Home Sections Archive by category Law

Law

Law

A Matter of Policy

By Michael Roundy

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

Common Compensation Blunders

By John Gannon, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law

Case in Point

By Alexander Cerbo, Esq.

 

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

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

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

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

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

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

 

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

Law

The EO on PLAs

By Alexander Cerbo, Esq.

 

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

Alexander Cerbo

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

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

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

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

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

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

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

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

 

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

Law

Risky Business

By Michael Roundy and Scott Foster

 

Michael Roundy

Scott Foster

Scott Foster

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

An Employment-law Roundup

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

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

 

Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act

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

Marylou Fabbo

Marylou Fabbo

John Gannon

John Gannon

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

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

 

U.S. Supreme Court Decision Blocking Vaccine Directives

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

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

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

 

In Massachusetts, New Employee Protection Against Retaliation

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

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

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

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

 

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

Law

No Breach January

By Lauren C. Ostberg

 

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

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

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

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

 

Inventory the Personal Information You Possess

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

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

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

 

Learn to Encrypt Personal Information

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

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

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

 

Train on Phishing

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

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

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

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

 

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

Law

A Development of Note

By Alexander J. Cerbo, Esq.

 

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

Alexander J. Cerbo

Alexander J. Cerbo

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

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

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

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

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

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

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

 

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

 

Law

Sobering Advice

By Ryan O’Hara

 

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

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

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

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

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

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

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

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

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

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

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

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

And, with that, cheers to a new year!

 

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

 

Law Special Coverage

What Can Business Owners and Managers Expect in 2022?

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

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

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

John Gannon

John Gannon

Meaghan Murphy

Meaghan Murphy

Employer Vaccination Mandates

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

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

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

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

 

Accommodations to Vaccination

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

 

Biden Administration’s Support for Unions

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

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

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

 

Paid Family and Medical Leave

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

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

 

Employee Mobility: Tackling the Labor Shortage

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

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

 

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

Law Special Coverage

A Changing Dynamic

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

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

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

 

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Seth Stratton says the changing dynamics

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

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

 

Case in Point

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Moving Target

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Bottom Line

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

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

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

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

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

 

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

Law

The Answer Is No — But That Might Be Changing

By Mary Bonzagni

 

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

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

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

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

Mary Bonzagni

Mary Bonzagni

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

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

But has the tide begun to turn? Perhaps.

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

President Biden’s COVID-19 Action Plan

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

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

 

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

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

 

Biden Administration Mandates Vaccinations

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

Marylou Fabbo

Marylou Fabbo

John S. Gannon

John S. Gannon

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

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

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

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

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

 

When Can Employers Expect the OSHA Standard to Be Issued?

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

 

What Should Employers Do Now?

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

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

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

 

Legal Challenges

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

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

 

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

Law

Discipline for Social-media Speech

By Kevin Maynard

 

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

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

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

 

Public Employee Speech

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

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

Kevin Maynard

Kevin Maynard

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

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

 

Private Employee Speech

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

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

 

State-specific Protection for Lawful Off-duty Activity

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

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

 

Advice for Employers

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

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

 

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

Law

Remodeling Woes

Joshua L. Woods, Esq.

 

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

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

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

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

Joshua L. Woods

Joshua L. Woods

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

Firm Commitment

Peter Shrair

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

One-stop Shop

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

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

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

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

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

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

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

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

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

Casey O’Connell

Casey O’Connell

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

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

 

Business as Usual, Sort Of

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

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

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

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

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

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

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

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

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

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

 

Joseph Bednar can be reached at [email protected]

 

 

Law

Examining PFML

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

By Katharine Shove, Esq.

 

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

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

Katharine Shove, Esq

Katharine Shove, Esq

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

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

 

 

Who Is Eligible?

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

 

How Many Weeks of Leave Are Available?

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

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

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

 

Requirement of Written Notice to Employees

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

 

Application Process

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

 

Important Considerations for Employers

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

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

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

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

 

Can Employers Opt Out of the Program?

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

 

Get Assistance with Making Policy

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

 

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

Law

Policy Decisions

By Timothy M. Netkovick, Esq.

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

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

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

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

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

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

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

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

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

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

 

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

 

Law

Changing the Dynamic

By Jeremy M. Forgue

 

The COVID-19 pandemic has impacted the workplace forever.

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

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

 

Flexible Schedules and Core Hours

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

 

Forgiving Gaps in Workers’ Employment History

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

 

Offering Job Training or Cross-training

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

 

Create Mentorship Programs or Opportunities

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

 

Re-evaluate the Businesses Culture

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

 

 

Childcare Options

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

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

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

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

 

Final Thoughts

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

 

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

Law Special Coverage

A Challenging Docket

Sudha Setty says the field of law continues to evolve

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

Back to School

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

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

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

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

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

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

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

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

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

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

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

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

 

Community Focus

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

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

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

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

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

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

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

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

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

 

Joseph Bednar can be reached at [email protected]

Law

MREs and HCAs

By Mary-Lou Rup

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law

Knick-knack Knockouts

By Valerie Vignaux, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

 

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

Law

Non-competition Agreements

By Timothy M. Netkovick, Esq.

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

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

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

Ringing Out the Old

By Amy B. Royal, Esq.

Most of us are happy to leave 2020 behind.

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

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

 

Paid Family and Medical Leave and Minimum Wage

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

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

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

Amy B. Royal

Amy B. Royal

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

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

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

 

Proactive Employment Steps

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

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

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

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

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

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

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

 

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

Law

A Question of Mandates

By Timothy F. Murphy

 

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

 

Can Employers Require Vaccinations?

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

 

Can Employees Object to Vaccine Mandates?

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

Timothy F. Murphy

Timothy F. Murphy

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

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

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

 

Government Vaccine Mandates Appear Unlikely for Now

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

 

Public-health Experts Warn Against Mandates for Now

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

 

Avoid the Backlash

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

 

Reduce Potential Legal Liability

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

 

Wait and See Is the Way to Go

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

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

 

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

Law

To Contest or Not to Contest?

Benjamin Coyle, Esq.

 

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

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

Benjamin Coyle

Benjamin Coyle

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

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

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

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

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

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

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

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

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

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

 

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

Law Special Coverage

Is the Gig Up for Some Workers?

By Amy B. Royal, Esq.

Getty Stock Images

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

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

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

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

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

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

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

Amy Royal

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

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

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

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

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

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

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

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

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

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

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

 

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

Law

An Employment-law Forecast

By Andrew J. Adams, Esq.

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

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

 

Workplace Safety and OSHA

Andrew J. Adams

Andrew J. Adams

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

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

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

 

Wage-and-hour Law

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

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

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

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

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

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

 

Small Businesses

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

 

Immigration

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

 

Workplace Discrimination and Harassment

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

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

 

Federal Agencies

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

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

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

 

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

Law

Winter Weather Advisory

By Ryan K. O’Hara, Esq.

The start of a New England winter is one of nature’s cruelest jokes — one weekend, it’s 60 degrees and cloudless, stunning foliage glinting in brilliant sun (until it sets, and at a reasonable hour, mind you); the next, it’s pitch black before 5 o’clock, and the outside world morphs into a barren, inhospitable tundra. The chill November breeze whispers: “gotcha!”

Ryan K. O’Hara

Ryan K. O’Hara

Each year, this sudden shift catches me by surprise. If you’re an eternal pessimist like me, talk of winter likely conjures unpleasant visions of storms, salting, shoveling, ice scraping, and (gulp) car cleaning. Apart from the brightness and lightness of the winter holidays, the picture for the next several months is a bit grim.

As we steel ourselves for the winter ahead, it’s a good opportunity to give a moment’s thought to another cheerful seasonal topic — the legal aspects of snow and ice accumulation and removal. Whether you love the winter weather or just love to complain about it, snow, ice, and sleet are facts of life here in Western Mass. for more than a quarter of the year. And, as with any environmental condition, they cause accidents.

When winter weather plays a role in an accident causing property damage or injury, who is responsible? As usual, the old (perhaps roasted?) chestnut of a lawyerly answer applies: it depends. Generally, most liabilities relating to snow or ice arise from claims of negligence. Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.

“Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.”

In practice, this means that, when any of us have snow-cleaning responsibilities, if we are negligent in carrying them out, we may be liable to others — a scary premise. However, simple steps can go a long way in avoiding accidents in the first place. An increased mindfulness of winter weather and its impact on safety will make sure you stay off your insurer’s naughty list. Below are summaries of liability concerns arising from winter weather in some common contexts, with recommendations for how you can appropriately protect yourself and others.

 

Businesses

The Massachusetts Supreme Judicial Court has established a rule that property owners must address all snow and ice on their properties, and act reasonably in removing snow and ice to make the property safe for use (see Papdopolous v. Target Corp., 457 Mass. 368 [2010]). So, for example, when a patron slips on a walkway controlled by the business and breaks their wrist, the business may be legally responsible under Massachusetts law.

In deciding whether a business was negligent as to any harm caused by snow and ice, a jury will be directed to consider the reasonableness of safety measures taken. This analysis takes into account all relevant circumstances, including the severity of the storm, the amount of snow, the amount of time the condition existed, and the cost efficiency of safety measures.

The best way for businesses to protect themselves in these circumstances is to develop a protocol for preventing accumulation of snow and ice where possible, and for prompt post-storm cleanup. A reasonable business is one that anticipates risks posed by snow and ice and takes tangible steps to mitigate those risks.

Therefore, responsible businesses should be aware of impending weather events and take pre-storm steps (such as salting) to prevent accumulation in the first place. Removal of any snow necessary to enable patrons’ access to the business should be the first post-storm step, making sure that all walkways, stairs, and ramps are cleared and fully safe for use as soon as practical. At least one method of legally compliant access should be established before opening for business.

Winter-weather safety doesn’t stop at the front door, either. The business should also be cognizant of secondary weather impacts, such as the accumulation of water from snow melt tracked in by customers. To the extent there is any dangerous condition the business can’t fix, inside or outside, it should put up signs warning patrons of the danger (especially as a court would also evaluate an injured party’s own responsibility for their harm in any claim).

The business should also monitor changing conditions throughout the post-storm period, such as snow that melts and then refreezes. Finally, the business should keep an eye out for season-long hazards, like large icicles accumulating along gutters and eaves.

Often, businesses choose to contract with an outside vendor for snow removal. Although it’s never a bad idea to put a professional in charge, be wary of relying too heavily on contractors: if the contractor is failing, the business must take appropriate steps to ensure its premises are safe.

 

Landlords and Homeowners

In general terms, landlords and homeowners owe the same duty to their tenants and guests as do businesses to their patrons: reasonable care in removing snow and ice in any area controlled by them. Many of the same considerations apply. However, unlike a business, a landlord cannot simply stay closed to the public until snow is cleared; rather, their tenants are often at the property throughout the duration of a storm.

Accordingly, responsible landlords should be especially vigilant in monitoring for storms, and especially prompt in clearing any and all common areas and accesses into the building or units.

 

Drivers

Finally, drivers should be attentive to all weather conditions. Should you be involved in any accident, the reasonableness of your driving (including your speed) will be evaluated in light of the weather and road conditions. Preventive measures such as snow tires, and using additional caution when driving during a storm, will aid you in avoiding accidents (and liability, should an accident occur).

Drivers should be sure to thoroughly clean their vehicles before hitting the road. Accumulation of snow and ice on hoods, windshields, roofs, and trunks is a hazard — who hasn’t seen a practical glacier fly off the roof of a semi on the Pike? State law makes clear that drivers are obligated to clear their vehicles before they begin driving. Scofflaws ignore this rule at their own peril: not only might you earn a fat ticket from a state trooper, but if snow and ice flies off your roof and causes an accident, your violation of state law will be evidence of your negligence (and, therefore, liability for the accident).

 

Conclusion

The law is clear: Massachusetts citizens who take a lackadaisical approach to snow removal are walking on thin ice. If you are unfortunate enough to be involved in an accident involving winter weather, you want to be sure you have taken reasonable, appropriate measures to ensure the safety of yourself and others. Fortunately, such steps are typically simple, inexpensive, and within your control.

No one likes shoveling (no one I know, anyway); however, a little shoveling beats a lot of medical bills and legal fees. Plus, you’ll even get a little exercise. Who couldn’t use that in the middle of the darkest, coldest days of the year?

 

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

Law Special Coverage

Risky Business

By Amy B. Royal, Esq.

The pandemic has already created a flurry of individual and class-action lawsuits against companies. In fact, according to data collected through a national association for lawyers, it is estimated that approximately 80 COVID-related litigation cases have been filed in Massachusetts alone, and more than 5,000 across the country. These cases are expected to be very costly to defend.

The most common types of cases that have emerged involve health and safety violations, discrimination, and leaves of absence from work. In understanding the trends of lawsuits that have already been filed, businesses can better prepare by assessing risk and perhaps mitigate their exposure to liability in the process.

 

The Safety Suits

Not surprisingly, several COVID-related lawsuits involve health and safety claims. The common theme among them is that a company failed to provide a safe environment either for their employees or for their customers. Some of the lawsuits allege a failure-to-warn component, i.e., that the company knew an individual had exhibited COVID-19 symptoms at the place of business, yet the company failed to inform employees and customers. Other lawsuits involve claims that companies either did not provide adequate PPE or otherwise take necessary precautions to protect people.

Amy B. Royal, Esq

Amy B. Royal, Esq

An offshoot of the safety suits involve whistleblower claims under OSHA, a federal law that addresses standards for workplace health and safety. Employees can blow the whistle on their employer by reporting potential workplace health and safety issues to (and filing complaints with) the Occupational Safety and Health Administration, a division of the Department of Labor.

“According to data collected through a national association for lawyers, it is estimated that approximately 80 COVID-related litigation cases have been filed in Massachusetts alone, and more than 5,000 across the country.”

Many of the COVID-related OSHA claims are for retaliation. Specifically, several employees have filed complaints alleging they suffered an adverse employment action after notifying their employer of violations of social-distancing guidelines or failures to maintain proper cleaning of workspaces or PPE.

 

Discrimination

Age, disability, and pregnancy discrimination cases related to COVID-19 have been on the rise since the summer months. These types of cases typically arise under the following general set of circumstances: the employee refuses to return to the physical workspace citing their age, disability, or pregnancy as too much of a risk factor, and their employer terminates them or, in the context of disability and pregnancy, does not accommodate them by allowing them to work at home.

However, these same types of discrimination cases arise in a different way as well, underscoring the fact that no good deed goes unpunished. Believe it or not, good-intentioned employers that have told their older workers or those with known pre-existing conditions to work from home, take a leave of absence, or accept a furlough while bringing back their younger or non-disabled counterparts are getting smacked with age and disability discrimination claims.

Although these employers may have been acting out of concern for their workers that they perceived as high-risk, preventing them from returning to the workplace can give rise to a potentially viable age or disability discrimination claim. Indeed, the Equal Employment Opportunity Commission (EEOC), our federal enforcement agency for discrimination claims, issued guidance on this specific situation. In a nutshell, the EEOC has taken the position that employers cannot do this unless they can show their employee’s physical presence in the workplace poses a “direct threat,” which is an extremely high standard to meet.

 

The Families First Coronavirus Response Act (FFCRA)

The FFCRA came into effect in what felt like a nanosecond and, thus, created a quagmire. Businesses suddenly needed to understand the act, implement it, and comply with it.

The act, which included the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Expansion Act within it, requires covered employers to provide employees with paid sick leave or expanded family and medical leave for certain qualifying reasons. The act took effect in April and presently is slated to remain in effect through the end of the year. It applies to employers with fewer than 500 employees.

“Some of the lawsuits allege a failure-to-warn component, i.e., that the company knew an individual had exhibited COVID-19 symptoms at the place of business, yet the company failed to inform employees and customers.”

Now that the act has been in effect for just over six months, lawsuits under it have begun to emerge. The majority of these lawsuits involve the caregiver provisions of the act.

The act mandates that employers provide 80 hours of paid sick leave to employees to care for:

• An individual who is subject to a governmental quarantine or isolation order or is advised by a healthcare provider to self-quarantine due to COVID concerns; or

• Their child if the child’s school or daycare is closed or the childcare provider is unavailable due to the pandemic.

