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Taking It Personally

By John S. Gannon, Esq.

John S. Gannon

John S. Gannon

As a management-side employment attorney, I know how frustrating it is for businesses to be sued by current or former employees. Employers who have been through the litigation process know it’s a stressful, time-consuming exercise that often requires their managers or supervisors to be deposed or called as a witness at trial.

Unfortunately, being a witness is not the worst outcome for managers and supervisors who get dragged into employment litigation. Many state and federal employment laws provide a path for litigious employees to individually sue their managers or supervisors, while at the same time suing the employer as a completely separate entity. These laws can put managers and supervisors in the dreadful position of having to personally defend themselves in a lawsuit, while exposing their personal assets (home, car, bank accounts, etc.) to risk if the plaintiff is successful. It also means having to pay defense costs and attorney’s fees regardless of how the case turns out. A recent Massachusetts federal court decision highlights the relative ease of bringing an individual liability claim against a supervisor in an employment lawsuit.

Elliott Eichenholz worked for Brink’s Inc. His supervisor was Gordon Campbell. According to Eichenholz, while he was out on a disability leave, Campbell issued him a performance-improvement plan (PIP) letter addressing Eichenholz’s performance deficiencies. The PIP letter also contained various demands Eichenholz would need to meet within a prescribed time frame.

Eichenholz returned to work about two months later. Upon his return, Campbell e-mailed Eichenholz, stating that he needed to develop a plan to address the issues raised in the PIP letter now that he was back to work.

From my perspective, Campbell’s approach appeared reasonable enough, but Eichenholz did not see it that way. He resigned a few days later and subsequently filed a lawsuit claiming that Brinks and Campbell discriminated and retaliated against him in violation of a host of federal and state employment laws, including the federal Family and Medical Leave Act (FMLA) and the Massachusetts Fair Employment Practices Law, which prohibits discrimination in employment (Chapter 151B). In his complaint, Eichenholz claimed he needed to resign “in order to ensure that he was no longer subjected to unlawful harassment, no longer subjected to a hostile work environment, and no longer in the precarious position that Campbell’s continuous violations and discriminatory behavior had caused.”

Campbell moved to dismiss the charges against him, raising two principal arguments. First, he argued the FMLA claim should be dismissed because that law does not allow for individual liability. Second, he contended Chapter 151B warranted dismissal because Eichenholz did not follow the proper procedural channels before filing that claim.

The court rejected both arguments. Although the FMLA does not expressly allow for individual liability against supervisors, courts have ruled that similar federal laws — including the Fair Labor Standards Act — permit personal liability against supervisors. This was enough to convince this court that FMLA liability could flow to Campbell. Also, because Campbell was on notice of the potential Chapter 151B claim early on, he could not rely on technical procedural errors to defeat the individual liability claim.

Because the Massachusetts anti-discrimination statute (Chapter 151B) allows for individual liability, supervisors can be personally sued in almost any lawsuit that alleges a violation of state anti-discrimination law. In addition, state and federal wage-payment laws, including the federal Fair Labor Standards Act and the Massachusetts Wage Act, can trigger individual unpaid-wage liability for certain executives, officers, and even managers within the organization.

In light of this vast potential for supervisor liability claims, we recommend litigation-avoidance training for managers and supervisors as a way to mitigate risk. Effective training is probably the single best way to combat individual liability exposure, as it puts managers and supervisors on notice of this very real threat. Training programs also highlight tips and strategies that managers and supervisors can use to avoid litigation crosshairs and keep the company out of expensive lawsuits.

If your manager or supervisor is sued individually, it may also be (somewhat) comforting to know that individual liability claims are often a strategic move meant to make the case more difficult to defend. It is rare — but not unheard of — that a manager or supervisor is left paying damages associated with an adverse judgment, rather than the business. Even so, adequate training can help prevent employment claims before litigation is filed, which is a win-win situation for both the supervisor and the company.

John S. Gannon is an associate attorney with Skoler, Abbott & Presser, P.C., a management-side labor and employment firm with offices in Springfield and Worcester.

Law Sections

Firm in Its Commitment

Ken Albano, Bacon Wilson’s new managing partner

Ken Albano, Bacon Wilson’s new managing partner

Ken Albano, the recently named managing partner at Bacon Wilson, said the firm has a simple yet quite complex challenge — to achieve growth and further stability simultaneously. It is addressing this assignment through a number of initiatives, including the opening of a new, larger facility in Northampton, creating a presence on Route 9 in Hadley, and continuing to pursue opportunities to bring the firm’s name and reputation to more communities.

Ken Albano has what would have to be described as a very diverse practice, one that covers a large amount of territory — geographically, within the broad realm of the law, and in societal matters as well.

To get his point across, he relays a story that one can surmise he’s told quite often over the years.

“One day, I was in a meeting concerning a multi-, multi-million-dollar acquisition in one of our largest conference rooms in Springfield,” he told BusinessWest, referring to the downtown headquarters of Bacon Wilson. “Back in those days, the accountants would show up, the insurance people would show up, the bankers would show up, and you’d have 15 people in a four- or five-hour closing trying to get a deal done. And at that particular closing, I had to leave early to go handle a dog-bite hearing in Monson.

“That was a reality check,” the Springfield native went on, adding that this happened not long after he was appointed town counsel for that small (population 8,700) town in the eastern corner of Hampden County. “I went from one end of the spectrum to the other, and quickly. But it’s been a blessing ever since; I really enjoy my municipal work, and we’ve grown that side of the business.”

Today, there are still dog-bite hearings, in Monson and also Southwick and Holland, the other communities he serves as counsel, but there are also contract negotiations, conservation matters, cell-phone-tower location hearings, and a host of other matters. And there are still multi-, multi-million-dollar deals to handle in the business and banking and finance practices at the firm — although there are fewer people in the room these days.

But now, there are still more matters on Albano’s plate vying for (and consuming) his time and attention. Indeed, he recently succeeded Steve Krevalin as managing partner of the 122-year-old firm, a role that comes with a number of responsibilities.

Such as finding a new, larger, and in all ways better location for the firm’s offices in Northampton. Which explains why he was on Center Street in that community, giving BusinessWest a tour of that work in progress, which will eventually house seven lawyers and represent a significant upgrade, facilities-wise, from the present quarters on Trumbull Road.

Also on his responsibilities list is forging a new affiliation — similar in many ways to the one struck with the firm Morse & Sacks in Northampton to give the firm a real presence there — with the Law Office of Alfred Albano (no relation to Ken) in Hadley. (More on that merger later.)

This initiative gives the firm a Route 9 address, and the visibility that comes with it, in a bustling town often overshadowed by the communities it borders — Northampton and Amherst (more on that later).

Beyond these strategic developments are the more day-to-day, but no less important matters involved with being managing partner, he said, noting these include everything from interviewing candidates for open positions (the firm has one at present) to coping with a changing legal landscape and constant pressures from a wave-riding economy.

Times are relatively good at the moment, he explained, but things can change in a hurry, and downturns, especially one like the one that started roughly a decade ago, can seriously impact a firm.

Overall, many firms have become smaller in recent years, said Albano, adding that Bacon Wilson has remained relatively steady while continuously exploring new opportunities for further growth and stability.

For this issue and its focus on law, BusinessWest talked at length with Albano about his practice, his expanded duties at Bacon Wilson, and the broad strokes within the firm’s business plan moving forward.

Building His Case

Albano said he finds municipal work quite intriguing, for a number of reasons, one of them being that he’s working with a constantly changing cast of leaders and different forms of government.

“I’ve grown accustomed to working with select-board members over the years; every three or four years they shuffle the deck, and someone new gets elected,” he explained. “And you’re serving under a different leadership form for each municipality, which has been interesting as well.

