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Hazy Picture

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Growing Concerns

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

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

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

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

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

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

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

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

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

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

Pat Rapinchuk says some employers might avoid drug testing for marijuana

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

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

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

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

Joint Enterprises

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

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

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

Kathy Bernardo

Kathy Bernardo

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

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

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

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

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

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

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

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

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

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

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

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

Smoke Signals

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

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

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

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

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

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Law

A Clear Roadmap

By Kimberly A. Klimczuk

Kimberly A. Klimczuk

Kimberly A. Klimczuk

The National Labor Relations Act (NLRA) is a federal law that protects employees’ right to engage in concerted activity. Although the NLRA is commonly thought of as protecting employees’ right to form a labor union, which it does, it also protects the right to engage in other concerted activities that may have nothing to do with unions. ‘Concerted activity’ is a broad term and refers to any action employees take together for their mutual aid and protection, such as when two employees go together to HR to complain about their supervisor, or when an individual employee speaks on behalf of himself and his coworkers to demand they all get a raise. The NLRA applies to all employers, whether unionized or not.

The National Labor Relations Board (NLRB) is the federal agency responsible for enforcing the NLRA. It has long held that employer policies or rules that interfere with the right to engage in concerted activity violate the NLRA. In 2004, however, the board, in its Lutheran Heritage decision, expanded the NLRA’s protections by ruling that work rules not intended or used to target concerted activity would nevertheless be unlawful if an employee could “reasonably construe” the rule to prohibit concerted activity.

Under the Obama administration, the board relied on the ‘reasonably construe’ standard to declare unlawful a number of commonplace rules. For example, the NLRB found that policies asking employees to refrain from negative comments about co-workers and managers and asking employees to represent the company in the community in a positive and professional manner were unlawful because employees could interpret the policies to restrict their rights to discuss the terms and conditions of their employment. At the same time, the board held similar rules to be lawful, such as a rule prohibiting “disloyal, disruptive, competitive, or damaging conduct.”

These decisions created confusion for employers. Without a clear standard as to when a rule would be considered legal, employers wondered whether common-sense rules that had long been part of company culture would be declared illegal by the NLRB.

NLRB members are appointed by the president, and, unsurprisingly, the members appointed by President Trump have been friendlier to employers. Late last year, the NLRB issued a decision (The Boeing Company, 365 NLRB No. 154) that established a new standard for evaluating the legality of employer rules. Under this new standard, the board will weigh the interests of the employer in maintaining work rules against the impact of those rules on employees’ right to engage in concerted activity.

In its decision, the board noted that, “over the past decade and one-half, the board has invalidated a large number of common-sense rules and requirements that most people would reasonably expect every employer to maintain.”

The board’s general counsel also issued a memorandum this past June that provides further guidance to employers on how handbook rules should be interpreted under the new standard. The general counsel instructed that the board’s regional directors and other officers should not be interpreting general work rules “as banning all activity that could conceivably be included.” He then went on to group common handbook policies into three categories:

1. Rules That Are Generally Lawful to Maintain

• Civility rules;

• Rules prohibiting photography or recording;

• Insubordination, non-cooperation, and refusal-to-cooperate rules;

• Disruptive-behavior rules;

• Rules protecting disclosure of confidential, proprietary, and customer information (as long as they don’t reference wage or employee information);

• Rules against defamation or misrepresentation;

• Rules prohibiting use of employer’s logos or intellectual property;

• Rules requiring authorization to speak on behalf of the company; and

• Rules banning disloyalty, nepotism, or self-enrichment.

2. Rules That Warrant Individual Scrutiny

These rules are not clearly lawful or unlawful. Instead, the lawfulness of these types of rules must be determined on a case-by-case basis:

• Broad conflict-of-interest rules;

• Confidentiality rules that encompass ‘employer business’ or employee information;

• Rules preventing disparagement of the employer;

• Rules prohibiting or regulating use of the employer’s name (as opposed to employer’s logo or trademark);

• Rules restricting employees from generally speaking to the media;

• Rules banning off-duty conduct that would harm the employer; and

• Rules prohibiting making false statements (as opposed to defamation).

3. Rules That Are Unlawful to Have

• Confidentiality rules regarding wages, benefits, or working conditions; and

• Rules that prohibit joining outside organizations or that require employees to refrain from voting on matters concerning the employer.

Bottom Line

The memo is good news for employers because it provides a clear roadmap to evaluate the legality of employer handbook rules and reverts to a more common-sense standard. It also declares several policies lawful that had been declared unlawful by the prior board.

Employers that shied away from enacting handbook policies like no camera recording or respect/civility rules, or changed handbook policies to ensure compliance with the Obama board’s crackdown, may want to revisit those decisions.

Kimberly Klimczuk is a partner with Springfield-based Skoler Abbott. An employment-law attorney, she specializes in labor relations and collective bargaining; employment litigation; employee handbooks, personnel policies, and practices; and other labor and employment matters; [email protected]; (413) 737-4753.

Law

Degrees of Improvement

By Kayla Ebner

Claudia Quintero was inspired by a lawyer who helped her — and now gets to do the same for others.

Claudia Quintero was inspired by a lawyer who helped her — and now gets to do the same for others.

In the years immediately following the Great Recession, many law-school graduates were challenged to find employment, let alone their dream job. But the picture is gradually improving, as evidenced by the experiences of recent graduates of Western New England University School of Law.

Claudia Quintero calls it her dream job.

That’s how she characterized the position she landed as a migrant/farmworkers staff attorney at the Central West Justice Center in downtown Springfield.

It’s a dream job, because she’s doing essentially what she always wanted to do and what she went to Western New England University School of Law to do — help people, but especially in the same way that an attorney helped her when she was 16 years old.

She met an attorney through a legal-services program in Los Angeles, where she grew up, who helped her apply for and obtain her permanent residence in just five short months. Quintero was always impressed and grateful for her own attorney’s diligence, and thought, “I want to be just like her.”

Like she said, hers is a dream job.

And those have been quite hard for law-school graduates to attain in recent years. In fact, for some time after the Great Recession, taking any job became the goal and, for most, a hard reality.

But the situation is improving, said Laura Fisher, director of Law Career Services at WNEU Law. She used the phrase “pretty steady” to describe the current climate, and while that’s a long way from ‘robust,’ ‘healthy,’ ‘solid,’ or other, more positive terms, it represents an improved picture and a better forecast for recent graduates.

“When the economy really took a hit in 2008 and 2009, every sector of the economy was disrupted, including law schools and law graduates,” said Fisher, adding, however, that “we’re seeing a rebound now.”

She offered some numbers to back up those words.

At WNEU Law, the class of 2017 graduated 101 students. According to data from the American Bar Assoc. (ABA), 43 of those graduates were employed at long-term, full-time, bar-passage-required jobs 10 months after graduation. Nineteen graduates were employed at what are known as ‘JD advantage jobs,’ meaning passage of the bar exam is not required, but that having a juris doctor degree provides a significant advantage.

Of the 101 graduates, eight were unemployed and seeking. Others were employed at both professional and non-professional positions or seeking a graduate degree full-time.