Further, the Emergency Family Medical Leave Act portion of the FFCRA permits employees to take 12 weeks of job-protected leave to care for their child if the child’s school or daycare is closed or the childcare provider is unavailable.

In these FFCRA lawsuits, employees are claiming either that their requests for leave were improperly denied or that they were retaliated against for availing themselves of their rights under the act.

 

The ‘Take Home’ Cases

The ‘take home’ cases are the scariest of them all as they carry the biggest monetary exposure to businesses. The crux of them is this: an employee contracts COVID-19 at his or her workplace. A family member becomes infected and becomes very ill or tragically dies. A claim is then brought by the family member against the employer for negligence under the theory that the employer failed to warn or failed to take reasonable precautions.

Workers’ compensation laws are generally the exclusive remedy to employees for workplace injuries. This means employees cannot bring negligence claims against their employer for workplace injuries. The reason for the workers’ compensation system was to limit employers’ exposure to large, multi-million-dollar damage awards in personal-injury cases, as workers’ compensation laws impose caps on damages. Take-home cases, however, are not capped and could potentially generate a nuclear verdict.

There is precedent for take-home cases in the asbestos litigation space. Indeed, family members have received landslide settlements and verdicts from many companies claiming they developed mesothelioma after their spouse, for example, brought asbestos into their home after work.

The first take-home COVID-19 case was recently filed in Illinois by a daughter who alleged her mother died after her father contracted coronavirus at work and then brought it back into the home, infecting her mother. In this wrongful-death lawsuit, the daughter alleges her father’s employer should be on the hook for the exposure to her mother that her father ‘took home’ to her, which ultimately caused her mother’s death. Other take-home cases have begun to emerge around the country as well.

 

What Can Be Done to Mitigate Risk?

Two words: comprehensive planning. Proper planning includes knowing what laws apply to your company, assessing them and assessing your overall areas of risk, taking proactive steps, and designating a team to help create, implement, manage, and adapt to COVID-related issues. Then, put pen to paper and document your efforts.

 

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

Law

Planning for PFML

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

 

John S. Gannon

John S. Gannon

Meaghan Murphy

Meaghan Murphy

COVID-19 has created an extraordinary level of uncertainty and anxiety for businesses across the world. Since March, countless employers have been forced to dedicate just about all their energy and resources to sustaining a viable business in the face of mandatory closures, layoffs and furloughs, and ever-changing reopening regulations and guidelines.

In the midst of this chaos, it is easy to forget that the most generous paid-leave law in the country is coming to Massachusetts on Jan. 1, 2021. The Massachusetts Paid Family and Medical Leave (PFML) law provides all employees up to a total of 26 weeks of paid, job-protected family and/or medical leave to each year (up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave). The PFML obligations extend to all employers in Massachusetts, regardless of size. As we approach the Jan. 1 PFML kickoff date, here are five things all businesses should be thinking about as they prepare to implement this complex new law.

 

Private-plan Exemption

The Massachusetts PFML program is a state-offered paid-leave benefit available to anyone who works in the Commonwealth. PFML is funded through a Massachusetts payroll tax paid by employees and employers with 25 or more employees. Interestingly, there is an avenue for employers to receive an exemption from collecting and paying PFML contributions. If a business offers company-provided paid-leave benefits that are greater than or equal to the benefits provided by the PFML law — typically through a private insurance carrier — it may be granted an exemption from the state PFML program.

Employers seeking an exemption need to submit an application with the state, which usually can be facilitated by the private carrier that is administrating the paid family and medical leave benefit.

Importantly, businesses that opt out of the state PFML program still need to abide by the job-protection and anti-retaliation provisions in the PFML law. Generally, employees who take family or medical leave under the law must be restored to their previous position or to an equivalent position when they return from leave, with the same status, pay, employment benefits, and seniority as of the date of leave. In addition, it is unlawful for any employer to discriminate or retaliate against an employee for exercising PFML rights (more on this below).

 

Employer-notice Obligations

Businesses are required to notify their workforce about the Massachusetts PFML program, including the new benefits and protections that apply to them. This notification includes displaying the PFML workplace poster in a highly visible location; providing written notice of contributions, benefits, and workforce protections to your eligible employees; and collecting acknowledgments of receipt of such written notice signed by all eligible employees.

Both the workplace poster and model employer-notice forms can be found on the state’s PFML website: www.mass.gov/info-details/informing-your-workforce-about-paid-family-and-medical-leave. Failure to provide the notice can lead to in a fine of $50 per employee for first violations, increasing to $300 per worker for subsequent violations.

Handbook Policies

In addition to meeting their PFML poster and written-notice requirements, employers should review and update other workplace policies that will be impacted by the new law. For example, other leave policies (e.g., sick, PTO) should be updated to note that PFML leave runs concurrently with those other leaves. Employers may also want to update attendance and related discipline policies, including procedures for requesting time off and/or call-out procedures.

It goes without saying — but we’ll say it anyway — that employers should establish and enforce their PFML policy and all other workplace policies consistently.

 

Performance Management

Employers should examine and recommit to their performance-management, discipline, and documentation policies and procedures. This is because employees who are let go or disciplined after taking PFML may have a lawsuit for retaliation if a business cannot prove the employment decision was related to poor performance or misbehavior. In fact, any adverse action taken against an employee during or within six months of PFML leave is presumed to be unlawful interference or retaliation.

As a result, employers’ expectations for performance and workplace conduct, and the consequences for failing to meet those expectations, should be clearly defined, and employers should document all such failures in a timely manner. This is critical to defending against a potential claim by an employee that his termination constitutes unlawful retaliation for his PFML leave use.

 

Training

Employers should make sure all managers receive training on performance-management and discipline policies and procedures, as well as how to properly document such issues. Managers should be disciplining employees consistently and holding them accountable for performance and discipline issues. If an employee who has used PFML leave is terminated for performance-related or disciplinary reasons, employers want to be in a position to support their lawful reasons for termination with proper documentation.

A manager turning a blind eye to performance or discipline issues, or failing to properly document them, can cost employers significantly down the road in the face of a lawsuit filed by a disgruntled employee. Well-trained managers are worth their weight in gold.

 

Bottom Line

Jan. 1 is fast approaching. Massachusetts employers need to be prepared to meet their PFML compliance obligations, which not only involves understanding how PFML benefits work, but also planning for increased frequency of employee time-off requests and longer leaves of absence. Employers with questions about how the new PFML law will impact their business should seek advice from legal counsel. u

 

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

Law

Taxing Decisions

By Hyman G. Darling, Esq.

As this article is being written, the election is pending, and many people are trying to consider the options relative to tax issues for the end of 2020 and going into 2021. Since no one can predict with 100% accuracy what the tax laws will be in the future, even beyond 2021, it is important to consider the options available. Taking action now will allow you (or your heirs) to save funds.

Hyman Darling

Hyman Darling

Before proceeding, a refresher on federal estate and gift taxes may be needed. The federal estate-tax and gift-tax exemption is what is known as a unified credit, which means the amount may be used to make gifts during one’s lifetime or at death, or a combination of both.

The amount currently is set at $11.58 million for 2020. If the law does not change, this amount is due to reduce to $5 million in 2026 (indexed for inflation as of 2010, so this amount will probably be $6 million). This means a person may gift up to $11.58 million during his or her lifetime or at death before any tax is due. If this amount is exceeded, a tax rate of 40% applies to the excess. Since the unified credit may be reduced, larger gifts may be considered prior to year-end before a new law is enacted next year that could be effective as of Jan. 1, 2021.

Many misconceptions apply to gifts, the most popular being the annual exclusion of $15,000 per recipient. Most people believe that, if the $15,000 amount is exceeded, the donor or the recipient must pay a tax. The law states that a person may gift up to $15,000 each year without reporting any gifts. If this amount is exceeded, then a gift-tax return is required to be filed by April 15 of the year following the gift.