Ken Albano stands outside

Ken Albano stands outside the future home of the firm’s Northampton office on Center Street.

“I always say, and I tell the selectmen this as well, that there always seems to be one member who has common sense,” he went on, referring to what are generally three-member boards. “There’s one who’s kind of a hothead who doesn’t really think before he or she speaks, and there’s always one rookie who generally stays quiet and learns the ropes. That’s been the pattern, generally, and it’s always … always interesting.”

And it’s also a long way from downtown Hartford, which is where Albano essentially started his career, working in the tax division at Arthur Andersen, then one of the Big 8 accounting firms in the country, and the one that famously self-destructed through its involvement in the Enron scandal.

Albano said his work at the firm wasn’t really to his liking — “they were trying to convert their tax division into a team of tax attorneys, and I wasn’t doing as much legal work as I wanted to” — but there was more to his decision to return to his roots in 1988 than that.

“When I was working in Hartford in the Gold Building, I’d walk out in my navy-blue suit, white shirt, and red tie and feel like a robot,” he explained. “Everybody on the street had the same outfit on, and I didn’t know anyone; I didn’t get that hometown feeling working in Hartford.

“When I came back to Springfield in the late ’80s, I could walk to lunch from State Street and run into five or 10 people on the street who would say ‘how’s your mom and dad?’ or ‘how’s your brother or sister?’ or ‘say hello to this person or that person.’ There’s a real hometown feel to Springfield, and that’s a big reason why I’ve stayed at Bacon Wilson ever since.”

And over the past three decades or so, he has, as noted earlier, greatly expanded and diversified his practice to include work in a host of areas, including business/corporate, healthcare, banking and finance, and municipal.

With that last specialty, he started in Monson, where he settled after returning to the area, in 1993, and added Southwick in 2002, Holland in 2011, and Wales in 2015.

Albano said he was approached by Krevalin toward the end of 2015 about succeeding him in the role of managing partner, a transition agreed to by the other partners at the firm. The two essentially co-managed the firm in 2016, and Albano took the reins officially this past January.

“It’s been exciting — and challenging,” he said of the new role and the process of assimilating its various responsibilities into everything he was already doing. “I’m still practicing law 100%, which I’m expected to do, but I’m also getting pulled in a lot of different directions.”

By that, he meant both points on the compass and a host of management roles, many of which he was not really involved with, such as personnel.

The main direction he’s been pulled in geographically is north, where he’s essentially closing two deals that will give the firm a larger, stronger presence in Hampshire County.

Elaborating, he said many Springfield-based firms have what would essentially be called satellite offices in Northampton and maybe Amherst. These would be small facilities with a phone and conference room that would be used for closings and other meetings several times a month. But Bacon Wilson has gone further, establishing affiliations with existing practices with matching philosophies, and putting both names on the door and the letterhead.

It did this in 2005 with the firm Morse and Sacks in Northampton, and in 2006 with the firm Monsein and MacConnell in Amherst.

“With these affiliations, these lawyers came on as basically employees of the firm,” he said of the Amherst and Northampton mergers, as they’re called officially. “In time, their practices molded into the fabric of the firm, and to this day, you probably couldn’t remember when they started with us, because it feels like they’ve always been with us.”

In Northampton, he said, the firm will take its presence to a higher level with the new facility on Center Street, a building that was being built out for yet another new restaurant in a community known for its abundance of them. Those plans never materialized, so the blueprints were altered dramatically to accommodate a law firm instead.

Bacon Wilson’s lease was due to expire in Northampton, Albano went on, and was looking at a host of options, including staying put on Trumbull Road, when the Center Street opportunity unfolded.

“I looked at this [Trumbull Road] facility as a whole, and determined that the lawyers, paralegals, and staff that came here on a daily basis were in need of a better working environment,” he explained. “This Center Street location will be state-of-the-art, with all the bells and whistles.”

Meanwhile, the firm has finalized an affiliation agreement with Alfred Albano’s practice, giving the firm a presence starting this week, with the sign saying ‘Bacon Wilson, Al Albano.’

That practice is well-established, but a good bit of work that comes to it must be referred out to other lawyers with expertise in specific matters. “That work will now stay in house,” said Ken Albano, “because we have 40 other lawyers that can help out, and he won’t have to refer it any more.”

As for the bigger picture, Albano said the firm will continue to take steps to give it the size and flexibility needed to weather the various swings in the economy — the recent steps taken in Northampton and Hadley certainly fall into that category — while also looking at further territorial expansion through new affiliations.

“Our goals, simply put, are to achieve growth and stability at the same time,” he explained. “We’re always looking for opportunities to grow the firm; there may be new municipalities in the future that we would target to open a law practice, just as we have in the past.”

Greenfield might become one potential target, he said, noting the growth of small business there, and there might be others as well.

Final Arguments

Albano told BusinessWest he still handles the occasional dog-bite case in the municipalities he serves. They no longer provide a reality check, though, because he’s certainly adjusted to this new reality.

In many respects, he can the say the same about his new role as managing partner as he makes that adjustment as well. He said the many new responsibilities are quite a bit like the practice of law and the business of law themselves — compelling, but also challenging.

The biggest challenge facing Bacon Wilson, and any other firm, for that matter, is managing that task of simultaneously achieving growth and stability. It’s a work in progress, but, as they say in this business, he and the firm are building a solid case.

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

Law Sections

Rule of Thumb

By Marylou Fabbo, Esq.

Last summer, the U.S. Occupational Safety and Health Administration (OSHA) announced a number of regulatory changes that are designed to improve employee safety. For organizations that have not yet taken a look at how the rule may impact their company’s policies and procedures, now is the time to do so.

Marylou Fabbo

Marylou Fabbo

The rule’s guiding principle is that an employer must have reasonable procedures by which employees can “promptly and accurately” report work-related injuries and illnesses without the fear of retaliation, and a policy or procedure that deters an employee from reporting an injury or illness that is not reasonable. Some policies that may discourage employees from coming forward with injury and illness information include drug-testing policies and employee-incentive programs.

Drug Testing and Accident-free Reward Policies Problematic

The rule prohibits non-discretionary, post-accident drug testing. Post-accident testing is not prohibited altogether, but employers’ drug-testing policies must be limited to situations in which the employer has reasonable suspicion that employee drug use likely contributed to the incident.

For example, it would not be reasonable for an employer to drug-test an employee who suffers a repetitive action injury from typing. Also, while not specifically required in the rule, employers who are making a determination as to whether to drug-test an employee should rely on objective evidence of suspected drug use rather than subjective suspicions. In situations where drug testing appears warranted, the testing itself must not be punitive or embarrassing.

For those employers who are required to test under certain federal laws, such as U.S. Department of Transportation regulations, continued automatic post-accident testing is likely permissible. Still, employers should check with counsel to confirm that their policies are in compliance with the new rule.

What about rewarding employees for accident-free days? Many employers believe rewards and recognition are strong employee motivators. While the new rule does not prohibit incentive programs altogether, employers cannot maintain incentive programs that might encourage an employee not to report an injury. For example, an employee who is eligible to receive a bonus when the organization reaches a set number of accident-free days might be deterred from reporting an injury that would bar the employee from receiving that compensation.

So what’s an employer to do? They should design incentive programs to encourage employee participation in making the workplace a safer environment rather than from discouraging employees from reporting accidents and injuries.

Required Written Reporting Procedures

The rule also imposes some affirmative duties upon employers. They are required to establish a reporting procedure that does not deter or discourage the reporting of a work-related injury or illness. The procedure cannot be unduly burdensome for the employee and should allow reporting through various means, such as phone, e-mail, or in person. It also must provide employees with a reasonable amount of time to report rather than immediately.

