on both businesses and the workers who do not want to be considered employees. In Massachusetts, when analyzing a worker’s status, there is always a presumption of employment. This means the burden is on the company to prove why a worker is not an employee.

To establish that fact, Massachusetts companies must satisfy all three parts of a three-part test: companies must show that the work is performed without the direction and control of the company, outside the usual course of the company’s business, and by someone who has their own independent business or trade in that type of work. Again, all three parts of this test must be met for the Massachusetts worker to be deemed an independent contractor.

Where most companies fail the test is with respect to the second part — that the worker must perform work outside the usual course of the company’s business. For example, with respect to a driver for Uber, arguably, under Massachusetts independent-contractor law, the driver would be deemed an employee; the company is in the business of ride sharing, and the driver is performing that work by driving customers to and from certain locations.

The problem with the misclassification of workers as independent contractors is that it carries with it very stiff penalties and triggers several potential violations of laws. Indeed, misclassification of an independent contractor can create issues with respect to wage-and-hour law, such as minimum wage and overtime compensation, unemployment benefits, workers’ compensation coverage, and certain payroll-tax withholdings.

Furthermore, situations involving the misclassification of workers can give rise to class-action lawsuits. Companies that violate Massachusetts wage-and-hour laws alone are subject to mandatory treble damages for any unpaid wages. In addition, a prevailing employee will be awarded attorneys’ fees and costs of the litigation.

What is the takeaway on all of this for your company? While the law may be changing in other parts of the country, nothing has changed in Massachusetts (so far). Massachusetts law remains very strict and extremely restrictive when it comes to proving independent contractor status. As noted, misclassifying a worker can carry steep penalties and trigger a violation of various laws, as well as class-action claims.

But stay tuned. This area of the law seems to be evolving with the newly proposed federal rule and the California state-law change. It is estimated that, collectively, Uber, Lyft, Instacart, Postmates, and DoorDash spent approximately $200 million to lobby California voters to change their state law on independent-contractor status. That may spark more challenges to independent-contractor laws in other states, including Massachusetts.

 

Amy B. Royal, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm 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]

Law

An Employment-law Forecast

By Andrew J. Adams, Esq.

On the heels of a fiercely contested election, President-elect Joe Biden has started his transition work, and has laid out plans that have the potential to affect business owners nationwide.

As expected, many these changes lean in favor of the employee as opposed to the employer. However, some plans should assist small businesses. While it’s difficult to predict the future, we can make some solid projections about what employers can expect from the Biden administration.

 

Workplace Safety and OSHA

Andrew J. Adams

Andrew J. Adams

The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic. Under the current administration, the Occupational Safety and Health Administration (OSHA) performed the lowest number of inspections in the history of the agency and reduced the number of inspectors on staff to the lowest level in the past 40 years.

Biden will immediately address these policies, leading to increased inspections and enforcement, as was the case under the Obama administration. This means employers will likely face harsher penalties for non-compliance and more substantial fines than they have over the past four years.

Employers are also likely to encounter the return of the Obama administration’s workplace-safety reporting rule. This would require certain employers to report illness and injury information to OSHA, which will then be maintained online as publicly available information.

 

Wage-and-hour Law

President-elect Biden’s campaign has stated he will seek to address wage inequalities between black and white workers, make it easier for workers to pursue claims of discrimination, and push for a higher minimum wage. The administration would increase the funding allotted to the Equal Employment Opportunity Commission, the federal agency tasked with enforcing employment-discrimination laws.

“The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic.”

In what is likely to be an immediate change, Biden is expected to rescind President Trump’s executive order banning training for federal agencies and contractors that contained “offensive and anti-American race and sex stereotyping and scapegoating.” The executive order banned training on several topics and recommended keyword searches for terms such as “white privilege,” “systemic racism,” and “unconscious bias” to identify if trainings were inappropriate under the order.

Employers can also expect a push at the federal level for a $15 minimum wage; during his campaign, Biden called for an increase to a $15 minimum wage by 2026. Another likely outcome is an increase in enforcement and compliance actions against employers for wage-and-hour violations, alongside enhanced penalties.

In a follow-up to the first piece of legislation enacted by the Obama-Biden administration (the Lilly Ledbetter Fair Pay Act), Biden will also prioritize ending paycheck discrimination, evidenced by his strong support of the Paycheck Fairness Act, which would amend federal equal-pay laws to require “a bona fide factor other than sex, such as education, training, or experience” in awarding different pay to men or women doing the same or similar work; protect workers from retaliation for discussing wages; and ban the use of salary history in the hiring process.

As an aside, Biden also supports federal legislation that would provide 12 weeks of paid leave for employees for their own or a family member’s serious health condition.

 

Small Businesses

Biden plans to restructure the existing Paycheck Protection Program by adding oversight and an approval guarantee for eligible businesses with 50 or fewer employees. The plan also calls for measures to increase small-business access to capital through an initiative called the Small Business Opportunity Fund.

 

Immigration

The president-elect has proposed a 180-degree turn from the current administration’s policies when it comes to immigration. The Biden plan would call for easing legal immigration into the U.S., including a pathway to citizenship for the large number of immigrants in the U.S. who lack legal permanent status, as well as some of those currently working illegally. Biden also proposes eliminating country-based caps on immigration and increasing the number of employment-based visas awarded each year, such as the H-1B, although those may come with stricter regulation.

 

Workplace Discrimination and Harassment

Biden supports the federal Pregnant Workers Fairness Act (PWFA), which was passed by the House in September, but has yet to be approved by the Senate. Under the PWFA, employers would be required to reasonably accommodate pregnant workers and employees with pregnancy-related conditions and would prohibit them from (1) requiring a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process; (2) denying employment opportunities to a qualified employee for the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; (3) requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided; and (4) taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation.

The Biden-Harris agenda also includes support of the BE HEARD (Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace) Act, which would establish a national harassment-prevention task force and includes several mandates for covered employers, including mandatory non-discrimination training and limitations on the use of non-disclosure and non-disparagement clauses in settlement agreements.

 

Federal Agencies

Employers will likely see a return to the pro-labor days of the Obama administration’s National Labor Relations Board, which is the agency that enforces U.S. labor law in relation to collective bargaining and suspected unfair labor practices. President-elect Biden will take office and have the ability to shift the board to Democratic control within the first year of his taking office.

In addition, the administration has affirmed a strong support for the Protecting the Right to Organize (PRO) Act, a substantial piece of legislation that would provide sweeping reforms, including the imposition of substantial financial penalties on companies that violate labor laws. The Biden-Harris campaign page also promises to “go beyond the PRO Act by enacting legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organizing efforts, including criminally liable when their interference is intentional.”

All in all, employers should be ready for much more employee-friendly changes over the course of the next four (or eight) years.

 

Andrew Adams is an attorney at the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

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