But, again, no tax is due until the $11.58 million is exceeded. For example, if a person gifts to their child, there is a requirement to file a return, but the first $15,000 is ‘free,’ and the next $100,000 merely reduces the credit from $11.58 million to $11.48 million, which is still available to gift during the lifetime or at death. Thus, a person does not have to limit a gift to $15,000 as, in most cases, they will not be paying a tax. (Note that this rule is a tax rule, and does not have a relation to Medicaid planning, which treats all gifts as disqualifying for the five-year look-back period.)

If the estate credit is reduced after 2020, it is anticipated that the credit utilized this year will not adversely affect the amount a person will have available under a new law when he or she dies. So, if a person wishes to make significant gifts, they should make them before the end of the year to utilize as much of the credit as they may want.

For income-tax purposes, there are several options to consider. One easy one is the ‘above-the-line’ charitable deduction for up to $300 if given to a qualified charity. This is not for donations of clothing, as it must be a gift of cash, and it qualifies for everyone, even if a person is not itemizing.

Another significant option is that, in 2020, a minimum deduction is not required to be made from an IRA or other qualified plan. However, some people who have little to no other taxable income may still want to take a distribution as their tax bracket may be low enough to eliminate taxes this year.

“If the estate credit is reduced after 2020, it is anticipated that the credit utilized this year will not adversely affect the amount a person will have available under a new law when he or she dies. So, if a person wishes to make significant gifts, they should make them before the end of the year to utilize as much of the credit as they may want.”

In addition to this option, there is also the benefit for those age 70½ and older who may wish to make a donation to charity. Funds may be paid directly to a charity (or multiple charities) from the retirement account, and this donation will not be taxable income. The annual limit is $100,000, but the distribution does satisfy the required minimum distribution (RMD). If the taxpayer is going to make donations in any event, the IRA should be used to fund the donations.

The amount does not get added to taxable income, so the taxable amount will be less, Social Security payments may then not be taxable, and the Medicare premium will not be higher as the RMD does not get factored into the calculation.

If a taxpayer has losses to report, they may be taken and either reduce income up to $3,000 or perhaps offset gains of other assets. If a person has gains, they may wish to take the gain in 2020 with the anticipation that capital-gains rates could increase and/or income-tax rates may increase.

As with all tax and estate-planning considerations, there are many general rules with specific exceptions, so a qualified professional should be consulted prior to making any decisions. But be sure to get started soon, as decisions should be made and implemented prior the end of 2020.

 

Attorney Hyman G. Darling is a shareholder and the head of the probate/estates team at Bacon Wilson, P.C. He is a past president of the National Academy of Elder Law Attorneys and has been a frequent presenter for the Massachusetts Bar Assoc., MCLE, and many Springfield civic and professional groups. He is a member of the Special Needs Alliance and many local planned-giving committees, as well as an adjunct faculty member in the LLM Program at Western New England University School of Law and Bay Path University; (413) 781-0560; [email protected]

Law Special Coverage

Red Ink

Steve Weiss

Steve Weiss says he’s getting a steady volume of calls from business owners with questions about bankruptcy or liquidation.

Steve Weiss says the wave of bankruptcies that he and others in his line of work are expecting certainly hasn’t reached shore yet, to use a phrase appropriate for this time of year.

“But you can definitely see it building out there — it’s coming; you can see it rolling in,” said Weiss, who specializes in bankruptcies and workouts for the Springfield-based law firm Shatz, Schwartz & Fentin.

This wave is comprised of both corporate and consumer (personal) bankruptcies, and it will be large and hit with considerable force, he went on, adding that a number of factors are colliding that will make it so.

On the corporate side, while many companies have been able to hang on and survive the pandemic to date, they have done so thanks largely to government stimulus initiatives that are due to be exhausted soon, leaving business owners and managers wondering how they will pay people and all their bills. And on the consumer side … it’s a very similar story.

Indeed, unemployment benefits and stimulus checks have helped many make ends meet, but those checks are projected to end soon for large numbers of people, if they haven’t ended already.

“My phone is starting to ring more with business owners who are either unsure how they’re going to make it, or are sure they can’t — the virus has just clobbered their business,” said Weiss, who said his next phone call after the one with BusinessWest was with a business owner looking to talk about bankruptcy or perhaps liquidation.

“My phone is starting to ring more with business owners who are either unsure how they’re going to make it, or are sure they can’t.”

Such calls are starting to come in with increasing frequency, said Mike Katz, a partner with the Springfield-based firm Bacon Wilson and one of the region’s pre-eminent bankruptcy specialists. He used a different, though similar, metaphor to describe what’s coming.

“I think the dam is about to break — we’re on the cusp of a tsunami of bankruptcies,” he said. “It hasn’t happened yet, but it’s going to happen.”

There have already been many, especially on the corporate side, he went on, noting that many large and famous names, many from the retail sector, have filed for Chapter 11 protection. That list, which continues to grow, includes Lord & Taylor, J. Crew, Brooks Brothers, Gold’s Gym, Neiman Marcus, JCPenney, Hertz, 24-Hour Fitness, Chuck E. Cheese, California Pizza Kitchen, and Men’s Wearhouse.

Those names reveal the types of businesses that are most in jeopardy, Katz continued, adding that, locally, many small businesses in the hospitality, retail, and fitness realms — but many other sectors as well — face severe challenges as they try to survive the pandemic.

For some in this category, an emerging option is what’s being called the ‘fast-pass’ small-business bankruptcy process, otherwise known as Subchapter V of Chapter 11 of the Bankruptcy Code. This new subsection, which became effective in February, is not a response to COVID-19, but certainly seems to be tailor-made for the economic crisis the pandemic has created.

Mike Katz

Mike Katz is expecting a “tsunami” of bankruptcy filings. What he doesn’t know is when this wave will hit.

That’s because, as the name suggests, it is a faster, less expensive Chapter 11 reorganization path, designed specifically for much smaller businesses than those that seek the Chapter 11 route. To be eligible for Subchapter V, an entity or an individual must be engaged in commercial activity, and its total debts — secured and unsecured — must be less than $7.5 million, a new number (the old one was $2.725 million) resulting from provisions of the COVID-inspired CARES Act. At least half of those debts must come from business activity.

Katz and others we spoke with said the fast-pass option holds potential for some businesses, but there are challenges within its many provisions, including the need to come up with a reorganization plan within 90 days of the filing. Such plans may be difficult to develop given how difficult it is to see even a few weeks down the road, let alone several months, because of the pandemic.

“The one downside is you file your bankruptcy papers, and you’re required, within 90 days, to put a plan in place,” said Mark Cress, a bankruptcy specialist with the Springfield-based firm Bulkley Richardson. “That’s a short window, and a lot of small businesses are barely holding their own.”

For this issue and its focus on law, BusinessWest talked with these bankruptcy lawyers about what they can already see coming. They can’t predict when this particular surge will begin, but they say it’s almost unavoidable.

Chapter and Verse

While Katz and Weiss were crafting analogies to waves and tsunamis, Cress wanted to draw parallels to the Great Depression.

Indeed, he told BusinessWest that the current conditions rival, and in some cases (such as the quarterly decline in GPD) actually exceed those of the Great Depression that started roughly 90 years ago.

“This is worse than the Great Depression in a lot of ways,” he said. “The dip in the economy — it dropped by a third — was something we’ve never seen before. And but for the way the Fed has handled this, it would be devastating; those multi-trillion-dollar programs … they’re the only thing that’s sustaining us. Without that, the whole house of cards would collapse.”

To further state his case — that’s an industry term — Cress pointed to numbers contained in an analysis authored by Morning Consult economist John Leer, who noted that, without additional funding, millions of unemployed Americans are at risk of financial insolvency by the end of this month.

“The personal finances of workers who have been laid off or placed on temporary leave since the onset of the pandemic deteriorated in July,” Leer wrote. “The July survey found that 29% of unemployed and furloughed workers lacked adequate savings to pay for their basic living expenses for the month, up 16% in June. This monthly change contrasts with June, when the finances of laid-off and furloughed workers improved. At that point in time, many renters and homeowners took advantage of the rent-deferral and mortgage-forbearance options included in the CARES Act, thereby driving down their monthly expenses.”

