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How to Control Business Costs While Reducing Risk

By Contributor
Law Special Coverage

When Savings Aren’t Savings

By Tanzi Cannon-Eckerle, Esq.

When employers cut costs, the wrong cuts can get expensive fast.

As employers head into the second quarter of 2026, a lot of businesses are in the same mode: cut costs, stay lean, keep moving. The problem is that some ‘savings’ decisions don’t save anything; they just shift the spend from payroll to legal fees, investigations, back pay, and distraction. Here are five cost-cutting moves I’m seeing right now that can blow up fast, and what to watch before you make them.

 

1. Cutting Payroll by Restructuring Too Fast

Layoffs, role consolidations, and schedule cuts are classic budget levers. They’re also where employers make avoidable mistakes. Massachusetts final-pay rules are strict, and wage and hour claims can come with automatic treble damages. If you’re moving fast, slow down just enough to get the basics right: final pay timing, earned vacation where required, clean documentation, and accurate time records.

 

2. Reclassifying Employees as 1099s to Save on Benefits and Taxes

This one looks like an easy win on a spreadsheet. In practice, it’s a liability magnet. Massachusetts uses a tough independent contractor standard (the ABC test), and misclassification can trigger wage claims, tax exposure, and insurance issues all at once. If the job walks and talks like employment with a set schedule, supervision, and core business work, then the 1099 label won’t hold.

 

3. Handling Complaints Off the Record (and Triggering Claims)

When budgets tighten, HR becomes everyone’s side job. That’s when a small issue turns into a big one. Many retaliation claims start with a simple complaint about wages, safety, leave, or discrimination/harassment, followed by a rushed manager move: hours cut, schedule changed, discipline, or termination without a clear record. And if you treat similar employees differently (or a decision hits a protected group harder), you’ve also created discrimination risk. The low-cost fix is boring but effective: consistent process, tight documentation, and manager discipline.

 

4. Treating Accommodations as ‘Nice to Have’ to Keep Staffing Efficient

When every head-count line matters, accommodation requests can feel like operational chaos. But obligations for disability, pregnancy, mental health, and schedule flexibility are expanding, and Massachusetts law is more strict, and accommodation requirements are broader, than federal law. The Pregnant Workers Fairness Act adds another layer. The cheapest path is a consistent, documented interactive process. The expensive path is a quick ‘no,’ a delay, or radio silence.

“The problem is that some ‘savings’ decisions don’t save anything; they just shift the spend from payroll to legal fees, investigations, back pay, and distraction.”

5. Cutting Website Spend (and Getting Tagged with an Accessibility Demand)

Website updates are often first on the chopping block. Plaintiffs’ firms know it, and they look for easy targets: missing alt text, inaccessible menus, unlabeled forms, and non-compliant PDFs. Massachusetts is a hotspot for ADA website accessibility claims, and there’s no small business exemption. Basic fixes usually cost far less than responding to a demand letter or lawsuit.

 

Where Smart Prevention Pays Off

Even in a cost-cutting cycle, a few targeted investments pay for themselves because they prevent the disputes that drain time, money, and leadership bandwidth:

• Payroll and classification audits catch problems before they become claims (and stop payroll leakage).

• Manager training prevents the one bad conversation that turns into a retaliation or leave claim.

• Structured accommodation processes improve retention and reduce ‘quick no’ risk.

• Website accessibility updates reduce demand-letter exposure and improve usability (and often SEO).

• Simple documentation habits make decisions defensible and keep issues from snowballing.

• Fractional general counsel support gives you a senior legal sounding board without the full-time overhead. Just make the phone call so you catch risk early, negotiate smarter, and avoid emergency outside-counsel spend.

 

Tanzi Cannon-Eckerle

Tanzi Cannon-Eckerle

“Even in a cost-cutting cycle, a few targeted investments pay for themselves because they prevent the disputes that drain time, money, and leadership bandwidth.”

 

Why Fractional General Counsel Is a Cost-control Move

A fractional general counsel is designed for businesses that need experienced legal coverage, but don’t need (or can’t justify) a full-time inhouse hire. The ROI is straightforward: you’re buying fewer surprises and faster, cleaner decisions.

Here’s what that looks like in real life and where engaging a fractional GC typically pays for itself:

• Restructure triage before you push ‘send.’ Use sanity-checking layoff selections, documentation, and final-pay steps so a cost-cutting RIF doesn’t turn into a wage claim or discrimination case.

• Clean up classification before it becomes back pay. Review a ‘convert to 1099’ plan and flag the roles that fail the ABC test so you fix the model (or pricing) before you create misclassification exposure.

• Stop the retaliation claim at the manager level. Step in when a complaint comes in to script the next steps (what to document, what not to say, and what actions to pause), so a simple issue doesn’t become a termination plus a lawsuit storyline.

• Replace one-off legal fires with reusable tools. Build offer letter language, separation checklists, accommodation forms, and investigation templates so you’re not paying outside counsel to reinvent the wheel.

• Create contract and vendor leverage. Tighten vendor terms (auto-renew, indemnity, limitation of liability, data/security) and negotiate faster, avoiding the ‘sign now, fix later’ premium.

• Ensure accessibility demand readiness. Create a response plan and coordinate quick remediation so a demand letter doesn’t spiral into expensive, time-sensitive outside counsel work.

• Focus on cost avoidance. Spot wage-and-hour, leave, classification, and documentation issues early before they become claims, audits, or back pay.

• Reduce outside counsel spend. Reserve outside counsel for true specials (litigation and complex deals), not routine day-to-day calls.

• Make faster decisions. Get real-time guidance on terminations, restructures, policies, and vendor contracts so leadership doesn’t stall or improvise.

• Create cleaner documentation. Tighten records, templates, and manager practices so your decisions hold up if challenged.

• Make better risk tradeoffs. When you do take risk, do it with eyes open and with a plan.

For Massachusetts employers trying to lower overhead without creating new liability, the goal is simple: don’t ‘save’ money today and spend more money tomorrow cleaning up the fallout. A little structure, plus the right legal support at the right time, goes a long way.

 

Five Quick Fixes to Reduce Risks and Save Money Now

1. Audit Payroll and Timekeeping. Spend 30 minutes pressure-testing overtime calculations, meal break deductions, and final-pay procedures, and make sure your handbook explains the your compliant procedures properly. This is one of the most expensive categories of Massachusetts employment claims.

2. Re-evaluate Contractor Classifications. Apply the state’s strict ABC test to every 1099 role. Fixing misclassification early beats defending it later.

3. Train Frontline Managers. Most retaliation and accommodation claims start with one poorly handled conversation. Short, targeted training reduces risk fast.

4. Document the Accommodation Process. Use a simple, repeatable form to track ADA and pregnancy-related requests. Consistency is one of your strongest defenses.

5. Fix Website Accessibility Basics. Add alt text, label forms, caption videos, and update PDFs. These are low-cost improvements that can reduce ADA exposure and improve customer reach.

 

Tanzi Cannon-Eckerle is a local business and labor & employment attorney operating as fractional general counsel for businesses in the New England area; [email protected]; (413) 369-9220; www.gcbycannon.com

 

How to Approach Data Security Concerns — and Compliance

By Contributor
Law

Safety First

By John S. Gannon, Esq.

 

Workplace privacy and data security are growing concerns for employers as they contend with advanced cybersecurity and ransomware threats, instant transfers of sensitive personnel information, an abundance of employee and medical information that needs to be protected, and laws that protect employees from intrusions into their privacy.

Employees regularly provide their employers with sensitive personal information, such as health records, Social Security numbers, and tax and payroll information. Businesses that fail to implement adequate security measures to safeguard this information can be held liable if this data is compromised.

For example, although not an employment case, in 2022, T-Mobile agreed to pay $350 million to settle a class action lawsuit focused on a 2021 data breach impacting more than 76 million people. And in 2023, Whole Foods paid $300,000 to settle a class action lawsuit brought by employees who claimed the grocery giant unlawfully collected voice data from employees who worked at the company’s distribution centers.

John S. Gannon

John S. Gannon

“Employees regularly provide their employers with sensitive personal information, such as health records, Social Security numbers, and tax and payroll information. Businesses that fail to implement adequate security measures to safeguard this information can be held liable if this data is compromised.”

In Massachusetts, the state’s Data Security Law and Regulations set stringent standards for the protection of personal information of Massachusetts residents (including employees) and mandate compliance from businesses handling such data. The law and regulations establish minimum standards to be met in connection with the safeguarding of personal information contained in both paper and electronic records. They are aimed at ensuring the security and confidentiality of sensitive data and protecting against unauthorized access to, or use of, such information that may result in substantial harm or inconvenience to any Massachusetts resident.

 

The WISP Requirement

Under the Massachusetts Data Security Law and Regulations, if your business (wherever it’s located) collects, stores, or uses personal information about a Massachusetts resident, the business is required to implement and maintain a comprehensive written information security program (WISP). This includes employers who collect personal information about their workforce, which virtually all of them do.

The WISP is required to include administrative, technical, and physical safeguards for protection of personal information (PI) about a resident of the Commonwealth of Massachusetts.

For the purposes of the WISP, PI means a Massachusetts’ resident’s first name (or initial) and last name, in combination with the resident’s Social Security number, driver’s license number or state-issued ID card number, or financial account number or credit/debit card number. According to the state regulations implementing the Massachusetts Data Security Law, a WISP must include:

• Designating one or more employees to maintain and supervise WISP implementation and performance;

• Identifying and assessing reasonably foreseeable internal and external risks to the security, confidentiality, and/or integrity of any electronic, paper, or other records containing PI;

• Evaluating and improving the effectiveness of the current safeguards for limiting security risks, including proper training of employees on the importance of data security and reviewing means for detecting and preventing security system failures;

• Developing security policies for employees relating to the storage, access, and transportation of records containing PI;

• Imposing disciplinary measures for violations of your WISP rules;

• Preventing terminated employees from accessing records containing PI;

• Taking reasonable steps to select and oversee third-party service providers who have access or your PI; and

• Reviewing the scope of the security measures at least annually or whenever there is a material change in business practices that may reasonably implicate the security or integrity of records containing PI.

We typically encourage employers to work with counsel when they are developing a written information security program, as it must be designed to address the businesses’ risk profile while considering compliance obligations under the Massachusetts Data Security Law and Regulations.

 

What to Do If You Experience a Data Breach

If your business experiences a data breach, having a compliant WISP in place — while helpful — is not enough to meet your obligations under the Massachusetts Data Security Law. If a business knows or has reason to know they have experienced a data breach, the business must promptly notify the state Attorney General’s Office as well as all affected employees with written notice.

The notice to the Attorney General’s Office must explain the nature of the security breach or unauthorized access or use of PI, the number of Massachusetts residents affected by such incident at the time of notification, the person responsible for the incident (if known), the type of PI compromised, and all the steps the business has taken or plans to take relating to the incident, including maintaining and updating the WISP.

As for the employee notice, that must include information regarding he resident’s right to obtain a police report; how the resident can request a credit freeze, the information a resident will need to request a credit freeze; and that there is no fee for requesting, temporarily lifting, or permanently removing a security freeze with any of the consumer reporting agencies.

When a breach occurs, we recommend working with those who are experienced in supervising and conducting a prompt and effective data breach response. This may involve interviewing employees, working with IT staff or external forensics investigators to determine the nature and extent of the breach, drafting and submitting required notices to affected individuals and the Massachusetts Attorney General’s Office, and revising policies and procedures to prevent future data breaches.

 

John Gannon is a partner with Skoler, Abbott & Presser, P.C., a Springfield-based law firm exclusively practicing labor and employment law for more than a half-century, focusing on litigation avoidance, employment litigation, and labor law and relations. He specializes in employment law and regularly counsels employers on compliance with state and federal laws; (413) 737-4753.

How to Reduce Massachusetts Estate Taxes for Married Couples

By Contributor
Law

A Matter of Trusts

By Gina M. Barry, Esq.

 

In Massachusetts, if you pass away owning assets worth more than $2 million, your estate will likely owe Massachusetts estate tax. Fortunately, given a relatively recent change in the law, Massachusetts estate tax would be paid only on the amount over $2 million, as opposed to on the entire estate.

Many people think that their estate is not valued at more than $2 million; however, it is very easy to reach this level of value when you consider that every asset you own is valued for estate tax purposes. The focus of this article is on how married couples can use trusts to minimize, or possibly eliminate, the Massachusetts estate tax that would be due without this planning.

Under Massachusetts law, for deaths in 2026, there is no estate tax due so long as the decedent’s estate is not valued at over $2 million. Moreover, there is no estate tax due when all assets are left to a surviving spouse, as there is an unlimited marital deduction that applies regardless of how much money one spouse leaves to another.

The potential trap is that, upon the second death, when the surviving spouse is holding the entire estate, their estate will likely be taxed at a larger percentage. This is because the $2 million Massachusetts estate tax exemption is not portable between spouses. When the second of the two spouses dies, their exemption is still only $2 million.

Gina M. Barry

Gina M. Barry

“Many people think that their estate is not valued at more than $2 million; however, it is very easy to reach this level of value when you consider that every asset you own is valued for estate tax purposes.”

A common estate planning technique to minimize, or possibly eliminate, Massachusetts estate tax is creating credit shelter trusts, which would allow both spouses to pass up to $2 million without paying estate tax.

As assets left outright to the surviving spouse would qualify for the marital deduction instead of using the estate tax exemption, it is necessary to use a system of trusts to cordon off the $2 million exempt from tax in Massachusetts from the surviving spouse’s direct and unfettered access.

Thus, the surviving spouse is forgoing control of the assets held in their deceased spouse’s trust to realize the goal of paying less or no estate tax when both spouses have passed away. Although the surviving spouse does not have unfettered access to the trust funds, they would have access according to the trust’s rules.

 

How It Works

Upon the passing of the first spouse to die, a subtrust will hold the $2 million exemption amount for Massachusetts purposes. With respect to the assets held in this trust, the income (money earned on trust assets) would automatically be distributed to the surviving spouse.

The surviving spouse may also be given an annual ‘5 and 5’ power that allows them to demand a distribution of 5% of the principal or $5,000, whichever is greater. In addition, should the surviving spouse require more monies to live in the manner they were accustomed to living when their spouse was alive, principal (trust assets) may be distributed at the trustee’s discretion.

A second subtrust, for Massachusetts purposes, will include the remainder of the estate, meaning any assets over and above $2 million. This trust will also provide the surviving spouse with all income and with principal distributed at the trustee’s discretion — and, again, the surviving spouse may be given the option to exercise a ‘5 and 5’ power as described above.

When the second spouse passes away, any monies in the first subtrust ($2 million), as well as any growth, will not be taxed in their estate. Thus, the trust has made these monies available to the surviving spouse for their needs without giving that spouse the direct ownership that would cause inclusion in their estate for estate tax purposes when they pass away.

As the surviving spouse will interact extensively with the trustee of the trust following the death of the first spouse, it is very important to choose a successor trustee that will get along with the surviving spouse. The successor trustee may be the surviving spouse, but it is highly recommended that there be a co-trustee serving along with them, such that the surviving spouse can be insulated from participating in making discretionary distributions of principal.

Very often, married couples choose to name their children as successor trustees to serve with or without the surviving spouse. When both spouses have died, the balance of the trust property would be distributed as set forth in the trust, usually outright to the married couple’s children or held in a continuing trust for their benefit.

 

Bottom Line

A credit shelter trust can also help to reduce or eliminate federal estate tax; however, for 2026 deaths, federal estate tax only impacts estates greater than $15 million. Couples with assets valued at $15 million or more would also want to explore additional planning opportunities that are beyond the scope of this article.

Any married couple wishing to take advantage of estate tax planning is encouraged to schedule an appointment with an attorney who works primarily in the area of estate planning. It is imperative that you plan now to avoid estate taxes later.

 

Gina M. Barry is a shareholder with the law firm 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. She concentrates her practice in the areas of estate and asset protection planning, probate administration, guardianships, conservatorships, and residential real estate; (413) 781-0560; [email protected]

New England Employers Face New DEI in 2026

By Contributor
Law

Culture Shock

By Tanzi Cannon-Eckerle, Esq.

 

By now, most New England employers have heard the rumblings: the Equal Employment Opportunity Commission (EEOC) is taking a dramatically tougher stance on workplace practices it views as ‘DEI-motivated discrimination.’ What began as a political undercurrent in 2025 has become a fullscale regulatory pivot in 2026, and companies across Massachusetts, Connecticut, and Rhode Island are realizing that the DEI landscape they have operated in for a decade has shifted beneath their feet.

The message from Washington is blunt. EEOC Chair Andrea Lucas has made clear that any employment decision — hiring, promotion, training, or even internal programming — that factors in race, sex, or similar protected characteristics may trigger scrutiny in 2026. The agency is actively reviewing organizations with DEI policies, affinity groups, or diversity-focused hiring or marketing initiatives, signaling a broad and aggressive enforcement posture.

Tanzi Cannon-Eckerle

Tanzi Cannon-Eckerle

“Any employment decision that factors in race, sex, national origin, or other protected characteristics — even with the best of intentions — may now trigger scrutiny.”

That means any employment decision that factors in race, sex, national origin, or other protected characteristics — even with the best of intentions — may now trigger scrutiny. Hiring pipelines, mentorship programs, employee resource groups (ERGs), and even internal messaging are being examined through a new, far more conservative lens.

For New England employers who have long prided themselves on inclusive cultures and progressive workforce strategies, the shift is more than a compliance headache. It is a strategic reckoning.

And increasingly, companies are turning to an unexpected ally to navigate it: fractional general counsel.

 

A New Enforcement Era Arrives

The EEOC’s 2026 enforcement strategy is rooted in a strict interpretation of Title VII, one that treats DEI initiatives as potential sources of ‘reverse discrimination.’ The agency is signaling heightened attention to:

• Hiring or promotion practices referencing demographic goals;

• Diversity-focused recruiting pipelines;

• ERGs organized around protected characteristics;

• Training or leadership programs aimed at specific demographic groups;

• Public DEI commitments that imply preferential treatment; and

• Workplace policies tied to national origin, religion, or COVID19 vaccination.

According to reporting, the agency is even reviewing companies’ websites and public statements to identify DEI-related language. In other words, if it is on your website, it is fair game.

This is particularly relevant in New England, where employers — from Boston’s tech corridor to Springfield’s manufacturing base to Providence’s healthcare systems — have spent years building DEI programs as part of their brand identity. Many now find themselves asking the same question: what does compliance look like in 2026?

 

The New England Challenge: Values vs. Liability

New England companies tend to be values-driven. They care about fairness, community, and workplace culture. They have invested in DEI not because it was trendy, but because it aligned with who they are.

But the EEOC’s new posture means that even well-intentioned programs can create legal exposure. A mentorship program for women in leadership? Risky. A hiring initiative aimed at increasing representation? Risky. An ERG for employees of color? Risky unless structured carefully.

The challenge is not abandoning inclusion — it’s modernizing it. And that’s where fractional general counsel has stepped into the spotlight.

 

Why Fractional General Counsel Is Suddenly in Demand

Most midsized companies in New England don’t have a fulltime general counsel. They rely on outside firms for litigation and occasional advice, but they don’t have someone embedded enough to understand their culture, operations, and risk profile.

Fractional general counsel (GC) fills that gap. It’s a model that gives companies ongoing, strategic legal support, without the cost of a full-time executive. And in a regulatory environment that is shifting monthly, that combination of expertise and affordability is proving invaluable.

Fractional GCs are helping companies:

• Audit DEI-adjacent programs;

• Redesign policies and training;

• Reframe initiatives around neutral, business-driven goals;

• Strengthen documentation and decision making;

• Respond to EEOC inquiries;

• Coordinate with outside litigators when needed; and

• Keep leadership informed as the legal landscape evolves.

In short, they are giving companies a way to stay compliant without abandoning the values that define them.

 

What Fractional General Counsel Actually Does in This Moment

The role goes far beyond reviewing handbooks. In the context of the EEOC’s 2026 crackdown, fractional GCs are functioning as strategic advisors, risk managers, and operational partners. Their roles include:

Conducting DEI Risk Audits. Fractional GCs review everything from hiring practices to ERGs to training modules. They identify where language, structure, or intent may now be interpreted as discriminatory. This includes subtle issues — like job postings that reference ‘diverse candidates’ — that once signaled inclusion but now raise red flags.

Rebuilding Programs Around Legally Defensible Principles. Instead of demographic targets, companies are shifting toward skills-based leadership development, equal-access mentorship programs, workplace civility and respect initiatives, and culture building open to all employees. The goal is to preserve the spirit of inclusion while eliminating legal exposure.

Training Leadership and HR. Managers and HR teams are often the ones making decisions that later get scrutinized. Fractional GCs provide practical training on objective hiring criteria, documentation standards, avoiding demographic preferences, handling complaints, and responding to employee concerns. This reduces risk and increases consistency.

Strengthening Documentation. Documentation is everything. Fractional GCs help companies standardize interview processes, build defensible evaluation frameworks, ensure that promotion and discipline decisions are job-related, and create clear, consistent records. This protects against both traditional and reverse discrimination claims.

Managing EEOC Inquiries. When the EEOC (and their state counterparts MCAD, CHRO, and RICHR) come calling, companies need a steady hand. Fractional GCs coordinate responses, manage communication, gather documents, work with outside litigators if necessary, and keep the business’s perspective front and center. This prevents the operational disruption that often accompanies regulatory investigations.

Providing Ongoing Monitoring. The 2026 enforcement shift is not a one-time event. Fractional GCs stay on top of new guidance, court decisions, agency priorities, and state-level developments.

 

The New England Advantage: Culture Without the Liability

New England companies do not need to abandon inclusion. They simply need to express it in ways that comply with the evolving legal landscape.

The employers who will thrive in this 2026 anti-DEI environment are those who maintain strong workplace cultures, avoid demographic preferences, focus on equal access and opportunity, build legally defensible programs, and stay ahead of regulatory shifts.

 

Attorney Tanzi Cannon-Eckerle is principal and chief legal officer at General Counsel by Cannon, PLLC. Based in Western Mass. and serving companies across the region, the firm focuses on labor and employment law, business law, and fractional general counsel services. With deep experience advising organizations on DEI-related compliance, regulatory risk, and workforce strategy, General Counsel by Cannon helps businesses modernize their policies, strengthen their culture, and stay ahead of the EEOC’s evolving enforcement priorities, without the cost of a full-time legal department; www.gcbycannon.com; [email protected]

What a Recent Decision Means for Restaurant, Bar Owners

By Contributor
Law

A Liquor License Lesson

By Joshua M. Goldstein, Esq.

 

Operating a restaurant, bar, event hall, or other business that utilizes a liquor license is hard enough without accidentally tripping over a clause in your lease that turns into a legal disaster. The Massachusetts Supreme Judicial Court’s recent decision in Nicosia, et al. v. Burn LLC, et al. (2025) is a good reminder that, when it comes to liquor licenses, contract terms still matter, and creative financing can come with some very sobering consequences.

 

How This All Started

This case arose out of a fairly common commercial setup and straightforward set of facts. N&M Trust VII (Nicosia) leased a commercial property in downtown Boston to Burn, LLC (Burn). As part of the lease agreement, Nicosia sold its liquor license associated with the property to Burn for the sum of one dollar. The lease terms included an ‘anti-pledge’ provision, which prohibited Burn from pledging the liquor license as collateral for a loan, and provided that any pledge in violation of such provision constituted a default under the lease. In addition, at the end of the lease term, Burn was required to transfer the liquor license back to Nicosia for one dollar.

Joshua M. Goldstein

Joshua M. Goldstein

“Pledging a liquor license as collateral may seem like an easy solution when money is tight, but if doing so violates your lease terms, it can lead to lease termination, an awkward conversation with your landlord, and very expensive consequences.”

Before the lease term expired or otherwise terminated, Burn pledged the liquor license to its principal, Brian Lesser, as collateral for a loan to Burn in the amount of $445,000. When Nicosia discovered this, it declared Burn in default of the lease, terminated the lease, and demanded the return of the license.

Nicosia initiated the lawsuit, and Burn challenged its claims, arguing that the lease’s anti-pledge provision is unenforceable as it violated public policy and Massachusetts General Laws c. 138 § 23, the statute which governs and expressly permits the pledge of liquor licenses.

 

The Court’s Holding

The court disagreed with Burn’s argument and upheld the anti-pledge provision as enforceable. The court reasoned that the clause did not violate public policy concerns as financing agreements among commercial sophisticated parties do not generally raise public policy concerns.

Further, the court distinguished this case from its decision in Beacon Hill Civic Assoc. v. Ristorante Toscano Inc. (1996), where it found that a private agreement not to apply for a liquor license was unenforceable because it thwarted public participation. In the case of Nicosia, et al. v. Burn LLC, et al., the anti-pledge provision does not interfere with public participation but rather is only a limitation on the licensee’s ability to use the liquor license as collateral to secure financing. No loopholes. No judicial sympathy for “but we needed financing.”

 

Why This Matters to Business Owners

Liquor licenses are often viewed as valuable assets, and they can be to a business. However, Nicosia makes it clear that their value can be tightly controlled by contract. Here are the key takeaways:

• A Liquor License is Not Always ‘Your’ Asset. Even if a license is technically in your business’s name, contractual restrictions can dramatically limit what you can do with it. If your lease says “no pledging,” that means no pledging no matter whether the lender is a bank, a private investor, or your own business partner.