Additionally, employers must let their employees know that they have a right to be free from retaliation. Employers can meet the rule’s requirement that they provide notice to employees by posting OSHA’s “It’s The Law” employee-rights poster in the workplace or by drafting policies that include the required language.

What If We Violate the New Rule?

Companies that do not abide by the new rule’s requirements may face legal challenges on multiple fronts. Employers can violate the anti-retaliation provision by disciplining employees for reporting work-related accidents or illnesses, by subjecting them to drug testing when it is not reasonable to do so, or by engaging in a variety of other behaviors that may be retaliatory.

Although it is unlikely that OSHA will inspect your site solely to find out whether you are in compliance, employees can contact OSHA to report retaliatory practices, which may trigger a visit to the workplace and an inspection of hundreds of records. The OSHA Whistleblower Protection Program allows the agency to file complaints against employers suspected of retaliating against employees. Penalties for unlawful retaliation may include repayment for lost wages, compensation for emotional distress, reinstatement of the employee(s), and even punitive damages.

Employers should give careful review to their established procedures for reporting work-related injuries and illnesses and revamp them if necessary to ensure that they are reasonable. Employers who drug test after work-related accidents should adopt and enforce drug-testing policies that are consistent with the new rule’s anti-retaliation provisions. Requiring management, supervisors, and human-resource personnel to attend educational programs on how to detect the signs of drug impairment can support an employer’s position that it in fact had a reasonable basis upon which to believe drug use contributed to a particular accident.

Organizations should take a close look at their safety-incentive programs and remove any withholding of incentives based on the reporting of work-place injuries. Companies that are mindful when deciding whether to take an adverse action against an employee based on a work-related injury, and document a legitimate, non-retaliatory business reason for taking that action when they do, are likely to reduce their risk of OSHA citations and/or other legal action.

Marylou Fabbo, a partner in the Springfield office of Skoler, Abbott & Presser, joined the firm in 1995. As head of the firm’s litigation team, she practices in all areas of employment litigation. 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 employers.

Law Sections

In Defense of Employers

By Jennifer A. Rymarski

Every day, the news bombards us with articles about trends in business, including, but not limited to, the death of the organizational hierarchy, how to foster transparency, the fundamental differences between managing and leading, and in particular, Millennials: how to attract them, how to keep them, and why they are not being compensated enough. Some go so far as to harshly conclude why Baby Boomers and Gen-Xers hate them.

Jennifer A. Rymarski

Jennifer A. Rymarski

My summation is that, with every generational workforce, there are positives and negatives. Yet, the cultural shift that is upon us may feel like a tidal wave to many employers. Undeniably, people are living longer and working longer. A single organization can employ people ranging in age from their 20s to their 70s.

Companies need to innovate from both a mechanical and technical perspective as well as with their culture, and younger generations can help businesses usher in changes. However, businesses still need to be managed appropriately and must continue to operate reliably and dependably to deliver the products and services that generate the revenue needed to keep people employed with comparable benefit packages.

Millennials may be up and coming, but Baby Boomers and Gen-Xers still maintain the majority roles of management, hiring and firing. Employers need to be prepared for the new norms, such as:

• Analyzing if and how to staff your business with flex-time employees and how this may impact existing employees;

• Training and supervising;

• Managing incidents, grievances, discipline, and performance reviews;

• Deciding what benefits to offer and how to implement these benefits;

• Determining how to classify workers;

• Developing and maintaining leadership and team development across all cultures and generations;

• Updating and managing technology;

• Considering business outlooks and implementing change;

• Ensuring the business and its employment practices are in compliance with the law; and

• Mitigating risks and defending against contractual disputes, discrimination, and terminations.

Get It in Writing

Navigating all this can be challenging for all employers, regardless of size or industry. An employee handbook is a must for delineating a company’s expectations, policies, and practices. These handbooks outline the company’s mission statement and can address everything from dress codes and scents in the office to cell-phone and computer policies, vacation- and personal-time accrual, bereavement and other leave, and discipline policies.

While having a handbook is a great way to introduce an employee to the organization, management needs to also be aware of the policies therein and act consistently in accordance with it. This handbook should also be reviewed periodically to ensure it is current with changes in the law.

Another useful tip for employers is to have clearly defined job descriptions, both for advertising purposes and so the prospective employee has a clear definition of the duties and responsibilities of the job, including but not limited to hours, physical or travel demands, whom this individual will report to, and any benefits that may be available.

Establishing a firm training schedule and/or having a training manual can assist all employees (those newer and those more established). With all the new technology available and the demands of the consumer and business clientele, companies cannot continue to rely on the proverbial ‘way it was always done,’ and maintaining open communication about processes and projects on a daily, weekly, monthly, or quarterly basis will not only help the manager define expectations, but will give employees a sense of contribution to something larger than just their day-to-day job.

Benefit packages are typical, yet, given the diversity in the workplace, a one-size-fits-all model may no longer be relevant. Student debt, healthcare, fitness, daycare, and financial well-being are all considerations. The challenge for employers is not only the straight costs of these benefits and related perks, but how to measure the impact of the benefits on the lives of employees and the overall impact to company morale. Seeking the help of a financial advisor and evaluating multiple vendors for benefit packages are recommended. Soliciting feedback about how your employees feel about the organization’s culture can also be a useful and eye-opening exercise.

With respect to grievances and discipline, an established written process for dealing with grievances and investigations is recommended. Likewise, discipline policies — progressive or otherwise — should be well-defined and documented. Performance evaluations are best done on a continual and day-to-day basis, as opposed to stockpiling issues for a year-end review. Documentation and acknowledgement of issues contemporaneous with events is more useful from a legal perspective.

Career Defining

As to more technical legal issues, an organization needs to closely examine how it is classifying its workers — as an employee (who will receive a W-2) or an independent contractor (who will receive a 1099). There has been considerable scrutiny of independent contractors, and the law establishes a standard that presumes employee status and gives the employer an opportunity to rebut the presumption by examining whether the individual is free from the control and direction with the performance of the services, the service is performed outside the usual course of the business, and the individual is customarily engaged in an independently established trade or business of the same nature as that involved with the service performed.

Because of advances in technology, the trend appears to be for more flexible workers and freelancers. However, companies can and do unwittingly expose themselves by misclassifying workers and/or not properly paying wages in violation of the law. Staffing with flexible schedules or freelancers may also pose work-coverage issues, not to mention compensation issues and general frustrations for full-time employees.

Thus, the question of whether flex time can work for your organization and how it can be implemented need to be closely examined. Other legal issues include whether the employee is ‘at will’ or contracted. If an employment contract is necessary, employers need to be mindful of laws that impact contract provisions, such as non-competition, non-solicitation, contract renewal, and contract termination.

If a contract is drafted by the employer, it is construed against the drafter; therefore, having these contracts reviewed and prepared by legal counsel, as opposed to trying to utilize one that was used five years ago with the names changed, is risky. This is particularly important if the employee is exposed to confidential and proprietary information that the employer seeks to protect. Massachusetts recognizes an employer’s interest in protecting its legitimate business interests; however, any agreement containing restrictive covenants needs to be reasonable in scope, time, and geographic area.

In Compliance

When examining a company’s compliance with state and federal laws, employers need to be mindful of everything from the content of their employment application to accommodating workspaces, as well as ensuring there is no discrimination or harassment based on age, gender, sexual orientation, race, or disability. If a business is offering goods and services, it must also comply with laws ensuring access for the hearing- and sight-impaired.

One consideration for employers (including nonprofit entities who have volunteer boards) is for the company to purchase insurance that would cover employment-related matters. With employment-related litigation and jury verdicts on the rise, a policy of insurance may be a worthwhile investment.