Mark Cress

Mark Cress says the new ‘fast-pass’ bankruptcy process may be a viable option for some, but the process doesn’t leave business owners much time to create a reorganization plan.

Cress backed up that commentary with some other, very sobering numbers regarding renters.

“One-third of all renters weren’t able to make their July rent,” he noted. “And more than 60% were concerned they won’t make August. So you can imagine the ripple effects this will have … many small-time landlords, with one or two tenants, may not be able to pay their mortgage.

“And you if get enough defaulted mortgages … then banks start to pull in their horns, and all of a sudden the credit markets freeze up, and you have a real disaster,” he went on, drawing analogies, again, to what happened nine decades ago.

Looking at these statistics and possible scenarios, it’s easy to see why bankruptcy lawyers are expecting a wave, or tsunami, of personal bankruptcies to hit this area — and the nation as a whole — soon, with ‘soon’ being a relative term.

“Some people are getting unemployment benefits, but it looks like that’s ending,” said Weiss. “There’s a foreclosure and eviction moratorium that’s ending in October, and there are already people living on credit cards and exhausting their savings just trying to get through this — and it’s going to be a while before jobs come back.

“So it’s a matter of sooner than later,” he went on. “And bankruptcy is something of a trailing indicator; it takes people a while to get the point where they need to file for bankruptcy — the credit-card bills don’t become unmanageable until several months go by.”

By the Numbers

But the wave will almost certainly involve corporate bankruptcies as well, said those we spoke with, noting that many businesses have struggled to merely survive the past five months. And with the state already pumping the brakes on its reopening plan as reported cases increase, and ever more uncertainty about the future, survival is becoming more of a question mark for many businesses.

That’s especially true within the restaurant sector, said those we spoke with, noting that, while many have been able to reopen, their revenues are still a fraction of what they were pre-COVID. And with fall and then winter coming — meaning far fewer opportunities to serve outdoors — some in this sector are wondering if, and for how long, they can hang on.

“I think the dam is about to break — we’re on the cusp of a tsunami of bankruptcies. It hasn’t happened yet, but it’s going to happen.”

“I’ve been contacted by a number of restaurants, in particular, over the past few months,” said Katz, adding that there have been inquiries from those in other sectors as well. “Some of these have managed to hold on, some have closed some locations while keeping others open … but the number of people I’ve talked to just today tells me that the dam is just teetering, and I think there’s going to be unprecedented times in the bankruptcy field.”

This speculation leads him back to the new fast-pass small-business bankruptcy process, and questions about just how many businesses may try to take advantage of this emerging option, and whether they can be successful with such bids.

“I think a lot of businesses will try doing this because you have a 90-day maximum to get in and get out — that’s how fast this Chapter 11 is going to go,” he explained. “And the whole thing is predicated upon the fact that you only have to propose a plan that provides more to the creditors than they would receive in a liquidation, with no voting.

“Under the current Chapter 11 process, there’s a whole voting process, where you have to get two-thirds of the dollar amount and a majority of the number of creditors to vote in favor of it,” he went on. “But with this process, there’s no voting — it’s a much more streamlined process, and it’s far less expensive.”

With the new ceiling of $7.5 million, many more businesses are now eligible to take this route. But that same 90-day in-and-out period, while attractive in one respect, is daunting when it comes to actually putting a reorganization plan in place.

“I’ve talked with a number of people about it because people are still trying to figure how it works — there isn’t a lot of legal guidance or precedence,” said Cress. “But having to put a plan together in 90 days is going to be very difficult for many small businesses. If you don’t have any profits or any cash and you’re living hand to mouth, it really places an undue burden on you to figure it all out and get creditor sign-off in 90 days.”

Katz agreed. “Most traditional Chapter 11 cases are multi-year, and reorganization is based in projections,” he told BusinessWest. “How do you project when this COVID situation is going to change? If you’re a restaurant, how can you project when people are going to come back to your restaurant and you can go back to something approaching capacity?”

The Bottom Line Is the Bottom Line

Those lawyers we spoke with all expressed a desire not to sound like an alarmist.

But as they talked about what they’re seeing, reading, and hearing on the phone calls they’ve already taken, they admit it’s difficult not to take that tone.

“For many businesses, it’s a matter of survival at this point,” said Cress, noting that survival is becoming more difficult in some sectors with each passing month. “It’s becoming apparent that the recovery is not going to happen as quickly as some had originally hoped, and the effect is going to be much deeper and longer-lasting than people are even letting on.”

And one seemingly unavoidable consequence of all this is bankruptcies, on both the corporate and consumer sides of the ledger.

As Weiss said, the wave hasn’t crashed ashore yet, but if you look — and you don’t have to look hard — you can see it building.

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

Coronavirus Law

A Stern Test

By Marylou Fabbo

With schools reopening, parents and employers will be in a difficult boat together as they attempt to juggle parenting with personal and professional responsibilities.

Parents are understandably anxious about how they will meet their obligations to both their children and their employers. Several school districts have announced hybrid returns with students alternating between attending school and remote learning. Some jobs just can’t be done from home, and some parents who would otherwise be able to work at home will be needed to help their children with remote learning (or breaking up arguments).

To make matters worse, schools that are already back in session have shown us that, despite precautions that are being taken, school-based COVID-19 outbreaks are a real concern.

Employment-law Compliance

There is no question that many parents will be working from home in some capacity once the school year starts. Businesses should keep in mind that laws that are applicable in the workplace don’t go out the door simply because the workplace has moved to an employee’s home.

Marylou Fabbo

Marylou Fabbo

“Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle?”

For instance, Massachusetts employers must continue to make sure their employees take their 30-minute meal break and keep records of all hours worked, which may not look like the normal 9-to-5 workday. State and federal laws that require employers to provide a reasonable accommodation to disabled employees in the workplace apply to remote employees as well.

To meet these requirements, employers may need to do things such as make adjustments to equipment or the manner in which work is completed. Notices that must be posted in the workplace should be electronically distributed or mailed to an employee.

Still, there are many unanswered questions, and businesses are advised to consult with legal counsel before taking any risky actions. For example, employers are required to reimburse employees for required business-related expenses, but what does that mean when employees use their own laptops and internet for at-home work?

Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle? How does an employer prevent and address sexual harassment in the remote workplace? Is it discriminatory to distribute extra or different tasks that can’t be done at home to older employees who no longer have kids at home? All these issues should be discussed with your employment-law advisors.

Job-protected, Paid Time Off

Not all employees will be able to work when their children are taking classes from home. Employers should be prepared to work with a reduced staff for the foreseeable future. Federal laws will provide many parents with job-protected time off when school is closed, which includes situations where some or all instruction is being provided through distance learning.

The Families First Coronavirus Response Act (FFCRA) generally requires employers to provide paid time off to employees who cannot work (or telework) because their child’s school is closed. However, it’s not enough that a child is attending class remotely. The parent must be needed to care for the child, and the child must be under 14 absent special circumstances.

Still, the FFCRA does not cover all employees or all employers. Employers with 500 or more employees are not covered by the law, while small employers and healthcare providers may be exempt from certain requirements. Also, employees who have been employed for less than a month are only eligible for a maximum of two weeks of ‘emergency sick’ leave, while employees who have been employed for at least 30 days may be able to take up to an additional 12 weeks of expanded family and medical leave (EFML), including on an intermittent basis, assuming that the leave hasn’t already been taken for other permissible purposes.

Eligible employees can earn up to $200 per day when taking childcare EFML, subject to certain maximum dollar amounts. Lawmakers in several states, including Massachusetts, are considering legislation that would fill the gaps in the FFCRA’s paid-leave provisions, and several states have already extended virus-specific paid leave. Employers whose employees aren’t eligible for protected leave will have to decide whether to allow job-protected leave or lay off or otherwise separate with the employee.

School-related Exposure

Unpredictable, illness-related absences can pose another challenge for employers and employees. Children may be exposed at school and bring the virus home.

Employees may be needed to care for their children who are ill and may even test positive themselves. The FFCRA provides up to two weeks paid time off for COVID-related illnesses. The Massachusetts paid-sick-leave statute and the FMLA may also provide employees with paid time off. Employees may also be able to take protected time off (or time at home) as a reasonable accommodation for the employee’s own disability that makes it risky for the employee to go into the office.