• Courts Will Enforce Anti-pledge Provisions. This decision confirms that Massachusetts courts will uphold contractual limits on liquor licenses so long as they don’t limit a prospective licensee’s ability to participate in the licensing process or conflict with statute. Public policy is not a magic eraser for inconvenient lease terms.

• Financing Shortcuts Can Trigger Long-term Pain. Pledging a liquor license as collateral may seem like an easy solution when money is tight, but if doing so violates your lease terms, it can lead to lease termination, an awkward conversation with your landlord, and very expensive consequences.

 

Practical Advice for Local Restaurant and Bar Owners

If you currently operate, or plan to operate, a business that utilizes a liquor license, this case offers some practical lessons:

• Read the Entire Lease (Yes, Even That Section). Anti-pledge clauses are easy to overlook, especially when they’re buried in lengthy lease sections or among boilerplate provisions. But as this case shows, it is very important to read the entire lease, whether you have an existing lease or are considering entering into a new lease. Further, it is important to review the lease to ensure that any anti-pledge provisions apply to real property or personal property other than a liquor license.

• Coordinate Legal Advice Before Financing. Before pledging any business asset as collateral, make sure it doesn’t conflict with your lease or other applicable agreements. A quick legal review can be a lot less costly than litigating or defending a default of a lease.

• Assume Enforcement, Not Flexibility. Courts generally assume that sophisticated parties mean what they sign and expect to be bound by the same. It is very important not to rely on hoping a judge will ‘balance the equities’ later.

 

Final Pour

Nicosia is not flashy, but it’s important. For local business owners, the lesson is straightforward: treat your lease like required reading, and don’t assume that creative financing will survive creative lawyering on the other side.

If you’re ever tempted to pledge a liquor license as collateral without reviewing your lease first, just remember: the hangover from that decision can far outlast the term of the loan.

 

Attorney Joshua M. Goldstein is an associate with Bacon Wilson, P.C. whose practice areas include banking and finance and business and corporate law, with additional specialties including liquor licensing and other licensing matters. He is administered to practice law in the state of Massachusetts and is an active member of the Hampden County Bar Assoc.

Employers Concerned About Broader Immigration Enforcement

By Contributor
Law Special Coverage

ICE at the Door

By Marylou Fabbo, Esq.

 

In 2026, employers across the U.S. are expected to continue to face intensified and broadened immigration enforcement efforts. Executive actions, regulatory shifts, agency‑level mandates, and recent events reflect aggressive enforcement within and outside of the work environment.

ICE (Immigration and Customs Enforcement) has become a household word. Restrictions on enforcement in certain areas, such as schools, hospitals, and places of worship, have been lifted. Unannounced visits to the workplace, expanded audits, and coordination between ICE and other enforcement agencies has strengthened.

In 2025, certain cities, states, and industries were affected more than others when it came to the Trump administration’s efforts to enforce immigration policies. The focus was on agriculture and farming, food processing, construction, healthcare workers, and cleaning and maintenance services because they often employ immigrant workers.

In 2026, efforts have been expanded, and are expected to continue to expand, to employers in all businesses of all types, sizes, locations, and number of employees. All employers, regardless of industry, size, or location, must be prepared for ICE visits to the workplace as well as other potential enforcement actions, such as unanticipated Form I-9 audits conducted by the U.S. Department of Labor.

Marylou Fabbo

Marylou Fabbo

“All employers, regardless of industry, size, or location, must be prepared for ICE visits to the workplace as well as other potential enforcement actions, such as unanticipated Form I-9 audits conducted by the U.S. Department of Labor.”

Importantly, employers must also be prepared for conflicts that may arise when employees or ICE agents engage in actions that may have unintended and serious consequences, such as personal injury.

 

ICE Visits to the Workplace

Immigration agents may go to a workplace to conduct a Form I-9 audit, a raid, or to detain specific people. ICE doesn’t always ring the bell before entering. ICE can enter the public areas of a business, such as the reception area, without permission. Still, ICE does not have the unrestrained authority to stop, question, or arrest someone, even if they are in a public area.

Rather, for access to the private areas of a business, ICE needs either company permission or a judicial warrant. A judicial warrant is from a court and is signed by a judge. Although some agents may present an administrative warrant, that type of warrant is insufficient. An administrative warrant usually says “Department of Homeland Security” or is from an immigration court, and it does not give ICE the right to enter private areas of your business without your permission.

Having a judicial warrant only gives ICE authority to enter the areas identified on the warrant to be searched. Be wary, however. While it is illegal for ICE to enter any private area without a judicial warrant, there have been many reports of ICE failing to adhere to legal standards when entering the workplace, and employees permitting ICE agents to do more than they would otherwise legally permitted to do. Such actions give rise to one of the newer concerns being discussed among employers: whether the deadly results of community enforcement actions having turned violent spread to the workplace.

 

Access to Employees

Attempts to arrest an employee may also lead to physical altercations between ICE agents, the employee at issue, or other employees protecting the employee who is being sought or employees who wish to aid ICE’s efforts.

The desire to assist ICE often derives from U.S. citizens’ concerns about losing employment opportunities to undocumented workers, regardless of whether an employer intentionally employs individuals who are not authorized to live and/or work in the U.S. There is a misconception that all employers who are employing an employee who does not have authorization to work or be present in the U.S. knowingly do so.

For Form I-9 purposes, employers are not required to be document review experts. If the document reasonably appears to be genuine and related to the employee, it is sufficient. Therefore, some employers are shocked when ICE arrives with a judicial warrant to arrest someone who has been a hardworking, long-term employee and who presented what appeared to be genuine Form I-9 supporting documentation.

If a judicial warrant is presented, employers must comply. If ICE has an administrative warrant identifying an employee, the employer does not have bring the agent to the employee or even have to let the agent know if the employee is working that day. That is, if ICE enters the employer’s property at all, it has become more common for immigration officials to stop employees before they pull into the employer’s parking lot. Employers must consider whether they want to have a plan in place if such a circumstance arises.

 

Employers’ Right to Legal Advice

Human resource personnel, the company president, and all other employees can ask to speak to a specific attorney or ask the immigration officer for a list of pro bono lawyers before speaking to immigration authorities or answering any questions. It’s not certain, however, that the request will be granted.

Still, no one is required to speak at all. No one must state where they were born or whether they are in the U.S. legally, sign anything, or group according to country of origin. Employees do not have to show identification or other papers to ICE agents. However, if someone does not cooperate, it is not out of the realm of possibility that ICE would claim that the person is ‘impeding’ their efforts and arrest them. Employers should communicate to employees their position on ICE cooperation even whether or not ICE’s actions appear to be legally supported.

 

Difficult Choices

Employers who violate immigration-related employment laws or lawful enforcement actions can be subject to fines, large penalties, the inability to work on government contracts, and even criminal liabilities. But in today’s immigration landscape, there’s been much contention that even lawful activities can be penalized. An even greater concern is increasing violence.

If an ICE agent demands action that you believe to be illegal, what do you do? Efforts to assert an individual’s rights in the face of an improper action may lead to unexpected — and even dangerous — situations. Most employers do not know what their employees will do who take offense to ICE’s action, whether right or wrong, and also lack action plans when circumstances begin to present a risk of harm to one more people involved.

Regardless of the position employers take on Minnesota’s enforcement-related deaths, they must recognize that similar situations could occur in their workplaces and should consider having a plan in place to address them.

 

Attorney Marylou Fabbo is a senior partner at Skoler Abbott and heads the firm’s immigration team. She has successfully represented the firm’s clients in state and federal courts, as well as the Equal Employment Opportunity Commission, Massachusetts Commission Against Discrimination, Connecticut Commission on Human Rights and Opportunities, and other forums.

Appeals Court to Address Employers’ Shield to Equal Pay Liability

By Contributor
Law

Work in Progress

By Meaghan Murphy, Esq.

 

A Massachusetts Superior Court recently dismissed claims brought by an employee under the Massachusetts Equal Pay Act (MEPA) and the Massachusetts anti-discrimination law after an employer successfully used the MEPA’s absolute defense to liability. Unhappy with the outcome, the employee who filed the lawsuit appealed the Superior Court’s decision, and that appeal is pending.

The Appeals Court heard argument in this case on Sept. 3, and a decision is expected in the coming months. That decision will be the first appellate guidance on the affirmative defense available to employers under MEPA and will set the standard for pay equity disputes across the state.

Before diving into the case on appeal, it is important to understand what MEPA prohibits and requires, and what the employer defense that acts as a total shield to liability is all about.

 

What MEPA Does

MEPA applies only to claims of discriminatory pay based on gender. The law prohibits employers from paying employees less due to their gender, and further requires employers to pay employees equal pay for comparable work.

Meaghan Murphy

Meaghan Murphy

“The Appeals Court affirms the Superior Court’s dismissal of Woodward’s claims, it might mean that employers can rely on self-evaluations and proposed changes as a shield to liability, without actually making the changes — a lower standard for this affirmative defense than expected.”

Comparable work is work that requires substantially similar skill, effort, and responsibility, and is performed under similar working conditions. A job title or job description alone does not determine if two employees are performing comparable jobs. A more fact-specific analysis of the day-to-day duties and responsibilities is typically required.

 

The ‘Evaluate and Progress’ Defense

MEPA contains a rare ‘safe harbor’ provision that courts can rely on to dismiss MEPA claims when an employer successfully shows they have met the legal requirements. Under §105A(d) of MEPA, employers are protected from liability for gender-based pay disparity claims if they complete “a self-evaluation” of their own pay practices “in good faith” and demonstrate “reasonable progress” toward eliminating any identified wage differentials based on gender for comparable work. An important caveat: that self-evaluation must be completed within three years of an employee (or group of employees) filing a claim under MEPA.

If an employer can satisfy these requirements, then MEPA claims are barred. In other words, there is no liability for employers who can show they took these steps within three years of getting sued under MEPA. Of course, not all employers conduct these self-evaluations. But for those that do, this ‘evaluate and progress’ defense is a total game changer.

 

The Case on Appeal

In Woodward v. Board of Registration in Nursing et al., the plaintiff, Lauren Woodward, was hired by the Board of Registration in Nursing as a compliance officer. Woodward is a woman, and the two other compliance officers at the time were men.

Part of a compliance officer’s pay was based on the number of years of relevant or similar work experience they had prior to being hired. The board gave credit — and increased the pay — for that prior experience. All three compliance officers were credited with different numbers of years of experience, but the two men were credited with more years based on their respective experience. That resulted in the men being paid more than Woodward for the same job.

In June 2020, Woodward filed a lawsuit alleging that she was paid less than the two male compliance officers. She asserted a claim under MEPA and a sex discrimination claim under the Massachusetts anti-discrimination law based on these same allegations of sex-based pay disparity.

In a motion filed with the court, the board asked that the claims be dismissed and asserted the ‘evaluate and progress’ defense under MEPA. The board argued that it had conducted a good-faith self-evaluation of its pay practices within three years of Woodward’s claim being filed, that it had identified wage differentials based on gender for comparable work, and that it had made reasonable progress towards eliminating those wage differentials.

During its self-evaluation, which the board said was conducted in November 2019, the board identified seven individuals — both women and men — who were subject to potentially impermissible pay disparities. The board proposed that the pay for all seven employees be adjusted upward to match the pay of their peers doing comparable work. Notably, Woodward was not one of the seven employees identified during the evaluation, so her pay was not proposed to be adjusted upward to match that of her two male co-workers.

Based on these facts, the board argued, it had satisfied the requirements of the ‘evaluate and progress’ defense and, therefore, is shielded from Woodward’s MEPA claim.

Woodward did not dispute that the board had conducted a self-evaluation of its pay practices. However, she disputed other important facts, including whether the self-evaluation was conducted in good faith and whether the board made reasonable progress toward eliminating wage differentials based on the findings of that self-evaluation.

Interestingly, Woodward pointed out that, while the board had proposed adjustments to the pay for the seven employees identified, it had not actually made those adjustments. Therefore, according to Woodward, the board failed to show reasonable progress toward correcting the gender-based pay disparities.

The court was not persuaded by this argument from Woodward, finding that the proposal for pay adjustments for the employees identified was enough. According to the court, though evidence of actual pay increases would have demonstrated greater progress towards eliminating gender-based wage differentials, evidence of the board’s first step toward such pay increases — identifying potentially impermissible wage differentials and proposing corresponding pay increases, subject to funding approval — appears to satisfy the requirements of MEPA.

The board also argued that, even if it could not use the ‘evaluate and progress’ defense, the pay disparity between Woodward and her male peers was lawful because it was based on their varying experience and not their differing genders. But the court did not get to that argument because the board successfully demonstrated it was entitled to the affirmative defense MEPA provides. So the court stopped there.

The court also did not address the merits of Woodward’s sex discrimination claim under the state’s anti-discrimination law. Under MEPA, an employer who can establish the ‘evaluate and progress’ defense avoids liability under MEPA and the state’s anti-discrimination law.

Woodward’s claims were dismissed at the summary judgment stage (i.e., before ever getting to a jury). As mentioned above, Woodward has appealed. In her appeal, Woodward contends that the court improperly analyzed her claims and how MEPA’s ‘evaluate and progress’ defense should be applied.

 

What’s Next?

Employers and employees alike should be interested in the Appeals Court’s decision in this case. If the Appeals Court affirms the Superior Court’s dismissal of Woodward’s claims, it might mean that employers can rely on self-evaluations and proposed changes as a shield to liability, without actually making the changes — a lower standard for this affirmative defense than expected.

Alternatively, the Appeals Court could disagree with the Superior Court’s dismissal of Woodward’s claims and send the case back down for further analysis, which might result in a jury deciding the case. A decision is expected in the coming months.

 

Meaghan Murphy is an attorney with Skoler, Abbott & Presser, P.C. Licensed in both Connecticut and Massachusetts, she regularly advises clients on various workplace issues, including discipline and performance matters, policy development and implementation, and compliance with local, state, and federal laws and regulations.

How to Make the Most of Your Charitable Giving

By Contributor
Law

Choosing a Cause That Matters

By Gina M. Barry, Esq.

 

As we come to the holiday season, charitable giving comes to the fore. Do you donate money to charity each year? Perhaps you donate to an organization dedicated to finding a cure for an awful disease. Perhaps you choose to benefit organizations that support and encourage positive growth in our youth. Perhaps you decide to support the local animal shelter or abuse prevention.

To reap the most benefit from charitable giving, you must first choose an appropriate charity to benefit from your generosity. There are thousands of charities working within a huge variety of causes from which to choose. Thus, you can be certain there is a charity working to bring positive change in a way that you would love to support. Of course, the causes touched upon above are just a few examples of where your donation can make a difference.

Once you have decided that you would like to support a charitable cause, it is important to determine how you will contribute. Most will choose to donate cash; however, you might also consider donating highly appreciated securities, which would allow you to avoid paying the capital gains tax on those assets. Likewise, the charity also would avoid paying this tax due to its charitable status.

Aside from a monetary donation, you may also donate goods. When purging your household to make way for new holiday items, you can donate those that are gently used, but no longer desired. For example, you may have a pantry full of uneaten, non-perishable food that your family is not eating. Consider filling a couple of grocery bags with this food and donating to your local food pantry.

Gina M. Barry“Donations claimed as tax-deductible contributions for 2025 must be actually paid to the charity on or before Dec. 31, 2025, and it is best always to obtain a receipt for your donation regardless of the amount.”

Likewise, children often grow out of clothes and get bored with their toys while they are still in good repair. Many charities that benefit children would be delighted to receive these clothes and toys to help the children that they serve. Similarly, when you and your old vehicle finally part ways, you do not have to send the vehicle to a junkyard. Many charities accept any vehicle, working or not, as a donation.

If making a monetary contribution or a donation of goods is not possible at this time, consider volunteering your time to your favorite cause. Elder services, animal shelters, hospitals, and soup kitchens are all wonderful places to volunteer. While the time you volunteer is not tax-deductible, any out-of-pocket expenses associated with volunteering are usually deductible. For example, travel expenses to and from the volunteer site, as well as parking fees and tolls, may be deducted.

 

Next Steps

When you have decided which cause you would like to help and in what manner, you are almost ready to make a donation. Be certain the charity has received approval from the Internal Revenue Service (IRS) as being eligible to receive tax-deductible contributions. You can determine the tax-exempt status of an organization either by contacting your local IRS office or by asking the organization for a copy of its ‘letter of determination,’ which is the formal notification the organization receives from the IRS once its tax-exempt status has been approved. Also, IRS Publication 78, Cumulative List of Organizations, is an annual listing of thousands of organizations that can accept tax-deductible donations.

Donations claimed as tax-deductible contributions for 2025 must be actually paid to the charity on or before Dec. 31, 2025, and it is best always to obtain a receipt for your donation regardless of the amount. When considering donating to charity, it is also important to check in with your tax advisor, as there have been some important changes.

For example, starting in 2026, even taxpayers who take the standard deduction (i.e., don’t itemize) can claim a modest ‘above-the-line’ deduction — up to $1,000 for singles and $2,000 for married couples filing jointly. For those who do itemize, deductions for charitable contributions will apply only to the portion that exceeds 0.5% of adjusted gross income. That means the first 0.5% of adjusted gross income in charitable gifts each year will not reduce taxable income. Further, in 2026, the tax benefits of itemized charitable deductions will be capped at 35%, even for those in the 37% marginal tax bracket. Thus, to make the most of your charitable giving, be sure to consult your advisor before making your donations.

Charitable giving is extremely rewarding. You will not only reap the benefit of knowing that you are helping to make a difference in this world, but when tax season comes, you may enjoy a beneficial tax deduction as well.

 

Gina M. Barry is an attorney in the Springfield office 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. She concentrates her practice in the areas of estate and asset protection planning, probate administration, guardianships, conservatorships, and residential real estate.

What Employers Must Know About Salary Range Transparency Law

By Contributor
Law Special Coverage

Out in the Open

By Michael Lewis, Esq.

On Oct. 29, Massachusetts’ pay transparency law took effect. Employers must post a good-faith pay range for each specific position and provide that range to applicants and employees on request. Larger employers must also submit workforce equal employment opportunity (EEO) data to the state.

Actions to take now: Set credible pay ranges, update posting templates, train managers and recruiters, and calendar your EEO data submission.

Posting and disclosure duties apply if you averaged 25 or more Massachusetts employees last year. Count all employees whose primary place of work is Massachusetts, including full-time, part-time, seasonal, and temporary workers. Include remote employees tied to a Massachusetts worksite and out-of-state employees who report to or are assigned to a Massachusetts base. Determine coverage once a year by averaging headcount across all pay periods. The separate EEO data reporting duty applies to employers with 100 or more Massachusetts employees that already file EEO reports with the Equal Employment Opportunity Commission (EEOC).

Your postings must show a real pay range for Massachusetts roles. Every advertisement or job posting for a particular and specific position with a Massachusetts primary place of work must list a range you reasonably expect to pay at the time of posting. Third-party and agency postings count. If pay is by commission or piece rate, include the expected commission or piece rate range. The law does not require listing benefits or bonuses.

You also must disclose ranges to applicants and current employees. Upon request, give any applicant the range for the posted position. Give current employees the range when you offer a promotion or transfer, and upon request for their own position, even if no vacancy exists. Make sure managers know who answers these requests and how.

“Every advertisement or job posting for a particular and specific position with a Massachusetts primary place of work must list a range you reasonably expect to pay at the time of posting.”

‘Primary place of work’ reaches remote and hybrid setups. If a role reports to or is assigned to a Massachusetts worksite, treat it as covered, even when the individual works outside the state. If the role can be performed in Massachusetts, assume the posting rule applies.

Enforcement sits with the attorney general; there is no private lawsuit. Expect a warning for a first violation, then escalating civil penalties. Through Oct. 29, 2027, you get two business days to cure after a notice. Retaliation against applicants or employees who seek ranges or complain about violations is prohibited.

Large employers must submit EEO workforce data to the Commonwealth. If you file EEO-1 (or EEO-3/4/5, as applicable) with the EEOC, you must transmit the same reports to the Secretary of the Commonwealth on the state schedule. The state will publish aggregate industry reports; individual employer submissions are not public records.

 

Seven Practical Steps to Get Compliant Quickly

• Decide coverage. Run the 25-employee average using last year’s payroll periods. Flag multi-state and remote roles tied to Massachusetts.

• Map positions. List all ‘particular and specific’ jobs in Massachusetts, including internal ladders and common transfer paths.

• Set ranges now. Build good-faith minimums and maximums for each position using market data, internal equity, geography, and level. Avoid inflated bands that you would not actually pay.

• Standardize postings. Add a salary-range line to every template and require recruiters and agencies to include it. For social posts, link to the full posting with the range.

• Train managers and recruiters. Give a script for handling range requests. Remind teams not to ask for salary history until after an offer. Reinforce anti-retaliation.

• Document and monitor. Keep a living list of ranges, the date set, the factors considered, and the owner. Review at set intervals and after material changes.

• Calendar the data filings. If you file EEO reports federally, calendar the Massachusetts submission dates and designate the filer.

 

Templates You Can Use Today

Required range line for postings: “Pay range for this role: $__ to $__ per year [or $__ to $__ per hour]. Actual pay will reflect skills, experience, and job-related factors. This role [includes commission with an expected range of $__ to $__ ] is paid by piece rate with an expected range of $__ to $__].”

Applicant range request response: “Thank you for your interest. The pay range for the [position] is $__ to $__ [plus commission/piece rate as posted].”

Employee request for current position: “The current pay range for your position, [position/title/level/location], is $__ to $__. We review ranges on [cadence] based on market data, skills, and responsibilities.”

 

Common Questions from Employers

Do we need to update a posting if the range changes during the search? Post the range you reasonably expect to pay when you publish the posting. If your range materially changes during the search, update the posting and your internal file.

Do we need to include bonuses or benefits? No. List the base salary or hourly range. Include commission or piece-rate ranges if those pay forms apply.

Do internal promotions without a posting trigger disclosure? Yes. Provide the range when offering a promotion or transfer.

Do we have to share ranges for every job on demand? Applicants get the posted position’s range on request. Employees get their own position’s range on request, even when no opening exists.

How should we handle multi-state postings? If the role could be filled by someone whose primary place of work is Massachusetts — or the role reports to a Massachusetts worksite — include a Massachusetts-compliant range.

 

Key Dates and Thresholds at a Glance

• Oct. 29, 2025: Salary-range posting and disclosure duties began for employers with 25 or more Massachusetts employees.

• Feb. 1, 2026 (EEO reporting): EEO-1 due annually; EEO-3 and EEO-5 due in odd-numbered years; EEO-4 due in even-numbered years — only for employers that file these reports with the EEOC.

• Through Oct. 29, 2027: Two-business-day cure period after a notice from the attorney general.

 

Why Act Now?

Pay ranges will surface internally and externally. Employees will compare. Posting ranges that you cannot defend invites morale issues and legal risk. You control the narrative by setting credible bands, training your teams, and responding cleanly to requests.

 

Michael Lewis is an attorney with the Commercial Litigation Group at Halloran Sage, handling complex business and employment disputes for a wide range of clients in industries including healthcare, manufacturing, retail, and technology.

Why Training, Investigations, and Fair Discipline Are Essential

By Contributor
Law

Strengthening the Workplace

By Kayla Snider, Esq.

 

Coldplaygate, from this past July, serves as a stark reminder that, in an era where the internet, social media, and memes reign supreme, businesses face heightened accountability and more scrutiny than ever.

Unfortunately, you don’t often hear about businesses doing right by their employees. Instead, employers typically make the news when things go wrong and the consequences become significant. And in this day and age, that could mean becoming the next big meme sweeping across the internet.

Between changing laws, evolving social norms, and rising employee expectations, businesses are under constant pressure to get things right. While having written policies and procedures on hand are important, what is more important is how employers practically handle and implement their policies and procedures. Does your employee handbook sit on the shelf and collect dust year after year? Or are you taking a proactive approach to employee relations that truly reveals the integrity of your organization?

Kayla Snider

Kayla Snider

“Does your employee handbook sit on the shelf and collect dust year after year? Or are you taking a proactive approach to employee relations that truly reveals the integrity of your organization?”

It is important to ensure that you handle processes effectively through the entire employee life cycle. This involves adequate training, robust investigations, and fair, business-based reasons for employee discipline.

 

Do Not Treat Training Like a Checkbox

It’s tempting for businesses to treat employee training like a one-and-done requirement, especially when it comes to harassment prevention or workplace ethics. But this line of thinking is dangerous. Training is almost always the first line of defense in preventing workplace misconduct. Moreover, being able to present evidence of proactive training in the workplace can bolster an employer’s defense if a business faces litigation.

Training isn’t just about legal compliance; it’s also about the culture of your business. It’s your first and best chance to set expectations, prevent problems, and show employees you take their rights and responsibilities seriously.

Training should not be limited to avoiding harassment claims. In today’s diverse workplaces, training on unconscious bias, workplace civility, and professional ethics can strengthen team cohesion, reduce conflict, and demonstrate your commitment not only to following the law, but also to being culturally aware and inclusive. Good training should be regular, interactive, and tailored to your workforce. Don’t just focus on what’s illegal — help your people understand what’s respectful, ethical, and expected in your business.

 

Investigations: Not Just a Legal Duty, But a Trust-building Opportunity

When something goes wrong, whether it’s a harassment complaint, bullying, or a policy violation, how an organization responds says a lot. Massachusetts courts have consistently emphasized the need for prompt and impartial workplace investigations when allegations of misconduct arise. But prompt and fair investigations aren’t just about protecting the business; they’re about protecting the people who show up to work for you and support your business day in and day out.

