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Be Careful with Your ‘Wake Word’

By Andrew Levchuk and Lauren Ostberg

Andrew Levchuk

Andrew Levchuk

Lauren Ostberg

Lauren Ostberg

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

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

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

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

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

First Amendment

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

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

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

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

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

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

Fourth Amendment

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

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

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

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

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

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

Law Sections

Not an Arbitrary Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Barry agreed.

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

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

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

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

Making Their Case

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

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

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

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

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

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

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

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

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

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

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

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

A Strong Case for ADR

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

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

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

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

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

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

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

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

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

Final Arguments

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

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

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

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

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

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

Law Sections

Streamlining the Process

Westfield State University President Ramon Torrecilha

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— George O’Brien

Law Sections

‘A Zealous Advocate’

Western New England University School of Law Dean Sudha Setty

Western New England University School of Law Dean Sudha Setty

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

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

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

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

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

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

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

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

Courting Change

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

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

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

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

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

law schools are still challenged by depressed enrollment

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

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

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

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

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

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

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

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

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

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

Making a Case

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

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

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

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

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

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

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

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

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

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

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

Closing Statement

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

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

Joseph Bednar can be reached at [email protected]

Law Sections

Taking the Pulse

By Kimberly A. Klimczuk, Esq.

Kimberly A. Klimczuk, Esq.

Kimberly A. Klimczuk, Esq.

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

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

Does the sick leave law apply to my organization?

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

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

Can I discipline employees for excessive absences?

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

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

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

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

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

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

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

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

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

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

Law Sections

Positive Prognosis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Different World

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

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

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

recent panel discussion at WNEU School of Law

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

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

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

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

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

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

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

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

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

Meaningful Work

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Columns Law Sections

Law Column

By Marylou Fabbo

Marylou Fabbo

Marylou Fabbo

During the holiday season, employers may have been faced with a variety of religion-related requests such as whether they may display certain religious icons in their work areas. Throughout the year, employees may want time off to observe certain holy days rather than conforming to the employer’s holiday schedule, request breaks to pray, or seek an exemption from an employer’s dress or grooming standards so that they may express themselves consistent with their religious beliefs.

While employers do not question most requests, what should an employer do if it suspects that the requested accommodation is being made to upset a co-worker or that an employee is requesting certain days off to go shopping or take a long weekend?

What Constitutes a Religious Belief?

Both state and federal law prohibit discrimination against employees and applicants based on religion, and employers are required to reasonably accommodate bona fide religious beliefs.

A ‘bona fide religious belief’ means that the individual has a religious and sincerely held belief or practice. Title VII defines ‘religion’ very broadly. It includes traditional, organized religions as well as those that are new, uncommon, not part of a formal church or sect, or held only by a small number of people. Religious beliefs don’t need to be part of organized religion, and moral or ethical beliefs as to what is right or wrong could constitute religious beliefs. According to the U.S. Equal Employment Opportunity Commission (EEOC), however, “social, political, or economic philosophies, or personal preferences” are not religious beliefs.

What Religious Accommodations Must an Employer Provide?

Employers may not refuse to accommodate an employee or applicant’s sincerely held religious beliefs or practices unless accommodating them would impose an undue hardship.

Some examples of accommodations that an employer would have to provide, absent undue hardship, include excusing a Catholic pharmacist from filling birth-control prescriptions or permitting a Muslim employee to take a break schedule that will permit daily prayers at prescribed times. With the holidays approaching, an employee may request other accommodations, such as the ability to take certain days off (other than Christmas) or to display religious symbols in their work areas. What should an employer do in response? Read on.

When May an Employer Deny a Request for a Religious Accommodation?

Employers must grant a request for a religious accommodation unless doing so would pose an undue hardship on the employer. The ‘undue hardship’ burden is lighter when it comes to religious accommodation than it is when talking about disability-accommodation requests. For religious-accommodation purposes, an undue hardship exists if it would cause more than de minimis cost in terms of money or burden on the operation of the employer’s business. Generic co-worker complaints usually are not valid reasons to deny a request for religious accommodation.

What If an Employer Suspects the Employee Wants an Accommodation for Non-religious Reasons?