“The 10-month report for the class of 2017 indicates that the percentage of students with full-time, bar-passage-required, JD advantage, and other professional positions is 71.2%,” said Fisher. “This figure is approximately equivalent to, but slightly elevated, over the previous year, which was 68.9%.”

Laura Fisher

Laura Fisher

The ABA gathered that, nationally, 75.3% of the class of 2017 had long-term, full-time jobs requiring or preferring JDs. This is an increase from the previous year’s sum of 72.6%. However, the ABA credits the higher percentage of employment to “an approximately 6% decrease in the size of graduating classes at law schools nationally” (more on that later).

“When the economy really took a hit in 2008 and 2009, every sector of the economy was disrupted, including law schools and law graduates. We’re seeing a rebound now.”

Slicing through all those numbers, Fisher sees an improving job market and more opportunities for the school’s graduates — in the field of law, but also other sectors where a law degree is quite valuable, and these sentiments are reflected in the experiences of some of WNEU’s recent graduates, like Quintero.

For this issue and its focus on law, BusinessWest talked with Fisher and several recent graduates to get some barometric readings on the job market and where a law degree can take someone these days. For many, their landing spot was, in fact, a dream job.

Cases in Point

In 2013, the graduating class at WNEU included 133 students, said Fisher, summoning more numbers to get her points across. At that time, 49 students were employed at long-term, full-time, bar-passage-required jobs.

Although the class size at WNEU has decreased since then, Fisher said this is entirely by design. She noted that WNEU, along with other schools, are keeping the class sizes at “a reasonable size that’s reflective of what the market entails.”

Daniel carey

Daniel carey

Despite smaller class sizes, Fisher believes these numbers do not reflect a lack of opportunity in the job market.

“Although the market out there still feels pretty flat and we’re being careful about the number of law students we’re producing, I still feel like there’s plenty of opportunity out there,” she said. “Our alumni go on to do wonderful things.”

“Law school to me seemed like a natural way to really combine a lot of my interests and abilities. I’ve always kind of viewed the law as a way to help people.”

And she used that phrase to describe work both inside and outside the courtroom.

Daniel Carey, assistant district attorney (ADA) at the Northwestern District Attorney’s office and WNEU Law class of 2017 graduate, fits into both categories.

“Law school to me seemed like a natural way to really combine a lot of my interests and abilities,” said Carey. “I’ve always kind of viewed the law as a way to help people.”

Beginning law school in 2013, he was looking for a way to get his foot in the door, so he applied for a job at the DA’s office. He landed one as district court administrator, working behind-the-scenes to help the ADAs. He’s been there ever since, but has continued to move his way up. Since starting his role as ADA, Carey has served as director of the Drug Diversion and Treatment program for two years, a new initiative he helped launch for people struggling with addiction. It assists with treatment, rather than putting people through traditional criminal-justice prosecution.

In addition to his role at the DA’s office, he also served on the Easthampton School Committee and was elected to the Easthampton City Council. And he’s currently running for state representative — a significant change in career-path course from his original plan of being a high-school English teacher.

He is not the only one who was initially unaware of where a law career could take them. Nicole Mule, another member of WNEU’s class of 2017, did not know she was interested in law until she took classes during her time as an undergrad.

Nicole Mule

Nicole Mule

With a major in criminal justice and a minor in communication at the University of New Haven, she was required to take several law courses that were taught by lawyers. She mentioned that the classes were taught very much like they are in law school.

“It made me realize why advocating for businesses was so important. As an attorney, I can have a significant effect on my clients’ businesses for their benefit.”

“After that, I was hooked,” she told BusinessWest.

When in law school, she noted that she did not put all her focus into one practice area, and eventually gravitated toward employment law. In 2016, she accepted a summer position with the firm Robinson+Cole, which has offices in Massachusetts, Connecticut, and several other states, and was offered a job.

She’s currently an associate in the firm’s labor and employment group, representing both public-and private-sector employers in a variety of labor and employment matters.

Both of her jobs during law school helped her realize her love for this profession.

“It made me realize why advocating for businesses was so important,” said Mule. “As an attorney, I can have a significant effect on my clients’ businesses for their benefit.”

Firm Resolve

Both Carey and Mule graduated with law degrees but have gone on to completely different professions. This wide variety of career options is another reason why the job market for law school graduates is doing better than it was 10 years ago.

For Caroline Montiel, another 2017 graduate from WNEU, combining two of her biggest passions was important, and she was able to find the perfect fit.

She completed her undergraduate studies in chemical engineering, and after receiving some inspiration from her host dad while studying abroad in Spain, she decided to get her law degree. However, Montiel had a different experience than some of her peers while applying for jobs during law school.

“I was applying every week, at least one job a day,” said Montiel, adding that she applied to five jobs a weekend. For every 50 applications she filled out, she hoped to get one interview.

After she passed the bar exam, she began her career with a judicial clerkship in Connecticut Superior Court. In mid-June of this year, she began her new job as patent examiner at the Patent Trademark Office in Washington, D.C., working in the field she fell in love with during law school.

Much like Carey, Montiel, and Mule, Quintero completed several internships during her time at law school, including one with the people who helped her obtain permanent residency. She began applying for jobs during her third year of law school, and ended up sending in applications to about 10 jobs. Quintero’s strategy was simple: apply to places where she knew she would be happy.

“I was very picky about the kinds of jobs that I applied to just because I have a very specific thing that I want,” said Quintero. “I don’t like to divert energy or waste time doing things that I know I’m not going be happy doing.”

She got about three offers and ended up at Central West Justice Center. She said she was nervous that she wouldn’t get a job she wanted or that made her happy, but having a strong network was an important factor. Though it was a fairly seamless process for her, she noted that it took some of her friends much longer to find jobs.

“I was very cognizant that I was lucky,” she said.

There are certainly benefits to knowing what you want, and Montiel noted that having an idea of the type of career one wants to go into before starting law school can be very helpful.

Overall, Fisher said she sees that JD-advantage jobs are rising in popularity, both nationally and at WNEU. She noted that a lot more people are using their degrees for JD-advantage jobs in positions like higher education, data privacy, and security.

The JD-advantage sector is a route that students are becoming more interested in, she went on, not because there are fewer jobs elsewhere, but because they are interested in trying alternative paths.

Fisher mentioned that some students choose to opt out of the traditional path at a law firm because it can be stressful, and they want a good work/life balance.

Market Forces

Fisher wouldn’t say the market is booming for law-school grads — again, ‘steady’ was the word she chose, and she chose it carefully — but she does believe there are many opportunities out there in the legal job market because of how valuable it is to have a law degree in countless professions.

“A law degree is valuable far above and beyond how it can help you practice law,” said Fisher. “There’s a lot more you can do with it. Going through the process of learning how to think about laws and regulation and risk, I think all of that just lends itself to creating an employee who’s very aware, very mindful, and very responsible.”

For the graduates, that means a better chance of landing a dream job.

Law

A Grand Bargain for Business?

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

Last month, the Massachusetts Legislature passed the so-called ‘grand bargain’ bill. The new law, which was signed by Gov. Charlie Baker on June 28, will require all private employers — regardless of size — to provide paid family and medical leave to employees. The law also gradually raises the state’s minimum wage to $15 per hour.

Here is what businesses need to know about this important legislation.