Whether you use an internal HR professional or an outside investigator, the process must be fair, objective, and well-documented. Above all, employees need to know their concerns will be taken seriously. If you address employee concerns promptly and fairly, then it is more likely that employees will feel confident in your reporting system. This helps ensure that employees bring issues to your attention — rather than suffering in silence until they cannot take it anymore and quit, then file a hostile work environment lawsuit in court.

 

Fair Discipline: the Overlooked Cornerstone of Integrity

Let’s talk about discipline. Now, I am sure you are all familiar with the ‘big stuff’ (the formal write-ups or terminations), but what I want to focus on, and what I think really matters, is consistency. Is everyone being treated the same way? If two employees break the same rule and only one is disciplined, that’s a lawsuit waiting to happen.

Businesses should have a clear process for addressing misconduct and should give employees a chance to respond. This isn’t just best practice; it helps demonstrate that the business operates with integrity. Discipline should also be consistent, proportional, and grounded in clearly established policies. This means that anyone who is responsible for disciplining employees should know your policies.

If your business has a policy of progressive discipline, then you should follow that progressive process and, if you are going to skip steps, make sure that you have a good reason to do so that is well-documented.

This leads me to my next point: documentation is also key. Document, document, document. Strong documentation is important not only to create a record for the organization, but also for the employee because they may have questions that are harder to answer if you do not have a record of what happened and why.

 

Bottom Line: Get These Three Things Right

At its core, a strong workplace culture is one that aligns with legal compliance. Training, investigations, and discipline are the three pillars of a responsive and responsible employment environment. And while training, investigations, and discipline sound like dry HR topics, they’re anything but. These practices are where the law meets workplace culture, and they say more about your business than any mission statement ever could.

When employers commit to doing these things right — not just to avoid lawsuits, but because it’s the right thing to do — they create stronger, safer workplaces for everyone.

 

Kayla Snider is an associate attorney with Skoler, Abbott & Presser, P.C., a Springfield-based law firm exclusively practicing labor and employment law for more than a half-century, focusing on litigation avoidance, employment litigation, and labor law and relations.

A Haunting Look at Unexpected Real Estate Problems

By Contributor
Law

Ghosts, Goblins, and Disclosure Laws

By Ryan K. O’Hara, Esq.

 

It’s 9:53 p.m. on Oct. 31. You’ve just shut off the porch lights after an evening of greeting trick-or-treaters. You’d have expected they’d be a bit more excited about the full-sized candy bars you have sprung for, but most kids seemed nervous to approach and quick to leave. One even mentioned he couldn’t believe you’d bought the old Carpenter place. What was that about? No matter — a successful first Halloween in the new neighborhood.

Bone-tired, you slump onto the couch with a sigh. What a week! Closing on a house and moving mid-week with kids and a cat in tow: now, that’s scary. But now, with the costumed hordes dispersed and your own little monsters comatose from the sugar-high crash, there’s nothing between you and some quality time alone with a good movie (and, of course, the leftover candy).

Why can’t you relax, then? Sure, there’s that nagging feeling of being watched you’ve had since you moved in. That’s just adjusting to a new place, though. So what if a lamp or two has turned itself on and off? Old homes have funky wiring. Granted, the rattling chains and heavy footsteps you’ve heard the first few nights have been … interesting, but surely, it’s just the house settling.

Ryan K. O’Hara

Ryan K. O’Hara

“Massachusetts law generally allocates these risks to the buyer. The rule of ‘caveat emptor,’ or ‘buyer beware,’ remains the driving principle in determining liability between buyers and sellers for undisclosed property issues.”

Having rationally dispelled childish thoughts of ghosts and goblins, you settle in to press play — just as a ghoulish apparition manifests, its pallid flesh inches from your face, its abyssal mouth moaning nine terrifying words: “what, the sellers didn’t tell you about the tenants?”

So, who’s to pay the Ghostbusters’ bill? As unlikely as this haunting scenario may seem, the Massachusetts Legislature has, in fact, enacted a statute to dispel any specter of doubt as to a seller’s potential liability for an undisclosed haunting. Under Massachusetts General Laws, Chapter 93, Section 114, “the fact or suspicion that real property may be or is psychologically impacted shall not be deemed a material fact required to be disclosed in a real estate transaction.”

As used in the statute, ‘psychologically impacted’ includes any suspicion “that the real property has been the site of an alleged parapsychological or supernatural phenomenon.” The statute prohibits any “cause of action … against a seller or lessor of real property or a real estate broker or salesman … for failure to disclose to a buyer or tenant that the real property is or was psychologically impacted.”

 

Ghost of a Chance

Though Massachusetts property buyers might not often confront this exact issue, unwelcome surprises with newly purchased real estate are unfortunately common. Disappointed purchasers facing unexpected (and often costly) problems with their property frequently ask who is legally responsible to fix the issue.

Massachusetts law generally allocates these risks to the buyer. The rule of ‘caveat emptor,’ or ‘buyer beware,’ remains the driving principle in determining liability between buyers and sellers for undisclosed property issues. Massachusetts common law puts the burden on prospective buyers to ask questions, seek inspection, and generally conduct whatever due diligence they desire before proceeding to purchase a property.

Sellers do not have an affirmative duty to disclose known or potential issues with property before selling, except in limited instances required by statute or regulation (such as the presence of lead or a septic system). And generally, sellers have no obligation to fix issues with a property that come up after closing (with notable exceptions such as the implied warranty of habitability for new homes sold by builder-vendors).

Of course, this does not mean sellers have carte blanche in selling a property with known issues. If asked a question about their property and choosing to answer, sellers must answer honestly. If a seller makes a representation of a material fact regarding the property that a buyer reasonably relies on in choosing to purchase, and that representation is false, the seller may be liable for negligent or intentional misrepresentation.

For example, if a seller is aware of a flooding issue, is asked about whether there is a history of flooding, and falsely states there is none, they may be liable for damages incurred to remedy future flooding. Sellers also cannot conceal issues and prevent prospective buyers from discovering them without exposing themselves to potential liability for doing so. And for sellers who are selling in the conduct of their trade or business (or for agents representing sellers), different obligations and liabilities could arise under the Massachusetts consumer protection law, Massachusetts General Laws Chapter 93A, if known issues are not disclosed.

Still, in the great majority of scenarios, the risk of undisclosed latent property issues lies with the buyer. Accordingly, it is incumbent on buyers to have appropriate caution in pursuing their purchases.

Buyers can take steps to minimize — but not eliminate — this risk. These include being clear on the inspections and due diligence to which they will be entitled, consulting with seasoned professionals (such as real estate agents, inspectors, and attorneys), ensuring material questions they have regarding the property are asked of sellers, and otherwise thoroughly investigating the property they are purchasing before entering binding agreements or proceeding to close.

 

Bottom Line

Every piece of real property is unique. So is every real estate transaction. If you are buying or selling real estate, or dealing with an issue post-closing, seek advice from trusted professionals to ensure your interests are protected. Otherwise, you may be in for a fright — no matter the time of year.

 

Attorney Ryan K. O’Hara is an associate in the Northampton Office of Bacon Wilson, P.C. He serves on the board of directors for the Hampden County Bar Assoc. and is a participating member of the Hampshire County Bar Assoc., and is licensed to practice law in the state of Massachusetts. The foregoing was presented for information purposes only, is not legal advice, and does not create an attorney-client relationship.

A Conversation on Workplace Speech

By Contributor
Law Special Coverage

After the Kirk Fallout, What the Law Protects — and What It Does Not

 

By Michael Lewis, Esq

After Charlie Kirk’s killing, workers across many sectors posted remarks that mocked or celebrated his death. Employers responded within hours. Some fired workers for policy violations; others suspended them pending review. Perhaps most notably, ABC temporarily pre-empted Jimmy Kimmel Live! after affiliates refused to carry the show and a federal regulator publicly criticized Kimmel’s on-air comments. Events moved quickly, and confusion spread just as fast.

The First Amendment restrains government. It does not create a job right to speak without workplace consequences. Private employers retain broad discretion, and public employers face a different constitutional test. Knowing where actual protection begins and ends will help you act quickly and lawfully.

 

What Counts as Protected Speech?

• Concerted activity under the National Labor Relations Act. Employees who speak with, or on behalf of, co-workers about pay, scheduling, staffing, safety, or other working conditions engage in ‘concerted’ activity. That protection covers many social media discussions directed to co-workers or seeking to start group action. It does not cover personal gripes, threats, disclosure of trade secrets, or harassing content.

• Anti-retaliation ‘opposition’ rights. Federal and state EEO laws protect employees who oppose or report discrimination in good faith, even if they are ultimately proven wrong on the facts. Crude insults and slurs fall outside that protection; specific, work-focused complaints usually fall inside it.

• State off-duty and political-activity laws. Some states protect lawful off-duty conduct or political activity outside work. New York protects many lawful off-duty political and recreational activities. California limits employer control of political activity. Colorado protects broad lawful off-duty conduct, subject to narrow exceptions. Connecticut’s statute extends free speech protections to private employees on matters of public concern, balanced against legitimate business interests. Multi-state employers should map these rules before disciplining off-duty posts.

Michael Lewis

Michael Lewis

“The First Amendment restrains government. It does not create a job right to speak without workplace consequences. Private employers retain broad discretion, and public employers face a different constitutional test.”

• Public sector balancing. Government employers must apply the Pickering/Garcetti framework. Speech by a public employee as a citizen on a matter of public concern can receive protection unless it impairs efficiency or disrupts operations, while speech made as part of job duties receives no constitutional protection.

 

What Does Not Count as Protected Speech?

• Policy-violating speech. Private employers may discipline speech that breaches social media, civility, confidentiality, or brand guidelines, so long as the rule and its enforcement do not infringe concerted activity rights or a state protection.

• Harassment and threats. Speech that targets protected classes or creates a hostile environment falls outside any protection and often requires prompt action.

• Disclosure of confidential or proprietary information. Revealing non-public business information, client data, or trade secrets invites discipline and potential legal remedies.

• Speech that predicts or causes disruption. Even in the public sector, officials may discipline speech that reasonably threatens operations, safety, or public trust after applying the required balancing test.

 

How the Rules Apply to Current Events

• Kirk-related terminations. Employers dismissed or suspended workers who posted content perceived as celebrating violence or taunting the victim. In private workplaces, the analysis turned on clear policy language, the connection to the employer’s brand, and whether the post involved co-workers or working conditions. Where a post targeted protected classes, anti-harassment duties reinforced the decision. Where a post was unrelated to working conditions and did not fall under state protection, at-will principles typically allowed discipline. Public employers had to apply the constitutional balancing test and document expected disruption before acting.

• The Kimmel pre-emption. ABC removed the show from its schedule after affiliates announced they would not air it and after public criticism from a federal regulator. While the network reversed course and reinstated Kimmel a week later, two practical lessons remain. First, business partners can force rapid action; affiliate refusals and advertiser pressure often shorten timelines and narrow options. Second, overt regulatory attention raises stakes for content decisions in media and adjacent industries. Employers should plan in advance for partner pushback and regulatory scrutiny, with ready playbooks and internal sign-offs.

• Other instructive precedents. Google’s termination of an engineer over a workplace memo survived a federal labor challenge because the content did not qualify as protected concerted activity and risked discriminatory impact. ESPN suspended an anchor for tweets that violated its social media rules, a reminder that brand and business relationships can justify discipline even when speech occurs off the clock. Franklin Templeton prevailed against a wrongful termination suit after firing an employee whose viral conduct damaged trust and reputation. Each example turns on the same themes: a clear policy, a documented business rationale, evenhanded enforcement, and — where required — a constitutional or statutory analysis.

 

A Clean Decision Path for Employers

When a post or clip surfaces, move in sequence and record the answers.

• Concerted or not? Does the speech seek to involve co-workers about working conditions or present a group complaint to management? If yes, treat it as potentially protected and consult counsel before acting.

• Harassment or threats? Does the content target protected classes, include slurs, or threaten harm? If yes, act under anti-harassment and safety policies.

• Public or private employer? If public, apply the citizen speech and disruption balancing; if private, proceed to the next step.

• State protections. Do any off-duty or political activity statutes apply? If yes, analyze the statute’s scope and exceptions.

• Contracts and past practice. Do CBA provisions, employment agreements, morals clauses, or progressive discipline rules constrain options, and have you enforced similar cases consistently?

• Confidentiality and brand risk. Did the content reveal non-public information or predict reputational harm with customers, partners, or regulators? If yes, incorporate that rationale into your file.

• Proportional response. Choose counseling, suspension, or termination based on the conduct, the role, and the risk, and issue a neutral, policy-based communication.

 

Policy and Training Steps That Work

Rewrite social media, civility, and confidentiality policies with concrete workplace examples. Cross-reference complaint channels and anti-retaliation language. Add explicit savings clauses for NLRA rights and any state-law protections. Train managers to escalate issues to HR and legal, and to avoid engaging in online arguments. Maintain a short internal script and an external statement template for high-profile events. Consistency across viewpoints reduces legal risk and public blowback.

 

Takeaway

Citizens hold broad speech rights against the state; employees do not gain broad job rights for speech in private workplaces. Your safest course is clear policy, measured triage, and disciplined, neutral enforcement, with special care for concerted activity, anti-harassment duties, state protections, and — if you are a public employer — the constitutional balancing test. When leaders understand what the law actually protects, they act faster and with less risk.

 

Michael Lewis is an attorney at the Royal Law Firm who helps employers resolve workplace challenges. He counsels and defends businesses across Massachusetts and Connecticut, handling matters involving discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, and breach of contract. His practice includes litigation in state and federal courts and before administrative agencies.

Contested Estates Can Cause Turmoil Within Families

By Contributor
Commercial Real Estate
Law

Trouble in Margaritaville

By Hyman G. Darling, Esq.

 

Over the past couple of years, you may have read about all the famous people who passed away either with no estate planning documents or perhaps documents that were not up to date or complete enough to avoid contest.

In the past two months, there have been several notorious people in the news that are causing lawyers and judges to deal with litigious matters regarding estates. The first estate was Jimmy Buffett’s. In this brewing legal battle, Jane Buffett (his wife) filed a petition to remove her co-trustee of the marital trust, Jimmy’s longtime business manager. It was estimated that the estate was worth approximately $275 million. This trust was to continue for Jane’s lifetime, but she now alleges that the business manager was charging excessive fees, mismanaged the trust, and has become adversarial and hostile toward her.

It is unfortunate this has occurred because now the funds are going to be scrutinized and her legal fees, the trustee’s legal fees, and potentially backup and independent trustees’ fees will be taken from the trust, thus diminishing the funds available to Jane.

Hyman G. Darling

Hyman G. Darling

“It is very important to think clearly about what will happen if the children cannot agree. Perhaps the documents should have a provision stating that, before litigation ensues, the trustees or beneficiaries should be forced to mediate the matter in an attempt to resolve the conflicts without litigation.”

This situation is not uncommon. Clients often wish to name two or more children co-trustees or perhaps powers of attorney, personal representatives (formerly called executors), or healthcare proxy agents. The clients believe the children would get along and make decisions together. However, when one decision maker does not agree with the other, it places the client or their family in a precarious situation because, if they cannot agree, there is a stalemate until such time as either a mediator or court makes a decision as to what is correct or who should make the appropriate decisions.

Some clients feel that the oldest child should serve, some clients feel that the child who is in business should serve, and others believe they should have an independent trustee so that this situation does not occur.

Oftentimes, however, the children cannot agree as to what is best for the parent or for the ultimate beneficiaries of the trust. Therefore, it is very important to think clearly about what will happen if the children cannot agree. Perhaps the documents should have a provision stating that, before litigation ensues, the trustees or beneficiaries should be forced to mediate the matter in an attempt to resolve the conflicts without litigation. Often, once litigation is filed, there is a line drawn in the sand and no turning back, which causes perpetual disharmony in the family.

 

Dollars and Sense

Another significant celebrity in the news is Jeff Bezos, with his prenup and recent Venice wedding. Since the Amazon founder did not have a prenuptial agreement with his first wife, it was clear to him that he should have a prenuptial agreement for this marriage to Lauren Sanchez.

Although there were somewhat disparaging comments regarding her wedding gown, the location, the cost of the wedding, and the numerous celebrity guests, the reporters did not pay much attention to the prenuptial agreement, the details of which are not public. However, the prenuptial agreement presumably would provide that, if the marriage were to be dissolved or he were to pass away first, his wife would receive a portion of the assets based on how many years he was married to her, or perhaps based on the size of his estate.

While most of you who are reading this do not have an estate the size of Bezos’s (although his estate is reduced by $36 billion in Amazon stock he paid to his first wife), it is important to consider what would happen to your assets if you die leaving assets to your children. Perhaps your children’s marriages are not the most sound, and you wish to be sure that the children or their children will receive assets. Therefore, perhaps a trust should be established for them, or maybe leave some assets to your children and some assets to the grandchildren in order that the in-law (sometimes referred to as the out-law) would not receive this unintended inheritance.

 

Bottom Line

The lessons here are not only that documents need to be prepared, but significant thought should be given to the language in the documents, the individuals who are named or not named, and the distribution of those assets. Also to be considered are long-term care issues and tax issues to maximize the amount that will be passing to the next generation.

Of course, charities should also considered in estate planning documents, not only to minimize taxes, but also to carry on the legacy built during one’s lifetime.

 

Hyman Darling works in the Springfield office of Bacon Wilson. He is licensed to practice law in Massachusetts and the U.S. District Court District of Massachusetts. He is an active member of the National Academy of Elder Law Attorneys and is a certified elder law attorney. Additionally, he is a member of the Special Needs Alliance and the Hampden County Bar Assoc.

What Rental Property Owners Should Know About Control

By Contributor
Law

When a Fire Strikes

By Daryl M. Johnson, Esq.

 

When a rental property suffers a devastating fire, most owners assume they’ll have the freedom to use the fire insurance proceeds to pay off their mortgage or make other financial decisions. But in cities like Springfield and others in Massachusetts, property owners can be in for quite a surprise. Local ordinances — combined with the city’s enforcement powers — can significantly limit what you and your lender are allowed to do with the building and the insurance funds.

 

Fire Insurance Proceeds: Not Always Yours to Direct

In many cases, a mortgage instrument allows the lender to apply insurance proceeds toward repairing the mortgaged property or paying down the outstanding loan in the event of a casualty. However, when a building is declared uninhabitable, condemned, or becomes a blighted nuisance, local governments can, and will, step in. In Springfield, under its municipal code and zoning regulations, the city has the authority to initiate enforcement actions in housing court that affect both property owners and lenders.

Daryl M. Johnson

Daryl M. Johnson

“When a building is declared uninhabitable, condemned, or becomes a blighted nuisance, local governments can, and will, step in.”

City Intervention in the Aftermath of a Fire

Under Springfield’s Code of Ordinances — particularly its anti-blight, nuisance, and vacant property regulations — the city may take swift action when a structure is significantly damaged by fire. If the building is left vacant, unsecured, or deemed a public safety risk, the city can initiate a housing court action to enjoin the property owner and the mortgage lender from accessing or making unilateral decisions about the property.

It can also seek a receivership order, allowing a third-party receiver to take control of the property, make repairs, and recover costs via liens, and it can even restrict or monitor the use of insurance proceeds, particularly when used for purposes other than code compliance, demolition, or rehabilitation.

In some cases, the city may record a lien or notice of violation that clouds title and complicates, and in some instances prevents, refinancing, resale, or redevelopment.

 

Mortgage Lenders Are Not Exempt

Springfield ordinances don’t just target property owners — they also involve mortgage holders, especially when lenders receive insurance proceeds or attempt to foreclose on or dispose of fire-damaged properties without addressing code violations or unsafe conditions.

Housing court judges have broad powers to issue injunctive relief against lenders and loan servicers, require insurance proceeds to be escrowed, and prevent satisfaction or discharge of the mortgage until compliance is achieved.

 

Best Practices for Owners and Lenders

If you own a fire-damaged rental property in Springfield, consider these immediate steps:

• Notify the city’s Code Enforcement Department to assess the building and clarify obligations.

• Consult legal counsel before using fire insurance proceeds or negotiating with your mortgage lender.

• Secure and maintain the site to avoid blight premises designation.

• Engage a licensed contractor to prepare a code-compliant rehabilitation or demolition plan.

• If you’re a mortgage lender, be prepared for involvement in housing court and restrictions on the application of fire insurance funds to pay off the mortgage loan.

 

Regional Enforcement: Not Just Springfield

The city of Springfield is not the only municipality in Western Mass. aggressively enforcing fire-damaged and blighted property regulations. Other cities, such as Holyoke, Chicopee, and Worcester, are similarly proactive. These municipalities frequently seek injunctions against both owners and mortgage lenders like those sought out by the city of Springfield.

A fire doesn’t just damage real estate — it can fundamentally alter your legal rights as a property owner or lender. In Springfield and surrounding cities, local governments have legal authority to control what happens next. Whether you’re trying to use fire insurance proceeds to refinance, repair, demolish, or sell the property, failing to understand the municipal framework could land you with housing court violations, penalties, or fines.

Legal counsel familiar with local ordinances and housing court procedure is essential to avoid costly missteps and navigate court-ordered restrictions.

 

Daryl M. Johnson is an attorney in the Real Estate and Business and Finance practices at the law firm Pullman & Comley. She is based in the firm’s Springfield office.

 

The Ins and Outs of a Legally Compliant Reduction in Force

By Contributor
Law

Avoiding Layoff Pitfalls

By John Gannon, Esq.

 

Last month, on Independence Day, President Trump signed into law the One Big Beautiful Bill Act (OBBB), a nearly 1,000-page bill addressing significant federal tax and spending policies. According to the White House, the OBBB will act “as a catalyst for job creation, domestic investment, and long-term growth.”

But critics are not so sure the legislation will boost job growth. Indeed, many are concerned that deep spending cuts to social safety net programs such as Medicaid and food stamp benefits, coupled with the end of tax credits tied to clean energy, will cause many Americans to lose their job. One study estimates that 1.22 million jobs could be lost in 2029 due to Medicaid and SNAP cuts.

Given these deep spending cuts, coupled with what seems like daily (and sometimes hourly) uncertainly over foreign tariffs, the Trump administration is leading many businesses to consider cutting labor costs, even if only for the short term. In light of this, employers need to understand the legal and practical ramifications when implementing a reduction in force (RIF), which is a more formal term for layoffs. Key aspects include understanding the relevant legal risks, selecting employees fairly, and providing proper communication and support.

John Gannon

John Gannon

“Employers need to be able to provide legitimate, business-based reasons for implementing a workforce reduction. These typically involve economic considerations, such as the loss of key contracts or higher material costs, but could also be the product of a department or company-wide reorganization.”

Legal Issues

To start, employers need to be able to provide legitimate, business-based reasons for implementing a workforce reduction. These typically involve economic considerations, such as the loss of key contracts or higher material costs, but could also be the product of a department or company-wide reorganization. Whatever the reason(s), businesses need to be able to explain in crystal-clear terms why people are losing their jobs.

There are also a host of employment laws that businesses need to be cognizant of when implementing a RIF. In a large-scale workforce reduction, the most important of these laws is the Worker Adjustment and Retraining Notification (WARN) Act, which requires 60 days notice to all affected employees in the event of a mass layoff or plant closing.

The penalties for failure to comply with WARN are steep. WARN Act violations include back pay and benefits for up to 60 days for each affected employee, civil penalties of up to $500 per day of violation, and potential attorneys’ fees for successful lawsuits. Needless to say, determining whether the WARN Act applies is always step number one when businesses are considering a RIF.

Next, employers must ensure that the selection criteria used to determine who will be included in the RIF are non-discriminatory and based on legitimate business needs. This means reasons for selecting an employee for the RIF cannot be tainted by bias based on age, race, gender, or other protected characteristics, including use of Paid Family and Medical Leave or sick leave protected by the Massachusetts Earned Sick Time law.

To that end, employers should develop an documented selection criteria plan for the decision makers prior to announcing the end result to employees. Establish selection factors with the company’s legitimate business needs in mind, trying to keep the selection process focused on objective, legal criteria as much as possible (such as seniority, elimination of unnecessary categories such as part-time and temporary, elimination or consolidation of unnecessary positions. etc.).

Taking this one step further, employers should consider conducting a detailed analysis of the potential for disparate impact discrimination in a workforce reduction. Disparate impact discrimination occurs when a policy, practice, or decision-making process of an employer that appears to be neutral has a negative impact on a protected group of employees.

For example, if a high percentage of those selected for layoff are over age 40, and a significant amount of those retained are under 40, there is a risk that someone will file an age discrimination claim and argue that the method used to evaluate employees had a disparate impact on those over 40, and, therefore, led to their separation.

Disparate impact testing helps organizations recognize and address biases that might exist within their decision making process, even when there’s no intent to discriminate. We suggest that any disparate impact analysis be conducted by an attorney so that any problematic data that is discovered would be protected from disclosure in lawsuit by the attorney-client privilege.

Finally, employers need to be aware of wage payment obligations for those who are laid off. Under the Massachusetts Wage Act, employees who are laid off as part of a RIF must be paid all earned wages — including pay for all accrued and unused vacation — on their last day of employment. Also, if a worker is subject to the terms of an employment contract (as opposed to be employed at-will), that employee might be entitled payout if the employment relationship ends prior to the expiration of the term set out in the employment contract.

 

Practical Considerations

Employees who are let go as part of a RIF are likely going to expect severance pay to help pay the bills while they look for new employment. That said, there is nothing that requires employers to offer separation agreements to at-will employees being laid off (note that this might be different if the employee is subject to the terms of an employment contract).