Certain behaviors may make an employer question an employee’s assertion that the employee sincerely holds a religious belief that forms the basis of a requested accommodation. The EEOC has suggested that these behaviors may include whether the employee has behaved in a manner markedly inconsistent with the professed belief, whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons, whether the timing of the request renders it suspect, and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The courts, too, have recognized that an employee might use ‘religious beliefs’ to obtain an accommodation for a personal preference rather than a religion. In a recent case, a hospital employee refused to receive a mandatory flu vaccination based on her religious beliefs, which included the notion that her body is a temple. The hospital excused the employee from the mandatory vaccine and instead required her to wear a mask. She claimed that the mask was not an acceptable alternative because it interfered with others’ ability to understand her. During the litigation, the employer sought a detailed description of the ways in which the employee adhered to her belief that her body is a temple, and, despite the employee’s protest, the court required her to answer the question.

It’s probably the best practice to ask the same questions to everyone who makes a religious-accommodation request, or question whether an employee has a sincerely held religious belief, when there is objective evidence that the request may have been made for ulterior reasons.

How Should Employers Handle Requests for Religious Accommodations?

When an employer receives a request for a religious accommodation, the employer should let the requesting employee know it will make reasonable efforts to accommodate their religious practices.  Employers should assess each request on a case-by-case basis.

Remember, while an employer should consider the employee’s requested accommodation, employers are not required to provide an employee’s preferred religious accommodation if there’s another effective alternative. However, be wary of affording employees who practice certain religions different treatment than afforded to those who practice other religions. Employers should train supervisory personnel to make sure they are aware that a reasonable accommodation may require making exceptions to regular policies or procedures.

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]

Law Sections

The Big Picture

businessmansilhouetteartWhile large in scale and scope, the unfolding Harvey Weinstein story nonetheless offers invaluable lessons to employers in every sector about their responsibilities and the steps they must take to protect their employees and themselves. That’s the main takeaway from this matter, according to several employment-law attorneys, who note that the main objective should be zero tolerance.

Kathryn Crouss says that, in many respects, the Harvey Weinsten story — three words that cover a lot of territory, to be sure — is outwardly extraordinary in several respects.

Starting with the individual at the center of it all.

He was (the tense is important here, so please note it) not only the leader of the company in question — Miramax and then the Weinstein Company — but an executive who seemingly had the ability to alternately make or break a career depending on his disposition at a given moment.

Also extraordinary was the extent of the allegations lodged against him by a growing number of women — from random, or not-so-random, as the case may be, acts of sexual harassment all the way up to rape. (Weinstein adamantly denies the latter.)

Other manners in which ‘extraordinary’ fits include everything from the number of alleged victims of harassment (or worse), to the number of people who evidently shirked their responsibilities in this matter (from other officials at the company to board members), to how long it took for this story to break. Indeed, several reporters have come forward to say their efforts to uncover allegations against Weinstein were thwarted for years by everything from alleged victims’ refusal to talk to heavy-handed threats of litigation from Weinstein and his lawyers.

But when you slice through all that, ‘extraordinary’ might not be the most effective adjective after all, said Crouss, an employment-law specialist and associate with the Springfield-based firm Bacon Wilson. She told BusinessWest that, in many respects, what happened at the Weinstein Company still goes on at firms that are exponentially smaller and with individuals who might lack the star power of actresses like Ashley Judd and Gwyneth Paltrow, but who nonetheless have the same basic rights.

Kathryn Crouss

Kathryn Crouss

“I’m glad all this has come out, because we really do have to have this conversation,” she told BusinessWest. “It’s not only in Hollywood, it’s everywhere, and this is a good opportunity to have the discussion.”

Specifically, she was referring to sexual harassment in its two most basic and legally identified forms — the presence of what’s known as a “hostile work environment,” and also the quid pro quo variety, where one individual promises something in exchange for something else.

They both go on at companies and institutions large and small and across all sectors of the economy, said Crouss, basing those remarks simply on how much time she’s spent in court and in clients’ boardrooms handling such matters.

Amelia Holstrom, an associate with Springfield-based Skoler, Abbott & Presser, agreed.

Amelia Holstrom

Amelia Holstrom

“Sexual-harassment cases are on the rise, and, more importantly, retaliation cases have increased from 18,000 in 1997 to 42,000 in 2016,” she said, adding that some of those harassment cases involve individuals who reported sexual harassment and allege that some action was taken against them as a result of their complaint.