The foregoing are just a few of the considerations from a legal perspective that can impact a business. While there are lawyers, organizations, and professional-services firms to help businesses structure and define these crucial aspects of an organization, satisfying the various generational divides that exist in organizations may pose a more amorphous challenge for company leadership. Addressing the legal and quasi-legal management issues on a thoughtful and prospective basis as opposed to a reactionary basis provides the best chance for success and better preparedness to defend against any legally related employment challenges.

Jennifer A. Rymarski is a civil-litigation attorney at Morrison Morrison, LLP who helps businesses navigate through employment-related matters; (413) 737-1131.

Law Sections

Value-added Proposition

Amy Royal

Amy Royal says her marketing strategy has long emphasized providing helpful resources through blogs, newsletters, and seminars.

There was a time when law firms simply didn’t advertise their services; it was considered unseemly. Those days are long gone, and marketing is now an accepted, even necessary part of the business. But for today’s practices, marketing goes well beyond print and radio ads. With the help of the Internet, firms are increasingly getting the word out by writing articles and blogs on important legal issues and connecting with the public through informational seminars — building credibility with the public and possibly creating clients down the road, but adding value for audiences in the meantime.

Generations ago, Michele Feinstein said, the legal profession’s code of ethics was simple when it came to promoting a law firm.

“It was, ‘thou shalt not advertise,’” said the shareholder attorney with Springfield-based Shatz, Schwartz & Fentin. “Then it changed, but it’s still a very regulated thing — the question of what constitutes appropriate advertising.”

To prove it, she dug out a thick volume of Massachusetts Supreme Judicial Court codes and eventually found the professional-conduct guidelines addressing marketing, or, to quote the section title, “Communications Concerning a Lawyer’s Services.”

This two-page-long rule governs appropriate outlets for advertising and what firms can and cannot promise in ads, among other minutiae. Feinstein is right: the rules are much more lenient today, with language conceding the importance of television and print media in reaching the public. But — aside from the more-strident messaging sometimes employed by personal-injury firms — it’s still an industry whose marketing echoes its restrained past.

Michele Feinstein

Michele Feinstein

When I started my practice, we never thought about marketing. Certainly, they never tell you about that in law school. But the practice has had to evolve with the modern-day realities of how people meet and connect, and how they find and talk with their lawyers.”

 

That’s not to say there aren’t other ways to stand out, however.

“When I started my practice, we never thought about marketing. Certainly, they never tell you about that in law school,” Feinstein said. “But the practice has had to evolve with the modern-day realities of how people meet and connect, and how they find and talk with their lawyers.

“Certainly, word of mouth is important, but these days, the modern equivalent is the Internet: search engines, blogs, newsletters, and other forms of Internet presence,” she went on. “That technology didn’t exist 20 years ago.”

Shatz, Schwartz & Fentin has employed the Internet like many other area firms have: not only to get its name out, but to do so in a way that provides value to clients and the public, she explained, such as an online newsletter that focuses on estate planning and elder law, and a blog that addresses issues in myriad areas of the law. Traditional print media is useful too, she said, as seen in the articles the firm writes for BusinessWest and other outlets.

Amy Royal also sees the benefits of a multi-pronged approach to marketing. Her Northampton-based employment-law firm, Royal, P.C., hosts a robust blog; the firm’s attorneys contribute articles to area press outlets (including, again, BusinessWest); and they also conduct seminars and trainings for the public and fellow lawyers alike.

“We stay abreast of developments in the law, both on the federal and state side, and we tailor our trainings as well as our blog posts to making sure our clients stay up to date,” she said. “There are a lot of moving parts, a lot of change happening on the federal side, going to an entirely different administration … on any issue, we want to demonstrate credibility for perspective clients, so hopefully people say, ‘they’re experts in that area.’”

That credibility and recognition often translates into more business, a philosophy shared by Michael Gove, who launched the Gove Law Office, LLC, in Northampton in 2013.

Michael Gove

Michael Gove

I think [our marketing efforts] ensure that we’re top of mind for people. Then, when someone has a legal issue, they may think of us, because they saw us recently in the paper, or online, or at a chamber event. We find we get referrals from those things.”

 

When it comes to marketing, he told BusinessWest, he has always focused on three areas: personal relationships with referral sources, trying to find reasons to be in the news as much as possible — for example, distributing press releases when the firm adds an attorney — and online marketing, which includes some paid advertising but more informational material, including a blog, providing resources to people who might then turn to Gove for legal services.

“I think it helps ensure that we’re top of mind for people,” he said. “Then, when someone has a legal issue, they may think of us, because they saw us recently in the paper, or online, or at a chamber event. We find we get referrals from those things.”

In a crowded market for law firms, those referrals and phone calls out of the blue are valuable, said the lawyers we spoke with about their marketing strategies. But laying the groundwork for that recognition doesn’t happen overnight.

Standing Out

Royal understands the importance of standing out in the Western Mass. legal community.

“There’s a lot of competition here in a small area; we’re saturated with lawyers in our region, and we have a law school here turning out new lawyers every year,” she said. “So what do you do to set yourself apart?”

The first step, she said, was focusing on a very specific niche — in her case, as a boutique firm that represents employers only — and building a brand around that niche in a number of ways.

“Our  niche provides a natural focus for our marketing strategies,” she explained. “Because of our defined services, we’re not everything to everyone, and maybe that’s a recipe for failure — to be too generalized. We’ve really focused on our marketplace and focused on developing a strong, recognized brand with targeted, consistent messaging.”

That messaging takes both active and passive forms, she added. Passive outreach includes the blog, newsletters, seminars, social-media outreach, trade shows, and anything that establishes the firm’s expertise in its field without being an actual, traditional advertisement — something Royal has largely eschewed, though both her firm and Shatz, Schwartz & Fentin utilize BusinessWest as part of their marketing efforts each year.

“We don’t do passive marketing thinking we’re going to have a direct sale from it, necessarily, but just to build brand awareness in the community,” Royal explained. “Then, of course, we do active marketing, direct relationship building. That happens in a variety of ways: through community involvement, business events, networking events, where we zero in on who our target is.”

Feinstein agrees that outreach that amounts to sharing information with the public brings marketing benefits that may not be realized right away.

“We write articles, we give seminars where we speak to the public, we do advanced trainings for lawyers — quite a bit of that. We feel that these sorts of marketing efforts, if they don’t immediately create a client — though they may — they certainly, at minimum, give us secondary recognition. People see our blogs, read our articles, hear our name when we’re giving a talk, and later on, if they need a lawyer and ask around and our name comes up, it’s familiar.”

In fact, it’s impossible to tell when such efforts will result in client work, she said. Sometimes it’s the next day, and sometimes it’s years down the road, when someone comes in with materials they’ve been saving since the event, and now they need help.

“The fact that they also see we’re doing trainings for other lawyers, which we do a lot of, I think confirms, or enhances, the fact that we are knowledgeable in a particular area and are recognized by our peers as such.”

While passive marketing has its benefits, Gove said, he’s not averse to paid ads as well. Most of his efforts in this area are targeted at avvo.com, a website with a national reach. “It’s a way for people who need answers to legal questions find lawyers. We’ve found a lot of success there.”

As for more traditional media advertising, Gove said he plans more narrowly targeted messaging. As a bilingual firm, he wants to expand more into Spanish-speaking communities, so he intends to approach media outlets that have inroads in that population.

“But, really, the three main pillars to our marketing are personal relationships, getting in the news, and being visible online. We’re definitely not advertising in the Republican or in the yellow pages. It’s not like it was 20 years ago.”

That said, the strategy has largely paid off for this growing firm, which expanded with a second office in Ludlow in 2014. “I think we’ve done a good job of growing, by making sure we’re visible and helpful.”

Word Up

Feinstein also considers her firm’s various passive marketing efforts to be a form of help, of public service.

