Law Archives - Page 6 of 8

Bitter Pill

By BusinessWest Staff December 30, 2014

Law Sections

A Primer on the New England Compounding Bankruptcy Proceedings

By STEVEN WEISS

New England Compounding Pharmacy Inc. (NECC) was a drug-compounding facility located in Framingham. Beginning in the fall of 2012, reports began to surface that patients across the country who had been given an NECC-manufactured product had contracted fungal meningitis.

Steven Weiss

Health authorities soon determined that NECC’s products were, in fact, tainted, and NECC ordered a recall. However, considerable damage had been done. The Centers for Disease Control and Prevention eventually determined that, as of October 2013, 64 people had died, and 751 had become ill. At least 555 separate lawsuits have been filed against NECC, its officers, and others, which have been consolidated in federal court in Boston. Ultimately, approximately 3,350 people have filed claims for personal injuries allegedly resulting from the tainted pharmaceuticals.

Two weeks ago, 14 people, including the former owners of the company, were arrested on federal charges, including RICO charges under the Racketeer Influenced and Corruption Organizations law.

As a result of the outbreak, NECC could no longer operate, and on Dec. 21, 2012, it filed a Chapter 11 bankruptcy petition in the Massachusetts Bankruptcy Court (the case is being heard in the Springfield session of the court). Not long after the case was filed, NECC’s management was removed and a Chapter 11 trustee (Paul Moore) was appointed to oversee the liquidation of the company, to collect funds to distribute to victims and other creditors, and to establish a plan to distribute those funds. During the course of the case, the trustee and lawyers representing victims reached settlements with NECC, its officers and directors, several affiliated entities, several insurers, and others, through which as much as $135 million has been recovered for victims.

Recently, almost two years after the bankruptcy petition was filed, the Chapter 11 trustee and the unsecured creditors’ committee filed a joint disclosure statement and a plan of reorganization for NECC. Under the Bankruptcy Code, the disclosure statement is intended to be something like a stock prospectus; it is intended to provide creditors with sufficient information to enable them to make an informed judgment about whether to approve the plan. After the disclosure statement is approved by the Bankruptcy Court, it will be distributed to all of NECC’s creditors, who will have the opportunity to vote on whether or not the plan should be confirmed by the court. The vote is ‘weighted,’ because it has to be approved by a majority of creditors holding two-thirds of the dollar amount on the ballots of those who vote.

The plan, while complicated, is essentially a ‘liquidating plan,’ so-called because it does not contemplate that NECC will reorganize and ever operate again. Instead, it provides a process for estimating and determining the amounts of the victims’ claims, as well as a mechanism for making distributions to victims. If the plan is confirmed, all of the funds from the settlements will be transferred to a tort trust established under the plan.

One of the potentially controversial features of the plan is that, if confirmed, it will provide releases to parties not just to NECC and the insurers who have funded the settlements, but also to third parties who are not in bankruptcy, and enjoin further suits against those parties. Courts across the country have reached different conclusions about whether such broad injunctive provisions are beyond the powers of bankruptcy courts.

The plan provides for a ‘claims-resolution facility,’ under which victims’ claims are evaluated and ‘scored’ based on seven base-point categories, such as whether NECC’s products caused death and the extent of surviving victims’ injuries, then possibly adjusted based on individual victims’ personal circumstances.

That will enable the tort trustee to assign a dollar value to each victim’s claim. Those claims will then be eligible to receive pro-rated distributions from the pool of funds in the tort trust. Because there are so many claims, the disclosure statement does not provide any estimate of what the total amount of claims is likely to be, so the disclosure statement also does not predict what percent dividend victims are likely to receive on their claims. But for purposes of illustration, if there are total claims of $270 million, each victim with an allowed claim would receive a dividend of approximately 50% (less attorneys’ fees, of course).

The disclosure statement acknowledges that it may take several years to fully determine the amount of victims’ claims. Thus, the tort trust allows the tort trustee to make an initial interim payment to victims, followed by a final distribution once all of the claims have been calculated.