Thus, the Weinstein story serves up some important lessons, or a wake-up call, if you will, said Crouss and others we spoke with, about employers’ responsibilities under the law, and what is really necessary to keep them from running afoul of those laws.

In short, while the law requires companies with six or more employees to have a formal sexual-harassment policy on the books — meaning in the handbook — having a policy on paper is only the starting point.

Peter Vickery, an employment-law specialist based in Amherst, said employers should be diligent about making employees aware of the policy, provide training to workers at all levels in recognizing and avoiding sexual harassment, and follow through on everything in the policy.

Peter Vickery

Peter Vickery

“When they receive complaints, they have to investigate them immediately, or as promptly as possible, and follow up,” said Vickery as he listed clear takeaways from the Weinstein saga. “And whatever they do, under no circumstances should they retaliate against the employee who brought the complaint. Also, depending on what their investigation uncovers, take remedial action.

“What the Weinstein case is showing is that a lot of powerful people chose not to protect Weinstein’s victims; they had a choice, they were employers, they knew that this was going on, and they chose to do the wrong thing,” he went on. “They chose not just to turn a blind eye, but to become complicit and to be his enabler. It looks like a lot of powerful people chose to put their employees in harm’s way.”

For this issue’s focus on law, BusinessWest looks at the Weinstein case and, more specifically, what employers should take from it.

Action! Items

Getting back to the Weinstein story and that word ‘extraordinary,’ it would also apply to the price that Weinstein and his company will be paying for all that transpired over the past few decades.

Indeed, Weinstein the man and Weinstein the company name would both appear to be highly radioactive at this point and with very uncertain futures. The same can be said for other officials at the company, including Harvey’s brother, Bob. There will likely be criminal charges filed and enormous penalties to pay.

Again, extraordinary. But the price to be paid by small-business owners and managers who run afoul of sexual-harassment laws are equally significant, at least when adjusted for scale.

“There can be damages for back pay if someone lost their job or quit,” Holstrom explained. “There can be damages for emotional distress, which is common in these cases and can range from $50,000 to one I’ve seen at $500,000. There can also be punitive damages, attorney’s fees, the other side’s attorney’s … the list goes on.”

So how do employers protect themselves and their businesses from paying such penalties? The simple answer, said those we spoke with, is by taking the matter seriously, or very seriously, as the case may be.

Most already do, said Holstrom, but the rising number of sexual-harassment and retaliation claims would seem to indicate they’re not taking it seriously enough.

Or, to put it another way, they’re not taking a ‘zero-tolerance’ stance on the matter, a phrase used by all those we spoke with.

There is much that goes into zero tolerance, as we’ll see, starting with the need to go well beyond placing a sexual-harassment policy in the company handbook. Additional steps could and should include yearly training, said Crouss, noting, for example, that this takes place at her firm.

Beyond training, employers looking to protect their interests must take each complaint, investigate it thoroughly, and, when there is harassment between co-workers, take steps to stop it, said Holstrom, adding that when the matter involves a supervisor harassing a co-worker, the employer is automatically liable. And while she acknowledged that ‘thoroughly’ is a subjective term, she said objectivity is required, and she had her own advice for clients on such matters.

“They have to meet with the accuser and get all the facts from that person,” she explained. “And then, they have to meet with the accused and gather information from that individual. And then, they have to meet with any witnesses that are identified by the accused, the accuser, or anyone else. And then, they have to follow up if necessary.

“And then, the employer, using some common-sense principles and some evidence, decide who they believe,” she went on, adding that this is sometimes, if not often, an inexact science.

Beyond acting ‘thoroughly,’ however it might be defined, companies must also act consistently, said Crouss, meaning that all cases are investigated and handled with equal vigor, regardless of who is accused of harassment.

That includes women; top officials at a company, up to and including those who might have the names over the door and on the stationary; and the proverbial ‘golden boy or girl’ — a top producer, for example, or a popular employee, or even someone who has been around a long time and is generally well-respected.

Creating an environment where employees feel they can lodge warranted complaints against anyone and they will be taken seriously and acted upon is inherently difficult, she went on, but this should be the goal for all employers; otherwise, complaints can and will go unreported, as they were in Weinstein’s case.