“All we’ve ever done — writing articles, whether for legal journals or the Reminder or BusinessWest; lecturing and giving talks; that kind of stuff — gets our name out, gets the word out, but it also provides value, and we feel like that comes back to you in one way or another. It doesn’t have to be a one-to-one correlation. That’s fine with us; we have an obligation to serve the public by providing information, which we take seriously.

“People appreciate the difference between that kind of marketing and some general slogan, like ‘call us and we’ll fight for you,’ or ‘we’ll take your case seriously,’” she went on. “We provide real information and something to think about, and if people have concerns, we tell them to see their advisor. Whether that advisor is us or someone else, we’re still providing value.”

The Supreme Judicial Court’s rules on advertising state that “questions of effectiveness and taste in advertising are matters of speculation and subjective judgment,” which is a far cry from “thou shalt not advertise.” But lawyers should take their messaging seriously, Royal said.

“A lot of law firms maybe don’t think of themselves as a business first, which they are; they think of themselves as practitioners first,” she told BusinessWest. “But we treat this law firm as a business and attack our marketing that way. What we’ve done has been very strategic from the beginning.”

Joseph Bednar can be reached at [email protected]

Law Sections

Durational Alimony-award Limits

By Katherine E. McCarthy

Katherine E. McCarthy

Katherine E. McCarthy

The passage of the Alimony Reform Act of 2011 brought about sweeping changes to the alimony laws in Massachusetts. One major change was the implementation of durational limits on alimony awards. For marriages lasting fewer than 20 years, a formula is available to determine the length of time general term alimony may be required.
The statute, M.G.L. c. 208 §48-55, contains language that allows the durational limits to be applied to alimony orders that predate the reform act, providing many alimony payors with hope that their alimony obligation will be terminated. However, the statute also contains language that allows the probate and family court to deviate beyond the durational limits based on an ‘interests of justice’ standard.

Since the passage of alimony reform, attorneys and clients alike have been left wondering how and when the ‘interests of justice’ standard would be applied and what factors a court will consider in deviating from the durational limits. A recent decision by the Massachusetts Supreme Judicial Court provides some limited answers.

Deviation Beyond Durational Limits

Alimony reform states that “alimony awards which exceed the durational limits established in [the law] shall be modified upon a complaint for modification without additional material change of circumstance, unless the court finds that deviation from the durational limits is warranted.” The court must then look to whether deviation is “required in the interests of justice.”

In a case of first impression, in November 2016, the Supreme Judicial Court decided in George v. George two important aspects of the deviation standard. First, the alimony recipient bears the burden of proving that deviation beyond the presumptive termination date is required in the interests of justice. Second, the judge must look at the circumstances of the parties at the time the termination of alimony is sought, as opposed to the circumstances of the parties at the time of the initial award of alimony.

Additional factors that may be considered are the same statutory factors that judges must consider in making an initial alimony award. Those factors include:

• Advanced age, chronic illness, or unusual health circumstances of either party;
• Tax considerations applicable to the parties;
• Whether the payor spouse is providing health insurance and the cost of health insurance for the recipient spouse;
• Whether the payor spouse has been ordered to secure life insurance for the benefit of the recipient spouse and the cost of such insurance;
• Sources and amounts of unearned income, including capital gains, interest and dividends, annuity, and investment income from assets that were not allocated in the parties’ divorce;
• Significant pre-marital cohabitation that included economic partnership or marital separation of significant duration, each of which the court may consider in determining the length of the marriage;
• A party’s inability to provide for that party’s own support by reason of physical or mental abuse by the payor;
• A party’s inability to provide for that party’s own support by reason of that party’s deficiency of property, maintenance, or employment opportunity; and
• Upon written findings, any other factor that the court deems relevant and material.

 

The court also made clear in its decision that it would not consider an alimony recipient’s argument that, had they known that the alimony laws were going to change, or that durational limits would be applied, they would have negotiated for a larger property division in the original divorce. The SJC reasoned that, if this argument were to be accepted by the courts, it would effectively prohibit any payors with alimony awards that predate alimony reform from terminating their alimony obligation under the terms of the law. In sum, accepting such an argument would nullify that portion of alimony reform in direct contravention of the Legislature’s intent.

Takeaways

As in most cases in the probate and family court, the individual facts of the case are extremely important. However, the George case has provided some clarification of the statute that can be utilized to argue either for or against termination of alimony based on durational limits.

In sum, if a payor has paid alimony beyond the durational limits, it is wise to consider the alimony recipient’s present circumstances in predicting how successful they will be in attempting to terminate the alimony obligation. Conversely, an alimony recipient must be cognizant that he or she will have the burden of establishing that deviation beyond the durational limits is appropriate in his or her case.

Katherine E. McCarthy is an associate with Robinson Donovan, P.C., where she concentrates her practice on domestic relations; (413) 732-2301; [email protected]

Law Sections

OSHA’s Big Year

By John Gannon, Esq. and Susan Fentin, Esq.

John S. Gannon

John S. Gannon

SUSAN G. FENTIN

Susan G. Fentin

Over the past several months, the U.S. Occupational Safety and Health Administration (OSHA) has announced a number of regulatory changes that may have slipped under your radar during the summer season.

The changes are not favorable to the business community and may call for significant changes to your workplace practices.

Increased penalties

Effective August 1, 2016, OSHA’s maximum fines for safety violations went up a massive 78%.  Serious violations, which previously maxed out at $7,000 per violation, will now increase to maximum of $12,471 per violation.

Similarly, the failure-to-abate penalty will also max out at $12,471 per day, which is up from $7,000. Willful and repeat violations will cap at $124,709 per violation, which is up from $70,000. Given the dramatic increase, employers should consider auditing workplace safety practices to evaluate OSHA citation risk.

Electronic reporting data available to the public

OSHA also announced a final rule back in May 2016 that will require certain employers to electronically submit worker injury and illness data starting in 2017. Notably, OSHA intends to post this information on a website available to the public. This means the information will be instantaneously available to other interested parties, including customers, competitors, attorneys and union organizers.

Contractors reviewing project bids may consider this information as part of the bidding process. The agency explained that it will post the data on its public website so that “prospective employees [can] identify workplaces where their risk of injury is lowest.”

Employers that are not exempt from OSHA’s injury and illness record-keeping rules are already required to keep track of their workers’ injuries and illnesses in what is commonly called an “OSHA log.” However, only certain serious injuries currently require direct reporting to OSHA, such as work-related fatalities, amputations and inpatient hospitalizations.

The new rule will require non-exempt employers to directly report far more injury and illnesses data on an annual basis.

The reporting frequency and content will vary depending on the size and industry of the business. Establishments with 250 or more employees that are currently required to keep OSHA injury and illness records must electronically submit information from all OSHA Forms 300 —including Form 300 (Log of Work-Related Injuries and Illnesses); Form 300A (Summary of Work-Related Injuries and Illnesses); and Form 301 (Injury and Illness Incident Report) — by July 1 each year.  However, in 2017, only information on the Form 300A will need to be submitted.  Establishments with 20-249 employees that are classified in a high-hazard industry with historically high rates of occupational injuries and illnesses only need to electronically submit information from OSHA Form 300A.

Employers can find out whether their industry is classified as high-hazard by visiting this website:  https://www.osha.gov/recordkeeping/NAICScodesforelectronicsubmission.pdf

Reporting of workplace injuries

The electronic reporting rule also includes provisions aimed at improving safety without discouraging employee reporting of injuries.  The “anti-retaliation” language is meant to protect employees from being punished for reporting workplace injuries.