Plan Ahead

There’s never been a return to school quite like 2020. The only certainty is that employers could not possibly plan for all potential scenarios. Businesses should make sure they have effective remote-work policies, practices, and procedures in place, be prepared to operate with fewer employees on an intermittent and possibly long-term basis, and designate one or more people within the organization to whom management and employees can direct their questions.

Marylou Fabbo is a partner with Springfield-based Skoler, Abbott & Presser, P.C., a law firm that exclusively practices labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. She devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753 ; [email protected]

Law

A Landmark Ruling

By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Erica E. Flores

Erica E. Flores

Businesses in Massachusetts have to comply with both state and federal anti-discrimination laws that prohibit discrimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of are sex, age, and religion, but there are many more.

Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gender identity and expression since 2012. However, many other states either don’t have employment-discrimination laws at all or don’t include sexual orientation or gender identity as protected characteristics under the laws they do have. So what about the federal law?

Title VII of the Civil Rights Acts of 1964 prohibits discrimination in employment based on specified protected classes. That statute, however, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.

In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.

Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Stephens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation discrimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had a different outcome. The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.

“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex. The Supreme Court answered in the affirmative.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The court noted that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by reproductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimination against an individual, not a group.

Based on this language, the court found that, under the plain meaning of Title VII, “an individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:

• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.

• An employer employs a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer continued to employ someone who identified as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees.

Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Law Special Coverage

COVID Lawsuits

By John Gannon, Esq.

Businesses across the globe are in the midst of planning, preparing, and executing their reopening strategies. While this news is encouraging, employers face novel and complicated legal questions about their potential liability to employees who either get sick at work or cannot return due to medical or childcare-related reasons.

Searching for answers, businesses leaders are confronted with an array of local, state, federal, and industry-specific protocols for operating safely. Charting a course in the face of this uncertainty is no small task. Unfortunately, one thing remains clear: there will be a wave of lawsuits triggered by the difficult business decisions made during this challenging time.

The COVID-19 crisis will send shockwaves through the courts and fair-employment agencies (such as the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination) for years to come. Senate Majority Leader Mitch McConnell remarked that an “epidemic” of these lawsuits will lead to “a trial-lawyer bonanza.” While likely overstated, the concern for employers should be real. Numerous COVID-19-related lawsuits have been filed, with many more on the way. Here are a sampling of those legal theories, with prevention tips and tactics at the end.

Negligence and/or Wrongful Death

One of the scariest claims for businesses will be negligence and wrongful-death lawsuits. In short, these actions may be lodged by employees (and even customers) who are harmed by COVID-19 because the employer failed to keep the work environment safe.

How might this look? Imagine that employees in a manufacturing plant return to work as the business reopens (or perhaps they have been working all along if the workers are deemed ‘essential’). Joe, who works on the factory floor in close proximity with others, tests positive for COVID-19. Mike, who works near Joe, also tests positive. Mike in turn infects members of his household, including an aging, immune-compromised parent. Can any of them sue the business?

John S. Gannon

John S. Gannon

“Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’”

Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’ Proving the root cause of a COVID infection is very difficult, as the virus spreads easily and can be contracted nearly anywhere.

In the above example, would Joe have a workers’ comp claim? Probably not, unless he can show others he was working in close proximity with someone who had the virus before him. What about Mike? He has a better claim, but still no sure thing. And certainly the family member would not be filing a comp claim. Instead, a negligence or wrongful-death suit might follow.

Recently, the relative of a retail-store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. All businesses that are open or reopening should have this case on their radar.

FFCRA Violations

By now, everyone should know that the Families First Coronavirus Response Act (FFCRA) allows employees to take paid leave for a number of COVID-19-related reasons, including the need to care for children who are unable to go to school or daycare. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue you in court. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages.

The first FFCRA-related lawsuit was filed last month. In the case, a female employee (and single mom) claimed she was fired because she requested FFCRA leave due to her son’s school closing. The employee allegedly discussed her need for leave to care for her son, and was told that the FFCRA was not meant to be “a hammer to force management into making decisions which may not be in the interest of the company or yourself.” She was fired a few days later and then filed what might be the first FFCRA lawsuit. Many more are certain to follow.

Discriminatory Layoffs

At the time of this article, the unemployment rate in the U.S. stands at almost 15%, and more than 30 million Americans have filed for unemployment since mid-March. Each layoff decision comes with the risk that someone will claim the reason they were selected was discriminatory.

Suppose Jane, who is 60, gets laid off, while many younger workers were retained for employment. Jane may claim that the reason was at least partially motivated by her age. If she was right, it would be would be textbook age discrimination.

Whistleblower/Retaliation Lawsuits

Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, Massachusetts has a law that protects healthcare workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.

Prevention Strategies

These novel COVID-19-related lawsuits generally fall into one of two buckets: claims related to worker health and safety, and discriminatory or retaliatory adverse employment actions.

To protect against the first batch, businesses need to rigorously follow federal, state, and local guidance on maintaining a safe workplace. Agencies like the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission have issued guidance on topics like maintaining safe business operations, temperature checks for employees, and personal protective equipment. Check with your risk-management advisors to see if they have developed checklists or other tools you can use to aid in your business reopening.

Avoiding the second type of lawsuit (discrimination, retaliation, etc.) involves the same tried and true principles that were critical before COVID-19. Make sure you have reasonable, business-based justifications for your decisions that are not motivated by characteristics like race, age, gender, or use of FFCRA leave. These business-based reasons should be well-documented and understandable to laypeople, who may be reviewing your justification in a jury room. Finally, when in doubt, consult with your labor and employment-law specialists.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations; [email protected]

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Law

That Is the Question, and Here Are Some Answers

By Valerie Vignaux, Esq.

Valerie Vignaux

Please allow me to interrupt your quarantine gratitude journaling and victory gardening to demystify a topic apt for these unfortunate times: probate.

I have found in my legal practice that most consider probate to be a dirty word. I have also found widespread misunderstanding of what that dirty word really means. What better time than during a pandemic to learn about the legal process surrounding death?

What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes. You ask, one eyebrow raised, “what are probate assets?” Excellent question — I can tell that you are a close listener.

Probate assets are property (such as real estate, bank accounts, cars, investment accounts, and retirement funds) that you own in your name alone at your death. These assets do not have a joint owner (like a joint bank account you might have with a spouse). These assets do not have a designated beneficiary (like on an IRA or a life-insurance policy that lists a child as beneficiary). In order for anyone to be able to access these assets after your death — to pay bills, to make distributions to loved ones — the assets must go through the probate process.

“I have a will!” you proclaim with confidence, “so there won’t be any probate.” But you are wrong, my friend. It is not the existence of a will that prevents probate; it is the absence of probate assets that prevents probate. It is how you own something that dictates whether that process must be undertaken, not whether you have a will.

“Then I shall tear up my will!” you cry out. Please, no. Your will makes this process easier, in part, by telling the court whom you want to be in charge of those assets. In the old days, when we shook hands with gusto and gathered at bars to buy overpriced cocktails, we called this person the executor or executrix. Today — really, since 2012 — the personal representative fills this role. Same job, different name.

“What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes.”

Your will also informs the Probate Court who will get your probate assets. Additionally, if appropriate, your will names your desired guardian of your children, in the event you die leaving minors behind. (Please wash your hands and stop touching your face.)

“Probate is the fourth circle of hell,” you sigh with resignation, “and I will take great pains to avoid it.” Here’s the dirty word bit, and what so many believe: probate is complicated, takes forever, and costs tons of money. This is not, however, necessarily true, and it is often not true at all. Of course, it depends upon the nature of your assets — perhaps you own many properties in different states, or a family business. Probate’s difficulty depends, too, upon your family circumstances — maybe you don’t have highly valued assets, but your children do not get along and there is a high likelihood of challenge over your collection of red hawk tail feathers.

For most people, probate is simply a process with clearly defined steps and a timeline. Getting help from an attorney can make the process even easier.