“What happens if it’s the golden boy?” she asked rhetorically. “This is someone the rest of the company values and likes, but this is going on behind the scenes. The harassed employee is likely to think, ‘they’re never going to come after so and so.’”

One of the most troubling aspects of the Weinstein case, Crouss said, is the alleged perpetrator himself, the boss and power broker, a situation that, in some respects, goes a long way toward explaining why harassment still takes place.

“Those women didn’t feel supported or safe in reporting it,” she said of the Weinstein allegations. “And I think the reason in this case, and in so many cases, why these types of things are able to go on as long as long as they are is because women either don’t understand what’s happened or don’t define it in their heads as sexual harassment, or don’t feel safe in their own jobs and their own employment reporting it.”

And this is why, she went on, at the grassroots level on up, it’s important for employers to be proactive and very clear about just what sexual harassment is and what employees can and must do if they believe they are victims of it.

Cast of Thousands

Zero tolerance and protecting a company and its leadership also means knowing, fully understanding, and taking steps to prevent (through training and other measures) those two main types of sexual harassment mentioned earlier.

The first is the presence of a hostile work environment, which, said Holstrom by way of offering the legal definition, “is unwanted or unwelcome conduct focused on or because of an individual’s protected class that unreasonably interferes with job performance or creates an intimidating, hostile, or offensive work environment.”

“Typically, someone must prove that she or he was subject to unwelcome/unwanted, verbal/non-verbal communication or action that was severe and pervasive enough to alter the terms and conditions of employment,” she went on, adding that, in sexual-harassment cases, examples of such conduct or actions include sexual advances, touching, and sexual jokes.

‘Hostile’ is another one of those words that seems laden with subjectivity, and in some respects it is, said Holstrom, who takes this approach on the matter:

“What I always tell my clients is that, when they do these investigations, they’re not necessarily making a legal determination about whether it would constitute a hostile-environment claim to a jury or another decision maker,” she explained. “I tell them, ‘you’re looking at whether it violates your policy and whether it belongs in your workplace.’”

Vickery agreed, and noted that employers should be mindful of the fact that hostile-work-environment claims can, and often are, lodged by those not being directly harassed but who are nonetheless working — or trying to work — in the same environment.

“They also have the right to be free from a hostile work environment,” he noted. “So they can file claims as well.”

As for quid pro quo harassment (the term comes from the Latin and means “this for that”), it occurs when submission to or rejection of conduct is used as the basis for an employment decision, said Holstrom.

“Examples include a supervisor promising an employee a raise if she goes on a date with him,” she noted, “and a supervisor giving an employee a negative performance review because he refused to go on a date with her.”

But safeguarding a company from trouble with regard to sexual harassment extends beyond the walls of a company, said Vickery, adding that this is another possible lesson from the Weinstein story.

Indeed, he said employers must be diligent about protecting employees from what’s known as third-party harassment, that committed by vendors, customers, and other parties employees might interact with.

The key in such matters is employers “sending employees into harm’s way,” said Vickery, meaning that a supervisor likely knows harassment is possible or even likely, and sends the employee into that environment anyway.

“A company’s policy should make it clear that employees can and must report sexual harassment by third parties,” he explained, “because that sexual harassment by a third party, if it occurs in the context of an employee’s job, can be a claim of hostile work environment. So employers need to be mindful of that to possibly avoid liability.”

Roll the Credits

As extraordinary as the Weinstein case is, and despite the fact that it will be in the news for quite some time, this story, like so many others that came before it, has the potential to fade from memory, or fade to black, as they say in the film industry.

Employers can’t afford to let that happen, in any sense of that phrase, said the lawyers we spoke with.

They should acknowledge that this case represents extremes in many, if not all, aspects of sexual harassment and the prices to be paid for such transgressions. But they should also understand that it also represents the basics.

And that there are important lessons to learn and remember.


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

Law Sections

Courting Change

Eric Gouvin

Eric Gouvin says law students, like the customers of any business, want return on their investment.

Enrollment was already declining at law schools nationwide when the Great Recession hit, drying up the legal job market and driving the applicant count even lower. That forced a mass contraction at institutions across the U.S., including Western New England University School of Law. But its dean says the strategies undertaken to provide more return on investment for students has brought stability, and the future looks brighter than it has in years.