Paid Family and Medical Leave

 

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Beginning on Jan. 1, 2021, Massachusetts employees will be eligible for what we believe to be the most generous paid family and medical leave (PFML) program in the nation. Employees will be able take up to 20 weeks of PFML per year for their own medical condition. They will also be entitled to 12 weeks of PFML to care for a family member suffering from a health condition. The definition of a ‘family member’ is very broad and includes not only a child, spouse, or parent, but also in-laws, domestic partners, grandchildren, grandparents, and siblings.

The new law also allows employees to take up to 12 weeks of paid leave to bond with a newborn or newly adopted child. Employees will receive a percentage of their existing pay, up to a maximum of $850 per week, while out on leave. Businesses are required to continue to provide for and contribute to the employee’s health-insurance benefits while employees are out. PFML may be taken, in most cases, intermittently or on a reduced-schedule basis, as well as in a continuous block.

Returning from Leave

Employees who take PFML are entitled to their same job back when they are ready to return to work, or an equivalent position with the same status, pay, benefits, and seniority. Further, employers may not retaliate against employees for taking PFML. Significantly, any negative change in the terms or conditions of employment that occurs during a leave, or within six months after an employee returns from leave, is presumed to be unlawful retaliation. 

Stated another way, if an employee is let go while out on PFML, or within six months of returning from leave, the employer is presumed to have retaliated against the employee. Employers can rebut the presumption only by clear and convincing evidence of an independent justification for the change. This is a high standard that requires the employer to show that its business-based justification for the negative change is substantially supported by the evidence.

Employers found liable may be ordered to reinstate the employee and to pay three times the employee’s lost wages and benefits, plus reasonable attorneys’ fees and costs.

Who Will Administer and Pay for the Program?

A new state agency, the Department of Family and Medical Leave, will be created to administer the program. PFML will be funded by mandatory employer contributions, at a rate of 0.63% of the employee’s wages. That rate is subject to increase annually.

Employers may require employees to pay a percentage of the contribution, and employers with fewer than 25 employees are exempt from paying the employer share of the contributions. Those contributions will begin on July 1, 2019. Employers will be able to opt out of the program by meeting their obligations under a private plan, such as through an approved insurer or self-insured policy. The private plan must provide the same rights, protection, and benefits as required by the state law.

Minimum-wage Increase

The law also increases the minimum wage for tipped employees from $3.75 per hour to $6.75 per hour over a five-year period and from $11 per hour to $15 hour for all other employees over the same period.

Next Steps for Businesses

Employers paying employees less than $12 per hour ($4.35 for tipped workers) will need to plan now for increased wages in a few months. As for PFML, although the leave benefits are a few years away, employers need to think about how they will handle what we expect to be a sharp increase in employee absenteeism.

Typically, the greatest deterrent against missed work is lack of pay. This will not be the case come January 2021. Employees working for businesses large and small will be able to take PFML for almost one-quarter of the year, and in some cases more than that. Businesses need to start thinking now about how they will plan for those extended absences. They also need to put effective policies in place to curb abuse of state-mandated paid leave.

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

Law

Be Careful with Your ‘Wake Word’

By Andrew Levchuk and Lauren Ostberg

Andrew Levchuk

Andrew Levchuk

Lauren Ostberg

Lauren Ostberg

Everyone is now familiar with Alexa, Siri, or Google Assistant, virtual personal assistants (VPAs) marketed by Amazon, Apple, and Google, respectively.

VPAs contain voice-activated applications that promise users a chipper, responsive intelligence for dealing with everyday tasks like phone calls, calendar reminders, coffee orders, streaming entertainment, and list making. In the courtroom, however, law enforcement, digital privacy activists, technology companies — and, yes, Alexa herself — have been exploring the First and Fourth Amendment implications of VPAs’ eclectic résumé.

While VPAs are working for their users, they are also working for Google, Amazon, Apple, and other companies interested in consumers’ habits, interests, and data. Alexa, for example, is regularly ‘listening’ and scanning for her ‘wake word.’ When she hears it, she records the vocal input and her response, then uploads that data to a server in the cloud, effectively reporting it up the chain to her digital overlords at Amazon.

According to the Alexa terms of use, Amazon retains these ‘Alexa interactions,’ which include music playlists and shopping lists, in addition to ‘vocal input,’ for an unspecified amount of time. This is allegedly to provide, personalize, and improve those services, but it is also undoubtedly to provide those technology companies with a valuable, veritable harvest of data.

Looking to access that data, law enforcement is now attempting to identify or eliminate suspects in its investigations with information created by VPAs.

First Amendment

These competing interests came to a head in State v. Bates, a murder case filed in the Arkansas Circuit Court. One witness interviewed during the investigation mentioned hearing music playing during the night in question. Police pursued warrants for multiple digital devices, including the suspect’s Amazon Echo, which played music through a voice command to Alexa.

Amazon moved to quash the subpoena — it did not want Alexa’s recordings, and, with them, its proprietary data — on the public record, nor would it have been good for Alexa’s public image if she disclosed information her user believed to be private.

Amazon invoked the First Amendment, which prohibits laws “abridging the freedom of speech,” in its defense. First, Amazon argued that users’ requests to Alexa were protected speech because they were exercises of a right to anonymously browse and purchase expressive materials — in this case, audio books, music, and podcasts — without fear of government discovery.

Amazon also argued that Alexa’s response “constitutes Amazon’s First Amendment-protected speech” and goes on to say that “Alexa’s decision about what information to include in its response, like the ranking of search results, is ‘constitutionally protected opinion.’” It bears repeating that Amazon argued that “Alexa’s decision” — i.e. the decision of a VPA — was “constitutionally protected opinion.”

Alexa was not only being asked to testify against her user; now, she was being imbued with her own perspective. The extent to which the result of proprietary algorithms is ‘speech,’ and the extent to which such speech may be protected, is uncharted legal ground.

The court did not need to address these open questions about the First Amendment’s relationship to a VPA’s speech, because Bates eventually consented to have the recordings released, and the prosecutor dismissed the case (“Alexa, share my alibi”).

Fourth Amendment

Also not addressed by the court, but relevant when considering your VPA’s loyalty, is the ‘third-party doctrine,’ which essentially holds that a person has no reasonable expectation of privacy for Fourth Amendment purposes in information voluntarily shared with a third party, such as an Internet service provider or cell-phone provider. Anything communicated to your VPA is arguably not covered by the Fourth Amendment, because by communicating with your VPA, you have voluntarily shared information with the VPA’s digital overlord (e.g., Amazon in the case of Alexa).

Given the breadth of the third-party doctrine in the digital age, it is now under assault in the courts. The Supreme Court recently held in United States v. Carpenter that access to a person’s historical cell-site records — geographic records of the particular cell towers a person’s phone has been near — is a Fourth Amendment search because it violates the person’s “legitimate expectation of privacy in the record of his physical movements.” We should expect the attacks on the third-party doctrine to continue.

More generally, electronic evidence of the sort generated by VPAs and other devices is becoming a focus of law-enforcement investigations. For example, a warrant issued in 2017 in Minnesota sought personal details of anyone searching for a victim’s name in Google. Internet searches can be conducted on VPAs, so VPA users will likely be subject to similar warrants in the future.