For example, the rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which many employers already do in a company handbook. However, the rule also states that several common practices may be deemed retaliatory, including:

• Automatically conducting post-accident drug testing of injured employees;

• Maintaining rules or policies that discipline employees who do not immediately report workplace injuries; and

• Maintaining incentive programs that reward employees for experiencing no recordable workplace injuries or illnesses.

The limitation on post-accident drug testing has caused the most concern within the business community. OSHA explained that post-accident testing is not prohibited outright.  Instead, according to the agency, testing should be limited to situations where drug use is likely to have contributed to the accident.

For example, if the employer has reasonable suspicion to suspect the accident is linked to drug use, testing would be permissible. Factual circumstances surrounding the accident, such as odor or bloodshot eyes, may give rise to reasonable suspicion of drug use. Employers should consider implementing a drug-testing policy into their handbook or policy manual that addresses reasonable suspicion testing.

Although the new rule has no impact on random testing, Massachusetts employers must remember that random drug testing is only permissible in limited circumstances.

The anti-retaliation provisions of the final rule were originally set to take effect in August 2016, but have been delayed until Nov. 1, 2016, so that OSHA can “conduct additional outreach and provide educational materials and guidance for employers.” Even so, employers that engage in any of the practices listed above should consult with employment counsel.

John S. Gannon is an associate at the firm of Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected] Attorney Susan G. Fentin has been a partner at Skoler, Abbott & Presser since 2004. Her practice concentrates on labor and employment counseling, advising large and small employers on their responsibilities and obligations under state and federal employment laws, and representing employers before state and federal agencies and in court.  She speaks frequently to employer groups, conducts training on avoiding problems in employment law, and teaches master classes on both the FMLA and ADA; [email protected]; (413) 737-4753.

Law Sections

Courting Change

Shareholders A Craig Brown, right, and Michael Sweet

Shareholders A Craig Brown, right, and Michael Sweet, like most of the attorneys at Doherty Wallace Pillsbury & Murphy have a number of practice areas.

When four respected attorneys came together 49 years ago to form Doherty, Wallace, Pillsbury & Murphy, they had solid ideas about where they would focus their practice. But in the decades since, this Springfield-based institution, while still true to its corporate and litigation roots, has become far more nimble, specialized, and adaptable to changes in the legal field driven by regulatory shifts, technological advances, and evolving client needs. In doing so, it has forged one of the region’s true local success stories.

Laws, as any attorney knows, are far from static. And a law firm that wants to not only survive, but thrive and grow over five decades must recognize how to pivot and adapt.

Take, for example, education law, an area where Doherty, Wallace, Pillsbury & Murphy has bolstered its roster of attorneys in recent years.

“The business of running a school or college is subject to more regulation than you would ever believe,” said shareholder Craig Brown, noting that the firm’s clients include American International College, Williston Northampton School, and Wilbraham & Monson Academy. “They have to sort through a lot of regulatory challenges, and they have a lot of employment-law issues right now. At AIC, they’re wrestling with the idea of shared governance; the faculty feels they have a voice in decision making that affects the academic side of the house. Where is the line drawn?”

Another recent challenge for educational institutions is making their websites accessible to people with disabilities, which is now required by law.

“Schools are a lot like businesses, but they have this regulatory climate,” Brown added. “It’s an emerging area of the law.”

Another example of an evolving area of the law is intellectual property. Shareholder Deborah Basile spearheads Doherty Wallace’s practice in this field, and enjoys the challenge.

“I love working with inventors and working with businesses that have new product lines,” she told BusinessWest. “They want to protect some intellectual property surrounding those, or have developed a new feature in a product line they’ve sold for a long time.”

The Internet has added new wrinkles as well.

“Everyone has a website now; that’s the way we do business, and using the Internet properly and carefully is another aspect of my practice,” she explained. “For example, a manufacturing company needs to be careful in terms of what to expose or disclose in terms of a unique business method or unique product.”

That said, recent modifications in patent law have made it easier for inventors to protect themselves, she added — the rare societal trend that may make her work easier, not thornier. In any case, “identifying what your intellectual property is and protecting it going forward is a critical growth area for us.”

Doherty Wallace, now boasting about two dozen attorneys, has been based in Springfield since its inception, when four attorneys with diverse strengths came together in 1967.

“Fred Pillsbury was generally recognized as the best litigator in the area,” Brown said. “He was named a judge just two years earlier, but it was too boring, so he came off the Superior Court bench. Lou Doherty was a well-regarded business and general corporate lawyer. Bob Murphy was a labor lawyer, and Dudley Wallace was a tax lawyer.”

The firm slowly built on that core — including Lou Doherty’s son, Paul, who led the firm for decades until his passing in January — and their commitment was evident to their younger associates.

“Fred Pillsbury was a magnet for business, and an engine that helped grow the firm,” Brown said, explaining that he had a nerve disorder that eventually took his life, but even when he could barely function, he still came in to practice as much as he could. “It was a remarkable thing.”

Today, the firm maintains — as it always has — strong roots in business law and litigation, but has become more specialized over time.

“The days of one lawyer with one assistant who types are fading,” said shareholder Michael Sweet. “Everyone here is focused on how to best staff projects in the most effective way for clients.”

Information Age

The key, as always, is smart change, Sweet said, even as the firm extends its lease at Monarch Place — where it has done business since the tower opened — for another 10 years.

“One of the key aspects of the decision to stay here long-term is recognizing we’re not done adapting,” he said. “We realize things are going to change, and when we planted our roots here, we knew we could be successful here, and have the capacity to grow and change.”

Computer technology has added layers of challenge to the practice of law, Sweet noted.

“The tech world in general has impacted this profession like it has everything else. The focus is on efficiency and specialization,” Sweet said, adding that the firm has continually recruited attorneys with expertise in growing specialty areas, from Basile, who launched the intellectual-property group, to a pending hire to bolster the firm’s depth in employment law, a field that is seeing plenty of change due to a constantly shifting regulatory landscape. “We continue to look at our clients and ask, ‘what kinds of services do our clients need?’ and then we go out and recruit in those areas.”

Shareholders Jeffrey Meehan, left, and Barry Ryan

Shareholders Jeffrey Meehan, left, and Barry Ryan, are among the players on the large and talented team at Doherty Wallace Pillsbury & Murphy.

Technology has also changed the way people behave, which also affects the practice of law, said shareholder Jeffrey Meehan. Take, for example, all the smartphone video being instantly recorded of … well, everything, from crimes in progress to protests gone awry. That has a major impact on the world of litigation, which is Meehan’s specialty.

The digital culture will even shape the firm’s upcoming renovation of its office, with a library used for decades to store bound books of information to be replaced by a finance and accounting department that needs more space.

But while so much data is at lawyers’ fingertips via computer these days, the information age has also made clients less patient, Brown noted. The past model of putting correspondence in the mail and waiting days or weeks for a response just doesn’t cut it anymore. “Instead, you’re e-mailing a document and expecting a review within a very short amount of time. Over the course of hours, literally, you can negotiate, make changes, and finalize the transaction documents. That puts an incredible amount of stress on a lawyer.”

Still, one key to being successful is to use the technology to benefit client relationships, not hinder them, Sweet said, stressing that relationships are still cultivated with care at the firm, not in haste. “We’re definitely not built on one quick hit with e-mails. We have not lost focus on the relationships, which, at the end of the day, are more important than those e-mails.”

Basile agreed. “We’re entrenched in the old-fashioned virtues of what it was like to be a lawyer back in the ’60s and ’70s, how you provided personal services on a slow and steady basis. But we also have to keep up with what we need to compete in this very responsive world we live in.”

Other changes at Doherty Wallace are being driven by retirements and new opportunities for veteran attorneys. The firm lost two long-time members recently to judgeships, as Michele Ouimet-Rooke was appointed a District Court judge earlier this year, and last week, Michael Callan was sworn in as a Superior Court judge.