Few law-school leaders are surprised that enrollment is slightly higher nationally than it was a few years ago — if only because it couldn’t get much lower.

In fact, said Eric Gouvin, dean of Western New England University (WNEU) School of Law, 100,600 individuals applied to law schools during the 2003-04 cycle. In 2014-15, the number was 55,700.

That’s a stark decline, but the numbers are starting to tick up — slowly. Still, no one expects them to soar anytime soon, meaning this has become a new normal across the country — with a few exceptions, like Harvard, which will always have its pick of top applicants.

One reason for the enrollment drop was a declining job market for lawyers, one that began before the Great Recession but accelerated quickly after the 2008 financial crisis. By 2012 or 2013, graduates were finding it very difficult to secure positions right out of school.

To be honest, we were probably making too many lawyers for too long. In the good old days, we just kept saying, ‘we’ll take you; we’ll teach you law,’ but there weren’t necessarily enough jobs for those people. Then, in the Great Recession, people were graduating into an economy that was close to failing. Not only were there no jobs, but existing jobs were being eliminated. Those new graduates were devastated.”

“To be honest, we were probably making too many lawyers for too long,” Gouvin said. “In the good old days, we just kept saying, ‘we’ll take you; we’ll teach you law,’ but there weren’t necessarily enough jobs for those people. Then, in the Great Recession, people were graduating into an economy that was close to failing. Not only were there no jobs, but existing jobs were being eliminated. Those new graduates were devastated.”

That job-market crisis has alleviated significantly, if only because fewer students are seeking a career in the legal field, and law schools — again, with a few, high-profile exceptions — have been forced to contract.

“We can engage in magical thinking, wanting to bring back the good old days, or we can be realistic,” Gouvin told BusinessWest. “The market is saying fewer people want to go to law school. If you’re not Harvard or Georgetown, you have to take that reality into account.”

Just before Gouvin became dean in 2013, the school launched a strategic plan to assess its current situation amid the national enrollment crisis, and where it needed to be given that environment. Part of WNEU’s strategy focused on giving students more return on investment, including a tuition freeze, instituted during the 2013-14 school year and extending through 2017-18.

“A lot of our competitors didn’t do that, so we have essentially cut tuition by not raising it,” he said. “We’re 15% to 20% lower than Quinnipiac, Suffolk, and New England Law, so we’re producing on that end of return on investment.”

The school has been generous with scholarships, too, he said, so its $39,400 annual tuition actually translates to an average of $21,000 per student. “That’s is a pretty darn good deal today.”

With the lowered revenues, of course, WNEU had to keep a close eye on expenses, and it was able to shrink staff through retirements, so that the school, staffed for 550 students when Gouvin arrived, is now staffed for 300 — a notable contraction, he said, but typical of what’s happening across the country.

“With some smart planning on the expense side, we figured out how to offer the same programs with fewer people,” Gouvin said. “As the student body contracted, we needed fewer teachers. One concern some alums might have had was replacing tenured faculty with adjuncts, but that’s not true; since I’ve been here, we’ve had 32 adjuncts a year, all teaching upper-level electives. The core programs are taught by full-time, tenured faculty members.”

The school has also tried hard to avoid unnecessary debt to keep overhead down, he added. “There’s a lot of competition out there to build these incredibly beautiful, palatial buildings, but I don’t have that hanging over my head. I have staff and program expenses, but I don’t have huge debt service.”

Still, keeping tuition down by reducing expenses is only one way to provide that much-discussed ROI that today’s law students crave. The other is to give them more of what they need to secure employment, and on that front, WNEU hasn’t let them down.

Case Studies

For instance, the school has added new programs, some of them to attract students who aren’t necessarily looking to pursue a career practicing law. Such initiatives include a master of laws and letters (LLM) degree in estate planning and elder law, introduced in 2004. More recently, the school added a master’s-degree track in the same discipline.

“We identified that need early on, with the population aging, and a lot of wealth still to be transferred from Baby Boomers to their kids,” Gouvin explained. “We’ve been in a good spot with the elder-law and estate-planning programs we’ve offered, and have expanded them.”

Another focus has been on what Gouvin calls student-centered professional education.