The Bankruptcy Court has scheduled a hearing on whether to approve the disclosure statement for Feb. 24. Once the disclosure statement is approved, it will be served on all of NECC’s creditors, along with the plan, a ballot, and voting instructions. A hearing on whether the plan should be confirmed — and be binding on NECC and all creditors — will likely be held in the spring.

Attorney Steven Weiss is a partner at Springfield-based Shatz, Schwartz and Fentin. He concentrates his practice in the areas of commercial and consumer bankruptcy, reorganization, and litigation. Weiss supervises the firm’s bankruptcy, reorganization, and workout practice; represents creditors, debtors, and others in both commercial and consumer bankruptcy cases throughout Massachusetts; and has been a member of the private panel of Chapter 7 trustees for the District of Massachusetts since 1987, and also serves as a Chapter 11 trustee; (413) 737-1131; www.ssfpc.com

An Employment-law Checklist

By BusinessWest Staff December 30, 2014

Law Sections

The New Year Is the Perfect Time for an Audit of Your Practices

By SARAH G. TORRES, Esq. and KARINA L. SCHRENGOHST, Esq.

Sarah G. Torres

Karina L. Schrengohst

As the new year approaches, employers would be wise to include in their resolutions efforts to ensure compliance with the myriad employment laws affecting their business, including those related to sick leave, disability discrimination, sexual harassment, and wage-and-hour issues.

To accomplish this, employers can begin by conducting an internal audit of their employment practices with the assistance of employment counsel, including looking at their employee handbook and other policies and job descriptions, as well as planning supervisor training.

Employee Handbook and Policy Reviews

Is your employee handbook up to date? Employers should consider having their employee handbook and other policies reviewed on an annual basis by employment-law counsel to ensure they are compliant with state and federal law and recent National Labor Relations Board (NLRB) decisions. For instance, just this month, the NLRB issued a decision permitting employees to use company e-mail accounts on their own time for non-business purposes, including discussing union organizing and work grievances.

Employers must be aware that these communications are protected in both union and non-union workplaces. Accordingly, employers may need to revise their computer-usage policies to comply with this decision.

Likewise, many Massachusetts employers will need to revise their current paid-time-off policies or create sick-time policies to comply with new sick-leave legislation that will go into effect on July 1, 2015. Under this new law, employers with 11 or more employees must provide up to 40 hours of paid sick time per calendar year. Employers with fewer than 11 employees must provide up to 40 hours of unpaid sick time per calendar year.

In addition, some Massachusetts employers with 50 or more employees will need to create policies or amend their employee handbooks to incorporate a domestic-violence-leave policy, if they have not done so already. This past summer, Massachusetts enacted a law that requires these employers to provide up to 15 days of leave during a 12-month period to employees who are victims of domestic abuse or who have a qualifying family member who is a victim, and to notify their employees of their rights and responsibilities under the law. The attorney general recently suggested that employers can meet the notice requirement under the law by including a provision in their employee handbook.

Also, employers with six or more employees are reminded that Massachusetts law requires annual distribution of your sexual-harassment policy.

Training for Managers and Supervisors

Do you offer your managers and supervisors regular training?

Creating or revising workplace policies to comply with new laws and regulations is only one preventive step. The next step is training managers and supervisors to ensure they understand these policies and their responsibilities under these policies, which is equally crucial. Employers should consider scheduling training for their management personnel on employment-law topics such as sick and domestic leave laws and the new NLRB decision related to e-mail communications, as well as refreshers on topics such as disability discrimination, sexual harassment, and wage-and-hour issues.

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

Review, Update, and Revise Job Descriptions

Do your job descriptions accurately reflect your employees’ actual job duties?

Job descriptions can be used as a basis for interviewing candidates, orienting a new employee, and evaluating job performance. In addition, an accurate job description listing the essential functions of a position will assist you when faced with requests for accommodations under the Americans with Disabilities Act. Sending an accurate job description to an employee’s medical provider will help you determine whether an employee is able to return to his or her position and what, if any, accommodations may be necessary.