“So we’ve been looking at the future and making investments in the future,” Brown said, “which we need to do to continue to be viable.”

Deep Roots

Brown has seen plenty of change in the city that has dominated his life. He was born in Springfield and has fond memories of a thriving downtown, and then, once the bustle of the peak years faded, of efforts to revitalize it, with redevelopment projects like Market Place, which Doherty Wallace was involved in.

“There was an ongoing attempt to pull Springfield up, and it never worked, and the effort stopped for a while,” he said. But now, he added, major economic-development pieces like MGM Springfield and Union Station, and a general sense of renewal downtown, has people excited again. “It’s an abundance of changes that create opportunities and bring Springfield to where we’d all like it to be — a thriving city.”

Doherty Wallace will enjoy the benefits of that renewed energy, Sweet said, at least for the next 10 years and, in all likelihood, much longer.

“The fact that we’re sitting here in downtown Springfield when other firms have left is telling,” he added. “At the end of the day, what you do as an organization is more important than what you say, and our firm has made a decision to stay here long-term. That’s more evidence of how we feel about the region. We’re hiring new lawyers, and we’re fortunate to have a lot of business, and interest from lawyers who want to come work here.”

Basile agreed. “There are a lot of great things about Springfield, and the people here at Doherty Wallace are really hopeful about the future,” she said. “We see the big picture, and we’re committed to the city.”

Brown told BusinessWest the region has never seen a project with as much transformative potential as the casino, due partly to the way it will be integrated with the entire downtown and have the ability to attract more business, which in turn may attract more residents, in a cycle of growth.

Meehan hopes so. He says the Pioneer Valley has always been a “poor cousin” to Boston as far as business growth, wealth, and opportunities, and noted that developments like the casino have run concurrent to backward steps as well, like Bank of America leaving the downtown area. “I’m scratching my head about that because they seemed to have some business here.”

One constant at Doherty Wallace, no matter the economic climate, has been a focus on volunteerism and community involvement, something Paul Doherty, famous for helping out with local organizations and initiatives, often without having to be asked.

“He set the example of how to be involved in the community,” Brown said. “It’s deeply part of the culture here, and everyone feels it, and everyone is encouraged to commit to the community.”

Sweet went even further, noting that this culture is one of the things that attracts people to work at Doherty Wallace. “It’s one of the reasons I chose to work here. We’re a significant part of the community in all ways.”

A Significant Loss

Brown recalls being hired to work alongside Doherty in 1977; in the interview, he was asked how he felt about working Saturdays. He immediately realized that this was a workplace that demanded much, but he learned the work was immensely rewarding as well.

“Paul was the leader of this law firm,” he said. “He set the tone in terms of the culture, the community involvement, the quality of lawyering. He was very focused on us providing the highest-quality service at all times.”

Basile agreed. “Paul was my mentor. He taught me how to be a lawyer,” she said. “The sad thing is, he wasn’t done. He had more to do. He was still committed to this city, to this law firm, and to inspiring those of us he left behind.”

Brown said Doherty knew everyone, and everyone knew him — and he valued those relationships far beyond his practice.

“Those relationships are what has endured over the decades, and those lessons on how to be a lawyer, how to give back to the community,” he told BusinessWest. “That’s all Paul Doherty. We were blessed to have him as long as we had him, and we still have him with us.”

That sentiment provides more than enough motivation for this half-century-old law firm that has experienced plenty of change, and welcomes whatever may come next.

Joseph Bednar can be reached at [email protected]

Law Sections

Firm in Its Resolve

five of Robinson Donovan’s partners

From left, five of Robinson Donovan’s partners: Jeffrey Trapani, Michael Simolo, Nancy Frankel Pelletier, Carla Newton, and Managing Partner Jeffrey Roberts.

Robinson Donovan has experienced plenty of changes in its 150-year history, from shifting economic cycles to constantly evolving laws, to the evolution of its home city of Springfield. But one thing has remained a priority since its founder, George Robinson — who was also a high-school principal, state legislator, and governor — hung out a shingle in 1866. That is a focus on community — not just in a business sense, but through charity and volunteerism. And that’s how the firm is choosing to mark this significant anniversary.

Attorneys who have been with Robinson Donovan for any amount of time are fluent in its history, which stretches back 150 years — an anniversary the firm chose to celebrate by giving back.

Specifically, the firm traces its roots back to former Gov. George Robinson, who began practicing law in the Springfield area prior to serving as a member of the state House of Representatives and then Senate.

His contributions to the Springfield region extended beyond his appointments to public office. He was also the principal of Chicopee High School and a founding member of Chicopee Savings Bank, in addition to his law practice, now known as Robinson Donovan.

As the anniversary approached, said Carla Newton, a partner with the firm, one topic of discussion was the importance of place — how Greater Springfield itself, and its network of residents, businesses, and nonprofits are critical to the Robinson Donovan story.

“George Robinson was a public servant himself, and certainly served the public in a very direct way, so we began thinking about how to give back, rather than just celebrate internally,” she told BusinessWest. “And we began looking around at all the different nonprofits, many of which have board members and volunteers within our office. We thought it was appropriate to go beyond our own personal commitments to the community, and be a little more demonstrative and provide actual contributions.”

We all live here. We all benefit from the nonprofits that operate here, whether it be Providence Ministries or an educational institution like Bay Path University. We’ve raised families in this community and benefit from the fact that these organizations exist and make our community a better place to live.”

In lieu of some grand party or other event, that’s precisely how the firm chose to celebrate its anniversary year — with a sizable donation each month to a local nonprofit.

“We solicited input from everyone at the firm,” said Partner Michael Simolo. “As Carla said, a lot of us are involved in these organizations, and we know very well the people involved in them. It was kind of a collective effort from everyone to choose the organizations we donated to.”

“We all live here,” Newton added. “We all benefit from the nonprofits that operate here, whether it be Providence Ministries or an educational institution like Bay Path University. We’ve raised families in this community and benefit from the fact that these organizations exist and make our community a better place to live.”

Besides those two organizations, the firm has also donated to Friends of the Homeless, the Food Bank of Western Massachusetts, Cutchins Center for Children, Big Brothers Big Sisters, Community Legal Aid, Dakin Humane Society, and the Gray House — with three more to be chosen before the calendar turns.

Looking Back

That calendar has turned 150 times since Robinson first set up shop, and Newton acknowledged that it’s difficult to determine all the reasons it has survived so long. But she had a few theories.

One is simply pride among the attorneys in how the firm does business. She recalled arriving at the firm — at the time much smaller than its roster of 17 lawyers — and getting the sense they cared about leaving the firm in good hands when they were gone — which involved not only treating clients with professionalism, but mentoring the younger lawyers. “There was a culture of continuation, and people like me ended up getting adopted into that culture.”

Nowadays, she added, growth comes from meeting specific needs. “We bring in someone to support a particular area, and we inculcate them into the culture, and it continues on. There’s no reason to believe this isn’t going to keep going, as the younger lawyers coming in here realize, ‘hey, someday this will be our firm.’”

Managing Partner Jeffrey Roberts added that longevity requires a strong reputation in the community as well. “Ultimately, there has to be some recognition of quality. People want service, they want value, and they want to feel they’re getting the best product available.”

That reputation translates into referrals, he added. “They say your clients come from your clients. Other lawyers say, ‘I don’t do that kind of work, but you should go to that lawyer.’ In the end, it’s a small community, and if you don’t carry your practice properly and honestly, word gets around. If people understand who we are, we’ll have no shortage of business.”