Whether you are slipping Siri secrets about your business practices, asking Alexa to order cleaning supplies, or using any other various VPAs to verify an address, be aware that your assistant — that chipper, algorithm-driven intelligence — serves multiple masters.

Perhaps when we use the wake word “Alexa,” Alexa should respond with, “you have a right to remain silent.”

Andrew Levchuk is counsel and Lauren Ostberg is an associate at the Springfield-based law firm Bulkley Richardson. Levchuk is a 24-year veteran of the U.S. Department of Justice and now focuses on litigation and leading the cybersecurity practice. Ostberg’s practice consists of cybersecurity, commercial litigation, and intellectual-property matters.

Law Sections

Not an Arbitrary Decision

John Greaney, who was forced to retire from the state Supreme Judicial Court as he turned 70, is definitely not the retiring type.

John Greaney, who was forced to retire from the state Supreme Judicial Court as he turned 70, is definitely not the retiring type.

John Greaney spent more than four decades behind various benches — everything from this region’s first Housing Court to the state Supreme Judicial Court. Desiring to take advantage of all that judicial experience, the Springfield-based firm Bulkley Richardson, which Greaney joined in 2016, has created an alternative dispute resolution (ADR) group, which he will lead. As arbitration and mediation become ever-more popular methods for resolving disputes, the firm sees this group as a solid business venture.

Peter Barry says it’s a rare opportunity when a small (at least in comparison to outfits in Boston, New York, and Philadelphia) Western Mass. law firm can add a former Massachusetts Supreme Court justice to its team.

Rarer still is an opportunity to add a jurist with the breadth and experience brought to the table by John Greaney, who retired from the SJC in 2008, capping nearly 35 years on various benches, starting with the Hampden County Housing Court (which he started) and time on the Superior Court and then the Appeals Court (more on that remarkable career later).

So it’s incumbent on a firm granted that opportunity to take full advantage of it, said Barry, managing partner with Springfield-based Bulkley Richardson, adding that the firm is doing just that by launching an alternative dispute resolution (ADR) group.

This is a move that not only capitalizes on Greaney’s deep reservoir of experience, but serves as a logical — and, yes, opportunistic — response to an ongoing trend within the law to settle matters not in the courtroom, but outside it, through mediation and arbitration.

These are routes that are generally quicker and less expensive than litigation, said Greaney, adding that ADR, as it’s known, has become increasingly popular in realms ranging from healthcare to construction; education to sports. Yes, some of Major League Baseball’s biggest rising stars have their salaries determined by arbitrators (after negotiation fails).

Greaney and Barry believe the firm could well become an attractive alternative (there’s that word again) amid a growing number of options for businesses, institutions, and sports leagues desiring to resolve matters through ADR, and for several reasons.

Chief among them is the expertise it offers — from not only Greaney, but also Barry, who has been involved in the mediation and arbitration of several complex matters, and the other lawyers at the firm.

But that expertise also comes at a sticker price well below what Boston and Harford firms would charge, an important consideration, said Barry.

“We’re looking to be selective and get appropriate cases from Northern Connecticut, Central Massachusetts, and the Boston area,” he said, noting that the firm already serves several clients in those markets, in part because of lower hourly rates.

Greaney, who will be teaming with Barry to handle many of the ADR matters that come to the firm, agreed, and said the timing and a host of factors were right for the launch of this venture.

“It’s a natural progression for this law firm to begin an ADR group,” he noted, adding that, apart from the Hampden County Bar Assoc., which has a panel of mediators and arbitrators, the only other mediators and arbitrators in this region are single-practice lawyers; Boston and Hartford have ADR groups, but this woud be the first in this region.

“There appears to be a need here for the right type of mediator and arbitrator,” he said, adding that the firm intends to fill that void.

Barry agreed.

“There are a lot of mediators and arbitrators out there,” he acknowledged. “But what we bring to the field is an expertise — primarily Judge Greaney — that is not available generally and is suitable for certain types of cases in particular.”

Peter Barry says ADR is an area of the law that is growing and will continue to grow as businesses and individuals seek alternatives to litigation.

Peter Barry says ADR is an area of the law that is growing and will continue to grow as businesses and individuals seek alternatives to litigation.

For this issue and its focus on law, BusinessWest talked with Greaney and Barry about Bulkey Richardson’s new ADR group, and also about how arbitration and mediation are becoming increasingly popular — and effective — methods for solving complex legal disputes.

Making Their Case

For those not familiar with Greaney’s background (and many are), it takes more than a few column inches, as they say in the print media, to capture all he’s done during his career.

So we’ll hit the highlights. But even that will take a while.

The Westfield native began his law career with the Springfield-based firm Ely and King in 1964, and was appointed to the Hampden County Housing Court in 1974. That housing court was the second in the state, with the first being in Boston, and was unique in that it served an entire county.

“We decided to innovate considerably,” he recalled. “We designed our own court forms, we changed them to get rid of all the legal language — which cluttered all the forms in the other courts — so people could understand them, and we made them bilingual because we had a large Spanish-speaking population. And, to the dismay of a lot of other courts and judges, we set up a citizen’s advisory council — all to make the court more user-friendly.”

In 1976, Gov. Michael Dukakis appointed Greaney to the Superior Court. This was followed by an appointment to the Appeals Court as an associate justice in 1978. In 1984, he became chief justice of the Appeals Court.

Greaney was appointed to the Supreme Judicial Court in 1989 and participated in several landmark cases while serving on the SJC. That list includes Goodridge v. Department of Public Health, in which he wrote the concurrence to the opinion establishing Massachusetts as the first state in the nation to legalize same-sex marriage.

“We share a common humanity and participate together in a social contract that is the foundation of our Commonwealth,” he wrote, creating language that has been used often by gay couples at their wedding ceremonies. “Simple principles of decency dictate that we extend … full acceptance, tolerance, and respect. We should do so because it is the right thing to do.”

Other significant cases include a 1993 decision upholding the adoption of a child by same-sex cohabitants; a 1997 decision in the Benefit v. City of Cambridge case, affirming the unconstitutionality of a statute prohibiting panhandling; a 2003 decision in the First Justice case addressing, on separation of powers principles, the constitutionality of statutes governing court clerks and probation officers; and a 2007 decision in the Murphy v. Boston Herald case, affirming a judgment based on defamation.

Greaney, famous for taking a Peter Pan bus to and from Boston most days and using that time to get more work done, reached mandatory retirement age (70) in 2008, but he wasn’t, and still isn’t, the retiring type. He joined the faculty of Suffolk University Law School, served as director of the Macaronis Institute for Trial and Appellate Advocacy, and taught constitutional law, criminal law, and appellate practice.

But he became a victim of the financial pressures facing many law schools today, and as Suffolk Law downsized and Greaney’s position was essentially eliminated, the judge looked for something else to do in ‘retirement.’ And as he looked, he remembered that Francis ‘Sandy’ Dibble, a partner at Bulkley Richardson, had long ago told him that, when he was done teaching, he should consider joining the firm.

He did so, in 2016, and thus went back to where he started (well, sort of) — practicing law in downtown Springfield.