An accurate job description with a detailed list of the essential functions of a position can also assist you with determining whether an employee is exempt from overtime pay under the Fair Labor Standards Act. This is especially important because the Department of Labor (DOL) announced this year that it will be reviewing these overtime exemptions and will likely be revising their regulations in 2015. Compliance in this area is particularly important because an employer who has been found to have misclassified an employee as exempt can be subject to significant penalties as a result of a DOL audit.

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

Sarah G. Torres, Esq. and Karina L. Schrengohst, Esq. are attorneys at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]; [email protected]

Reaching the Masses

By BusinessWest Staff October 7, 2014

Law Sections

Law Firms Raise Their Profile Through Blogs, Social Media

Jeff Fialky says consumers of all types of goods and services look for them on the Internet, and savvy law firms are taking advantage of that.

Kevin Maltby says few people buy anything without checking it out online first.

For example, millions check out Yelp reviews before making dinner reservations, or head to Amazon to read product reviews before making a purchase — even if they plan on buying the item elsewhere.

The legal world even has its own review site, Avvo, said Maltby, an associate with Bacon Wilson, P.C. in Springfield. “I would liken that to the comment section on any retail site, where people rate the lawyer and talk about the lawyer. To some degree, in the day and age we live in, no one buys anything without going online and looking at reviews.”

That’s why it’s more important than ever for attorneys to control their own image and messaging, and increasingly, firms are doing so through blogs and social media.

“I think it’s valuable,” said Jeff Fialky, a partner with Bacon Wilson. “First, it has value for marketing purposes. I think most consumers, when they’re looking for a professional service provider — like a law firm or any other good or service — is using the Internet, furthering that global marketplace.

“We get a fair amount of business from outside the area,” he continued, “from people looking for established law firms — from a business in another state, for instance, that needs a local transactional lawyer in this area — who go to the Internet to find an established attorney with relevant experience.”

What they often find is a post on one of Bacon Wilson’s four blogs — which deal with employment law, estate planning, bankruptcy, and family law — that piques their interest. That might lead to a phone call — and a new client for the firm.

Skoler, Abbott & Presser, P.C., an employment-law firm based in Springfield, also hosts a robust blog at its website called “The Law @ Work.” Recent topics include the Employee Retirement Income Security Act, protections for employees who ‘like’ Facebook comments critical of their employer, and Massachusetts’ new law granting domestic-violence leave (see related story, page 27).

“A lot of articles are geared toward providing some sort of information or guidance to employers, whether it’s HR professionals or other people in business,” said Kimberly Klimczuk, a partner with the firm. “Sometimes, we’re reporting on interesting cases.”

But if the blog is a marketing tool, she said, it’s not one intended to generate more phone calls, but rather one that raises the firm’s profile as an expert resource in the ever-changing world of workplace law, which is just as important.

“Although everyone likes to think we reach more clients through the blog, that’s not the primary purpose,” she said. “It’s a publication, primarily. You want to generate content for the blog that is of general interest. Of course, if more HR professionals and employers read it, that’s awesome.”

Peter Vickery understands the value of a regularly updated blog in boosting his professional profile — a particularly important consideration for a sole practitioner in Amherst.

“It does boost your Google ranking,” said Vickery, who focuses his practice — and his blog — in the areas of employment and discrimination, copyright and trademark, voting and elections, and public policy, among others. “That’s not the reason I started blogging, but it’s one reason I kept doing it. Every time I update the blog, Google’s algorithms boost my ranking.”

For instance, the blog can catch the eye of “people who are looking for anything in my practice areas, employers and landlords and people who have an interest in constitutional law. That third group is more amorphous — an audience of people who have an interest in First Amendment issues, separation-of-power issues. If someone is Googling, say, ‘Article 30, separation of powers, Massachusetts,’ one of my blogs should pop up. It’s a hard market to reach otherwise.”

For this issue’s focus on law, BusinessWest talked with some area law firms that are heavily invested in reaching the masses online through blogs and other forms of social media, like Twitter, LinkedIn, and Facebook, and examine why these channels, when managed correctly, help lawyers control their own reputation and generate business.