That culture, again, extends to its community outreach, Newton said. “We’re not a firm that says to people who come in, ‘you must find a place to volunteer.’ Everyone here, whether it’s administrative assistants, lawyers, paralegals, they all do volunteer work because it’s important to them. That just seems to be the type of individual who comes to work at Robinson Donovan. Our people are really committed to doing volunteer work.”

Service Network, receives a check from Carla Newton

Karen Blanchard, left, executive director at Providence Ministries Service Network, receives a check from Carla Newton, partner at Robinson Donovan, earlier this year as part of the law firm’s year-long series of donations to mark its 150th anniversary.

Partner Nancy Frankel Pelletier agreed. “It’s definitely part of the culture of the firm,” she said. “We encourage people to be active in things they have an interest in or a passion for. It’s never imposed on anyone or done out of obligation, but it’s what everyone does.”

Roberts noted that community involvement isn’t a one-way street, and firm members reap benefits beyond feeling good about themselves. “If you contribute to an organization, they benefit; on the other hand, you benefit because you learn about what the organization does, and you meet a lot of different people, and you get invested more in the community, rather than just getting in your car, going to work, taking care of your client matters, and going home. There’s a networking component that can lead you to other organizations.”

New hires, especially those coming from outside the area, are encouraged to find organizations that speak to them, as a way to get a real sense of what’s happening outside the walls and glass windows high above Main Street in Tower Square.

“Then it tends to build,” Roberts said, “because you’re recognized, and then someone else might ask you to help out at a function or support a cause or go to a dinner, and it builds on itself. It’s part of your education in the community.”

Looking Ahead

A general-practice firm, Robinson Donovan specializes in a number of legal niches, including corporate and business law, commercial real estate, estate planning and administration, divorce and family law, employment law, and litigation. After a period of rapid contraction — more than 30 lawyers worked there as recently as 15 years ago, when it was known as Robinson Donovan Madden & Barry — business has been steadily growing in virtually all those specialties, and the practice is on the rise again, hiring eight attorneys over the past several years, bringing the current roster to 16, with plans to possibly expand further.

“The firm is very dynamic and forward-thinking,” Simolo said. “We are celebrating our 150th, but at the same time, the firm is making some big investments in the future.”

Partner Jeffrey Trapani said the fact that economic development has been on the rise in Springfield, and the surrounding region is a quality-of-life draw, are added enticements when hiring.

“People get down on Springfield, but this region, I think, attracts people,” he told BusinessWest. “People enjoy coming to this area. We have city centers, things to do, you can see art, hear music, get outside, and still be close to Boston and New York.”

Trapani and Simolo count themselves among the former newcomers mentored by Roberts and his peers, but are now part of a middle generation rising to leadership and taking on much of that mentoring responsibility for new attorneys. That perpetuates the firm’s constant evolution, with some of the more recent hires chosen to match growth fields, including trusts and estates, corporate transaction law, labor and employment, domestic relations, and subspecialties like green energy.

“There’s such a broad scope of experience in this office,” Newton said. “So I can go to one of the associates and talk to them about something. They’ll learn from me, but I’ll also learn from them. When I sit in Jeff’s office or Nancy’s office, cross-learning takes place. Every single day, there are opportunities to sit down and talk about an issue with someone else. Not a day goes by that I don’t learn some new nuance that’s helpful to something I’m working on.”

It’s an environment some find unusual at first, Frankel Pelletier said, “but it’s the only environment I’ve ever known my entire career. We are just an open-door, collaborative community of lawyers.”

In short, Robinson Donovan has come a long way since its early days, when it was best known for George Robinson’s successful defense of Lizzie Borden on double murder charges in 1892. These days, the firm is recognized in a host of ways, such as the citations many of its attorneys have received from organizations like Best Lawyers, Super Lawyers, and Martindale-Hubbell.

“Unlike some other firms from the area, we really maintain a statewide presence,” said Frankel Pelletier, who was the firm’s first-ever female attorney. “We have always maintained that statewide presence and attained regional and, in some senses, national recognition. Our attorneys are constantly being recognized by organizations they belong to. That is who we are.”

Well, that and a law firm with a strong commitment to the community that has helped it thrive for 150 years.

Joseph Bednar can be reached at [email protected]

Law Sections

2016 or 1984?

By Stefanie M. Renaud

 

Stefanie Renaud

Stefanie Renaud

Imagine a piece of technology, so small it could be mistaken for a credit card, that tracks every movement an employee makes, analyzes every conversation that employee has, and could tell an employer when that employee was in need of a day off. What if that technology could identify patterns and traits that you could use to increase productivity by 23%? Would employers want to use this technology? Of course!

But what about the employees? Isn’t using technology like this an invasion of their privacy? We were shocked to learn, and we bet you are too, that, because of the way this technology is currently being used, employers actually can monitor every word and movement an employee makes without running afoul of the law.

Boston-based company Humanyze recently made headlines when it announced the success it has had analyzing data collected by employee ID badges, developed at the Massachusetts Institute of Technology, that track employees’ movements and analyze their voices during conversations. Contained within each badge are Bluetooth, radio frequency identification (RFID), and infrared technologies, as well as two microphones.

Each of these particular technologies has a different function and gives Humanyze different information that it can use to identify trends or patterns. Bluetooth and RFID technology are used to monitor the employee’s physical movements and location within the office. The microphones allow Humanyze to conduct real-time analysis of the speaker’s voice, including the frequency of speaking and interrupting, and how the tone and pitch of the voice change, which can be indicator of stress, although the badge does not record the content of the employee’s conversations. Finally, infrared technology monitors the wearer’s physiology for signs of stress.

Humanyze analyzes all of the collected data and identifies patterns or trends common to a specified group, such as top performers. Humanyze then works with companies to explore these trends and use them to the business’ advantage. For example, Humanyze helped Bank of America save millions of dollars by suggesting that they restructure employee breaks, which increased social interaction between employees and led to a 23% increase in employee productivity.

So, given how invasive this level of employee monitoring is, how could it not be an invasion of privacy? First of all, this isn’t an invasion of privacy because Humanyze only gathers data from employees who voluntarily offer to be tracked. Second, the individual’s data is their own; employers cannot see individual data and only receive information about aggregate data trends. According to Massachusetts General Laws, employees are protected by statute from “unreasonable, substantial, or serious interference” with their privacy.

However, in order to prove an invasion-of-privacy claim, the employee must show that the employer gathered and then disclosed information “of a highly personal or intimate nature.” While it is arguable that the data collected by these badges could be deemed highly personal in nature, in this case it’s Humanyze, and not the employee’s employer, who collects and analyzes the information.

For this same reason, Massachusetts employers do not need to worry about personnel-records law violations, because the employer is neither creating the records, nor is it the owner of the data. And, because the badges do not record audio, there is no concern about violating the Massachusetts wiretapping statute.

So are there any legal hurdles stopping an employer from implementing this type of employee monitoring? Only one: a workforce governed by a collective bargaining agreement. Employers with unionized workplaces will almost certainly need to bargain with the union before implementing a new employee tracking system.

Indeed, in another, related circumstance, the Boston Police Department engaged in negotiations with the union representing its police officers over whether or not the officers would be required to wear body cameras, ultimately agreeing with the union that, at least initially, the department would ask for volunteers. When no one volunteered, the BPD was allowed to assign the cameras to police officers, but that was after months of negotiations and subsequent litigation. So, if you have a unionized workforce, you can expect both union negotiations and substantial pushback on any requirement that members of the collective-bargaining unit wear these badges.

Employers in or with locations outside of Massachusetts that are inclined to experiment with this new employee-tracking system should check with labor and employment counsel in those jurisdictions, because state privacy laws can vary widely. Meanwhile, we’ll keep an eye on this new technology and let you know if there are any new developments.

Stefanie M. Renaud is an associate with Skoler, Abbott & Presser; (413) 737-4753; [email protected]