But the legal landscape has certainly changed since Greaney first started out as a lawyer more than a half-century ago. Indeed, ADR has become an increasingly popular alternative to the courtroom, one that resolves matters in months, or even weeks, rather than years.

A Strong Case for ADR

There are two basic forms of ADR, mediation and arbitration, and while they are similar in that they are alternatives to traditional litigation, there are important differences.

Mediation is generally conducted with a single mediator who does not judge the case but instead simply helps the parties facilitate discussion and, hopefully, a resolution to a problem. Arbitration, on the other hand, is more judicial in nature (that’s why Greaney said it appeals to him) and involves one or more arbitrators who take on the role of a judge, making decisions about evidence and giving written opinions, which can be binding or non-binding, with the results being final.

“The shift from actual courtroom litigation and the resolution of disputes prior to courtroom litigation has become a fairly active enterprise over the past 12 years or so,” Greaney explained. “When I was a trial judge, no such thing existed.

“But the phenomenon was created by business people and others,” he went on. “And the courts wanted to see a simpler, more efficiently way to deal with the problems they had.”Also, many contracts — for everything from construction projects to employment agreements to the one signed by Stormy Daniels when she received $130,000 from Presisdent Trump’s personal lawyer, Michael Choen — have provisions noting that there if problems arise, they will be resolved by private arbitration and not litigation, Greaney told BusinessWest, adding that the Supreme Court, with a few exceptions, has consistently upheld the validity of these arbitration clauses.”

And as a result, and many law firms and individuals, including many retired judges, now specialize in mediation and/or arbitration (mostly the former), creating a somewhat competitive market for those services.

Bulkley Richardson looks to stand out within that playing field and capitalize on the experience of both Greaney and Barry as well as a host of other attorneys within the firm, including Dibble, Daniel Finnegan, Kevin Maynard, David Parke, Melinda Phelps, Jeffrey Poindexter, and John Pucci.

Barry said the firm is not interested in taking on cases that could easily be handled by one of the other mediators in the region, and is instead interested in more complex matters. And, again, they could come from within the 413, or well outside it given the expertise the firm can now bring to bear.

And because of how the pendulum has swung toward ADR, there should be ample opportunity to grow the practice.

“ADR is an area that’s growing and will continue to grow, and there will be a need for the types of services we’ll provide,” he explained. “A lof of big companies have decided, almost across the board as a policy, that they’re not going to litigate — they’re going to do everything possible to settle a case because of the expense and time and misdirection of resources involved in litigation.”

Final Arguments

Getting back to Major League Baseball and those high-profile salary disagreements going to arbitration … and Greaney, an ardent Red Sox fan, noted with a laugh that he would love to get such a matter sent to Bulkley Richardson.

“I love sports; that would be a delight to get something that,” he told BusinessWest. “I understand the statistics and all that goes into those decisions.”

While landing such a case might be a long shot (that’s might), it seems a much safer bet that Bulkley Richardson’s launch of an ADR group will be a winning proposition — for the firm and the region as well.

That’s because of the uniquely high level experience that can brought to the table, especially from a judge that that has made his mark in settings ranging from Hampden County Housing Court to the SJC.

The jury is in — ADR is now the preferred method of resolving a dispute — and Bulkley Richardson appears well-positioned to capitalize on that movement.

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

Law Sections

Streamlining the Process

Westfield State University President Ramon Torrecilha

Westfield State University President Ramon Torrecilha says the 3+3 initiative with UMass Law is just one example of partnerships aimed at streamlining the process of getting a college degree — or two of them, as the case may be.

Since he took the helm as president of Westfield State University in 2015, Ramon Torrecilha has talked often, and consistently, about a changing dynamic in higher education and especially at public institutions.

In this environment, he has said to BusinessWest and a wide range of other media outlets and audiences of various types, public schools must be vigilant in their efforts to make a college education more affordable, more value-laden, and better able to help students succeed in the field they’ve chosen.

And, he has argued, one of the best ways to accomplish these ends is through partnerships with other colleges and universities, especially other public schools.

All these sentiments — not to mention the school’s new operating philosophy — are reflected in WSU’s latest partnership initiative, one with the University of Massachusetts School of Law, or UMass Law, as it’s called, the only public law school in the Commonwealth.

It’s called the ‘3+3 law program,’ and UMass Law has created several such initiatives with other public institutions in the state, including UMass Dartmouth, UMass Boston, UMass Lowell, Fitchburg State, Worcester State, and the Mass. College of Liberal Arts in North Adams.

Those two numbers in the name of the program get right to the heart of the matter. They refer to the number of years a participant is in school. Add them up, and one gets six, which is exactly one less than it traditionally takes someone to earn a bachelor’s degree and then a law degree, otherwise known as a juris doctor or JD.

“And that one year is very significant,” said Torrecilha, adding that, by shaving two semesters off the process, individuals and their families can save perhaps tens of thousands of dollars — and degree recipients can get on with their careers sooner.

At a time when higher education in general, and public higher education especially, happens to be under scrutiny, I think partnerships, not only with UMass Law School but also our community college partners underscores and reaffirms our commitment to the citizens of the Commonwealth.”

And that career may not necessarily be in the law, said Torrecilha, adding that students in majors not traditionally associated with law — everything from English to gender studies — may well find the program worthwhile because of what a law-school education brings — everything from a focus on critical thinking to experience with forging and then presenting arguments to practice in writing.

“This program will target not only students in political science or philosophy or criminal justice,” he said, listing majors that traditionally feed students to law schools. “It will be available to students in disciplines that you don’t usually think of when you think of a law degree.”

Dr. Emily Todd, chair of the WSU English Department, agreed.

“People generally don’t think about English majors going on to get a law degree, but it’s actually a great preparation for law school,” she explained. “We see the strength of our program as setting people up to be successful; English majors develop skills as writers, good researchers, and excellent close readers, and that helps them to be persuasive writers and to develop their skills in synthesis and analysis.

“I was recently speaking with a first-year student before this program was announced,” she went on. “I always ask students what they want to do, and she said, ‘I’m thinking about law — I really love to think about words and analyze them closely.’”

Here’s how the program works. Following the completion of 90 credits at Westfield State, enrolled students begin their first year at UMass Law. Once the first 30 credits are completed there, students will obtain their bachelor’s degree from WSU. Those 30 credits will dually serve as the first-year requisite toward their law degree from UMass Law.

Elaborating, Torrecilha said those 30 credits earned during that first year at UMass Law will effectively serve as the elective courses that students in any degree program are required to take. They will come in what would be the fourth year of one’s progression toward a bachelor’s degree, rather than in the first two or three, which is traditionally the case.

Torrecilha said the 3+3 program was conceived with a number of goals in mind, including a desire to stimulate more interest in a law degree at a time when overall enrollment has been declining at all the most elite schools — although the needle has started pointing back up at some institutions. And also to perhaps provide a boost for UMass Law, which was launched in 2010 after the private law school Southern New England School of Law offered to donate real estate, facilities, technology, and library assets to UMass Dartmouth for the purpose of creating a public law program in the Commonwealth.

The UMass board of trustees approved the plan in late 2009, and the Commonwealth’s Board of Higher Education did the same a few months later. The school’s first class matriculated in 2010.