Information, Please

Various areas of Bacon Wilson’s sprawling practice lend themselves to social media, said Maltby who listed estate planning among others. Hyman Darling, a partner with the firm, has recently taken to the “Estate Planning Bits” blog with posts on changes in estate- and inheritance-tax law, a change in how inherited IRAs are protected in bankruptcy, and whether religious marriages are valid for estate-planning purposes when no civil marriage license was issued.

“A lot of people read the estate-planning blog or the employment-law blog for their own information, and if they have questions, they might call,” said Maltby, who added that certain practices, like his own work in criminal defense, don’t lend themselves as well to blogs.

Klimczuk said arming clients and others with information from employment-law experts is the foremost reason her firm maintains a blog.

“If people read your blog, hopefully, if an issue comes up, they’ll remember the blog, think, ‘they seem to know what they’re talking about,’ and give you a call,” she told BusinessWest. But even if that never happens, “we think it’s a good way to share information with the public about our area of expertise.”

Fialky said Bacon Wilson’s public profile has certainly been raised through its blogging and other social-media presence, including Facebook pages for many of its lawyers,

“On the other hand, it’s valuable for individuals to educate themselves with respect to legal concepts,” he noted. “While legal concepts vary from jurisdiction to jurisdiction, others remain constant. For instance, issues facing a startup business are fairly universal across the country. Creating blogs provides us with accessibility to markets that word of mouth and geography would otherwise not provide.

“Just the other day,” he added, “one of my colleagues received a query from a company, very distant, from one of the western states, entirely on the basis of an article he had written and posted on one of the blogs. They had a specific need, and they called.”

If clients and the public are learning from reading legal blogs, Vickery said, he benefits in a similar way from writing them.

“I’m motivated partly by fear,” he said, only partly joking. “I have this fear of not knowing what the most up-to-date law is. A lot of attorneys have a recurring nightmare of being in court, and the opposing counsel drops this unfamiliar case on you.

“Keeping my blog up to date is almost self-discipline,” he continued. “If I have to read cases in a certain area of practice in order to maintain my blog, I can sleep easier and not get those nightmares so much.”

Other forms of social media can be effective either on their own or in conjunction with blogs, Klimczuk said. “We use Twitter more casually, sometimes to promote things, like a blog post. We find that, when we post something on the blog, then tweet about it, it directs more traffic to the blog. It’s our way of illuminating areas of the law that would be of interest to people.”

Twitter is also valuable for promoting events the firm is involved in, she said, while LinkedIn is used more for business contacts, “as a way for clients to keep in touch with what we’re doing.”

At Bacon Wilson, “certain lawyers have found success on Facebook,” Maltby said, offering the example of someone reaching out to an estate-planning attorney with his own issue or that of a friend, because of a relevant post they read.

“I’m a commercial transactional lawyer,” Fialky added, “so, for me, it’s unlikely that business owners outside the area, or even in this area, would be looking for a service provider by way of Facebook. But they may connect through a LinkedIn relationship or a blog. I’ve received inquiries over the years on articles I’ve written in blogs.”

Maltby noted that Bacon Wilson’s website, which hosts its blogs, is mobile-friendly, to make it easier for people who access the Internet on the go to find the information they need — and easily find a phone number if they want to call.

Open Book

Fialky understands he’s practicing law in a new world of consumer research, which is as true of law firms as it is of car shoppers and restaurant patrons.

“Very frequently, by the time I talk to a new client, they’ve already read my bio online,” he said. “Clients are good consumers and want to understand with whom they’re doing business.”

That’s why it’s critical to actively build that profile, rather than sit back and let sites like Avvo do it. Any additional business that arises from those efforts is just a bonus.

“It certainly helps me with the pipeline; I’ve gotten some business by way of the blog,” said Vickery, who has posted recently on campaign-finance law, Facebook defamation, and recent decisions by the Mass. Commission Against Discrimination. “I can draw a direct line from a couple of blog pieces to revenue, which is always encouraging. With advertising and marketing, it’s often difficult to see what works and what doesn’t work. Every now and again, things clearly work, and these were instances when it did.”

Most law firms don’t blog, and many have no social-media presence, but that could change, Klimczuk said.