However, most employment lawyers and HR professionals will tell you that offering at least some severance, while not legally required, is a best practice. This is because, as noted above, it provides departing employees with some level of financial stability while they are in between jobs. Severance packages also often include payments for continued health insurance or other benefits, easing the transition and potentially reducing out-of-pocket medical expenses for departing employees.

Finally, obtaining signed severance agreements from departing employees mitigates legal risk, as the agreement should include a legally compliant release of claims against the employer. Stated otherwise, employees accept the severance payments, and in exchange, they agree not to bring a legal action against the company. We see this as a win-win for the employee and the employer.

Finally, as far in advance as possible, businesses need to start developing a clear and transparent communication strategy that will be used to explain the RIF to the workforce. This strategy should involve two messages — one for the entire workforce that explains the business needs for the RIF, and another message that is tailored to those who are affected by the RIF.

For those who will be losing their jobs, conduct private meetings to deliver the news and discuss next steps. This meeting should go over the terms of the severance package, if one is being offered. While the meeting should be brief, employees should be given some time to discuss the positives and negatives of their employment experience, as well as ask questions related to post-employment issues such as unemployment and health insurance continuation.

As for the remaining employees, the business should have a plan in place to discuss how the RIF will affect their day-to-day duties. Is there a plan in place to replace the departing workers if business circumstances improve? Will the RIF lead to longer days and more demands for the remaining employees? Does the company plan to lay off more employees within the next few months?

These types of questions, as well as the psychological impact associated with many co-workers (and friends) losing their jobs, is often referred to as workplace survivor syndrome. Leaders in the organization must be prepared to answer questions from remaining employees about their ‘new normal,’ as well as listen and respond to their concerns and fears, in order to avoid workplace survivor syndrome causing more negative workplace ripples than the RIF itself.

Implementing a RIF is no small task. There are serious legal and practical considerations that businesses need to consider as soon as potential layoffs are a topic of conversation during leadership meetings. Be sure to engage experienced employment counsel early on in the process so businesses leaders do not get caught in traps for the unwary during a workforce reduction.

 

John Gannon is a partner with Springfield-based law firm Skoler, Abbott & Presser, P.C., a law firm exclusively practicing labor and employment law for more than a half-century, focusing on litigation avoidance, employment litigation, and labor law and relations. He specializes in employment law and regularly counsels employers on compliance with state and federal laws; (413) 737-4753.

Consider These Common Myths That Get Employers Sued

By Contributor
Law Special Coverage

Can I Fire Someone for That?

By Michael Lewis, Esq.

Employers regularly wonder: “can I fire someone for that?” You might assume the answer is simple, especially in an at-will state like Massachusetts. But the reality is more complex. Missteps can land your business in court. Here’s how to avoid them and keep your company focused on growth, not litigation.

 

Myth: At-will Means Any Reason Goes

At-will employment allows termination without contractual cause. Yet, anti-discrimination laws and retaliation protections still apply. Even a valid reason, like poor performance, becomes risky if the employee recently complained about harassment, requested an accommodation, or reported a safety issue. Terminating soon after a complaint invites legal trouble.

For example, you want to fire Sarah for repeated tardiness. But what if she reported sexual harassment a few weeks earlier? Timing alone can create exposure. So document performance issues as they arise.

Also, check if the employee recently returned from Family and Medical Leave (FMLA) or Paid Family and Medical Leave (PFML). A Springfield auto repair shop faced a claim after firing a worker the day after he returned from PFML to care for his newborn. The company blamed tardiness, but the timing triggered months of legal headaches.

Michael Lewis

Michael Lewis

“At-will employment allows termination without contractual cause. Yet, anti-discrimination laws and retaliation protections still apply. Even a valid reason, like poor performance, becomes risky if the employee recently complained about harassment, requested an accommodation, or reported a safety issue.”

Myth: No Documentation Needed

Some employers assume that no paperwork is necessary under at-will rules. That approach creates unnecessary risk. Without records, even lawful firings appear questionable. Weak evidence damages credibility.

Imagine Tom, a low performer who never received formal feedback. If you fire him after years of positive reviews, expect scrutiny. Always provide timely written warnings and accurate performance evaluations. Keep emails, attendance records, and coaching notes. Would your records persuade a jury that the termination was justified?

 

Myth: We Treated Everyone Fairly

Fair treatment requires consistency. If one employee is fired and another is only warned for the same violation, questions follow.

Consider two salespeople, Mike and Jose, both caught inflating sales numbers. Mike receives a warning. Jose gets fired. If Jose claims racial bias, inconsistent discipline strengthens his argument. Review prior disciplinary decisions. Can you show a clear record of equal treatment?

 

Myth: We Can Share the Reason Widely

Managers sometimes explain a termination too broadly, believing transparency protects the company. In reality, public disclosure creates legal risk.

An employee fired for theft sued his employer after leadership announced it to the entire staff. Even truthful statements, shared excessively or with ill will, can spark defamation claims. A local example: a Chicopee retailer emailed all employees, naming a worker fired for alleged cash shortages. That email became exhibit A in court. Limit disclosure to those who truly need to know.

 

Avoiding Retaliation Claims

Retaliation is the most common Equal Employment Opportunity Commission claim. Firing someone after they complain about discrimination, request leave, or raise pay concerns often leads to lawsuits. Subtle actions can count, too — cutting hours, assigning undesirable shifts, or excluding them from meetings.

Did Lisa report a wage issue last week? If she now gets the worst shifts, her attorney will call it punishment. Train managers to pause and ask: “does this look like payback?” In one Springfield restaurant, a server who complained about tips was fired days later for “attitude.” The Massachusetts Commission Against Discrimination viewed the timing as retaliation, and the case settled quickly.

 

Managing the Termination Meeting Professionally

How you fire someone matters. Keep the meeting short and calm. Speak plainly. Avoid debate. Bring a neutral witness, usually HR. Disable system access and collect company property immediately. For remote workers, coordinate IT to end access during the call.

Have you prepared your team to stay composed when an employee gets angry or upset? A concise, professional exit reduces emotion and litigation risk.

“You can prevent most legal problems with proactive steps. Train managers to document consistently. Encourage employees to raise concerns early, and respond appropriately when they do.”

Reducing Risks Before They Occur

You can prevent most legal problems with proactive steps. Train managers to document consistently. Encourage employees to raise concerns early, and respond appropriately when they do.

Also, follow Massachusetts requirements: final wages and accrued vacation must be paid promptly, sometimes the same day. Missing or delaying a payment can trigger penalties. Review whether your managers apply standards uniformly. Track disciplinary trends by department or supervisor. In one Holyoke warehouse, inconsistent discipline across shifts led to multiple claims that could have been avoided with routine audits.

 

Quick Pre-termination Checklist

• Document the issue in writing.

• Confirm whether the employee recently exercised protected rights (complaint, FMLA, PFML, workers’ compensation).

• Ensure similar cases were handled consistently.

• Complete a fair investigation and allow the employee to respond.

• Prepare final pay and unused vacation in compliance with Massachusetts law.

 

Bottom Line

Employee terminations happen. Legal trouble does not have to. Careful documentation, consistent actions, and thoughtful communication protect your business. Before acting, stop and ask: “have we done this right?”

Taking these steps helps you confidently answer, “can I fire someone for that?” That answer should never rest on guesswork.

 

Michael Lewis is an attorney at the Royal Law Firm who helps employers resolve workplace challenges. He counsels and defends businesses across Massachusetts and Connecticut, handling matters involving discrimination, harassment, retaliation, wage and hour claims, restrictive covenants, and breach of contract. His practice includes litigation in state and federal courts and before administrative agencies.

Federal Employment Law Swings Wide Right

By Contributor
Law

Changes in the Workplace

By Erica E. Flores, Esq.

 

Here in Massachusetts, we’ve gotten pretty accustomed to being known as a liberal bastion, a reliably blue populace governed by progressive icons like U.S. Sen. Elizabeth Warren and Gov. Maura Healey. Our laws reflect that ideology, including our many employment laws, which provide broad protections for workers on a wide array of topics, such as discrimination, harassment, retaliation, wage payments, family and medical leave, sick time, and others.

Federal law has never been nearly as protective of workers — for sure, the abysmal federal minimum wage ($7.25 per hour) has not been increased since 2009. But, still, it never really felt at odds with liberal values — just more moderate. Since President Trump took office for the second time, however, federal employment law has been changing at a breakneck pace, and not just via the president’s ever-growing stack of executive orders, but in the federal agencies and the federal courts as well.

Erica E. Flores“Employers here should start thinking about where their policies, programs, and practices are situated in the growing divide between Massachusetts’ liberal employment laws and the Trump administration’s new policies.”

“How does this affect me or my business?” you may be asking yourself. And it’s a fair question. Massachusetts businesses have to abide by the more employee-friendly Massachusetts laws, so a conservative shift in how federal employment laws are interpreted or enforced doesn’t really change employers’ obligations here. Right? Maybe not.

Under the U.S. Constitution, federal law is the supreme law of the land notwithstanding any state law to the contrary. This means that, when a state law conflicts with a federal law, the federal law trumps (no pun intended) the state law, which is rendered invalid and unenforceable. So, if a Massachusetts employment law were found to be in conflict with a federal law, the Massachusetts law would no longer govern. And conflicts are certainly brewing.

 

Executive Decisions

In January, President Trump signed a slew of executive orders, including two addressing “illegal” diversity, equity, and inclusion (DEI) and diversity, equity, inclusion, and accessibility (DEIA) initiatives, policies, and programs within the federal government and in place at federal contractors, federal grant recipients, and private employers who are subject to federal anti-discrimination laws.

A third executive order requires the federal government to recognize just two gender identities, male and female, as determined by the biological anatomy a person was born with, and to eliminate federal funding for gender-affirming care and the promotion of so-called “gender ideology.”

The latter also prohibits people who identify as transgender and other gender minorities from using single-sex spaces in federally funded facilities that do not conform with their biological sex, and directed the U.S. Attorney General to issue guidance that will “ensure the freedom to express the binary nature of sex and the right to single-sex spaces in workplaces and federally funded entities covered by the Civil Rights Act of 1964.”

The federal government responded swiftly to implement these orders. The acting chair of the Equal Employment Opportunity Commission (EEOC) stated that her priorities will include “rooting out unlawful DEI-motivated race and sex discrimination,” “protecting American workers from anti-American national origin discrimination,” and “defending the biological and binary reality of sex and related rights, including women’s rights to single-sex spaces at work.”

The EEOC and the Department of Justice (DOJ) also published technical assistance documents, offering guidance to employees who believe they have experienced discrimination related to DEI or DEIA programs at work. And the U.S. Deputy Attorney General announced the formation of the Civil Rights Fraud Initiative to investigate and pursue fraud claims against any recipient of federal funds that knowingly violates federal civil rights law.

The initiative will pursue its targets under the False Claims Act (FCA), a law that imposes civil liability on those who make a false statement to the government when seeking payment of government funds. The administration’s theory is that employers who accept federal funds while knowingly violating civil rights laws, or falsely certifying compliance with those laws, defrauds the federal government in violation of the FCA.

As an example, the deputy AG’s memo expressly states that a recipient of federal funding could be in violation of the FCA if it “allows men to intrude into women’s bathrooms.” The memo also encourages private citizens to report suspected DEI-related discrimination to the DOJ and to file their own FCA lawsuits against potential offenders in order to share in any monetary recovery. And the penalties can be steep. Under the FCA, violators are liable for treble damages (three times the government’s actual damages) as well as civil penalties.

 

Pending Appeals

Legal challenges to President Trump’s executive orders are pending, but most remain undecided. Earlier this year, a group of employers obtained a preliminary injunction that would have prevented the DEI/DEIA executive orders from taking effect while their lawsuit was pending, only to see that decision reversed on appeal, a strong indication that the challenge will ultimately fail.

Earlier this month, a federal judge in California blocked the Trump administration from enforcing both the DEI/DEIA executive orders and the executive order on gender identity, finding that the challengers in that case — a group of health centers, LGBTQ+ services groups, and the Gay Lesbian Bisexual Transgender Historical Society — had successfully demonstrated that the orders likely violate their constitutional rights.

But even if that decision is upheld on appeal, it would set the stage for a likely showdown in the U.S. Supreme Court, where a majority of the justices are considered to be conservative. In fact, the court recently ruled that a straight woman could not be required to satisfy a more demanding standard to prove that she was the victim of discrimination based on her sexual orientation than a gay person would have to satisfy, effectively eliminating the concept of so-called “reverse discrimination.”

The unanimous decision concluded that, “by establishing the same protections for every ‘individual’ — without regard to that individual’s membership in a minority or a majority group — Congress left no room for courts to impose special requirements on majority-group plaintiffs alone.”

Meanwhile, a federal judge in Texas recently dealt the LGBTQ+ community yet another blow when it vacated enforcement guidance that had been published by the EEOC last year under President Biden. The guidance in question contained information about workplace harassment based on gender identity, such as intentional misgendering and denial of access to restrooms that align with an employee’s gender identity.

The state of Texas and the Heritage Foundation brought a lawsuit against the EEOC, arguing that the EEOC did not have authority to require employers to accommodate employees’ gender identities in the workplace. A federal judge in Texas agreed, holding that the EEOC could not lawfully expand the definition of ‘sex’ under Title VII of the Civil Rights Act of 1964 to include ‘gender identity’ and ‘sexual orientation’ and that Title VII does not require employers to make accommodations related to employee pronouns, bathrooms, or attire.

Back in the Bay State

Massachusetts law, by contrast, expressly protects employees from discrimination on the basis of gender identity and sexual orientation, and both the Massachusetts Commission Against Discrimination and our state courts have long agreed that denying an employee access to the restroom that corresponds to their gender identity, refusing to respect an employee’s request to use their preferred pronouns, and harassing an employee for behaviors that are believed to be inconsistent with their biological sex are forms of prohibited discrimination in Massachusetts.

Additionally, a group of 15 state attorneys general, led by Massachusetts Attorney General Joy Campbell and Illinois Attorney General Kwame Raoul, published a joint memorandum in March emphasizing the difference between DEI/DEIA programs and so-called ‘affirmative action,’ criticizing President Trump’s executive orders for conflating the two, and opining that the federal government does not have the legal authority to prohibit “otherwise lawful activities in the private sector” or to “mandate the wholesale removal of [DEI/DEIA] policies and practices within private organizations, including those that receive federal contracts and grants.”

How all of this ultimately shakes out remains to be seen, but as conflict between federal employment laws and our state’s laws seems more and more likely, employers here should start thinking about where their policies, programs, and practices are situated in the growing divide between Massachusetts’ liberal employment laws and the Trump administration’s new policies.

 

Erica E. Flores is a partner at Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]

What’s Shifting in the Massachusetts Cannabis Market

By Contributor
GTI’s cultivation facility in Holyoke
Law

High Stakes

By Scott Foster, Esq.

 

The Massachusetts House of Representatives recently unanimously adopted House Bill 4206 (HR4206), which would introduce fundamental changes in how the Massachusetts cannabis industry is regulated and managed. These changes include:

• A complete overhaul of the structure of the Cannabis Control Commission (CCC), moving from five full-time commissioners appointed by the governor, the attorney general, and the state treasurer to three commissioners in total, each of whom is appointed by the governor acting alone, with only the chair serving in a full-time capacity;

• Increasing the number of retail licenses under common control from three to six, potentially paving the way for increased consolidation in the market but also allowing early entrants to sell their business to multi-state operators and realize a significant gain on their investment of time and money;

• Legalizing CBD gummies, hemp-infused beverages, and other CBD edibles, while clearly controlling the manufacture, distribution, and sales of these products; and

• Opening the door a bit wider for employee stock ownership plans, which allow employees to potentially realize significant retirement benefits from long-term employment while also saving on taxes.

Two significant changes are also a bit ‘half-baked’ at the moment, and the Massachusetts Senate could provide more clarity on the implementation of these changes when it begins deliberations.

Currently, no individual or entity can own more than 10% of more than three licenses per category (e.g., retail, manufacturing, and cultivation). HR4206 appears to increase that threshold to 35% by exempting “any person or entity that possesses a financial interest in the form of equity in a license of less than 35%” from these license caps.

However, HR4206 leaves in place the definition of a ‘controlling person,’ which includes “any individual who has a financial or voting interest of 10% or greater.” Under the current regulations, an individual cannot be a controlling person over more than three licenses per category. The Senate has the opportunity to reconcile these seemingly contradictory provisions.

HR4206 also proposes a new delinquency reporting system that mirrors that which the Alcohol Beverages Control Commission has in place with respect to alcohol sales in the Commonwealth.

Going forward, no marijuana establishment will be able to offer credit terms to another marijuana establishment of more than 60 days from the delivery of products. If a purchasing establishment does not pay its invoice within these 60 days, the selling establishment is required to notify the CCC of this non-payment within three days, at which point the CCC reviews the situation and will post the name of the delinquent establishment on a newly created ‘delinquency report.’

At that point, no other selling establishment will be able to offer the delinquent establishment any credit terms, and all future purchases must be paid in advance or cash on delivery. Further, the CCC will not process any change of control applications for the delinquent establishment until the past due amounts have been settled.

While this may sound reasonable, the reality is that a large number — some believe a majority — of the current establishments have accounts payable over 60 days. Since HR4206 does not explicitly apply retroactively, these currently overdue accounts would not be considered delinquent.

This raises multiple issues regarding the future allocation of payments, such as whether a future payment applies to the oldest invoice or the most recent invoice, and whether the purchaser can specify to which invoice a future payment should be applied.

Hopefully, the Senate will consider the nuances of these significant changes and provide the necessary clarity before the bill is finalized. Either way, given the broad support already seen for overhauling the current statute, cannabis businesses (and their lawyers) should be on alert for a significant shift in how they operate.

 

Scott Foster is a partner at Bulkley Richardson in Springfield; (413) 272-6258; [email protected]

Heed These Strategies for Developing People, Driving Results

By Contributor
Law

Modern Leadership Through Coaching

By Derek Brown

 

“Ability is what you’re capable of doing. Motivation determines what you do. Attitude determines how well you do it.”

This quote from my Notre Dame football coach, Lou Holtz, has not only resonated with me through all aspects of my life, but it has guided me in coaching employees for success. Indeed, in playing for Coach Holtz in the late 1980s and winning a national championship with him, I learned quite a bit about leadership and accomplishing goals.

The following takeaways that I learned as a young adult are what I have implemented into my professional life. While the objectives of leadership — driving performance, fostering engagement, and cultivating growth — remain constant, the ways in which we motivate our teams have evolved with each generation. What inspired Baby Boomers may not resonate with Millennials or Gen Z. Understanding these generational shifts is key to effective leadership today.

Derek Brown“When leaders understand what their team members are capable of, they can align tasks and goals in ways that challenge without overwhelming. Coaching helps bridge the gap between raw potential and real-world performance.”

In today’s work environment, coaching employees is not just a leadership tactic — it’s a strategic imperative. Remote work has reshaped communication, and employee expectations have shifted toward development and purpose. Coach Holtz’s quote serves as a simple but powerful framework for effective coaching: leaders must recognize ability, fuel motivation, and shape attitudes to bring out the best in their teams.

 

Recognizing Ability: Know What Your People Can Do

The first step in coaching is understanding each employee’s strengths and capabilities. This means going beyond résumés and job descriptions to truly observe how individuals think, solve problems, and interact with others. When leaders understand what their team members are capable of, they can align tasks and goals in ways that challenge without overwhelming. Coaching helps bridge the gap between raw potential and real-world performance.

 

Inspiring Motivation: Help People See the Why

Motivation is deeply personal. What drives one employee may not matter to another. Effective coaches take time to learn what inspires their team — whether it’s growth opportunities, recognition, or a sense of purpose. By connecting everyday work to larger goals and company values, leaders can unlock intrinsic motivation. Motivated employees are more likely to take initiative, push past obstacles, and grow within the organization.

 

The Leader’s Role in Shaping Attitude

Attitude determines how work gets done. A coach’s role is to cultivate a culture where positivity, resilience, and accountability thrive. This involves addressing challenges by considering setbacks as chances for learning and demonstrating emotional intelligence. Leaders who coach with empathy and encouragement set the tone for how their teams respond to pressure, change, and collaboration.

 

From Feedback to Forward Momentum

Coaching isn’t about occasional feedback — it’s about ongoing dialogue. Regular check-ins, clear communication, and actionable suggestions create an environment where employees feel supported and empowered. Effective coaching helps people take ownership of their growth, rather than waiting for direction. It turns feedback into fuel for development.

 

Coaching in the Modern Workplace

Hybrid teams, technological shifts, and generational changes have made coaching even more essential. Today’s leaders must be more intentional about building connections and offering guidance, especially when face-to-face time is limited. Virtual coaching tools can help, but the foundation remains the same: genuine curiosity, active listening, and consistent support.

 

The Lasting Impact of a Great Coach

Coaching done well builds more than just stronger employees — it builds stronger people. When leaders take the time to develop ability, ignite motivation, and nurture the right attitude, they create lasting value for individuals and the organization. As Coach Holtz wisely reminds us, performance is not just about what you can do — it’s about how and why you do it.

 

Derek Brown is chief administrative officer at the Royal Law Firm, LLP and a retired, nine-year NFL veteran who also gives speeches on leadership and teamwork to accomplish goals. If you have any questions or would like to engage the Royal Law Firm for training sessions, contact Brown at (413) 586-2288 or [email protected]

How to Utilize Estate Planning, Trusts, and Corporate Entities to Mitigate Risk

By Contributor
Law Special Coverage

Protecting Your Assets 

By Tyler W. Humphrey, Esq.

Protecting your assets is not just a matter of securing wealth for the next generation. It also ensures that your hard-earned assets are shielded from legal risks, liabilities, and other unforeseen events.

In a world where lawsuits, creditors, and volatile economic shifts can threaten your wealth, proactive asset protection is essential. Whether you’re a business owner, investor, professional, or simply someone looking to secure your family’s future, protecting your assets isn’t just wise, it’s necessary.

While there is no one-size-fits-all solution to protect your assets, this article can help you formulate a plan utilizing a combination of strategies, including estate planning and business solutions, that can offer substantial protection of what you and your family have worked so hard to build.

 

Understanding Asset Protection

Before exploring the specific tools available, it is important to understand what asset protection is and why it is so important. Asset protection involves using strategies and structures established through various legal instruments to reduce or mitigate the risk of losing valuable assets due to lawsuits, debts, or other liabilities.

Some common risks include:

• Creditors. In the case of default on loans or other debts, creditors may seize personal or business assets to recover what is owed. Even loans secured by a specific asset, such as real property subject to a mortgage, may put your other assets at risk if the sale of the secured asset is insufficient to satisfy the debt.

• Lawsuits. Individuals and businesses can be the targets of lawsuits and other claims. Regardless of whether the plaintiff’s claims are valid or frivolous, an adverse judgment may expose assets to liens or seizure.

• Divorce. In the case of divorce, the resolution of the petition will often require, sometimes by court order, the equitable division of marital assets. This can include assets acquired by one party before the start of the relationship.

• Governmental risk. Long-term care, especially nursing home care, can come with a substantial cost. Many people assume Medicare will cover these expenses, but Medicare does not pay for long-term custodial care. That’s where Medicaid (MassHealth) comes in. However, qualifying for coverage comes with strict income and asset limits. In Massachusetts, a single applicant is allowed to keep only $2,000 in countable assets, and those assets are subject to a five-year look-back period.

“Trusts are among the most powerful tools in estate and asset protection planning. A trust is a legal arrangement where a trustee holds and manages assets on behalf of a beneficiary.”

 

Estate Planning and Trusts: Building a Legal Wall Around Your Wealth

Trusts are among the most powerful tools in estate and asset protection planning. A trust is a legal arrangement where a trustee holds and manages assets on behalf of a beneficiary. There are many types of trusts, each with their own benefits and limitations:

• Revocable living trusts. Their primary use is estate planning and probate avoidance. It offers limited asset protection during your lifetime because you maintain control, but it ensures privacy and smoother transfer of assets upon death.

• Irrevocable trusts. Their primary use is asset protection and tax planning. Once assets are transferred, you relinquish control, making them inaccessible to creditors. Common types include spousal lifetime access trusts, which offer access to assets through a spouse while maintaining protection, and Medicaid trusts, which protect assets from being counted for Medicaid eligibility.

• Credit shelter and QTIP trusts. For married couples, particularly those with estates approaching or exceeding $2 million, credit shelter trusts and QTIP trusts can minimize taxes while protecting surviving spouses. Their primary use is to preserve the estate tax exemption of the first spouse to die and provide support to the surviving spouse. They offer no asset protection during your lifetime because you maintain control, but they preserve both spouses’ estate tax exemptions and protects assets from remarriage, creditors, and spend-down.

Other estate planning essentials include:

• Durable power of attorney, which empowers a trusted person of your choosing to manage finances if you become incapacitated;

• Healthcare proxy and living will, which clarifies medical wishes and avoids court intervention; and

• Homestead declaration (in Massachusetts), which protects up to $1 million in home equity in your primary residence from creditors.

 

Corporate Entities: Separating Personal and Business Liabilities

In addition to an estate plan to protect your personal assets, it is necessary to consider how to protect and preserve your business assets. Operating your business or managing investments through the right entity can provide a crucial layer of protection.

For business owners and real estate investors, placing assets in separate LLCs or entities can shield personal wealth from business liabilities. It is also important to consider agreements between co-owners of a closely held company so that the business interests themselves are not subject to claims by non-owners.