But the overriding goals are to streamline the process of getting both degrees and making it more cost-effective. Those are the terms one hears most often in association with the initiative.

If all goes well, Torrecilha said, students may be entered in the program by the fall of 2019. He said there are no goals for enrollment at this time, and he’s not exactly sure what to expect. But he has seen a good deal of interest in the program since it was announced several weeks ago.

“We’re educating the community as we go, and we’ve been talking to advisors,” he noted. “There are a lot of students here on the campus who are asking about it already; I’m hoping that that the first cohort will have between 20 and 30 students.”

Meanwhile, the school will continue to look for more ways to partner with other institutions, including those in the UMass system and the region’s community colleges, to create more ways to streamline the process of earning degrees and making them more cost-effective, said Torrecilha.

“At a time when higher education in general, and public higher education especially, happens to be under scrutiny, I think partnerships — not only with UMass Law School, but also our community-college partners — underscore and reaffirm our commitment to the citizens of the Commonwealth,” he told BusinessWest. “I think it also sets an example of how public institutions can come together for the public good.”

— George O’Brien

Law Sections

‘A Zealous Advocate’

Western New England University School of Law Dean Sudha Setty

Western New England University School of Law Dean Sudha Setty

Sudha Setty wasn’t sure where her initial interest in law would take her — she simply wanted to make a difference in people’s lives. Her current role as a professor certainly fits that bill, though it’s not a path she expected to take early on. Now, as she prepares to take over the dean’s chair at Western New England University School of Law, she’s ready to navigate a still-challenging climate for law schools and help other young people achieve their world-changing goals.

Sudha Setty entered the field of law wanting to make a difference, and she has — only, in much different ways than she first imagined.

So she understands the passion of students enrolling in law school today with the same passion and desire to change society for the better, but admitted that all lawyers make a difference, even if it’s for that one individual client struggling with a difficult time in their life.

“Most of the applications we’ve seen are focused on the idea of working on issues people really care about, and how being a lawyer will provide them with the tools to make a difference on a national or global scale, or even helping one person,” she told BusinessWest. “This is something you have to believe in if you want to be an effective lawyer — you have to be a zealous advocate, regardless of whom the client is.”

Starting in July, Setty will bring that spirit of advocacy to her new role as dean of the Western New England University School of Law after 12 years as a professor there. She will succeed Eric Gouvin, who is returning to the WNEU faculty after a five-year stint as dean.

“Professor Setty is a fine teacher and scholar who understands fully the challenges we currently face in higher education and those which we will continue to confront in these times of unprecedented change in legal education,” said WNEU President Anthony Caprio. “Her wisdom, intellect, training, experience, and energy will serve the law school — its faculty, staff, students, and alumni — the university, and the legal community very well for many years to come.”

Setty called the appointment an honor, noting that law schools are in a unique position to impact the future of a just society, and she has always seen WNEU as a place that launches the careers of thoughtful lawyers who work for the betterment of both their clients and society as a whole.

“I’m really looking forward to leading a group of faculty so dedicated,” she told BusinessWest. “They impress me on a regular basis, this community of teachers and scholars who really believe in what a law school does. I have mixed feelings cutting back on teaching, which I absolutely love. I’ll miss that aspect of being able to interact with students as a classroom teacher. But I’ll be seeking ways to connect with them and work with them and be an active part of the community that drew me to this law school in the first place.”

Courting Change

Setty planned to be a lawyer from her high-school days, through a combination of extracurricular experiences like mock trials and a deep interest in social justice. But her undergraduate work focused not on pre-law, but on the humanities, with the goal of honing her critical thinking and writing, skills that would serve her well no matter what field she worked in.

After graduating from Stanford University with a history degree, she taught overseas and contemplated different options. When she did return to the States and enrolled in Columbia Law School, it was with the belief that she’d build a career as a civil-rights advocate.

“I recognized the ability of lawyers to speak for people who are powerless, or to work as prosecutors seeking justice for victims. I had some ideas about what I wanted to do, but nothing concrete,” she said, adding that many people enter law school with a different career in mind than the one they eventually pursue.

Graduating with six figures of debt, however, changed Setty’s initial priorities a bit, and she went to work at a corporate firm in New York City, spending seven years at Davis Polk & Wardwell as a litigator in anti-trust disputes, securities fraud, and internal investigations of companies. Meanwhile, she took up extensive pro bono work litigating federal civil-rights cases and mentoring city high-school students.

“I had never envisioned myself doing these various aspects of corporate litigation, but I really appreciated my time at the firm,” she said. “I not only gained tremendous skills, but I was working with people who were really top-notch in terms of demanding critical thinking in representing clients.”

law schools are still challenged by depressed enrollment

Sudha Setty’s promotion comes at a time when law schools are still challenged by depressed enrollment, but there are signs the trend might be turning a corner.

Moreover, she was able to repay her law-school debts, which got her thinking about what the next phase of her career might be, and what options made sense.

“Many friends and mentors at Columbia encouraged me to think about teaching and the idea of an academic career,” she recalled. The interview process for jobs was eye-opening, and during a visit to WNEU, she was impressed with what Gouvin has called “student-centered professional education.”

“During the interview process, you see different approaches to legal education. As a student, you only see where you go to school as evidence of what a law school can be like,” she said, noting that she was struck by how friendly the WNEU professors were and how openly they interacted with students outside of class. “That was not my experience at law school, and I found it very appealing, and a selling point for coming here.”

Setty joined the faculty in 2006, eventually serving as professor of Law and associate dean for Faculty Development and Intellectual Life. In the latter role, one goal has been to improve the law school’s scholarly profile, both by helping colleagues to publicize the research they publish, and through workshop exchanges with other regional law schools to present scholarship to each other and get feedback to improve it. “All these help improve the profile of the law school and add vibrancy to the intellectual life at Western New England.”

As an active scholar herself in the areas of comparative law, rule of law, and national security, she recently published a study called “National Security Secrecy: Comparative Effects on Democracy and the Rule of Law.”

“Through the Bush and Obama administrations, I’ve focused on the notion that we don’t have enough institutional accountability,” she explained. “When it comes to national-security matters, both administrations kept telling us, ‘we know what we’re doing.’ My argument is that we need more accountability measures. Obviously, we don’t want to have classified information thrown out there, but we need the power to push back against the executive branch. We’ve set up a system where the president gets to make all these decisions without oversight, and we’ve been willing to accept that with the last two presidents.”

Some of those same people who accepted that paradigm are worried now that the power rests in the hands of a president who can often seem, well, erratic.

“The thing about setting up systems is they apply to whoever is in office. That’s the situation we’ve created,” she said. “I view many things happening under this administration as unsurprising. But if I can win more people to my views for the long term, and we get better institutional controls in place, that would be great. We’ll see what happens.”

Setty has received numerous awards for her work, including the Tapping Reeve Legal Educator Award from the Connecticut Bar Assoc. and two Western New England University School of Law Professor of the Year honors. She co-founded the School of Law’s Color of Law Roundtable speaker series, bringing attorneys and judges of color to campus to speak about their experiences and career paths. She also serves on the editorial board of the Journal of National Security Law and Policy, the executive committee of the American Society of Comparative Law, and was a Fulbright senior specialist at the Chinese University of Hong Kong Faculty of Law.