You now know, because you’re a quick study, two ways to avoid probate (add a joint owner, designate a beneficiary). But here’s something radical to consider: you might not want to avoid it. There are situations in which it makes good sense to force your assets (some or all) through the probate process. Your will can serve as a master plan for what happens to all you leave behind. That document allows you to spread your wealth (whether millions in cash or a trunkful of hand-sewn face masks) among all of your loved ones equally, or unequally. Your will can even create a trust that can hold assets for minors, those with poor spending habits, or a disabled family member.

If you name your children as beneficiaries of your life-insurance policy and die while they are still minors, a conservator will need to be appointed to receive, hold, and manage those funds for the benefit of your children — kids can’t just inherit money. The conservatorship process, another Probate Court endeavor, also takes time and money — often more than probate itself.

If you instead name your estate as beneficiary of your life insurance (“such madness!” you gasp, but bear with me), those funds will be handled according to the master plan — your will. You can avoid the necessity of a conservatorship by directing those funds into a custodial account at a bank, or by including a trust in your will that will hold the money for the benefit of your children. This is just one example of many.

I work with clients regularly to avoid probate and still achieve their desired goals. But sometimes I recommend that they embrace the process because it makes the most sense for their situation. Probate doesn’t have to be a dirty word. Working with an estate-planning attorney, and perhaps a financial advisor, you may find this is true for you. It’s important that everyone have a plan in place, but let’s all try to stay alive for a good, long while.

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

Law

Time to Make a Strong Case

Ken Albano, managing partner at Bacon Wilson.

For years now, it’s been the common refrain among those charged with hiring at companies across a number of industry sectors: good help is hard — or at least harder — to find and retain.

Increasingly, words to that effect are being heard in a sector where they’ve traditionally not been heard as much — the legal community.

Indeed, representatives of several area firms told BusinessWest that, while they can still recruit and hire talent — for the most part — it’s a more challenging assignment in many cases and often takes longer.

“It’s certainly more challenging now than it has been in the past,” said John Gannon, a partner and employment-law specialist at Springfield-based Skoler, Abbott & Presser, who penned an article for this issue on the many questions employers have about dealing with coronavirus. “But this is not unique to law firms — this is economy-wide, nationwide; it’s just hard to find people because everyone’s working.”

Indeed, this is, by and large, a buyer’s, or job seeker’s, market. Given these conditions, where law firms — like other employers in virtually every sector — are upping the ante with wages and benefits, it becomes more difficult for Springfield-area firms to compete. It’s a completely different playing field than the one that existed during and just after the Great Recession, he went on, when jobs were scarce and law firms saturated with lawyers were very much in the driver’s seat.

Ken Albano, managing partner at Bacon Wilson, which is based in Springfield and also has offices in Northampton and Westfield, agreed.

“It’s certainly more challenging now than it has been in the past. But this is not unique to law firms — this is economy-wide, nationwide; it’s just hard to find people because everyone’s working.”

“It’s challenging, but then it’s always been somewhat challenging in this market,” he told BusinessWest, adding that many factors are contributing to the current environment, including everything from the smaller classes at many law schools, which resulted from that depressed job market after the Great Recession, among other factors, to the lower pay scales in the 413 compared to markets like Boston, New York, and even Hartford (more on that later), to what appears to be fewer people moving into certain areas of the law.

To emphasize that last point, he reached for the Feb. 24 issue of Massachusetts Lawyers Weekly, specifically the ‘Employment’ page. Using a blue sharpie, he had circled the ads seeking litigators with varying levels of experience — and there were quite a few of them.

John Gannon says recruiting lawyers to this market has always been somewhat challenging, and with the current job climate, it is even more so.

‘Associate — Civil Litigation’ read one ad, while another was headlined ‘Senior Litigation Associate,’ and several read simply ‘Litigation Associate.’ One, for a firm in Charlestown, was more specific: ‘Trusts & Estates & Probate Litigation Associate — Must Love Dogs.’

Albano’s interest in those ads was understandable.

“Our firm’s biggest frustration has been in that one particular practice area, litigation,” he said, noting that the firm lost two of its best litigators, Bob Murphy and Kevin Maltby, to the bench in recent years, and has struggled to fill the void. “And I’m not sure why that is; maybe it’s the anxiety, maybe people don’t like to speak in public. It’s not just us — people are struggling to find people who want to go to court.”

Putting aside the need for litigators, and even litigators who love dogs, hiring has, overall, become more challenging for law firms in Greater Springfield, and this is prompting a response similar to that given by those in other sectors. Specifically, it’s one focused on being imaginative and resourceful, and employing tactics designed to familiarize law-school students with opportunities in this area and also sell this region both to those just starting their careers and those looking at a lateral move.

“We made a decision at a partners’ retreat to put a very targeted and strategic approach to hiring in place,” said Betsey Quick, executive director at Bulkley Richardson, which has offices in Springfield and Hadley, adding that part of this strategy is to focus primarily on area law schools, bring in summer associates and interns, and make them familiar with the firm and the region. And it’s a strategy that’s working.

“These are people who have a connection to the area, and our client community is out our windows,” she explained. “It’s a challenge to find someone who wants to be in the area, but there are so many law schools within 50 miles, and these students have a connection to the community, and if you have a connection to the community, you’re going to know people who need legal services.”

For this issue and its focus on law, BusinessWest takes a look at the job market and the challenges facing firms seeking to hire. As in the courtroom itself, this assignment requires making a very strong case in order to prevail in the end.

Hire Power

As this issue went to press, those managing area law firms certainly had a lot more on their minds than finding new associates.

Indeed, as the number of coronavirus cases climbed steadily upward through last week, every firm in the region was developing contingency plans, making preparations for employees to work at home if necessary, checking corporate insurance policies to see if they’re covered (probably not) in the event that the virus seriously disrupts business, and monitoring the situation at the various law schools — some, including Western New England University, were weighing whether to shut things down for the rest of the spring, and some had already decided to do so.

“Our firm’s biggest frustration has been in that one particular practice area, litigation. And I’m not sure why that is; maybe it’s the anxiety, maybe people don’t like to speak in public. It’s not just us — people are struggling to find people who want to go to court.”

But the matter of hiring is an all-important one in this sector, and it is an issue for the long term as firms look to do everything from filling specific vacancies in departments to ensuring a healthy mix of young and mid-career lawyers to ensure sustainability and inevitable transition to a younger generation, said Quick, adding that Bulkey Richardson recognized a need for such a mix and is aggressively pursuing one.

“We have a commitment to hire, or attempt to hire, at least three young people per year,” she said, adding that this number could go higher if the firm sees good talent and doesn’t want to pass it up. “And that’s part of our strategy; if we don’t keep a targeted and strategic approach to hiring young lawyers, we’re going to be top-heavy.

“Every firm faces succession issues,” she went on. “It’s a difficult, challenging problem to face, and part of it is just bringing up young lawyers behind them, especially while they’re here to talk to them and train them and take them to meet clients; it’s important to tap that wealth of knowledge.”

But when it comes to hiring lawyers, the Springfield market has always been somewhat unique — and challenging, said those we spoke with.

Betsey Quick

Betsey Quick says Bulkley Richardson’s hiring strategy has focused on seeking out law-school students who can make local connections and, overall, a commitment to this market.

In some ways, it competes with firms in New York, Boston, Hartford, Providence, and Worcester for talent, but its wage scale has always been significantly below New York and Boston and also well below those in those other cities. So, in some respects, this region doesn’t compete against those markets.

“What comes with practicing in this market is a lower salary — it’s a fact of life,” said Albano. “And a lot of times, when we do make offers to potential new associates, we can’t compete with the Boston and Hartford markets because, on average, a new associate can make a lot more money working in those arenas than they can in Springfield or Amherst or wherever.

“We’ve lost associates in the commercial practice group to Hartford,” he went on, estimating that salaries there are perhaps 20% higher than in Springfield. “And we don’t chase people — we say, ‘this is the offer, and it’s the same offer we’ve made to people that have been in your shoes, and they’re working here now.’ That’s one of the reasons why it’s hard to compete with those markets.”

Overall, the strategy has been to sell this market as a great place to live — and practice law — and to target (and in some respects recruit) candidates who want to be in this market and can commit to being here.