Limited liability companies (LLCs) shield personal assets from business liabilities and offer flexible taxation, as they can be taxed as a sole proprietorship, partnership, or corporation.

Corporations (C-corps and S-corps) protect shareholders from corporate debts and obligations, while S-corps have the advantage of pass-through taxation with liability protection.

 

Combining Strategies for Maximum Protection

The most effective asset protection plans layer several strategies. For instance, a business owner might:

• Hold rental properties in separate LLCs;

• Utilize a shareholder agreement to ensure all corporate interests are free from seizure and stay within the current ownership group; and

• Establish a credit shelter and QTIP trust to minimize estate tax and protect assets for their surviving spouse.

 

Bottom Line

Asset protection is most effective when implemented early, well before a problem or disagreement arises. By combining these tools, you can create a robust defense against risks while maintaining control or flexibility.

Asset protection isn’t about hiding wealth; it’s about responsibly managing risk and preserving what you’ve built. With the right combination of trusts, business agreements, insurance, and estate planning tools, you can create a legal and financial structure that defends your assets against potential threats while supporting your long-term goals.

Consult with one of Bacon Wilson’s qualified estate planning or commercial attorneys to tailor a strategy that fits your specific situation and goals. Even if you have a plan in place, it is crucial to review your plan regularly to ensure it remains in compliance with constantly changing laws and regulations. Asset protection may seem daunting, but with the right advisor and proper planning, you can enjoy peace of mind knowing your legacy is secure.

 

Tyler W. Humphrey is an associate with the law firm Bacon Wilson, P.C. He concentrates his practice in the areas of estate planning, elder law, probate administration, and business and corporate law. Humphrey is admitted in Massachusetts and Connecticut, as well as the U.S. District Court of Connecticut; (413) 781-0560;
[email protected]

Understand the Ins and Outs of Automobile Insurance

By Contributor
Law

Collision Course

By Mark Tanner, Esq.

 

We help a great many people who have been involved in automobile collisions, including those who have been injured in automobile collisions through no fault of their own. One of the first questions we ask our clients is, “what insurance coverage do you have?” You would be amazed at how many people don’t know or understand their automobile-insurance coverage.

To better understand your coverage, start with your insurance broker. Ask your broker to provide you with your coverage selections page, a document that outlines the types and amounts of insurance coverage you have.

A number of different types of automobile insurance are available. Comprehensive protects your vehicle from damage caused by events other than a collision, such as vandalism and theft. Collision pays for damage to your vehicle when you collide with another car. The amount of coverage you need for these types of insurance depends largely on the value of your car.

Mark Tanner

Mark Tanner

“If you really think about it, the minimum coverage mandated by Massachusetts is probably insufficient to cover a serious auto accident. It would be smart to speak with your broker about increasing this coverage over the minimum.”

Since we’re talking about collisions, let’s discuss some important types of coverage that often come into play after an automobile accident, are highly variable, and can often be increased or decreased depending on your personal situation.

 

Personal-injury Protection (PIP)

PIP coverage pays up to $8,000 of your medical expenses and lost wages you suffered as the result of a collision and is mandatory in Massachusetts policies. You should know that, to reduce policy premiums, some insurers offer an $8,000 ‘PIP deductible,’ which means you have to pay the first $8,000 of PIP coverage out of pocket. This effectively means you have no PIP coverage, since you must pay the $8,000 deductible, and the coverage limit is $8,000. Think long and hard before you agree to this deductible to decrease the cost of your policy.

 

Bodily Injury to Others (BI)

BI coverage insures you against injuries you cause to others. In Massachusetts, the minimum BI limits are $20,000/$40,000, meaning there is $20,000 in coverage per injured person, up to a maximum of $40,000 if more than one person is hurt in the accident. This coverage pays for medical bills, lost wages, pain and suffering, and the like. If you really think about it, the minimum coverage mandated by Massachusetts is probably insufficient to cover a serious auto accident. It would be smart to speak with your broker about increasing this coverage over the minimum.

 

Damage to Someone Else’s Property

Property damage is coverage that insures you for damage you cause to another person’s property. In Massachusetts, the mandatory coverage is $5,000. Like BI coverage, it is possible to increase the limits of your property-damage coverage. With the ever-increasing cost of cars, and the real possibility that a serious collision might involve more than one car, a house, or who knows what, you should discuss this coverage with your broker to make sure you have adequate coverage.

 

Under/Uninsured Motorist Coverage (UM)

UM coverage often comes into play when we represent people injured in a collision through no fault of their own. UM coverage protects you against injuries, medical bills, lost wages, and the like caused by a driver who is uninsured or underinsured. Like BI, the minimum limits for UM coverage are $20,000/$40,000.

Here’s where it gets tricky. If you and the at-fault driver each have the minimum $20,000/$40,000 coverage, then you effectively have no UM coverage, since the amount of coverage available is determined by subtracting the at-fault driver’s BI coverage from your UM coverage. For example, if the at-fault driver has $20,000/$40,000 BI, and you have $100,000/$300,000 UM, then you have $80,000 per person (or $260,000 per collision if multiple people are injured). You can access your UM coverage once you have received the policy limits of the at-fault driver’s policy.

Given the number of drivers who carry only the mandatory $20,000/$40,000 BI coverage, it would be smart to speak with your broker about increasing this coverage.

 

More Words to the Wise

Make sure your car is garaged at the address shown on your insurance policy. If you have moved, or the car is regularly kept in a different location than is listed on your policy, and you do not tell your insurance company, the insurance company can deny coverage if you are in an accident.

Next, make sure anyone who regularly drives your car is named as an insured on your policy. If you don’t, and they are involved in a collision, your insurer may deny all or a portion of your claims.

Car accidents are never good and always unexpected. Reviewing and adjusting your coverages now can help make sure you are in the best possible position if you are involved in a collision. Your insurance broker can help you determine the types and levels of coverage you need. If you are in a collision, Bacon Wilson can help you navigate this complex process and make sure you receive full and fair compensation for your injuries. If you cause a collision and need help understanding your insurance coverage or need to deal with your insurer, we can help with that as well.

This article is presented for information purposes only, is not legal advice, and does not create an attorney-client relationship. Note that all mandatory coverage limits are increasing effective July 1, 2025.

 

Mark Tanner is a shareholder with the law firm Bacon Wilson, P.C. and chairs the firm’s Litigation department. He is an active member of the Hampden and Hampshire County bar associations as well as a board member for Community Involved in Sustaining Agriculture Inc., People’s Institute, and Franklin County Community Development Corp. He is licensed to practice law in Massachusetts and New York; (413) 781-0560; [email protected]

Massachusetts Pay Transparency Act Poses New Requirements

By Contributor
Law

Good Advice for Employers

By Trevor Brice, Esq.

 

On July 31, 2024, Massachusetts Gov. Maura Healey signed into law “An Act Relative to Salary Range Transparency” in an effort to increase equity and transparency in pay in the Commonwealth. The act puts different requirements on Massachusetts employers depending on the size of their organization.

By signing the act into law, Massachusetts joins 19 other state efforts to bring transparency to job applicants and current employees when it comes to pay in their applied-for and current roles. The states that already have such laws in place include Alaska, California, Colorado, Connecticut, Hawaii, Illinois, Kentucky, Maine, Maryland, Missouri, Montana, Nevada, New Jersey, New York, Oregon, Rhode Island, Vermont, Washington, and the District of Columbia.

While other states have different requirements regarding pay transparency, Massachusetts has its own set of requirements that must be followed, and employers must be aware of these requirements when posting positions during their hiring seasons.

 

Who Must File EEO-1 Reports

As of Feb. 1, 2025, Massachusetts employers with 100 or more employees who are subject to federal filing requirements must submit their most recent EEO-1 reports that were filed with the Equal Employment Opportunity Commission (EEOC) through the Office of the Secretary of the Commonwealth of Massachusetts. Employers having this requirement must submit the EEO-1 reports through an online portal, which started to accept these reports on Feb. 3 in PDF, JPEG, or PNG format.

Trevor Brice

Trevor Brice

“By signing the act into law, Massachusetts joins 19 other state efforts to bring transparency to job applicants and current employees when it comes to pay in their applied-for and current roles.”

The Commonwealth has provided clarification that information on ‘Component 2’ of the EEO-1 form that has not been collected by the federal government since 2018 is not required to be provided. This information would include W-2 income earnings data by race/ethnicity, sex, and job category. By this clarification, the state is mirroring current EEOC requirements as to the EEO-1. However, this information could be required in the future if the EEOC again requires it to be submitted.

 

Who Must Disclose Wage Ranges for Positions

Starting Oct. 29, 2025, the act requires employers with 25 or more employees to disclose wage ranges in job posts to applicants and to current employees upon request. If a current employee requests a wage range for a position, they are protected under the act from being retaliated against due to this request, and employees have an individual right to sue for retaliation.

The penalties for employers that do not disclose pay ranges (or do not submit EEO-1 reports as required above), are a warning for the first offense, a fine of not more than $500 for the second offense, and a fine of not more than $1,000 for the third offense; a fourth and any subsequent offense can be subject to civil citations. Within the first two years (until Oct. 29, 2027), employers are granted a two-business-day grace period to cure a violation before a fine is imposed.

The wage range that must be disclosed for employers meeting the above requirements is the annual salary range or hourly wage range that the employer reasonably and in good faith expects to pay for the position at the time of the job posting. This wage range does not include an obligation to provide a range as to other forms of compensation than base salary or hourly wages, such as bonuses, commissions, deferred compensation, stock options, or other forms of equity or benefits.

A ‘posting’ is any advertisement or job posting intended to recruit job applicants for a particular or specific employment position, whether directly or indirectly through a third party, such as a recruiter. Employers must provide the same information to an internal employee who is offered a promotion or transferred to a new position with different job responsibilities.

 

Takeaways

The act, while applying only to larger employers, does impose strict penalties for non-compliance and an individual right to sue for employees who feel they have been retaliated against for inquiring into a wage range. To get ahead of the disclosure requirement of the act, employers should be pulling together ranges for salary and hourly pay of all positions.

The act does provide a safe harbor for employers that have undertaken a reasonable analysis of the wages connected with a position in the last three years and either remedied the issues or didn’t identify any issues. As with any analysis, however, an employer’s analysis of pay can become public record, so employers should undertake this effort under the direction of counsel to help maintain privilege and prevent the analysis from being discoverable by the state, federal government, or private litigants.

Employers should also make active efforts to educate their management as to the retaliation provision of the act in order to avoid potential litigation.

 

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

Handling Workplace Investigations in the Right Way Matters

By Contributor
Law Special Coverage

Cooling the Drama

By Tanzi Cannon-Eckerle, Esq.

We all know about workplace investigations, right? At least from TV. Much TV these days is some form of investigation-related drama — Law & Order, Suits, Jack Reacher, and, for you history drama fans, The Law According to Lidia Poët.

And from real life as well, as nearly every organization conducts (or should conduct) investigations from time to time. Heck, technically, trying to find your missing red stapler is a workplace investigation. “Where did I last see it? Where is it supposed to be? Who used it last? Ah — there it is!” Investigation concluded.

Of course, most investigations are not quite that simple. But no matter how serious or trivial the allegation, the approach should be consistent. The scope may change — but the method should not.

 

What Is a Workplace Investigation?

Merriam-Webster defines “investigate” as “to study by close examination and systemic inquiry.” An effective investigation allows a company to identify and analyze workplace issues in an organized way, leading to meaningful, rule-compliant solutions.

In practice, a workplace investigation is a tool — carried out through trained investigators and appropriate policies — that helps an organization stay compliant with laws and industry regulations, maintain a safe and productive workplace, support a healthy company culture, boost employee morale and decrease employee turnover, troubleshoot efficiency and/or productivity issues, maintain a positive company brand, and, importantly, save money.

 

Is an Investigation Really Necessary?

As a labor and employment attorney, I often hear, “do I really need to do an investigation?” Usually, this question arises when the allegation seems minor, the employee has a history of complaints, it is a repeat issue (or the company thinks the issue has been addressed and is moot), the employee is about to quit, or all of the above.

The answer? Yes. Every time.

If there is an incident report, a complaint, or even a hallway conversation that raises concern, it should be addressed. Investigations are necessary for allegations involving harassment, discrimination, or retaliation; misconduct (such as theft or fraud); policy violations or safety concerns; whistleblower complaints; performance issues; and production mishaps.

Once an employer is on notice of a potential issue, the obligation to investigate kicks in — regardless of whether the employee stays or leaves. The company has a duty to maintain a safe, lawful, and equitable workplace.

Tanzi Cannon-Eckerle

Tanzi Cannon-Eckerle

“Beyond litigation risk, investigations signal to employees that the company takes concerns seriously, the workplace is safe and fair, and inappropriate behavior has consequences.”

The Risk of Inaction or Poorly Executed Action

Well, aside from avoiding lawsuits (kidding … but not really), a timely, impartial investigation can help resolve internal issues, prevent escalation, and demonstrate a commitment to a respectful workplace.

According to the Equal Employment Opportunity Commission (EEOC), workplace investigations are a crucial tool in addressing and preventing claims of harassment, discrimination, and retaliation. In 2024, the EEOC received more than 88,500 claims, while the Massachusetts Commission Against Discrimination (MCAD) received more than 3,500 claims (with approximately 70% of them moving beyond administrative dismissal in one form or another).

A well-executed investigation can provide a solid defense in legal matters — and even help companies avoid them altogether. Side note: 22% of the MCAD claims are retaliation claims, and 21% are disability-related. These types of issues are more preventable than most, but we can talk about that next time; there is no room in this article for me to stand on my soapbox to discuss those issues.

But beyond litigation risk, investigations signal to employees that the company takes concerns seriously, the workplace is safe and fair, and inappropriate behavior has consequences. All of this contributes to employee engagement — and engaged employees are productive employees. Conversely, failure to act can lead to chaos, disengagement, and liability.

The average cost of a workplace harassment lawsuit? About $75,000 to get to pre-trial settlement, while pre-trial to trial defense costs average $125,000 to $250,000. That does not even include a potential jury award for the plaintiff, reputational damage (64% of consumers have stopped purchasing a brand after hearing news of a company’s poor employee treatment), or regulatory scrutiny. A poorly handled (or non-existent) investigation can make matters worse, opening the company, and sometimes individual managers or executives, to further legal exposure.

So, yes, it is necessary to conduct timely investigations using skilled investigators that utilize a productive investigation process that can later be defended.

 

Who Should Conduct the Investigation?

Good question. The wrong investigator can create a problem all by themselves. Is the person too close to the issue? Do they have a conflict of interest? Have they been trained?

I have recently had several conversations (be still my investigator-geek heart) about who should investigate and whether hiring an outside consultant is always necessary. Some argue, “if I can run the company, I can run an investigation.” Technically? Probably.

But should the owner or a C-suite executive do it? Absolutely not. That is a recipe for accusations of bias, and also, don’t they have better things to do — like, I don’t know, running the company? Others say every investigation should be outsourced. That is a bit extreme, too. You wouldn’t hire a consultant to find your red stapler.

“Though external investigators may be more costly, the cost is likely less than a poorly handled investigation, and external experts likely have no motive for bias.”

The right answer is the classic lawyer fallback: it depends. On the issue. On the people involved. On the scope. Investigating is a learned skill. If your team is trained, and you have a solid policy and process, many internal investigations can be managed in-house.

For higher-risk matters, or for investigations that are broad in scope, bringing in an external, independent expert is often the better move. Though external investigators may be more costly, the cost is likely less than a poorly handled investigation, and external experts likely have no motive for bias. And because of their expertise, which includes being skilled interviewers, they often investigate efficiently, create less workplace disruption, and make better witnesses if a lawsuit were to be filed.

In the words of Reacher, “you do not mess with the special [external] investigators!”

 

What Should a Typical Investigation Involve?

Not all investigations are the same, but there should be a consistent procedure. Depending on the type of issue being investigated and the scope, some procedural steps may not be necessary, but it is best to leave that to the investigator to determine.

Generally, the company should receive and respond to the complaint or allegation; this is usually someone in human resources. At this point, the ‘timeliness’ clock starts ticking, which is important to a defense of a claim.

The initial response to the complaint should briefly state that the concern has been received, and next steps are being taken, ensuring confidentiality (to the extent practicable). Next, the company should take immediate interim action to prevent further harm, if applicable (such as separate employees, administrative leave, or temporary accommodations). It is also a best practice to remind stakeholders about the rules governing retaliation.

Then the company chooses an investigator. Once this is done, the investigator should do a preliminary review of the allegations, do initial fact gathering, and determine the scope of the investigation. At this stage, the investigator should decide whether it is necessary to use an external expert.

Next, the investigator should develop an investigation plan, outlining the objectives, scope, and timeline of the investigation. The investigator then collects evidence, such as gathering relevant documents, records, and witness statements, reasonably ensuring confidentiality and maintaining a chain of custody.

Next, impartial, thorough witness interviews should be conducted using active listening skills and open-ended questions. Then the investigator should analyze the evidence, identifying patterns, inconsistencies, and credibility issues, and draw conclusions based on the findings. Then the investigator must compile a comprehensive report detailing the findings, conclusions, and recommendations for corrective action or remedial measures.

Lastly, the investigator should counsel the company on implementing the recommended actions, and the company should ensure accountability and provide employee support. If a lawyer is used as an external investigator, the lawyer may counsel the company about legal risks and make recommendations.

Best practices include using trained, impartial investigators; avoiding conflicts of interest; maintaining confidentiality and proper documentation; being thorough and prompt; and keeping accurate records and reports that can stand up to scrutiny.

One of the most overlooked areas? Record keeping. Even the best investigation won’t help in court (or with regulators) if there is not adequate documentation. Investigators must maintain accurate and detailed records of the investigation, including notes, documents, and evidence, and must know how to draft accurate investigation reports in a manner that will withstand opposing counsel, agency, or judicial scrutiny.

 

Final Thoughts

Workplace investigations aren’t just for TV dramas; they are essential risk-management tools for every organization. When done right, they protect your business, your people, and your reputation. And if you happen to find your red stapler along the way? Even better.

 

Tanzi Cannon-Eckerle is the principal attorney at General Counsel by Cannon, PLLC, a fractional general-counsel law firm that focuses on labor, employment, and business law. She is also a certified workplace investigator and equity and inclusion officer. For more information about workplace investigations or to seek legal assistance for business matters or labor and employment concerns, schedule a free, 30-minute consultation by emailing [email protected], or visit gcbycannon.com and fill out the contact form.

What Massachusetts Employers Need to Know

By Contributor
Law

The New Pay-transparency Law

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

 

Last year, Massachusetts joined a growing list of states with pay-transparency laws when Gov. Maura Healey signed “An Act Relative to Salary Range Transparency” into law. The law, which takes effect in various stages this year, will require many Massachusetts employers to disclose salary and pay ranges in all job postings and advertisements. The law also requires larger businesses to file certain wage data and information with the Commonwealth of Massachusetts.

According to the state Office of Labor and Workforce Development, the pay-transparency law is aimed at eliminating gender, racial, and other wage disparities, as well as boosting employee loyalty and improving morale. Here is what employers need to know.

Beginning Oct. 29, all businesses in the Commonwealth with 25 or more employees will be required to:

• Disclose pay-range information in all job postings and/or advertisements. This includes “any advertisement or job posting intended to recruit job applicants for a particular and specific employment position,” regardless of whether the employer recruits directly or utilizes a third party for such purposes;

• Disclose pay-range information to current employees who are transferred or promoted to a new position for the new position; and

• Upon request, provide pay-range information to employees for the positions they hold and applicants for the positions to which they applied.

The law defines pay range as the “annual salary or hourly wage range that the covered employer reasonably and in good faith expects to pay for that position at that time.” The statute also prohibits employers from retaliating against any employee, or applicant, who requests pay-range information. Employers who violate the new pay-transparency law can be fined by the Massachusetts attorney general. Conceivably, violations could also trigger a larger inspection of the employer’s pay practices.

 

 

Larger Employers Required to File Wage Reports

In addition to the new pay disclosure obligations discussed above, employers with 100 or more employees in the Commonwealth who are subject to the federal EEO-1, EEO-3, EEO-4, or EEO-5 reporting requirements will be required to file certain workforce demographic data with the Commonwealth of Massachusetts on an annual or every-other-year basis. Currently, EEO reports contain workforce demographic and pay data categorized by race, ethnicity, sex, and job category.

As of this past Feb. 3, employers with 100 or more employees in the Commonwealth subject to the EEO-1 reporting requirements were required to file a copy of their EEO-1 data report with the Commonwealth of Massachusetts. The law requires this to be done annually for EEO-1-covered employers on Feb. 1 or the next business day.

On the same date, employers subject to the EEO-3 (covered unions) and EEO-5 (covered schools) reporting requirements were required to file a copy of those reports with the Commonwealth. EEO-3 and EEO-5 reports need to be filed every other year. Likewise, employers subject to the EEO-4 (covered state and local governments) reporting requirements will need to file a copy of those reports every other year, beginning on Feb. 1, 2026.

Recently, the Massachusetts Executive Office of Labor and Workforce Development published a set of frequently asked questions designed to help employers determine if they are covered by the new filing requirements and, if so, what they need to do to comply. The FAQs can be found at www.mass.gov/info-details/workforce-data-reporting-faqs.

The reports submitted by employers will not be public records under Massachusetts law. In other words, members of the public will not be able to request and receive copies of these records. The Commonwealth, however, will use the data submitted by employers to publish aggregate wage and workforce data on the Department of Labor and Workforce Development’s website no later than July 1 of each year, beginning in 2025. These aggregate reports will be broken down by industry.

 

Next Steps

Needless to say, if you have more than 100 employees in Massachusetts and are subject to EEO reporting requirements, and you have not filed your wage-data report with the Commonwealth of Massachusetts, you need to act fast. As for the salary-range disclosures, although Oct. 29 may seem far away, employers should start preparing now to comply with the deadlines. If not already in place, employers need to start developing pay ranges for each position in their workforce.

Employers also need to consider how and to what extent posting pay ranges in job postings will impact morale in the workplace. For example, consider a scenario where your business places an advertisement for an entry-level position at $28 per hour. Now, let’s assume someone with your company has been working in that role (or a similar job) for a few years, and is earning the same wage. That current employee is likely to learn about the advertisement and question why they are not making more money. Employers need to be prepared with a communication strategy should this situation unfold.

Businesses may also want to consider conducting a pay-equity audit to ensure there are not any pay disparities, as employees will now be able to request and discuss this information in the workplace. There are other important benefits to conducting a pay-equity audit under the Massachusetts Equal Pay Act. For starters, it may help identify if you have any potential pay-equity liability in your workplace. Also, employers who conduct good-faith self-evaluations of their pay practices may have an affirmative defense against a pay-equity lawsuit.

If you plan to conduct a pay-equity audit, you should strongly consider working with your employment counsel to preserve the attorney-client privilege, which may prevent certain information from being disclosed in any subsequent litigation.

 

Amelia Holstrom and John Gannon are partners with the Springfield-based law firm Skoler, Abbott & Presser, P.C., a law firm exclusively practicing labor and employment law for more than a half-century, focusing on litigation avoidance, employment litigation, and labor law and relations; (413) 737-4753.

What Are the Compliance Requirements for Private Employers?

By Contributor
Law

After the DEI Executive Order

By Krupa Kotecha, Esq.

 

In January 2025, President Trump issued the “Ending Illegal Discrimination and Restoring Merit-based Opportunity” executive order, which significantly impacts private employers, particularly those that implement diversity, equity, and inclusion (DEI) programs. This order aims to curtail employment practices that provide preferential treatment based on race, sex, or other protected characteristics, reinforcing a strict adherence to merit-based hiring and advancement.

For private employers, especially federal contractors and organizations with established DEI initiatives, understanding the legal implications of this order is essential to ensure compliance while mitigating potential liabilities.

 

Key Legal Implications for Private Employers

• Revocation of affirmative-action mandates for federal contractors. The order revokes prior mandates, including Executive Order 11246, which required federal contractors to adopt affirmative-action programs to address historical disparities in hiring. The revocation effectively eliminates federal obligations for contractors to develop workforce diversity plans or set hiring goals based on demographic representation.

• Regulatory scrutiny of employment practices. Federal agencies, particularly the Department of Justice (DOJ) and the Equal Employment Opportunity Commission (EEOC), have been directed to investigate employment policies that could be deemed discriminatory under the new legal framework. Employers must ensure that any DEI initiatives remain neutral and do not grant or deny opportunities based on race, gender, or other protected classifications.

• Merit-based employment enforcement. The executive order underscores the importance of meritocracy, requiring employers to justify employment decisions strictly based on qualifications, experience, and performance. Organizations implementing hiring quotas, targeted recruitment efforts, or employee resource groups may need to re-evaluate these programs to avoid potential litigation risks.

• Compliance audits and investigations. The attorney general is tasked with formulating an enforcement plan that includes identifying employers whose DEI initiatives may conflict with federal non-discrimination laws. Employers should anticipate increased oversight, potential audits, and legal challenges if their policies include race- or gender-conscious hiring, promotions, or training programs.

 

Compliance Strategies for Employers

Given the legal uncertainties surrounding this order, private employers must take proactive steps to avoid violations and potential legal repercussions.

• Conduct an internal policy review. Employers should undertake a comprehensive audit of all DEI programs, training materials, hiring practices, and workplace policies. Any language or initiatives that suggest preferential treatment based on race, gender, or ethnicity should be reassessed to ensure alignment with the updated legal framework.