“Student-centeredness is in the water here. I think the students care about each other and have the chance to get to know their professors pretty well. They have an incredible support system, very customer-friendly, problem-solving-oriented,” he explained. “I can’t take credit for that; it was already part of the culture. It’s a real selling point for Western New England.”

But he has led efforts to “up our game” in that area, particularly through the use of clinics — in areas such as criminal defense, criminal prosecution, elder law, and immigration (the latter in cooperation with Community Legal Aid), in which students blend classroom instruction with work on real cases, under the guidance of local attorneys.

The newest clinic centers on family-law mediation. “We’re the only school in the Commonwealth working with the family courts. It’s groundbreaking, and we’re quite proud of it.”

In fact, Gouvin said, about 88% of all 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.

WNEU School of Law

Eric Gouvin says WNEU School of Law has raised its game by adding new programs and clinics aimed at giving students real-world experience.

In making these community connections, Western New England benefits from its position as the only accredited law school in the Commonwealth west of Greater Boston, Gouvin noted. This uniqueness ensures a broad range of opportunities in the form of internships and clerkships.

“That’s one of our strengths; we have many quality placements with federal judges, state courts, law firms, nonprofits. It’s not like we’re competing with six other law schools to get those spots. And it’s the kind of experience employers find valuable and relevant. For a small school, we nail that.”

I’ve got a police officer, an HR person, a computer tech person, an insurance guy who does construction litigation … none of those want to be practicing lawyers, but they see they can be more effective in their roles by knowing more about the law. A lot of people out there realize law is handy, even if they don’t want to be lawyers.”

WNEU School of Law has also expanded its appeal by launching a master’s degree in law for students who have no intention of becoming lawyers, but who take classes alongside juris doctor students to develop an expertise in legal matters to bring to their chosen career, be it accounting, insurance, banking, journalism, fund-raising, or any number of other disciplines.

“I’ve got a police officer, an HR person, a computer tech person, an insurance guy who does construction litigation … none of those want to be practicing lawyers, but they see they can be more effective in their roles by knowing more about the law,” Gouvin said. “A lot of people out there realize law is handy, even if they don’t want to be lawyers.”

Meanwhile, dual-degree programs like WNEU’s JD/MBA aim for the same type of cross-disciplinary expertise. “It’s never just law; it’s always law and something,” he said. “For students to gain knowledge in their fields and marry that with a law degree, I think that can give them a boost.”

After all, he added, “it’s hard to imagine any aspect of human activity that doesn’t have a legal component to it. We’ve never made less law; we’re always making more.”

Making an Appeal

That simple truth will always provide a stream of young people interested in practicing law, even if that stream has weakened in the new millennium.

“The market four years ago was in shambles, and we’re seeing that it has come back — not to where it was prior to the Great Recession, but it’s probably more sustainable now,” Gouvin told BusinessWest. “The good news is that Western New England and just about every other law school have contracted; instead of pumping 200 graduates a year into a market that can’t absorb them, we’re now graduating 100 into a market that can absorb them.”

Academically, the school must be doing something right, he added, noting that, despite a recent preference for applicants with high GPAs over high LSAT scores, WNEU ranks fifth in the state on percent of students passing the bar, behind only Northeastern, Harvard, Boston University, and Boston College. “That’s with students whose LSATs would have predicted they’d have trouble with the bar.”

Furthermore, Gouvin expects graduates’ job prospects — and, as a result, interest in a law degree — to increase as older lawyers, whose assets were battered by the Great Recession and may have postponed retirement because of it, start seriously considering life after law.

“Many waited until housing and the stock market recovered,” he said, “but now, it may be that more folks see their way clear to retiring.”

At the same time, he was quick to add, the industry is changing, and retiring lawyers won’t be replaced by the same number of newcomers. Technology has reduced some of the workload for attorneys, while paraprofessionals are performing many of the duties lawyers handled a generation ago.

“That being said, there should be a net outflow from the profession,” he went on. “The median age of lawyers has been increasing for the past two decades.”

In other words, the future seems bright for WNEU, which started in 1919 as the Springfield branch of Northeastern, holding classes at the YMCA on Chestnut Street.

“Like I tell alums, we’ve been here 100 years, and we’ll be here another 100 years,” he said, and that’s plenty of time to cultivate new relationships between students and the legal community they one day hope to work in.