Making a Case

Even as she amassed those accomplishments and began taking on more administrative responsibility over the past few years, Setty never thought about a deanship at WNEU, simply because Gouvin was entrenched there and doing a solid job. But when he decided to return to the classroom full-time, Setty was approached by several colleagues about the position.

“They said, ‘we’d really like you to apply for this position; you’d be great.’ I gave it a lot of thought, because taking on the responsibilities of a deanship would be a big shift, but at the same time, taking on this responsibility at a school I know well, a place I love, is an exciting opportunity.”

The school conducted its internal search before looking outward, and Setty found strong support through the entire process. But she knows the job won’t be easy. Nationally, law-school enrollment plummeted by nearly half between 2003 and 2014, due in part to a declining job market for lawyers, one exacerbated by the 2008 financial crisis. By 2012, graduates were finding it very difficult to secure positions right out of school, and that impacted interest in the field.

“The last few years have been very challenging for law schools everywhere,” Setty noted. “They’ve had to examine their budgets and think hard about the choices they’ve been making. In some senses, I think Western New England has been fortunate. We’ve been careful with financial stewardship such that we weren’t trying to expand too very quickly, even when we had very large enrollments.”

Part of WNEU’s strategy focused on giving students more return on investment, including a tuition freeze, instituted during the 2013-14 school year and extending through 2017-18. With the lowered revenues, the school had to keep a close eye on expenses, and it was able to shrink staff through retirements, while avoiding debt from costly capital improvements.

“When times were hard, we had the ability to contract our student body and not have the financial hit be as bad as it could have been, because of our fiscal stewardship and a very careful hand on the budget,” Setty explained. “That’s not to say it has been easy — we’ve seen a lot of colleagues, wonderful teachers, retire and not be replaced, but with the student body shrinking, we could give them the same type of education, offer the same courses, with a smaller cohort of faculty.”

However, she said, an uptick in applications nationally — between 8% and 10%, similar to what WNEU is seeing — is spurring some cautious optimism in law-school leaders, she said, that the field may be turning a corner. “The landscape looks much brighter than it has for a number of years.”

Western New England also benefits from its position as the only accredited law school in the Commonwealth west of Greater Boston, which ensures a broad range of opportunities in the form of internships and clerkships.

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

They also provide a social benefit, Setty said, as in the case of the immigration clinic, which helps real-world clients navigate what can be a difficult path in today’s climate.

“It’s a win-win,” she told BusinessWest. “These individuals are in dire need of representation, and they get that representation, and the students receive invaluable experience they can take with them from these clinics.”

Closing Statement

Setty recalled her own clinic experiences from Columbia Law School — in landlord-tenant disputes and small-claims court — with gratitude. “The skills you develop from that aren’t necessarily transferable to the corporate-law environment or working as an academic, but it helps build who you are as a lawyer.”

The career Setty has built is, in many ways, different from the one she envisioned as a high-school student with a passion for social justice. But she’s happy to be impacting the lives of hundreds of students preparing to change the world — or, at least, make life a little better for a client in need.

Joseph Bednar can be reached at [email protected]

Law Sections

Taking the Pulse

By Kimberly A. Klimczuk, Esq.

Kimberly A. Klimczuk, Esq.

Kimberly A. Klimczuk, Esq.

It’s been almost three years since Massachusetts’ Earned Sick Time Law went into effect (how time flies), but employment-law attorneys still frequently receive questions about the law and the administration of earned sick leave.

Like any leave law, the sick-leave law presents unique challenges to employers. Here are some of the questions encountered most often:

Does the sick leave law apply to my organization?

This is an easy one. Unless your organization is a federal or municipal employer, it must provide earned sick leave to all employees (including part-time, temporary, per diem, and seasonal employees), regardless of the size of your organization. If the employer has 11 or more employees, the sick leave must be paid at the employee’s regular hourly rate (with the exception of tipped employees, who must receive at least minimum wage).

As a reminder, the law entitles employees to earn one hour of sick leave for every 30 hours worked, up to 40 hours per year, and employees may use the earned sick leave to attend routine medical appointments (for themselves or for a child, spouse, parent, or parent-in-law); to care for their own illness, injury, or medical condition or that of a child, spouse, parent, or parent-in law; or to address the effects of domestic violence.

Can I discipline employees for excessive absences?

It depends on what you mean by ‘excessive.’ The sick-leave law prohibits employers from retaliating against employees who use earned sick leave, so if an employee has earned sick leave available that applies to an absence, an employer cannot discipline the employee for taking the time off, nor can it consider the use of sick time as a factor in the discipline for non-sick-leave-related absences. Therefore, employers must be very careful when issuing attendance-related discipline.

Employers may discipline for absences exceeding the amount of sick leave to which the employee is entitled or for absences that occur before the employee has accrued sufficient sick leave to cover the absence. However, employers must make sure the employee’s use of sick leave is not a factor in the discipline. Although it seems obvious, this can be tricky.

Consider two employees. The first employee has one unplanned absence in a two-week period. The second employee has one unplanned absence in a two-week period and five sick-leave-related absences in that same two-week period. Which employee is a supervisor more likely to want to discipline?

While employers generally can discipline employees for unplanned absences unrelated to earned sick leave, they cannot take the use of sick leave into consideration when determining appropriate discipline. Thus, in the above example, it would be unlawful to discipline the employee who took sick leave if the employer did not also discipline the employee who had just the one unplanned absence.

Relatedly, employers should be sure to document any attendance-related discipline and make clear in that documentation that the discipline is not related to sick-leave-related absences. The best way of doing this is to note the specific dates for which the discipline is being issued. If an employer simply writes that the discipline is for “poor attendance,” and the employee had sick-leave-related absences, it will be difficult for an employer to demonstrate that the discipline for poor attendance did not take into account the absences due to sick leave. If the employer specifies the absences at issue, it can show that it considered only the non-sick-leave absences.

What if an employee is out sick but wants to save paid sick leave for later use?

We often hear of employees with accrued paid sick leave who call out sick but then ask the employer to count the absence as an unpaid day off so that the employee can save the paid sick for use later in the year. Employers should not grant these kinds of requests. First, because the sick-leave law requires employers to pay employees who are absent due to illness (assuming the employee has earned sick leave available), an employer who fails to pay an employee for a sick-leave-related absence violates the law, even if the failure to pay was at the request of the employee.

Second, if the employee saves the paid sick leave for use at a later time, the employer may lose the ability to discipline for excessive absences. The employer can discipline for excessive absences only after an employee has exhausted any available paid sick leave. If the employer allows the employee to save paid sick leave, it will take longer for the employee to exhaust the leave, and the employer will, in effect, be required to accept more absences than it otherwise would have.

The best practice for employers is to require the use of paid sick leave for all sick-leave related absences and then later decide whether it wants to allow unpaid leave once the paid leave is exhausted.

Kimberly A. Klimczuk, Esq. is an employment law attorney with Springfield-based Skoler, Abbott & Presser, P.C.; (413) 737-4753.