• Emphasize equal opportunity and non-discrimination. To remain compliant, companies should reaffirm their commitment to equal opportunity without the use of race- or gender-based preferences. Employee training programs should be reviewed to ensure they focus on compliance with federal anti-discrimination laws rather than implicit bias or identity-based initiatives.

• Monitor federal guidance and legal challenges. Since the implementation of this order may lead to litigation and policy revisions, employers should stay informed of further legal developments from the DOJ, EEOC, and other regulatory bodies. It is advisable to consult employment-law attorneys to navigate these changes effectively.

• Prepare for increased scrutiny and potential investigations. Employers, particularly those with government contracts, should be prepared for potential audits and legal reviews. Documentation demonstrating that hiring and promotion decisions are based solely on qualifications and performance will be crucial in defending against any claims of discriminatory practices.

 

Conclusion

The repeal of affirmative-action mandates and the increased focus on merit-based employment and advancement signal a substantial shift in workplace compliance requirements for private employers. Organizations that have historically engaged in DEI initiatives must carefully reassess their programs to ensure they do not run afoul of federal regulations. While diversity efforts are not outright prohibited, any policies that confer advantages or disadvantages based on protected characteristics may expose employers to legal liability.

To mitigate risks, employers should prioritize objective hiring and promotion criteria, eliminate race- or gender-based preferences, and stay informed on regulatory updates. Consulting legal experts and conducting internal audits will be critical steps in ensuring compliance with this evolving legal landscape.

 

Krupa Kotecha 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.

 

Massachusetts Highest Court Overturns 60-year Precedent

By Contributor
Law

No Wedding, No Ring

By Alexandre P. Pereira, Esq.

 

In a recent decision, the Massachusetts Supreme Judicial Court (SJC) created new legal precedent surrounding the return of engagement rings when the engagement ends and the planned wedding does not ensue. The court’s ruling in Johnson v. Settino abolishes a six-decade-old, fault-based analysis, paving the way for a more contemporary standard for ownership in such cases.

In 1938, Massachusetts took its stance on the extent to which courts would resolve disputes arising from private relationships. Massachusetts enacted the Heart Balm Act, which prohibited plaintiffs from seeking compensation for emotional damages stemming from the end of a romantic relationship. Specifically, breaches of contracts to marry will not be causes of action recognized by courts in the Commonwealth (M.G.L. c. 207, §47A).

Alexandre P. Pereira

Alexandre P. Pereira

“A failed engagement that prevented in what all likelihood would have been a failed marriage is not a situation where a court should be required to impute blame to one party.”

In 1959, the case of De Cicco v. Barker marked a significant moment in this legal landscape. De Cicco held that engagement rings were, in essence, “pledges given on the implied condition that the marriage take place,” meaning that the Massachusetts Heart Balm Act would not preclude actions for the recovery of an engagement ring. The decision was rooted in principles of equity, aiming to prevent the person who received the ring from becoming unjustly enriched when the engagement fails. De Cicco created a fault-based analysis, allowing the donor to reclaim the ring only if the engagement ended without any fault of their own.

Over the years, jurisdictions across the country have shifted away from the fault-based approach. Until recently, Massachusetts had not revisited this standard — until the SJC took up Johnson v. Settino.

The facts of Johnson v. Settino embody the tumultuousness of modern relationships. In the summer of 2016, Johnson began dating Settino. Over the course of their relationship, he showered her with lavish gifts of jewelry, clothing, shoes, and handbags. A year later, Johnson proposed to Settino with a $70,000 diamond engagement ring.

In November 2017, Johnson discovered text messages on Settino’s phone indicating an intimate relationship with another man. Following this discovery, he terminated the engagement. Johnson subsequently sought the return of the diamond engagement ring and wedding bands.

At trial, the judge ruled that Johnson had given the rings on the condition of marriage but held him at fault for the breakup due to his unfounded suspicions of infidelity. Settino was awarded the engagement ring and wedding band. After an appeal to the Massachusetts Appeals Court, the trial court’s judgment was reversed after holding that ending an engagement does not inherently assign blame to that party. The Appeals Court concluded that Johnson’s actions were reasonable, and the case was ultimately heard by the Massachusetts Supreme Judicial Court.

The SJC’s ruling in Johnson v. Settino overturned the fault-based standard that stood firm for the better half of a century. Although the standard was equitable in theory, time has shown the standard to be less practicable. Engagements often fail without clear fault by either party. An engagement period can be, and perhaps should be, viewed as a time to test the permanency of a relationship prior to marriage.

A failed engagement that prevented in what all likelihood would have been a failed marriage is not a situation where a court should be required to impute blame to one party. The court argued that assigning fault in such circumstances contradicts the equitable principles the analysis was meant to promote.

Additionally, the SJC pointed out that the fault-based standard is largely irrelevant in Massachusetts divorce proceedings. Likewise, the justices determined that fault should not be a relevant consideration in the termination of engagements.

The court ultimately ruled in favor of Johnson, the plaintiff, marking a notable shift in Massachusetts law. Engagement rings are gifts contingent on marriage. When the marriage does not occur, the ring is to be returned to the donor, irrespective of fault.

 

Alexandre P. Pereira is an attorney with the law firm of Bacon Wilson, P.C. He is a member of the Hampden County Bar Assoc. and the Estate Planning Council of Hampden County, and concentrates his prapracticectice in the areas of elder law, estate planning, long-term-care planning, probate, and special-needs estate planning; (413) 781-0560; [email protected]

 

A Step Toward Parentage Equality for All

By Contributor
Law Special Coverage

The Massachusetts Parentage Act

By Julie A. Dialessi-Lafley, Esq. and Britaney N. Guzman-Bailey, Esq.

The Massachusetts Parentage Act (MPA), a new law that went into effect on Jan. 1, revolutionizes how parentage may be legally recognized in the Commonwealth.

The MPA replaces outdated language with inclusive, gender-neutral language so that its provisions reflect the great diversity of families in Massachusetts. For example, ‘paternity’ is now ‘parentage,’ ‘mother and father’ is now ‘parents,’ and the statute is now titled “Non-marital Children and Parentage of Children” rather than “Children Born Out of Wedlock.”

Parentage is the legal relationship between a child and a parent of the child. Establishing parentage is important for the well-being of a child because the relationship is the foundation of various rights and responsibilities for the parent and child alike, including access to educational and medical records, tax benefits, health insurance, government benefits, inheritance rights, financial support, custody, and parenting time.

The MPA does not make changes to custody, parenting time, or child support. The changes pertain to who can be the legal parent of a child and how parentage can be established. Pathways to parentage include giving birth, executing a voluntary acknowledgement of parentage (VAP) with the birth parent, adoption, assisted reproduction and surrogacy, obtaining an adjudication of parentage, de facto parentage, and presumptions of parentage.

A VAP is a simple form that parents can sign in the hospital or later to voluntarily establish parentage. VAPs were previously available only to genetic parents. Now, the act codifies that, in addition to genetic parents, presumed parents and intended parents can establish parentage through a VAP.

This means that a person who utilizes assisted reproduction when building their family, or a person who does not have a genetic relationship with the child but receives the child in their home and openly holds out the child as their own, has new options to establish parentage.

 

New Protections

As a VAP is an equivalent to a court decree of parentage, this change is particularly important for the security of LGBTQ families who often face discrimination and worry about the status of their parent-child relationship. Prior to the MPA, LGBTQ families routinely relied on confirmatory adoptions, or second-parent adoptions, to establish parentage.

Julie Dialessi-Lafley

Julie Dialessi-Lafley

Britaney Guzman-Bailey

Britaney Guzman-Bailey

“As a VAP is an equivalent to a court decree of parentage, this change is particularly important for the security of LGBTQ families who often face discrimination and worry about the status of their parent-child relationship.”

Although a VAP may now be an easier route for LGBTQ families to establish parentage, it is important for individuals to speak with an attorney regarding the specific facts surrounding their family to obtain advice on whether a confirmatory adoption is still recommended as an additional level of protection.

A de facto parent is a parent that does not have a biological relation to the child but has meaningfully participated in the child’s life as a family member. Although Massachusetts courts have long acknowledged de facto parenthood, the common-law doctrine only permitted de facto parents to seek parenting time. The MPA now includes persons who establish de facto parentage within the legal definition of ‘parent,’ therefore permitting de facto parents to petition for all rights and responsibilities that may stem from the parent-child relationship. Accordingly, de facto parents may now obtain custody of their child if a court determines doing so is in the best interest of the child.

The person seeking to establish de facto parentage must demonstrate seven requirements: they resided with the child as a regular member of the child’s household for a period determined by the child’s age, they engaged in consistent caregiving of the child, they undertook full and permanent responsibilities of a parent of the child without expectation or payment of financial compensation, they held out the child as their own child, they established a bonded and dependent relationship with the child that is parental in nature, the child’s parent(s) consented to the bonded and dependent relationship, and adjudicating them to be the child’s parent is in the child’s best interest.

Consent can be implied when a parent has not engaged with the child directly or participated in decision making or provided regular financial support for at least two years. Notably, a parent cannot bring a de facto parentage action against another to request child support under the MPA; the act only authorizes the alleged de facto parent to commence the action.

The act also authorizes the court to adjudicate a child to have more than two parents if doing so is in the best interest of the child. This can happen when more than two people have competing claims to parentage of a child. The court will consider the child’s age, the length of time each parent has assumed the role of parent, the nature of the parent-child relationship, the basis for each person’s claim to parentage, the harm to the child if the relationship is not recognized, and any other factor arising from disruption of the relationship between the child and each person.

 

Further Implications

Assisted reproduction is a method of causing pregnancy other than sexual intercourse, including but not limited to artificial insemination; intrauterine, intracervical, or vaginal insemination; donation of gametes or embryos; IVF; and transfer of embryos. The MPA provides that a person who consents to assisted reproduction shall be a parent of the child.

Consent can be shown through a record signed by the birth parent and the intended parent on or after the birth of the child. If there is no written record, consent can be established through a finding by the court that, prior to conception or the birth, the parties agreed that they would be parents of the child, or the person who seeks to be a parent of the child, together with the person giving birth, voluntarily participated in and consented to the assisted reproduction that resulted in the conception of the child.

Now, a person who becomes a parent through assisted reproduction can obtain a pre-birth judgment declaring them to be the parent of the child immediately upon the birth of the child, ordering that parental rights and responsibilities vest immediately upon birth, and designating them as the parent on the child’s birth certificate.

Finally, the MPA provides clear instruction on the requirements of and enforceability of surrogacy agreements. Parties to a surrogacy agreement must be at least 21 years old. The surrogate must have previously given birth to at least one child and must undergo a medical evaluation and a mental-health consultation. The intended parent(s) must also undergo a mental-health consultation. The agreement must be signed by the surrogate, their spouse if applicable, and the intended parent(s), and all parties to the agreement must be represented by counsel.

The requirements relative to when the agreement is signed, and enforceability and validation of the surrogacy agreement by the court, depend on whether the surrogacy is a gestational surrogacy or genetic surrogacy. It is therefore important to consult with an attorney prior to attempting conception through surrogacy to ensure the requirements are met and for assistance in drafting the agreement.

The MPA offers families long-overdue rights and protections by providing updated paths to parentage, and is a critical step toward parentage equality for all.

 

Julie A. Dialessi-Lafley is a shareholder with the law firm Bacon Wilson, P.C. and chairs the firm’s Family Law department. She is a certified family law mediator and a member of the Springfield Women’s Leadership Council, and is licensed to practice law in both Massachusetts and Connecticut; (413) 781-0560; [email protected]

 

Britaney N. Guzman-Bailey is an associate with the law firm of Bacon Wilson, P.C. She is a member of the Hispanic National Bar Assoc., the Hampden County Bar Assoc., and the Massachusetts LGBTQ Bar Assoc. She concentrates her practice in the areas of domestic relations and family law; (413) 781-0560; [email protected]

What Employers Should Know About Cannabis and the Workplace

By Contributor
Law

A Regulatory Minefield

By Jason Ortiz, Esq. and Elaine Reall, Esq.

 

Jason Ortiz

Jason Ortiz

Elaine Reall

Elaine Reall

Marijuana, cannabis, weed, or whatever you want to call it is a growth industry. We know it’s still an illegal Schedule 1 drug under federal law; so how is it that we can grow, sell, or buy it in Massachusetts? And what effect does the regulatory minefield have on employers and the workplace?

Today’s article will explore the legal ins and outs of cannabis relative to Massachusetts workplaces. In addition, it will provide a brief overview of the current federal and state regulatory scheme.

 

Federal Stance and Future Legislation

Cannabis is still considered a Schedule 1 illicit substance under federal law. Most simply stated, this means that if one is found in possession of marijuana by a federal officer or border official, you’re in trouble. However, a growing number of states, like Massachusetts, have chosen to move forward and allow the sales and distribution of cannabis, either for medical or recreational use, within state borders. In fact, 24 states have legalized marijuana.

There have been several proposed bills in Congress to help move cannabis from its Schedule 1 classification (covering the most addictive and destructive substances, such as heroin) to Schedule 3 (defined as drugs with a moderate to low potential for physical or psychological dependence, such as anabolic steroids). See, for example, the Marijuana 1 to 3 Act of 2023.

“Other than the obvious relaxation of legal impediments to cannabis use, the proposed federal bills have some amazing tax benefits for the cannabis industry as a whole.”

Other than the obvious relaxation of legal impediments to cannabis use, the proposed federal bills have some amazing tax benefits for the cannabis industry as a whole. For starters, IRS enforcement action would be one less problem to worry about. Currently, cannabis businesses do not enjoy the same tax deductions as the average mom-and-pop or Fortune 500 company. This is due to Internal Revenue Code Section 280E, which does not allow certain standard business deductions due to the legal risks associated with the illegal ‘trafficking’ of a Schedule 1 drug. Cannabis businesses also face higher income-tax rates as a result of their business. Most of the proposed federal laws would remove those tax obstacles and categorize cannabis as just another product sold by just another business.

Additionally, placing cannabis into a Schedule 3 classification would allow for this industry to become regulated like any other Schedule 3 drug provider. While striving for more federal regulations may sound counterintuitive for a business, the current patchwork quilt of state regulations has not served consumers well.

As noted recently in the Boston Globe, the quality of lab test results relative to marijuana mold contamination and THC levels has raised consumer concerns in Massachusetts and may have negative repercussions relative to state cannabis businesses. More specifically, state cannabis businesses have been accused of circumventing health regulations by ‘shopping’ for laboratories with loose (or non-existent) standards in order to obtain favorable testing scores.

“A straightforward, no-nonsense standard for regulation and testing, like the one the U.S. Food and Drug Administration has for Schedule 3 drugs, would give consumers confidence that the products they are purchasing are both safe for consumption and contain the product described on the label.”

A straightforward, no-nonsense standard for regulation and testing, like the one the U.S. Food and Drug Administration has for Schedule 3 drugs, would give consumers confidence that the products they are purchasing are both safe for consumption and contain the product described on the label.

There are other pending bills that would favorably affect the cannabis industry. One of the eagerly watched bills is the SAFE Banking Act, which was meant to make banking services accessible to state-regulated cannabis businesses without the fear of federal penalties. Specifically, its provisions would allow for the profit from a state-regulated cannabis business to be considered just that, and not proceeds from an unlawful activity.

The banking industry is traditionally quite conservative when it comes to risk taking in the area of emerging or ‘unlawful’ industries. Without such banking legislation, it remains very difficult, if not impossible, for state-regulated cannabis businesses to get routine business loans and/or building or mortgage commitments. Insurance companies, also conservative entities, have begun to craft specific policies for the cannabis industry; however, much of such coverage is prohibitively expensive.

The States Reform Act is a pending bipartisan effort to change cannabis regulation by creating a permitting process on the federal level for cannabis-based businesses. This would allow federal oversight on products that cross state lines, thus allowing lawful interstate commerce.

Under current law, the states and federal government disagree on the legality of cannabis use, thus making its transportation across state lines a legally precarious task. Such product movement currently requires ‘creative’ transportation routes. Typically, it’s the smaller companies who suffer and lose out on increasing their business if they lack the resources to come up with those creative solutions.

The framework this act would establish would create federal regulations on interstate cannabis-based activities. The act would also impose a 3% federal cannabis excise-tax structure with a 10-year moratorium on increases to said tax. With the perennial federal budget shortages, this excise tax would be a welcome addition to the federal tax coffers.

 

Cannabis and the Massachusetts Workplace

A big question that arises regarding cannabis in the workplace is “how is drug testing affected by employee use of medical and/or recreational cannabis?” It is important to note that, if you require your applicants or employees to be drug-tested, you should have a company-wide policy that details specific scenarios that would require drug testing. After that, enforcement becomes a management issue.

A rule of thumb to follow is that employers should generally require their employees to refrain from using alcohol and/or other drugs while on the clock. Reporting for work while intoxicated, or under the influence of mind-altering drugs, should also be addressed.

The follow-up question that is often asked is “what if an employee uses marijuana for a medical purpose?” Medicinal use of marijuana is a very real and effective remedy for several conditions and must be treated seriously in the workplace to avoid any violations of the Americans with Disabilities Act.

It is not a business owner’s responsibility to probe every employee to see who has a disability and how they cope with it; they also are not required (as of yet) to accommodate the use of medical marijuana in the workplace. Employers are, however, required to have an interactive conversation with an employee to determine whether a reasonable accommodation is possible for an employee who uses medical marijuana to treat a disability.

Given the legal complexities, such situations need to be addressed on a case-by-case basis, and consulting with a business or employment lawyer well-versed in cannabis regulation is advisable.

 

 

Elaine Reall and Jason Ortiz are attorneys who specialize 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. Reall was a featured panelist on a panel providing insights into the legal and regulatory status of the cannabis industry at the 2024 annual meeting of the National Assoc. of Minority and Women Owned Law Firms, which took place Sept. 15-18.

A Changing Landscape in Workplace Discrimination

By Contributor
Law Special Coverage

Beyond the Job Title

By Michael Roundy, Esq.

The U.S. Supreme Court recently changed the landscape for certain workplace discrimination claims with its decision in Muldrow v. City of St. Louis, issued in April. Employers need to be aware of the change as it could affect their internal decisions on how to address allegations of discrimination and avoid similar lawsuits.

In Muldrow, the Supreme Court held that transferring an employee to another position, even without any loss of pay or benefits, may violate the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964. Although the case dealt with an internal transfer, the court’s opinion focused on changes to the terms and conditions of employment, which could implicate workplace changes far beyond transfers.

Sgt. Jatonya Muldrow worked for nine years as a plainclothes officer in the St. Louis Police Department’s Intelligence Division. When a new commander took over the division, Muldrow was transferred out, against her wishes, in favor of a male officer who the new commander said was a better fit for the division’s “very dangerous” work.

While Muldrow’s rank, pay, and benefits did not change, her new position in uniform involved different responsibilities, offered fewer perks, was less prestigious, and required weekend shifts, all of which were changes to the terms and conditions of her employment.

The District Court had dismissed Muldrow’s sex-discrimination suit on a motion for summary judgment on the grounds that the changes in the conditions of her employment did not meet a heightened standard requiring her to show a “significant” change to her responsibilities. The Eighth Circuit affirmed that decision.

The Supreme Court took up the appeal to address and resolve a circuit split over whether a Title VII discrimination claim requires a showing of “significant” harm or just some degree of harm caused by the changed working conditions. Most circuit courts, including our First Circuit, had required that a change or detrimental impact be a “material” or “significant” change to working conditions, whereas the D.C. Circuit had recently rejected such a requirement.

The Supreme Court held that the statute does not require any elevated standard of harm. On its face, Title VII makes it unlawful to “discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment because of such individual’s … sex” (among other characteristics).

Michael Roundy

Michael Roundy

“Investigations handled internally may be perceived as biased and conclusory, particularly where the allegations involve upper management. Using an outside, neutral third party can counteract that perception of bias.”

The court held that this language does not require a “significant” or “serious” or “material” change, but only that Muldrow show some disadvantageous change in employment terms or conditions. Put another way, the statute prohibits “treat[ing] a person worse” because of her sex or other protected trait (race, color, religion, national origin).

A Title VII claim, therefore, must show “some harm” relating to a term or condition of employment, and need not show “significant” harm. In this case, the transfer of Muldrow to a position with less responsibility, fewer perks, less prestige, and requiring a rotating schedule including weekends met the “some harm” requirement. The Supreme Court therefore vacated the Eighth Circuit’s judgment, resurrecting Muldrow’s discrimination claims, and remanded the case for further proceedings.

 

The Takeaway for Employers

Outcomes like this could be avoided by employers by addressing complaints when they arise, long before they result in litigation. More and more employers have recognized the value of thorough and impartial workplace investigations conducted quickly after complaints arise. An external, third-party investigator limits the perception of bias by the complaining employee, helps ensure that manager actions are properly scrutinized, and may in some cases even help limit liability.

A credible investigation requires more than just an impartial investigator. It requires that the investigator be perceived as impartial as well. Investigations handled internally may be perceived as biased and conclusory, particularly where the allegations involve upper management. Using an outside, neutral third party can counteract that perception of bias.

As an outside investigator, I often find that employees will speak more freely with me and provide more complete and detailed information than originally reported internally to HR. With the benefit of more complete information, I am able to render better-informed findings and provide the employer the context needed for sound decisions and better workplace practices going forward.

In the context of Muldrow, a prompt and impartial investigation may also help employers avoid taking employment actions that later end up in litigation, by identifying responses and practices that should be avoided.

If an employee complains about sex discrimination, for example, and a prompt, neutral investigation confirms there may be some form of discrimination occurring, the employer will be in a position to avoid taking actions that could lead to liability — actions such as transferring the complaining employee to another position that changes the terms and conditions of his or her employment, changing the employee’s shift without his or her consent, or changing the job duties in a way that harms the employee’s chances for advancement. Each of these changes may not be considered “significant” changes, but under Muldrow, they could nonetheless result in liability for discrimination.

The employment law landscape is continuously shifting, as Muldrow v. City of St. Louis illustrates. Employers should continue to seek guidance and assistance from experienced labor and employment attorneys to ensure their policies are up to date and implemented properly and that, when complaints arise, they are investigated quickly and neutrally.

 

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

The Corporate Transparency Act

By Contributor
Law

Why Compliance Is Crucial for Business Owners

By Russell F. Anderson, Esq. and James F. Martin, Esq.

 

The Corporate Transparency Act (CTA) is a federal initiative to limit money laundering, tax evasion, and other illicit activities that took effect on Jan. 1, 2024. The CTA requires many businesses and their owners to register with the U.S. Treasury’s Financial Crimes Enforcement Network (FinCEN).

Russell Anderson

Russell Anderson

James Martin

James Martin

Persons and companies that violate the CTA’s reporting requirements by failing to report at all or by providing false information to FinCEN may be subject to civil penalties of $500 for each day the violation continues and may also risk additional criminal fines and imprisonment.

The reporting requirements of the CTA mainly apply to smaller entities that might otherwise slip under the federal government’s radar. These companies are classified as having a higher risk of abusing anti-money-laundering rules. While there have been legal challenges to the CTA, FinCEN has indicated that it will continue to enforce the law while these challenges are ongoing.

The CTA states that FinCEN must collect and maintain a federal database for beneficial ownership information (BOI) of companies. Unless there is an applicable exemption, all entities that are formed or registered to do business in the U.S. and have registered with the Massachusetts secretary of the Commonwealth’s office (or a similar office in a different state) need to register on the BOI database.

 

Exemptions

The CTA provides 23 different categories of exemptions, which include exemptions for entities that already make substantial public disclosures, such as financial institutions and tax-exempt charities. Most notably, there is also a more general exemption for larger organizations that have a physical presence in the U.S., employ more than 20 full-time employees, and report more than $5 million in annual revenue to the IRS.

No filing will be required if an entity is exempt, but compliance with the criteria will be determined on a continual basis. For example, if an entity drops below the 20-employee threshold, a prompt filing will be required.

 

Reporting

FinCEN’s reporting portal can be found at boiefiling.fincen.gov. Entities that are not exempt from BOI reporting must provide the following information for each “beneficial owner” of a company: full legal name, date of birth, current residential or business address, and a copy of an acceptable identification document (such as a driver’s license or passport).

A beneficial owner is considered to be an individual who exercises substantial control over the entity or owns or controls at least 25% of the ownership interests of the entity. Most C-suite officers (for example, CEOs, CFOs, COOs, and general counsel) will fall under the category of possessing substantial control over the entity.

To ensure the purpose of the CTA is being fulfilled, ownership is generally reported at an individual level and not through another reporting company. Thus, the reporting owner may be someone who is several levels up in a company’s organizational chart if holding companies are used.

Reporting ownership interests held by trusts may pose a challenge. A trust by itself is not subject to the reporting requirements under the CTA. However, if a trust holds a 25% or more ownership interest in an organization that is subject to the CTA, the trust’s grantors, trustees, and beneficiaries may all be required to be reported, depending on the specific terms of the trust.

For entities formed in or after 2024, at least one company applicant must also be identified for each entity. A company applicant includes the individual who controls the formation filing with the applicable secretary of state or the individual who actually submits the filing.

 

Compliance Is Key

For entities formed in 2024, the initial report must be filed within 90 days of formation. All entities that were created before the start of 2024 have until Dec. 31 to submit a BOI report to FinCEN. If there are changes in reported beneficial ownership information, the entity must file an updated report to FinCEN no later than 30 days after the date of the change.