He cited a survey UCLA conducts each fall with its incoming freshmen, asking them what they want to do with their lives. Since 2000, the percentage saying they wanted to practice law has been on the decline, from 5.2% in 2000 to a recent low of 3.2%. But in the past two years, the number shot back up. It’s just another data point, Gouvin noted, to encourage those, like him, who are invested in the legal profession.

“Again,” he said, “these are hopefully signs not only that people think going to law school is a good idea, but that going to law school actually is a good idea.”

Joseph Bednar can be reached at [email protected]

Law Sections

Foreign Affairs

By Marylou Fabbo, Esq.

Marylou Fabbo

Marylou Fabbo

Although a new version of the Form I-9 became mandatory only earlier this year, on July 17, 2017, the U.S. Citizenship and Immigration Services issued yet another revised Form I-9. On Sept. 18, 2017, use of the new Form I-9 will be mandatory, but employers who want to do so can start using it now.

For many companies, a new I-9 presents a new opportunity to make an I-9 error, and those errors can be costly. Just using the wrong version of the Form I-9 can subject an organization to fines or penalties. On top of that, U.S. Immigration and Customs Enforcement (ICE) interprets its regulations to allow a fine for every single error on an I-9, and it may fine a company based on the percentage of I-9s that have errors.

I-9 Audits Are on the Rise

Form I-9 audits often begin with ICE’s unexpected visit to the workplace with a demand to see the company’s I-9 file. Along with increased focus on immigration enforcement, it is anticipated that ICE will increase Form I-9 administrative audits, making it more likely that a wide variety of employers will be subjected to an audit.

The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.”

Fines for knowingly hiring an unauthorized alien can be more than $20,000 per person, and fines for improper completion of the form can range between approximately $200 and $2,100. The newest I-9 appears straightforward to complete. However, there are 15 pages of instructions on how to complete it that contain many specific details, increasing the risk that a mistake will be made. ICE is not likely to be hesitant to impose a fine for those mistakes.

Buffalo Transportation Co. made copies of employees’ identifying documents required to complete their I-9s but did not actually complete the I-9s in a timely manner, resulting in a $75,000 fine. Panda Express recently paid $600,000 to settle claims that it discriminated against immigrant workers when verifying them for employment. Panda Express is alleged to have required immigrant workers to provide documents that they were not legally obligated to provide and also made some immigrant employees re-verify their work eligibility even though they were not required to do so.

The use of the newest Form I-9 is designed to help employers eliminate errors, but will provide employers with fewer reasons to complete it incorrectly.

Should Your Company Conduct a Form I-9 Audit?

I-9 errors are very common. It is not unusual for employers and employees to speed through the hiring paperwork. Companies should take a look at a few of its I-9s. Errors that might be discovered may be as simple as an employee reversing his or her first and last name or forgetting to date the form. An employer may neglect to insert the first day of employment, which, prior to the newly revised form, was easy to do because the request for the date was among other text, making it easy to miss. It is also not uncommon for the company’s authorized representative to sign but not enter his or her title, name, or the date.

More serious (yet just as easy to make) errors relate to verification documentation. Frequently, employers do not enter an acceptable List A document or acceptable List B and List C documents. On the other hand, some companies have both A and B or C documents, which is also an error. Something as simple as not entering the document title, issuing authority, number(s), or expiration date for the documentation presented can be costly.

So, take a look at your audit files. Is every section that needs to be completed fully and accurately completed? Is Section 1, the section the employee is required to fill out, complete, dated, and signed? Does your authorized representative know the difference between a lawful permanent resident and an alien authorized to work? Is the Employer’s Section, Section 2, completely filled out? Does the List A document or the List B and C documents section contain all information, including the Issuing Authority? Are photocopies of the documents the employee presented attached, and, if so, why?

If you find even a few incorrect I-9s, you should conduct a full Form I-9 audit. If you are not knowledgeable about I-9 requirements, you should consider working with an attorney to conduct the audit and provide confidential legal guidance on how to correct them.

An employer could also get into trouble for incorrectly fixing the error. ‘Correcting’ an I-9 incorrectly defeats the purpose of an audit. While an internal audit does not insulate companies from penalties for violations, an audit that accurately identifies problems can provide guidance for employers going forward.

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]