“We’re always looking for people who want to put down roots in Springfield,” said Gannon. “That’s a very important characteristic in all of the applicants we look at.”

Albano agreed.

“It’s tough to have someone from the Boston area come here knowing that the salary is going to be less,” he said, referring in this case to lateral hires. “But you try to impress upon these people that the cost of living is much less here. And we’ve seen both sides of the fence; we’ve had people that have worked in Boston come here and say, ‘I’d love to have a place where my dog can walk on real grass, have a fence around my yard, and not have to go to a skyscraper to go to work.’”

Quick, who handled aspects of recruiting for firms in Boston and Washington, D.C. before coming to Bulkley Richardson, acknowledged that the Springfield market is somewhat unique because of the lower salary ranges, underscoring the need, when it comes to entry-level hiring, to focus on law students who have or can create local connections.

“Anyone can look at the GPA [grade point average] and see how these students are doing on paper,” she told BusinessWest. “But are they going to fit culturally? Are they going to stay in the area? Do they have a tie to the area? Do they have a reason to want to be here? These are the things we look for.”

As for those already in the profession, in this tight job market, the task of recruiting and hiring becomes more difficult because most people are working, said Gannon, and also because the companies they’re working for want to keep them. And it’s the same in the legal profession.

“Most of the people who want to be working are working, and because unemployment rates are so low, what employers have been doing for the past couple of years is doing whatever they can to retain good people,” he said, adding that this means law-firm managers as well. “This means higher compensation, trying to pay more of the lion’s share of employee benefits, offering more generous PTO [paid time off] policies, and letting people work at home, which is a big one for many people. People are happy where they’re working — most of them, anyway.”

As for those coming right out of law school, they certainly want to be happy where they work, and, given the current climate, they have a good chance of succeeding with that mission. One strategy for Western Mass. firms — again, one that businesses in other sectors employ as well — is to familiarize young people with the region and create a familiarity and comfort level that may help sway decisions when it comes time to find a job.

“We’ve been fortunate in that we’ve been able to hire bright, qualified individuals in law school, both at Western New England and UConn, to become law clerks at Bacon Wilson,” he said. “They work for us for a couple of years, and we can see the progress and the value, and quite often they’ll say, ‘I like this place, it’s like family; is there a job opening for us?’ And more often than not, we make one for them because we want to keep that type of talent on our page.”

Final Arguments

Looking down the road is always difficult — especially when there is an unprecedented wildcard like the coronavirus. Indeed, law firms might soon be in less of a growth mode than they currently are.

But for now, and for the foreseeable future, the outlook is promising for business — if not for recruiting lawyers to the 413, necessarily. Whether the task is filling a vacancy in the estate planning or real estate department or finding a litigator — one who loves dogs or not — the assignment is becoming increasingly challenging.

And, like employers across the broad spectrum of business, law firms must respond proactively to this changing environment.

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

Law

Fresh Start

By John Greaney and Sarah Morgan

John Greaney

Sarah Morgan

Cannabis is a controlled substance under federal law. Massachusetts, however, has shifted from total prohibition to limited legalization. Despite this change, for many individuals, prior convictions for possession of marijuana may still cause major consequences. This raises the question: what can now be done about prior convictions for minor marijuana offenses that are no longer considered crimes under Massachusetts law?

Cannabis (marijuana) is made criminal as a Schedule I narcotic under the federal Controlled Substances Act. Notwithstanding the federal prohibition, Massachusetts and several other states have passed laws loosening the restrictions on small amounts of marijuana for personal use. In 2008, voters in Massachusetts approved a ballot question decriminalizing marijuana possession of up to one ounce per person. Massachusetts enacted an additional measure in 2012, allowing the purchase and use of marijuana for therapeutic uses from registered marijuana dispensaries.

Moving further away from prohibition, in 2016 Massachusetts enacted a law permitting individuals over the age of 21 to possess up to one ounce on their person and up to 10 ounces in their homes. The Cannabis Control Commission, the state agency which now regulates the recreational and medical marijuana industry, is considering social consumption of marijuana at sites designated as licensed marijuana establishments, such as cannabis cafés.

Despite the significant progress made, convictions for marijuana possession under the former criminalization scheme may continue to have lasting effects on individuals. Even minor convictions for possession appear on a person’s criminal offender record information (CORI) report and may disqualify him or her from employment or housing opportunities or possibly lead to other adverse consequences.

The impact of prior criminal convictions for possession also may disproportionately affect people of color. A study conducted by the Cannabis Control Commission found that African-American and Hispanic people — in particular, men — had been disproportionately convicted for cannabis possession between 2000 and 2013 as compared to white people during the same period.

“Despite the significant progress made, convictions for marijuana possession under the former criminalization scheme may continue to have lasting effects on individuals.”

Although the 2016 legalization bill permitted individuals to possess up to one ounce of marijuana, it did nothing to erase past convictions and their lasting impacts.

In 2018, our Legislature addressed the retroactivity problem when it enacted the Massachusetts Criminal Justice Reform Law, comprehensive legislation that allows individuals to seal or expunge their criminal records for offenses that are no longer a crime. This permits individuals who have been convicted for possession of one ounce or less of cannabis to seal or expunge their record. The law does not allow for sealing or expungement of more significant marijuana offenses.

The Criminal Justice Reform bill reflects the Commonwealth’s new views on marijuana use and a progressive intent to address the effects and disparate impacts of marijuana criminalization.

Under our revised laws, sealing and expungement are the two mechanisms available to limit, or remove, minor marijuana convictions from criminal records. Sealing records restricts who can access them and involves a relatively simple process — a petitioner must complete a petition to seal and mail it to the Office of the Commissioner of Probation in Boston. Once sealed, a person may answer, “I have no record,” when asked about criminal records concerning possession of marijuana by an employment or housing screener. However, state law-enforcement agencies and offices responsible for administering foster care, adoption, and childcare programs may still access sealed records.

Expungement permanently destroys a criminal record and allows a person to claim, without limitation, “I have no record,” when asked about their criminal history for any purpose. Expunging records requires a petitioner to file a petition for expungement in court and may require a hearing if either the petitioner or the district attorney, who must be notified of the petition, requests one. A judge hearing a petition for expungement has discretion to approve or deny it. Importantly, individuals who are not citizens, or whose immigration status may be impacted by the process, should not seal, or attempt to expunge, their records without consulting an immigration attorney.

Once a criminal conviction has been sealed or expunged, an individual is no longer obligated to report these convictions on an application for employment or housing. The Massachusetts Ban the Box Law prohibits employers from asking applicants in an initial employment application about their criminal records except in limited circumstances. The changes to the law also require employers to include specific informative language related to criminal-record disclosures in any requests provided to applicants. Applicants whose records have been expunged may answer ‘no record’ on an application for employment or housing.

Once a criminal conviction has been sealed or expunged, an individual is no longer obligated to report these convictions on an application for employment or housing.

At all stages of the hiring process, employers are absolutely prohibited from inquiring about criminal records — or anything related to criminal records — that have been sealed or expunged. In other words, once an employer learns that the applicant either has no record or that the records have been sealed or expunged, the employer cannot inquire further. In view of these changes, employers should review their hiring practices and applications and adjust them, and the interview process, accordingly.

Sealing and expunging prior convictions opens many new doors of opportunity for those impacted by the decades-long criminalization of marijuana in Massachusetts.

Anyone interested in exploring their options for addressing their qualifying Massachusetts cannabis convictions should contact the Hampden County Bar Assoc. regarding “Off the Record: A Clinic on Removing Past Marijuana Convictions from Your Record,” a free event to review individual circumstances and receive assistance on preparing the necessary documents. The clinic is co-sponsored by the Hampden County Bar Assoc., INSA, Sigma Pi Phi, and the Western New England University School of Law Center for Social Justice. 

Justice John Greaney is a former justice of the Supreme Judicial Court and senior counsel at Bulkley Richardson.  Sarah Morgan is an associate in the litigation and cannabis practices at Bulkley Richardson.

buy ivermectin for humans buy ivermectin online buy generic cialis buy cialis payday loans online same day deposit 1 hour payday loans no credit check