Law Sections

Positive Prognosis

healthlaw-184399153The field of law that focuses specifically on healthcare is diverse, challenging, and constantly changing, and that presents growth opportunities at a time when some fields of law are seeing job stagnation. But many law students aren’t aware of these possibilities, which run the gamut from malpractice litigation to end-of-life planning; from medical-records compliance to helping people navigate the complexities of the mental-health system. And those opportunities are only expected to keep expanding.

Barbara Noah says she took a winding path to her career as a law professor, one who specializes in the rapidly changing world of health law.

“When I graduated from law school, I was thinking more of the style of practice and the sort of things I’d like to do,” said Noah, professor of Health Law at Western New England University (WNEU) School of Law, during a recent panel discussion about health-law careers.

After graduating from Harvard Law School in 1990, she wasn’t interested in litigation, and instead went to work for a Washington, D.C.-based law firm with a strong focus on regulatory compliance.

“Our role was to counsel clients, which were mostly pharmaceutical and medical-device companies, on how to keep in compliance with the regulations issued by the Food and Drug Administration,” she explained. “It wasn’t about getting new drugs approved; these were already-approved products, and we were making sure clients were following appropriate safety rules.”

She found the field so interesting that she eventually transitioned into a long career, first at the University of Florida and since 2005 at WNEU, teaching the many facets of health law.

To name just a few of those, healthcare lawyers interpret the complex healthcare regulations and statutes that govern the administration of health services, advising hospitals, physicians, pharmaceutical companies, insurers, and other providers on issues ranging from licensing, reimbursement, and risk management to malpractice litigation and general corporate management.

One panelist at the WNEU event, Judith Feinberg Albright, who works for Devine, Millimet & Branch in Manchester, N.H., started her career as a paramedic before enrolling in law school and taking a particular interest in health law. She developed a secondary interest in litigation through moot-court experiences during those years, and now defends healthcare providers against malpractice claims in Massachusetts and New Hampshire.

“I see many people in health law with non-traditional pathways, people with some previous career in healthcare — like you see engineers and architects in intellectual-property law,” she noted. “It’s a pretty diverse group of folks.”

Some jobs are more unique than others. Deb Grossman, another panelist, serves as general counsel with Physician Health Services, an arm of the Massachusetts Medical Society that helps physicians deal with personal and behavioral-health issues and navigate their way back to work.

“Doctors don’t really like lawyers much; they see them as a threat of some kind,” Grossman said. “But I want to be supportive. I’ve been in different roles that were not always supportive, but now I’m in a very conciliatory position.”

After working for a large law firm earlier in her career, she explaned, she went looking for a lifestyle change, and took a job with the state handling the licensure of medical professionals, before taking on her current role.

“I became a much better lawyer,” she said, telling students gathered at the panel discussion that, yes, she made less money working for the state, “but what I gained in experience and autonomy as an attorney, I think was really invaluable.”

It’s just one example, Noah told BusinessWest afterward, of how a shifting healthcare field is cultivating many opportunities for lawyers that students might not hear about on a regular basis during their law-school years — which is why the panel was assembled.

“What’s included in the sweep of healthcare law is broader than people initially think; they think of medical malpractice or something to do with health insurance, but it’s a much broader field than people typically understand,” she said. “And a number of these aspects of health law are in flux right now, and they might be areas of growing demand for the purposes of careers.”

A Different World

One of those changing areas of the law is healthcare compliance — for example, how hospitals are complying with the privacy rules of the Health Insurance Portability and Accountability Act, or HIPAA.

“Although HIPAA has been around for quite a while, every hospital of any size has a compliance office that makes sure medical privacy requirements are being met,” Noah said. “And now with the switch to electronic medical records, it’s created a whole new set of questions for HIPAA in information sharing, and I’m hearing that data security is a big issue which impacts compliance.”

The second growth area concerns the overlap between elder law and health law, driven mostly by the aging of the Baby Boomer population. Not only are older Americans making plans for their estates, Noah said, but they’re becoming more keenly aware of their own mortality, and considering issues like advance care directives, healthcare proxies, and end-of-life preferences, such as do-not-resuscitate orders and decisions on nutrition and breathing assistance.

recent panel discussion at WNEU School of Law

From left, Barbara Noah, Judith Fineberg Albright, Deb Grossman, and Dylan Mawdsley talk about their very different health-law careers at a recent panel discussion at WNEU School of Law.

“There are all sorts of questions, and more attention is being focused on them,” Noah said. “But there’s still a real reluctance to do much advance care planning until faced with a bad diagnosis. That’s an issue that’s going to need more well-trained attorneys in the future to reach this large and aging Baby Boomer population.”

The third big shift that could affect health law is, of course, the ever-changing Affordable Care Act, which has been threatened by the recent federal tax law that repeals its individual mandate.

“We’re keeping on top of how the Affordable Care Act is being changed, amended, and manipulated, and how that impacts the system of healthcare delivery. It’s a moving target,” Noah explained. “Without the individual mandate, if healthy people aren’t buying in anymore, the pool is sicker, and that drives up prices.”

According to Nick Sumski, an LSAT teacher for Kaplan Test Prep, health law is a compelling area of law because everyone has to touch the healthcare system at some point in their lives.

“Health law is such a big growth field with an incredible amount of opportunity, especially in the coming years,” he noted last month on the Kaplan website. “No one knows how it’s all going to work moving forward, and there is going to be a big demand for lawyers to help figure it out.”

Dylan Mawdsley, another panelist at the WNEU event, is assistant general counsel for the state Department of Mental Health, advising DMH staff in their decision making and compliance with laws, and representing the agency before probate and family courts.

He originally went to college as a political science major, but pivoted to law school afterward, starting his career in estate planning — right when the Great Recession hit, which was a bad time for that area of law. The work he does now, often serving as a liaison between doctors, patients, and the court system, is gratifying and presents a great deal of autonomy.

“I really feel like the work we do is good work,” he said, “helping people get treatment and services they wouldn’t otherwise be able to access.”

Meaningful Work

When Grossman was in law school, she recalled, she learned a lot about corporate law and litigation, but not much else, and certainly not what she’s doing today.

“This niche of work is very, very satisfying, it’s important work, and the schedule allows me to raise my kids,” she said. “Law students should know there’s a whole world of jobs out there, that aren’t typical law-firm, corporate types of jobs.”

Sumski said students shouldn’t feel like they have to pick any kind of specialization right away.

“Keep an open mind in those first-year classes; you might be surprised by the area of law that ultimately interests you,” he noted. “If you are interested in health law, however, you should take some introductory classes in the subject matter and see if a particular aspect of the field interests you. Health law is an incredibly broad field that touches on many different aspects of law. There’s a lot of opportunity in the area. The job market for lawyers is getting better, but it’s not great, so it makes sense to go into an area that is in demand.”

That demand, Noah said, is driven partly by the fact that health law is so interconnected, with so many moving parts.

“Any student who goes into health law is going to need a deep knowledge of the particular area they’re focusing on,” she noted, “but also a broad, contextual understanding of how the whole healthcare finance and delivery system works in this country — and it’s a very messy, complex, and inefficient system.”

And one that’s constantly changing, presenting plentiful opportunities for law students and career changers willing to think outside the jury box.

Joseph Bednar can be reached at [email protected]