Given the CTA’s draconian penalties, it is advisable to make your CTA registration a high priority and complete the required filing as soon as possible.

 

Attorneys Russell F. Anderson and James F. Martin are members of the Business and Finance practice at the law firm Pullman & Comley. Martin is based in the firm’s downtown Springfield office.

 

A New Posting Requirement for Massachusetts Employers

By Contributor
Law

Salary Transparency

By Michael McAndrew, Esq.

 

In an effort to increase transparency and equity in wage payment, the Massachusetts Legislature passed, and Gov. Maura Healey signed into law on July 31, H. 4890, “An Act Relative to Salary Range Transparency.”

The act is an extension of employee protections provided in the 2018 Massachusetts Equal Pay Act, a statute that made it unlawful for employers to discriminate on the basis of gender in the payment of wages and to prohibit employers from preventing, discouraging, or reprimanding employees who share wage information. Under the new act, covered employers no longer can keep secret from their employees and prospective employees pay information for positions within their company. The act has wide-ranging reporting and disclosure requirements of salary ranges.

The act’s provisions are twofold. First, it requires that employers disclose pay-range information to current and prospective employees. The act applies to ‘covered employers,’ which are defined as “any employer, public or private, that employs 25 or more employees within the Commonwealth.”

Michael McAndrew

Michael McAndrew

“Under the new act, covered employers no longer can keep secret from their employees and prospective employees pay information for positions within their company. The act has wide-ranging reporting and disclosure requirements of salary ranges.”

Under the act, an employer must disclose the pay range for positions listed in job postings, disclose the pay range for positions offered to current employees as promotions or transfers, and disclose pay-range information to current employees upon request. The act prohibits employers from discharging or retaliating against employees for exercising their rights under the act.

Employers will be required to start complying with these provisions on Oct. 29, 2025. The attorney general is required to conduct, within six months of the act’s passage, a public-awareness campaign regarding the requirements of the act.

Second, the act sets forth a system whereby employers are required to submit annual wage-data reports to the state secretary. The exact type and timing of the report that must be filed with the secretary depends on the size and type of the employer.

For private employers that employ 100 or more employees in the Commonwealth at any time during the prior calendar year that are subject to federal filing requirements of EEO-1 data reports, the employers must submit a copy of the EEO-1 data report to the secretary annually by Feb. 1. Massachusetts employers that are required to file EEO-1 data reports will be required to make their first report under the act by Feb. 1, 2025. Other types of employers, such as public employers, face different filing deadlines and requirements under the act.

 

Next Steps

After employers submit copies of their EEO data reports, the secretary has until April 1 to report this information to the Executive Office of Labor and Workforce Development. The Executive Office is then required to aggregate the information it receives from the secretary and post it on its website. It is important to know that, while aggregated salary information regarding certain professions will be available on the Executive Office’s website, individual employers’ EEO data reports will not be published. In fact, the act expressly provides that these records are not to be considered ‘public records.’

While this is administratively tedious, employers in Massachusetts must ensure that they comply with both the disclosure and reporting requirements of the act, or they will face heavy administrative fines. The attorney general has exclusive jurisdiction to enforce the wage-disclosure and annual reporting provisions in the act and can impose fines for an employer’s violation of the act and may obtain injunctive or declaratory relief for this purpose.

For a first offense, the employer will be given a warning. For a second offense, the attorney general can impose a fine of up to $500, and for third offenses, fines can be up to $1,000. For fourth and subsequent offenses, penalties are issued pursuant to Massachusetts General Laws chapter 149, section 29C, a violation of which can result in fines between $7,500 and $25,000.

For the first two years that the act is in effect, prior to levying fines for violation of the act, the attorney general is required to provide notice of the violation and give the subject employer two business days to cure the violation. For purposes of the attorney general’s enforcement of job postings, if multiple job postings are made after an initial job posting that violates the act, all posts for the same position that violate the act that are posted within 48 hours of the initial post will be considered a single violation.

Unlike the Massachusetts Equal Pay Act, “An Act Relative to Salary Range Transparency” does not provide for an employee’s private right of action for their unlawful discharge or retaliation by their employer for exercising their rights under the act. An employee may be able to assert such a claim under other discrimination laws or other causes of action. Further guidance on this and many other questions raised by the new law may be given once the provisions of the act become fully effective.

 

Michael McAndrew is an attorney in the Litigation and Employment Law practices at Bulkley Richardson.

Life Insurance, Stock Redemption, and Your Business

By Contributor
Law

A New Wrinkle from the Supreme Court

By Benjamin M. Coyle, Esq. and Isabelle Fergus

 

A recent Supreme Court case ruling may have you making some important changes to life-insurance policies owned by your company. In early June, the Supreme Court unanimously ruled that proceeds from life-insurance policies used to buy out a deceased owner’s shares of a business are not offset by redemption obligations, which effectively results in the value of the company being increased.

In Connelly v. United States, the Supreme Court affirmed the lower court’s ruling that the obligation of the company to redeem shares at fair market value does not offset the value of life-insurance proceeds and that life-insurance proceeds must be included in the company’s valuation. The decedent’s estate argued that this decision made by the court will make succession planning increasingly difficult for closely held corporations, and he is right.

Benjamin Coyle

Benjamin Coyle

“The question here is whether Crown’s contractual obligation to redeem Michael’s shares at fair market value offsets the value of life-insurance proceeds committed to funding the redemption. The answer is no.”

In summary, Thomas Connelly, as executor of the estate of Michael P. Connelly Sr., sued the U.S. for a refund of the estate taxes assessed against Michael Connelly’s estate. Michael and Thomas Connelly owned a building-supply corporation known as Crown C Supply (“Crown”). Michael owned a 77.18% stake in the company, while Thomas owned the rest. The brothers had a buy-sell agreement that required the company to be valued as of the date of death of a shareholder.

Crown purchased a $3.5 million life-insurance policy on each brother’s life. The life insurance was to be used by Crown to buy the deceased brother’s shares if the other brother did not want to buy the shares personally. Thomas determined that he did not want to buy Michael’s shares, and therefore Crown was obligated to do so. This is where the valuation of Crown comes into play.

Thomas argues that Crown was worth $3.86 million before the redemption, and Michael’s shares were worth $3 million. He also claims that Crown was worth $3.86 million after Michael’s shares were redeemed. In the court’s eyes, both of Thomas’s claims cannot be true.

In granting summary judgment to the IRS, the lower court reasoned that it found that the stock-purchase agreement did not affect the valuation and, furthermore, that a proper valuation of Crown must include the life-insurance proceeds that were used toward redemption because it is seen as significant asset of the company, making Crown not worth $3.86 million, but $6.86 million.

The question here is whether Crown’s contractual obligation to redeem Michael’s shares at fair market value offsets the value of life-insurance proceeds committed to funding the redemption. The answer is no. The Supreme Court affirms that Crown’s contractual obligation to redeem Michael’s shares did not diminish the value of those shares because redemption obligations are not seen as liabilities that reduce a corporation’s value for federal estate tax.

 

Impact of the Ruling

So, how does this recent decision affect companies that have existing stock-redemption agreements? It means that the business must review their existing agreements and the manner in which the company and shareholders are obligated pursuant to its terms.

It is essential to review these agreements with your advisors, including your accountant and attorney. There are various options that may be utilized, each of which have significant consequences, and should not be done without consultation with your advisors, as the decisions will have an impact on the business and estate planning.

When looking into life-insurance policies, you may want to consider a cross-purchase agreement where the shareholders will purchase life insurance on each other. In doing so, this ensures insurance proceeds will go right to purchasing the deceased shares without the estate’s tax values rising. Although this was the better option for Thomas and Michael’s situation, this type of agreement requires each shareholder to pay premiums for the insurance policy, creating a risk that one may not be able to pay it. While this type of arrangement may be beneficial in some respects, it may have negative consequences as well.

Another key step is to regularly get valuations to see potential tax impacts and to see current market values and tax regulations. Consulting tax and legal experts on this matter will help to ensure that your corporate agreements align with all current laws and regulations. Along with talking to legal experts, you should also expect to plan for future tax obligations, whether that means setting aside funds and/or developing financial strategies to cover potential tax liabilities that could potentially rise from share redemptions or corporate obligations.

By taking steps to review agreements and evaluate life-insurance policies by consulting with experts, business owners can manage their estates better and minimize tax liabilities, all while establishing effortless ownership transitions within their business.

 

Ben Coyle is a shareholder with Bacon Wilson who focuses much of his practice in the areas of municipal law and litigation, while also handling probate and business matters. Isabelle Fergus is an intern at Bacon Wilson who is attending the Isenberg School of Management at UMass Amherst.

Prepare for the Rise of AI in the Workplace

By Contributor
Law Special Coverage

Attention, Employers

By Sabba Salebaigi-Tse, Esq.

Artificial Intelligence (AI) is rapidly changing how we live and work. To keep up with this technological revolution, both federal and state governments are introducing new rules to ensure AI is used responsibly in the workplace. Here’s an overview of what you need to know about recent federal, state, and local AI developments.

 

The White House’s Executive Order

In October 2023, President Biden issued a groundbreaking executive order on the “Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence.” This order pushed federal agencies to create guidelines ensuring AI is used responsibly, especially at work. The goal is to make sure AI helps improve workplaces without causing unfair treatment or discrimination.

Sabba Salebaigi-Tse

Sabba Salebaigi-Tse

“Ensure transparency by clearly communicating to employees and applicants about the use of AI in employment decisions and their rights related to AI.”

Department of Labor’s New Guidelines

Wage and Hour Division’s Bulletin: On April 29, the Department of Labor (DOL) Wage and Hour Division released a bulletin explaining the risks of using AI at work. This bulletin emphasizes the inherent risks associated with AI use and underscores that AI should not replace human oversight. According to the guidelines outlined in FAB, employers must ensure that responsible human oversight accompanies the deployment of AI technologies.

Given the various challenges associated with AI technologies, it is crucial for employers to navigate the complexities while adhering to laws like the Fair Labor Standards Act (FLSA) and others, which stipulate that employers remain accountable for legal issues arising from the use of AI. Even if AI systems autonomously take adverse actions against employees, such actions could potentially constitute retaliation under FLSA and related statutes.

 

Guidance of Federal Contractors: On April 29, the DOL Office of Federal Contract Compliance Programs issued guidelines aimed at federal contractors utilizing AI, which are valuable for all employers to consider.

These guidelines emphasize several critical practices for the ethical and effective deployment of AI tools in the workplace. Employers are advised to ensure that AI technologies are not only fair and job-related, but also regularly monitored for biases that could inadvertently impact decision-making processes. Additionally, keeping employees well-informed about the use and implications of AI systems fosters transparency and helps mitigate potential concerns or misunderstandings.

“As AI continues to evolve and integrate into the workplace, new and expanded laws will emerge to govern its use. Employers must proactively adapt to these changes to harness AI’s benefits while ensuring compliance with legal standards.”

These proactive measures not only enhance compliance with federal regulations, but also promote a more inclusive and equitable work environment where AI technologies are used responsibly to benefit both employers and employees alike.

AI Principles for Employers: On May 16, the DOL introduced a comprehensive set of principles aimed at guiding the development and implementation of AI technologies in the workplace. These principles underscore the importance of ethical considerations and employee welfare in AI deployment. They stress the need to keep workers informed about how AI is utilized, ensure transparency in AI decision-making processes, and safeguard worker data throughout the entire AI life cycle.

These guidelines aim to foster a fair and secure work environment where AI enhances operations while upholding privacy and ethical standards. Adhering to these principles helps employers build trust, mitigate risks, and integrate AI technologies responsibly for the benefit of all stakeholders.

 

State-level Developments

New York: Since July 5, 2023, New York city has a law regulating automated employment decision tools (AEDTs). Employers must conduct annual audits to check for bias, publish the results, and let applicants know when AEDTs are used. In addition, a new bill introduced this past February aims to regulate AEDTs across New York State. This bill requires annual bias analyses and public summaries of the findings.

New Jersey: In February, two bills were introduced in New Jersey to manage AI in hiring. One bill requires annual bias audits for AEDTs. The other regulates AI-enabled video interviews, demanding transparency and consent from applications.

Other States: California is working on regulations to prevent algorithmic discrimination and ensure AI tools are used transparently and responsibly. Starting Feb. 1, 2026, Colorado will require AI developers and users to protect against discrimination with high-risk AI systems. And both Illinois and Maryland have laws in place requiring employers to notify and get consent from applicants before using AI in hiring.

 

What Should Employers Do?

To navigate these new regulations and ensure compliance, employers should:

• Stay informed. Regularly review federal and state guidelines on AI use in the workplace.

• Conduct regular audits of AI tools to detect and mitigate bias or inequitable outcomes.

• Ensure transparency by clearly communicating to employees and applicants about the use of AI in employment decisions and their rights related to AI.

• Provide training to HR and management teams on the ethical and responsible use of AI tools.

• Consult with legal experts to say ahead of regulatory changes and implement best practices tailored to your organization.

 

Conclusion

As AI continues to evolve and integrate into the workplace, new and expanded laws will emerge to govern its use. Employers must proactively adapt to these changes to harness AI’s benefits while ensuring compliance with legal standards. If you have questions about any of these developments, it is prudent to consult with labor and employment counsel.

 

Sabba Salebaigi-Tse 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 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.

How to Conduct an Effective Workplace Investigation

By Contributor
Law

A Road Map to Fairness

By Elaine Reall, Esq.

Managers, supervisors, and overworked HR professionals all face the specter of a sensitive workplace investigation from time to time. Allegations of illegal discriminatory behavior, workplace harassment and/or bullying, hostile-workplace assertions, or just straightforward favoritism based on a workplace romance between employees all regularly confront employers.

 

When to Investigate

The first question that employers need to ask is, does a formal or informal investigation need to take place? Not all workplace gripes or groans warrant an investigatory response.

Elaine Reall

Elaine Reall

“The first question that employers need to ask is, does a formal or informal investigation need to take place? Not all workplace gripes or groans warrant an investigatory response.”

For example, mandatory overtime in understaffed healthcare facilities is the subject of numerous complaints. And while it makes good employee relations sense to address such an issue, nothing in such a scenario rises to the level of warranting an investigation. However, if a formal or internal complaint indicates the possibility or probability of illegal discrimination, physical or emotional abuse, criminal misconduct, retaliation for whistleblowing, or OSHA-related safety or health issues, an employer would be wise to seriously consider initiating an investigation.

If an actual complaint exists (as opposed to vague rumors), prompt investigatory action is best practice, as it preserves evidence, prevents fading of witness memories, and demonstrates employer credibility. Yet, in a situation where only rumors and secondhand observations abound, an employer must weigh the pros and cons of pursuing an investigation without an actual complaint serving as an investigatory road map.

 

Who Should Investigate

Employers should begin by assessing the experience and background of managers and HR professionals working for the organization. Do such individuals have training and experience with internal workplace investigations? How critical is the confidentiality of information? Is there a high likelihood of legal action?

When considering inside versus outside investigators, consider this quick checklist:

• Do legal issues of document protection and privilege exist?

• Will the workplace benefit from a factual/credibility determination by a disinterested party?

• Evaluate the need for a general versus detailed findings/report.

• What is the likelihood of administrate agency (MCAD, etc.) or court action?

• Consider the need for professional demeanor.

• What is the value of inside managers/HR professionals being trusted in sensitive situations?

As a general rule of thumb, an experienced investigator (regardless of internal or external status) will be the most cost-effective.

 

Timing of Investigation

Prompt investigations are better investigations. Hoping that issues will simply go away is a surefire way for an employer to torpedo a strong result. Timely investigations deal efficiently with issues such as fresh witness memories, existing documentation, and lack of employee turnover. Investigatory urgency also lends a certain energy to the findings or report.

Unfortunately, employees often delay reporting serious issues and incidents to an employer for a variety of reasons. Often, the first evidence of a pattern of sustained harassment comes from information gathered during employee exit interviews. The best way to avoid this result is to actively encourage employees to report problems or concerns while they are still small (and fixable). The use of IT tools to make reporting of employee concerns simple and non-confrontational is a great adjunct to the traditional open-door complaint process used by many organizations.

 

Strategy, Strategy, Strategy

Nothing is more vital than extensive planning before starting a formal workplace investigation. Take all, or most, of the following actions:

• Gather and review relevant workplace documents;

• Read personnel files of potential witnesses and ‘suspects’;

• Do a deep Google dive on relevant parties;

• Do initial assessment of the nature of the complaint;

• Obtain legal advice about whether the subject matter may be legally privileged; and

• Outline the who, where, and why of the investigation (best investigator, best location for interviews, format for witness statements).

 

Limit Scope of Investigation

Finally, the workplace is not a judicial setting. Narrow the scope of your investigation to factual determinations. Examples: did X do/ask/physically touch, etc.? Did X violate employer policy? Do not introduce legal jargon or conclusions into the investigation. Example: don’t ask if someone created a hostile work environment.

 

Written Reports

Where a written report is appropriate or necessary, plain but detailed language is best for an investigator’s notes. Witness answers plus the investigator’s impressions and observations (example: tone of witness, loudness of response, marked body language) should be detailed.

Include specifics in the notes and in the final report. Outside third parties will view such detail as evidence of due diligence on the part of an employer. And, lastly, don’t depersonalize the report’s language; include actual names and identifying information (dates and times, locations, witnesses, and interview format [in-person versus Zoom]).

 

Written Versus Oral Report

If it has been a significant investigation, an employer needs to create a separate, stand-alone written report. Tip: do not file such a report in a regular employee personnel file. A distinct investigation file should be created. Written reports should not attempt to draw legal conclusions.

Consider notifying the complainant(s) and accused party of the general outcome of the investigation. Failure to do this almost always leads to such parties looking for answers outside the workplace, including talking with a lawyer.

Last, but never least, strive for a proper investigatory behavior and demeanor:

• Learn the value of silence and open-ended pauses;

• Don’t rush through questions;

• Ask a question and then actively listen;

• Remember to include open-ended questions to encourage witnesses to talk;

• Maintain a detached demeanor (avoid emotionally charged statements); and

• Absolutely avoid promises or guarantees.

 

Conclusion

Following the guidelines outlined above will help you create a solid investigatory road map. If you have any questions or concerns about the above policies, it is prudent to contact a labor and employment attorney so that the best investigatory practices can be followed and you can, hopefully, avoid unnecessary litigation.

 

Elaine Reall 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.

FTC Bans Non-compete Agreements for Nearly All U.S. Workers

By Contributor
Law

Sensible Move or Overreach?

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

Meaghan Murphy

Meaghan Murphy

John Gannon

John Gannon

Non-compete agreements have long been the subject of intense debate. Some view them as a critical way to protect confidential and proprietary business information, while others view them as stifling the rights of workers to freely change jobs.

Taking the latter view, last year, officials at the Federal Trade Commission (FTC) proposed banning the use of non-compete agreements in the workplace. Because non-compete agreements prohibit workers from moving to or starting competing businesses for a designated period of time, from the FTC’s perspective, restrictions on employee mobility disadvantage workers who are seeking to change jobs, while at the same time harm businesses looking to hire employees. The net result, according to the FTC, hurts the economy overall and violates the Federal Trade Commission Act, which prohibits businesses from engaging in unfair methods of competition.

Just a few weeks ago, the FTC officially moved forward with its plan to eliminate non-compete agreements when it issued a final rule that will ban non-compete agreements nationwide starting Sept. 4, 2024. The new rule will impact an estimated 30 million workers — approximately one in five workers in the U.S.

“The rule does not impact non-disclosure and confidentiality agreements or non-solicitation agreements unless they prohibit a worker from, penalize a worker for, or function to prevent a worker from seeking or accepting work or operating a business.”

In this article, we take a closer look at what is required by the new rule, legal challenges to the nationwide ban, and strategies for employers who have non-compete agreements currently in place.

 

What Does the Rule Actually Say?

Here are the most important things businesses need to know about the new rule slated to take effect on Sept. 4 of this year.

Employers are prohibited from entering into or attempting to enter into a non-compete agreement with any employees. Also, with one limited exception (discussed below), employers will not be able to enforce non-compete agreements currently in place. Further, there is an affirmative obligation on employers to provide clear and conspicuous notice to workers with existing non-competes that those agreements will not be enforced against them.

There is a ‘senior executive’ exception: for senior executives, which are defined as those in “a policy-making position” earning more than $151,164 annually, it is unlawful to enter into new non-compete agreements after Sept. 4, but current non-compete agreements for senior executives will be allowed to stay in effect even after the effective date of the rule.

The rule does not impact non-disclosure and confidentiality agreements or non-solicitation agreements unless they prohibit a worker from, penalize a worker for, or function to prevent a worker from seeking or accepting work or operating a business. In other words, as long as those agreements are not worded so broadly as to essentially be non-compete agreements, they are safe.

As is often the case, there are some exceptions to the rule. For example, the rule does not apply to workers at nonprofits. Non-competes between franchisors and franchisees are exempted, so any such agreements remain lawful to have or enter into in the future. The same goes for non-competes between the seller and buyer of a business.

 

Legal Challenges

Business advocacy groups have taken issue with the non-compete ban from the get-go, arguing that the FTC’s actions are classic government overreach. The U.S. Chamber of Commerce — which touts itself as the world’s largest business-association advocacy group — announced its intention to file a lawsuit to block the rule months ago.

The chamber emphasized that non-compete agreements are — and should continue to be —upheld or struck down under well-established state laws and, further, that such a broad rule applied to all businesses across all sectors is not appropriate for the FTC to implement unilaterally.

In addition to the Chamber of Commerce’s lawsuit, a global tax services and software provider based in Dallas (Ryan, LLC) is challenging the rule in a federal district court in Texas. According to that company, non-competes are a valuable tool for firms to protect their intellectual property and foster innovation, and the FTC rule would upend businesses’ ability to do both.

Several motions have been filed in that case, and the court has suggested that it will issue a ruling on the legality of the FTC’s rule soon. Whichever way that court decides, employers can expect the losing party to appeal the decision to the Court of Appeals. After that, it’s possible the U.S. Supreme Court will weigh in.

 

What Should Employers Do?

Employers should collaborate with legal counsel to review all existing non-compete agreements and assess whether they will pass muster under the new FTC rule. If a business determines that most (if not all) of its non-compete agreements will be unenforceable come Sept. 4, management needs to craft a new plan aimed at protecting customer goodwill and shielding sensitive confidential information from disclosure.

As noted above, for the most part, non-disclosure and confidentiality agreements and non-solicitation agreements are not affected by the FTC’s non-compete ban. When properly drafted, these agreements can achieve the same goals as a non-compete without running afoul of the new FTC rule.

Businesses should also monitor the status of the FTC’s rule. We expect courts will issue important rulings in the FTC non-compete rule litigation very soon. If those decisions leave the rule in place in its current form, employers may need to issue notices compliant with the rule to those workers that fall within its protections, as well as refrain from requiring non-competes be signed by any workers in the future.

 

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on enforcing restrictive covenants and protecting trade secrets. Meaghan Murphy is an associate with the firm and specializes in labor and employment law; (413) 737-4753.

Non-traditional Family Structures Challenge Modern Society

By Contributor
Law

The Decline of the Nuclear Family

By Julie A. Dialessi-Lafley, Esq.

 

Historically, a nuclear family (also known as an elementary family, atomic family, cereal-packet family or conjugal family), was the traditional family structure which is defined as a family group consisting of parents and their children (one or more), typically living in one home residence.

Statistically speaking, this is no longer the norm. In fact, 80% of households in the U.S. have a non-traditional family structure. Family structures that may be considered non-traditional or alternative include, but are not limited to, single-parent families (a single parent raises a child alone), cohabitation (an unmarried couple shares a household), same-sex families (two individuals of the same sex raise a family), grandparenting (grandparents raising grandchildren), and polygamy (marriage among at least three people).

Julie A. Dialessi-Lafley

Julie A. Dialessi-Lafley

“In the Baby Boom of 1960, there was one dominant family structure, with 73% of all children living in a family with two married parents in their first marriage. By 1980, 61% of children were living in this type of family, and today, less than half (46%) are in households with two married parents.”

Gay and lesbian households increased from 540,000 to 980,000 post-legalization of same-sex marriages, and multi-generational households have increased from 7 to 26%, which represents a 271% increase over a decade. The change in the common family structure from traditional to non-traditional happened quickly, and the laws have not moved as quickly to keep up with the times.

To highlight the change and how quickly it has taken place, consider that in the Baby Boom of 1960, there was one dominant family structure, with 73% of all children living in a family with two married parents in their first marriage. By 1980, 61% of children were living in this type of family, and today, less than half (46%) are in households with two married parents.

The formation of the non-traditional family, and the children that may result, can bring complex legal issues such as custody, visitation, child support, property division, estate planning, and constitutional issues, to name just a few of the most obvious ones. These are the legal issues only and do not even touch on social and emotional issues, which exist due to lack of understanding and/or acceptance in a society still rooted in traditional values.

 

Planning Is Paramount

Given how quickly the nuclear family has become the non-dominant family structure, one would think the members of non-traditional families would have all the resources they need available to them to address all the legal issues we face in our increasingly more complicated modern family society. Unfortunately, due to lack of concrete guidelines, non-traditional families are often forced to resolve these legal issues in a court process due to failure to understand the unique issues of their family structure or a lack of legal process.

By way of example, it is the unfortunate reality that some laws may not support the same federal estate or tax benefits in non-traditional households versus traditional ones. Federal benefits and retirement may not pass to non-married partners or same-sex spouses without actions taken specifically to designate beneficiaries. Proper tax planning and asset planning should be a priority in these households and relationships; however, these are areas often overlooked when dealing with the daily challenges of managing life and household dynamics.

When considering that most households have more than one income, likely have purchased real estate, have commingled assets, and may have blended families with children from other parents, non-married partners, or multi-generational households caring for children, the need to plan for the distribution of assets upon death is of paramount importance.

However, there is no specific, cookie-cutter estate plan for all non-traditional families to abide by. To ensure that property passes to your non-married partner, same-sex spouse, or non-biological and/or biological children, proper estate plans need to be put into place. These plans may include a will and trusts to ensure that goals of asset distribution are met upon a death.

In the same way, plans need to be put into place and properly documented to make sure that lifetime decisions such as health decisions, personal financial decisions, and end-of-life determinations can be made by your partner if not married, or by any person you chose. In the absence of estate planning, things may not be carried out as you would want them to be or by the people you would have selected had you taken the time to put a plan in place.

The non-traditional family should consider cohabitation agreements, prenuptial agreements, custodial agreements (if recognizable in your home state), as well as formal estate planning in order to protect themselves and their families in the event of a breakup, divorce, dissolution of a household, or death.

 

Seeking Answers

It can be difficult for partners or single parents to protect their rights as a family. There is no definitive answer to these challenges with custody and parenting arrangements. Many of the outcomes are fact driven and left to the discretion of a court when agreements cannot be reached by the parents or caregivers. When relationships break down, parties are less likely to be able to put the best interests of the children at the forefront in order to reach an agreement.

Does a non-married person who has raised a non-biological child automatically have parenting rights? Are they financially responsible for the child(ren)? Do grandparents who have been a caretakers to a grandchild get visitation if the child returns to the care of the biological parent? The answers are not as clear and obvious as you would think or hope they would be when considering the relationships that may have existed between children and caretakers of any kind.

The law, again, is fact-specific and gives great discretion to the courts in reaching a decision when parties cannot resolve these issues among themselves. Thus, while many partners find informal custodial arrangements and other systems work well for them, the majority face issues when problems arise.

Frequently, mainstream advice is given with traditional families in mind, which undoubtedly creates confusion for unconventional arrangements. All family units of any structure, but especially for certain non-traditional families, should consult knowledgeable family-law attorneys and financial professionals to develop the plans that best meet the unique needs of their chosen life.

 

Julie A. Dialessi-Lafley is a shareholder with the law firm Bacon Wilson, P.C. and chairs the firm’s Family Law department. She is a certified family law mediator, a member of the Springfield Women’s Leadership Council, a member of the United Way of Pioneer Valley board of directors, and is licensed to practice law in both Massachusetts and Connecticut; (413) 781-0560; [email protected]

The Case for a Receiver

By Contributor
Law Special Coverage

Such a Move Could Bring Order to Cannabis Control Commission

By Scott Foster, Esq. and Johannah Huynh

For business and civic leaders in Springfield, the appointment in 2004 of the Springfield Control Board remains a watershed moment in the city’s fiscal history.

Regardless of how one felt about the city being plunged into receivership by the Legislature through the appointment of the Control Board, the results were unmistakable, as the city went from having an annual budget deficit of $41 million in 2004 to having cash reserves of $34.5 million when the Control Board was disbanded in 2009. Springfield has continued to enjoy the fruits of the newfound fiscal responsibility with an ever-increasing bond rating since 2009.

Bruce Stebbins, a longtime resident of Western Mass., but then a recent resident, was elected to Springfield’s City Council in the midst of the Control Board’s tenure and had a ringside seat to the Control Board’s temporary reign over the city. He continued to serve on the council through the end of the Control Board and then became become Springfield’s Business Development administrator, reporting to the city’s chief Development officer.

Scott Foster

Scott Foster

Johannah Huynh

Johannah Huynh

Stebbins’ experience engaging with the Control Board and helping bring the city to financial stability may prove immensely valuable if the Massachusetts Office of the Inspector General (OIG), the top watchdog agency in Massachusetts responsible for preventing fraud and waste and abuse of public funds, get its wish.

In a recent six-page letter addressed to the Commonwealth’s top elected officials, the OIG strongly urged the Massachusetts Legislature to immediately appoint a receiver to run the day-to-day operations of the Cannabis Control Commission (CCC) while the Legislature concurrently reviews the CCC’s statutory governance structure.

Over the past two years, the CCC has been plagued by internal turmoil, which the OIG suggested is partially a result of the CCC’s enabling statute failing to clearly define or delineate the duties and responsibilities of the leadership hierarchy. The OIG’s recommendations for the Legislature to overhaul the governance structure seek to address the root of the CCC’s problems.

“Not only might the temporary appointment of a receiver allow the Legislature to resolve the CCC’s governance structure, but it could also better promote the efficiency of a regulatory body, which would be a welcome development for the hundreds of businesses that rely on the CCC’s oversight.”

Since the enabling statute is, according to the OIG, “unclear and self-contradictory with minimal guidance on the authority and differing responsibilities of the CCC’s commissioners and staff,” it’s surprising that the CCC has been able to oversee $322 million in tax and non-tax revenue in the most recent fiscal year.

The OIG was also concerned that, despite spending $160,000 on mediation services since May 2022 to draft a governance charter, the commissioners have yet to release meeting minutes relating to the discussion of the charter, publicly release a draft charter, approve the new charter, or even provide assurance that the mediation process is complete. Even if a governance charter were adopted, the OIG emphasized, such a charter would not have the force of law — only binding the CCC to the extent the commissioners agree.

 

Internal Strife

Acting CCC Chair Ava Callender Concepion has pushed back on the call for a receivership by citing the commission’s recently proposed blueprint of a governance structure in its final stages of legal review subject to a public meeting.

The ongoing lack of an official chair of the CCC was also cited by the OIG as an area of concern. Amidst the suspension of CCC Chair Shannon O’Brien by the treasurer since Sept. 14, 2023, the commissioners have disagreed on who held the appropriate authority to appoint Callender Concepcion to the role of acting chair. Just last month, the CCC voted to relieve the acting executive director, Debbie Hilton-Creek, of her day-to-day responsibilities, leaving the CCC without a duly appointed leader to oversee the operations of the agency.

Even in the absence of clarity on who has authority to do what, the OIG notes that compliance with the Open Meeting Law, which prohibits two or more commissioners from discussing matters outside of a publicly posted meeting, is simply impractical with respect to a large state agency overseeing day-to-day operations.

With such decentralization of management and ambiguous authority at the CCC, the OIG has stressed the urgency of appointing a receiver with the authority to manage the day-to-day operations of the CCC. Specifically, the OIG recommended that the receiver should be expressly authorized to both carry out the daily administrative functions of the CCC and carry out said functions notwithstanding any assertion of by the chair, acting chair, or commissioners under Chapter 76.

If the Legislature were to heed the OIG’s findings, the appointed receiver would have unchallenged authority to carry out the CCC’s administrative operations until the Legislature has resolved the CCC’s governing structure.

In this context, for an agency responsible for bringing in approximately $322 million in tax and non-tax revenue in FY 2023 alone, a receiver that was statutorily authorized to do what the CCC cannot, per the OIG, would be in the best interests of the cannabis industry, its consumers, and ultimately the constituents.

Not only might the temporary appointment of a receiver allow the Legislature to resolve the CCC’s governance structure, but it could also better promote the efficiency of a regulatory body, which would be a welcome development for the hundreds of businesses that rely on the CCC’s oversight.

 

Scott Foster is a partner at Bulkley Richardson in Springfield, and Johannah Huynh is a summer associate at the firm.

Weight Loss, Miracle Medications, and the Workplace

By Contributor
Law

Gainful Employment

By Abby M. Warren, Esq. and Virginia E. McGarrity, Esq.

 

Whether you are picking up a well-respected periodical or a celebrity newsmagazine, you cannot avoid reading about semaglutide injection drugs — drugs used to control blood-sugar levels for individuals with type-2 diabetes and weight loss.

‘Ubiquitous’ is the only word to describe the news coverage of these ‘miracle medications.’ As news has spread about these medications, their use has expanded far outside of Hollywood to individuals across the country, ultimately leading to a reported shortage. So, what impact, if any, does weight, weight loss, or the spread of such medications have on the workplace?

 

Weighty Considerations

First, studies have long concluded that discrimination based on appearance, including weight, occurs in employment and other areas of life and that it may disproportionally impact a specific group or groups of individuals. Likely in response to such evidence, effective Nov. 26, 2023, New York City passed a law protecting individuals who live in, work in, or visit the city from discrimination based on their height or weight regarding employment, housing, and public accommodations.

While New York City may be an early adopter of such a law, there may be more jurisdictions that follow this trend. Further, on the federal level, the Equal Employment Opportunity Commission has long taken the position that height and weight are generally unacceptable pre-employment inquiries as they may disproportionately impact employees of different protected characteristics. In short, weight has always impacted the workplace, including workplace decisions.

Second, there may be harassment or workplace bullying related to appearance, including weight. Harassment, whether sexual or based on other protected characteristics, can involve comments or actions related to the physical body and appearance. The same is true of bullying and targeting in the workplace. In today’s climate, where millions of employees are being prescribed or taking weight-loss drugs, this may include employees asking questions of a co-worker who has lost weight, asking whether a co-worker is taking a weight-loss drug, making judgmental statements, stigmatizing such individuals, and similar behavior.

While harassment and bullying related to appearance may not be new, such treatment based on the perception that an employee may be taking a weight-loss drug could be a more recent area with which human resources must grapple.

Third, workplace culture may be impacted by the recent focus on weight and weight-loss medications, and the level of such impact may depend on several factors. For example, the employer’s geographic location, the industry, the overall focus on health and wellness in the workplace, and the employer’s commitment to inclusivity and belonging may all impact how weight and height will be viewed, including using such weight-loss medications.

In light of these workplace considerations and the attention that these weight-loss medications have received in recent months, a number of employers have opted to implement clinical lifestyle programs and personalized weight-loss management plans. The goal of these programs is to reduce the number of employees who might benefit from weight-loss medications like Wegovy.

To the extent employers have control over their healthcare coverage (fully insured plans are typically subject to state insurance laws and individual determinations made by insurance carriers), the decision of whether to cover these weight-loss medications is a challenging one. While these drugs have potential for long-term improvement in the health of employees and can drive future cost savings for the health plan, the cost of covering them today may not align with budget constraints and sustained increases in healthcare spending over the long term.

For example, the current list price of Wegovy is more than $1,300 per month, and most patients take it indefinitely to maintain their weight loss. North Carolina recently announced it would no longer cover Wegovy and other similar weight-loss medications for its employees, estimating that such continued coverage would cause premiums to double for all employees (not just those who are taking the medications). While it is difficult to determine how many private-employer health plans are covering these weight-loss medications, it does not appear that such coverage matches the rampant surge in popularity these medications have experienced in the past year.

 

Advice for Employers

At this juncture in history, where celebrities, media, and the American public are hyper-focused on weight, including weight-loss medications, what actions can employers consider?

First, it is essential to continue fostering a positive and inclusive work environment that extends to weight, height, body shape, and appearance. Trainings, policies, town halls and education, and other visible commitments to such inclusivity can all support such a culture.

Second, businesses should establish specific training of managers, supervisors, and individuals involved in recruiting and hiring about weight and height discrimination and bias (including studies that have demonstrated the existence of this bias), and how these employees can foster an inclusive work environment, and remove any relevant barriers that may exist.

Lastly, employers may wish to review their current culture, policies, and benefits to determine if the employer is supporting the health and well-being of employees and their health journeys, and whether there are potential areas of improvement.

 

Abby Warren and Virginia McGarrity are partners at Robinson+Cole in Hartford, Conn. Warren is a member of the firm’s Labor, Employment, Benefits, and Immigration Group, while McGarrity is a member of the Employee Benefits and Compensation Group.

Bulkley Richardson Celebrates a Century of Commitment to the Community

By
Law Special Coverage

Firm Resolve

Sean Buxton was talking about why he chose to join the Springfield-based law firm Bulkley Richardson, and what he’s found since he came on board not quite a year ago.

“It’s been an amazing experience,” said Buxton, who handles general commercial litigation and is currently doing a lot of work in the firm’s new office in Greenfield, referring specifically to being around — and being mentored by — seasoned attorneys with decades of experience.

“Just in the Litigation department alone, we have Sandy Dibble — I can’t even tell you how long he’s been practicing — and Mike Burke, too; they’re such valuable asssets,” he said. “In the legal field, you get this feeling sometimes that the problem you’re coming on is something you’re seeing for the first time and that no one’s ever dealt with this before. To have someone to go to and have them say, ‘that same exact circumstance hasn’t happened to me, but here’s what my instincts say’ and ‘here’s what I’ve experienced,’ that is so valuable.

“You can bounce ideas off so many people here and make sure that your decisions are informed not only by you and what you’ve learned, but by the instincts and experience of everyone around you,” Buxton went on. “And they’re just fascinating people; we have Judge [John] Greaney here, who sat on the Appeals Court and the Supreme Judicial Court, and Sandy as well; the stories they tell and the experiences they can relate … they’re great mentors.”

While the names of the older lawyers and mentors may have changed, and the exact words used to describe their impact may have changed as well, generations of lawyers who have worked at the firm have been saying pretty much the same things as Buxton.

“You can bounce ideas off so many people here and make sure that your decisions are informed not only by you and what you’ve learned, but by the instincts and experience of everyone around you.”

And that’s just one of many things the firm is celebrating as it marks its centennial this year in what could be described as quiet, poignant fashion (we’ll get back to that in a bit).

It’s taking place at a time of change in the business landscape, such as the rise of the cannabis industry, and at a time when many firms are smaller or have been merged into larger entities. Meanwhile, the firm’s ongoing commitment to the community has become a focal point of the centennial, said Managing Partner Dan Finnegan, who came on board in 1992.

“We wanted to celebrate all of the amazing work that has gone into supporting, celebrating, and engaging in the communities in which we live, work, and play through initiatives such as helping to feed the hungry and addressing food insecurity, supporting arts and culture, contributing funds to lifesaving healthcare and research organizations, and providing pro bono legal services to those in need, among many, many others,” he explained. “Members of the firm have contributed time, resources, and finances to help so many worthy causes over the past century, and we plan to continue that legacy.”

Dan Finnegan

Dan Finnegan says the firm’s commitment to the community has become a focal point of its centennial celebration.

Elaborating, he said the firm has launched a new campaign called ‘Be the Change.’ It will connect lawyers and staff with opportunities to engage with organizations in Western Mass. and beyond so they can act together to bring positive change.

The campaign was launched last fall, with a team of 50 from the firm taking part in the annual Rays of Hope breast-cancer walk. Other specific initiatives include a YMCA clean-up day on May 3, when attorneys and staff rolled up their sleeves and helped prepare Stony Brook Acres, a YMCA camp in Wilbraham, for a June opening; partnering with Greater Springfield YMCA to assist area boys and girls attend summer camp (the firm will send 16 youth campers to a YMCA-run camp this summer for one week); and a $10,000 donation to Baystate Health to purchase infusion chairs.

“Giving back to the community is one of the core values that differentiates us,” said Peter Barry, who joined the firm in 1982 and preceded Finnegan as managing partner, adding that this is one of many qualities and traditions that essentially go back to 1924.

For this issue and its focus on law, BusinessWest takes a look at 100 years of tradition, expansion, innovation, entrepreneurship, and giving back — and at how these traits will continue to define the firm moving forward.

 

Making Their Case

When asked how Bulkley Richardson intends to celebrate its centennial — beyond ‘Be the Change’ — Finnegan suggested that the annual holiday party “might be a little more robust this year.”

In most respects, though, it will be business as usual.

And it has been this way since 1924, when R. DeWitt Mallary became associated with the law firm of Frederick Wooden and Harold Small, located in an office at 387 Main St. in Springfield, several blocks south of where the firm is headquartered now, in Tower Square. Eventually, the firm would become Wooden, Small & Mallary.

Peter Barry

Peter Barry says the firm has had a noticeable impact on Springfield and surrounding communities over the years.

Mallary would later partner with Morgan Gilbert to form Mallary & Gilbert, and in 1934, J. Bushnell Richardson, a graduate of Springfield’s Central High School, Amherst College, and Harvard Law School, would join them, and in 1947, the firm became Mallary, Gilbert & Richardson.

In 1950, the firm was reorganized, with the law practice conducted in collaboration by two separate partnerships — Mallary & Gilbert, and Richardson Dibble & Atkinson, adding Norris Dibble and Robert Atkinson as partners. The firms practiced together in shared office space.

Fast-forwarding through the middle of the 20th century, Richardson Dibble & Atkinson merged with the firm of Gordon, Bulkley, Godfrey and Burbank in 1956, and the firm was renamed Bulkley, Richardson, Godfrey and Burbank. A year later, Robert Gelinas joined the firm, and in 1964, Godfrey left to form a partnership with Edwin Lyman. Matthew Ryan Jr., elected as district attorney, a part-time office in those days, joined Bulkley, Richardson, Godfrey & Burbank soon thereafter. And with Burbank’s departure in 1972, the firm was renamed Bulkley, Richardson, Ryan, and Gelinas.

In 1978, the district attorney’s role became full-time, and Ryan left the firm, whch was renamed Bulkley, Richardson, and Gelinas. By 1983, the firm consisted of 27 attorneys and was occupying a suite of offices at Baystate West, which later became Tower Square.

It is still there and recently renewed its lease, said Finnegan, so it will be there for a long while to come. Meanwhile, the firm recently opened a Greenfield location (it also has one in Hadley), and now consists of 40 attorneys and more than 30 staff.

“We work hard, and we provide quality service, but we’re pretty good at work-life balance and understanding that folks have to have lives outside of the office.”

That brings us to today, when the firm is marking what have remained constants through all those changes to the letterhead over the past 100 years — especially quality service to a wide array of clients across dozens of different specialities, and an environment where generations of lawyers have, as Buxton noted, worked together and mentored those new to the profession.

It is also marking change, including the contunuing expansion of its practice areas — there are now 32 of them, Finnegan noted.

“We’ve always been a full-service law firm, one of the biggest, if not the biggest, in the area,” he said. “And we’ve always been able to provide a wide array of services to clients.”

Within those 32 practice areas there have long been specific strengths, such as health law, said Barry, noting that the firm has long represented many of the region’s larger providers, as well as education, representing several colleges and universities.

Bulkley Richardson’s leaders say the firm was built on excellence and has maintained it through the decades.

But there have been important additions to the portfolio over the years as well, he went on, citing the broad realm of cyber law and service to the growing, changing cannabis industry as just two examples.

 

Continuing a Legacy

Barry, who has been with the firm for 42 of its 100 years, joined it just before it relocated from State Street to Tower Square, a big move and a rather large risk for the partners at the time, he said, adding that downtown Springfield was a much different place at the time.

And the firm has been involved in many of the changes that have taken place since, representing entities ranging from the Basketball Hall of Fame, which built its new home just over 20 years ago, to the Springfield Redevelopment Authority, which presided over the renovations that brought Union Station back to productive life after nearly 40 years of dormancy, to the Massachusetts Convention Center Authority, which operates the MassMutual Center.

“It’s nice to be able to drive around and say, ‘we were involved with that,’” Barry said, adding that the firm has also represented the Westover Metropolitan Development Corp. in its many endeavors in Chicopee and Ludlow and countless other clients as well.

Like Finnegan, Barry said many changes have come to the field of law and the firm over the past few decades, let alone the past century — everything from the demise of law libraries, with all that material now online, to the advent of depositons and other legal functions via Zoom.

What’s probably more important is what hasn’t changed — and won’t change, they said, especially the firm’s commitment to excellence as well as the environment that Buxton described earlier, one where lawyers and staff with wide ranges of experience and knowhow work together to generate positive results for clients while learning from each other.

In fact, both Barry and Finnegan used similar words and phrases to describe those who mentored them when they arrived four and three decades ago, respectively.

“I’ve had a lot of great mentors here,” said Barry, noting that he and others now serve as mentors to the younger atttorneys.

Finnegan said the firm has created a strong culture, one that has promoted many lawyers (he’s one of them), and staff members as well, who then spend their entire careers at Bulkley Richardson.

“That’s a testament to the culture of the firm,” he said. “We work hard, and we provide quality service, but we’re pretty good at work-life balance and understanding that folks have to have lives outside of the office.”

Looking ahead, Barry and Finnegan said the business plan is rather simple. It calls for continued growth and building upon the solid foundation laid in 1924.

“We’ve made a commitment to growth. Within the past few years, we’ve hired quite a few young lateral attorneys, as well as several attorneys right out of law school,” said Finnegan, adding that the firm has what he calls a rather robust summer associate program (he was one himself) that has served to help keep talent flowing through the pipeline. “We have a lot of young lawyers that we’ve hired over the past few years.”

“Overall, the firm has long managed to maintain an important mix of older attorneys, those in the middle of their careers, and those just joining the profession,” said Barry, adding that such a mix is critical to the ongoing success of any law firm.

Finnegan agreed, noting that this quality is one of many that have defined the firm since Warren Harding was in the White House, and will continue to do so moving forward.

“When I got here, the word I always heard was ‘excellence’ — this firm was built on excellence,” he said. “The firm has always been a collection of exceptional lawyers providing top-quality legal services to our clients. I don’t think that’s ever changed over the 100 years the firm has been in existence, nor is it going to change moving forward.”

Non-compete Agreements May Be in Jeopardy

By Contributor
Law Special Coverage

Challenging the Rule

By Trevor Brice, Esq.

 

On April 23, the Federal Trade Commission (FTC) issued a final rule banning non-competition agreements for all employees. While this action by the FTC was expected, there were many unanswered questions about the final impact of the non-compete rule in regard to existing non-compete agreements and its scope as applied to future non-compete agreements. These questions were answered under the final rule as promulgated.

 

Most Non-competition Agreements Banned

The FTC’s final rule banning all non-competition agreements is effective 120 days after its publication in the Federal Register. As of the effective date, all non-competition agreements are banned, with close to no exceptions, except for franchisor/franchisee relationships and for sales of a business between buyer and seller.

Independent contractors are also included under the umbrella of employees that would no longer be subject to non-competition agreements under the final rule. This would effectively mean that many employees in industries such as film, finance, and other professional services now have the right to switch between employers, which the FTC states “will ensure Americans have the freedom to pursue a new job, start a new business, or bring a new idea to the market.”

Trevor Brice

Trevor Brice

“The U.S. Chamber of Commerce has already vowed to block the rule, calling it ‘an unlawful power grab’ and arguing that the authority to govern non-competition agreements should be left to the states.”

However, and of note, the FTC does not have jurisdiction over nonprofit employers, so non-competition agreements are enforceable in this regard despite the FTC’s final rule.

 

Final Rule Retroactive as to Lower-wage Workers

In addition to prohibiting all non-competition agreements after the effective date of the final rule with limited exceptions, the FTC’s rule is retroactive, prohibiting certain non-competition agreements before the effective date of the rule as well.

Existing non-competition agreements can remain in effect as to senior executives, which are defined in the rule as employees in ‘policy-making positions’ making at least $151,164 per year. Existing non-competition agreements with employees who do not meet this definition are no longer enforceable per the final rule.

Despite the final rule, employers do not need to modify existing non-competition agreements by rescinding them. Employers do, however, need to notify their workers that the employer will not enforce non-competition agreements in the future. The FTC has included in its final rule model language for informing employees of this change, which can be communicated through email, text, or in paper format.

The final rule does not generally impact non-disclosure agreements or non-solicitation agreements unless they prohibit a worker from seeking or accepting work or operating a business. Employers should be aware that more restrictive state laws governing non-competition agreements remain in effect.

 

Challenges to Final Rule Looming

As of the announcement of the FTC’s final rule, challenges are already looming. The U.S. Chamber of Commerce has already vowed to block the rule, calling it “an unlawful power grab” and arguing that the authority to govern non-competition agreements should be left to the states.

The statement issued by the Chamber of Commerce goes on to note that, “since its inception over 100 years ago, the FTC has never been granted the constitutional and statutory authority to write its own competition rules. Non-compete agreements are either upheld or dismissed under well-established state laws governing their use.”

This announcement by the U.S. Chamber of Commerce will undoubtedly lead to other challenges through the court system. Indeed, a Dallas-based global tax-services and software provider has already filed suit against the Federal Trade Commission over the impact of the final rule.

The FTC, as the Chamber of Commerce rightly points out, has no authority to write its own competition rules. The FTC can, however, make rules if it goes through the proper rule-making process, including introducing proposed legislation and leaving it open to comment for a certain amount of time, which did occur here.

However, even following this process does not ensure that the rule will stand. The rule still remains open to court challenges from the Chamber of Commerce, individuals, or organizations affected by the rule or any other stakeholders within the final rule. This could mean that changes would be on the horizon for the rule, and possibly a narrowing of its already expansive application.

 

Takeaways

As noted, the FTC’s final rule is already being challenged through the court system, and a challenge from the Chamber of Commerce will most likely follow suit. Therefore, if an employer has existing non-competition agreements, the employer may not need to rescind them just yet.

Further, if employers are intending to enter into non-competition agreements that are reasonable and enforceable under existing state laws, other options, such as non-disclosure agreements and non-solicitation agreements, may have to be used, but it would be prudent to wait on further ruling from the existing challenges to the final rule.

In the meantime, consultation with an attorney will aid in navigating the changing landscape of non-competition agreements.

 

Trevor Brice is an attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm 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.