“As more people get into social media, it’s kind of expected that firms are going to participate, which creates a scenario where firms that are not doing it are kind of at a disadvantage,” she said, adding that it’s not enough just to create a blog.

“If you’re doing a blog, you have to make sure it’s updated. If you post every two months, that’s super lame, and it makes you look bad. You have to update on a regular basis with relevant content, things people are interested in. It definitely adds a new dimension to the practice of law.”

Fortunately, Maltby said, it’s not difficult to find new topics to write about.

“Information is always changing, and the law is always evolving, so if you don’t keep your blog up, it gets stale,” he told BusinessWest. “There’s always new information, new cases. In the employment-law world, that could mean a new wage-and-hour case reinterpreting lunch breaks … stuff like that.

“It’s an excellent tool and another way to keep clients informed,” Maltby said of social media in general. “But I think it’s very important to make sure, whatever you’re posting, however you’re using those online tools, that it’s done in a professional manner. If you do, it will resonate with a large cross-section of clients.”

Joseph Bednar can be reached at [email protected]

The Sibling Divorce

By BusinessWest Staff October 7, 2014

Law Sections

How Individuals Can Avoid Conflicts Over a Parent’s Estate

By MIKE SIMOLO, Esq. and KATHERINE McCARTHY, Esq.

What will happen when my parents pass away?

It is a question most of us who have not yet faced the situation would rather avoid.

Unfortunately, avoiding the topic until the inevitable happens can be costly in many ways.

Mike Simolo

Kate McCarthy

The death of a loved one is an incredibly emotional time. Such an event, of course, triggers sadness, but it can also cause frustration and anger to develop among family members. All too often, when the last living parent dies, adult children find themselves in conflict with their siblings and other family members over that parent’s estate.

This article will focus on the trials and tribulations faced by many well-meaning adult children attempting to navigate the often complicated and frustrating world of probate, and what individuals can do during their lifetime to help avoid a conflict over their estate.

The Sibling Divorce

We have found that the death of the last living parent can serve as something of a ‘sibling divorce.’ In a minority of cases, long-held animosities and distrust among siblings, or even simple misunderstandings about a parent’s estate plan, can lead to expensive, and often protracted, litigation. At that point, the divorce analogy becomes apt.

Such litigation can be emotionally charged, difficult for other family members, and chock full of recrimination, resulting in deep, long-lasting family faultlines. Even under the most clear-cut of circumstances, where one sibling has genuinely harmed the others, righting the wrong can be a difficult, expensive, and even traumatizing experience.

Joint Bank Accounts Raise Potential Problems

One of the more common scenarios that we have encountered involves the ‘end-of-life joint account.’ Assume mom’s will provides that all of her property is to be distributed to her three children equally. Six months before mom’s death, however, and perhaps during a time when mom’s mental competency is questionable, child 1 convinces mom to add his or her name to mom’s account as joint owner, or to have mom execute a ‘transfer on death’ designation naming child 1 as the beneficiary of the account.

At mom’s death, mom’s will is meaningless with regard to those assets, because they will pass directly to child 1 as surviving joint owner or as beneficiary. Child 1 claims that mom intended to give him the property, and that it is rightfully his. The remaining children could argue that, at best, mom put child 1’s name on the account for convenience only, without the requisite intent to make a gift, or, at worst, child 1 unduly (or fraudulently) induced mom to sign the document.

But to recover the funds absent child 1’s agreement, the remaining siblings would need to initiate costly litigation, the success of which cannot be guaranteed.

If this scenario is at all foreseeable, one possible solution is to place mom’s assets in a trust, with at least one neutral, independent trustee, who could monitor distributions in and out of the trust. However, even that solution is not foolproof. If that trust is ‘revocable,’ meaning that it can be changed or revoked entirely by mom, child 1 could bring mom to a lawyer, who could change the terms of the trust or assist mom in revoking it if he or she deems mom to be competent to do so.

This would leave the other siblings in the position of having to prove child 1’s undue influence (if, indeed, there was any) over mom.

Issues with Powers of Attorney

Another issue involves the use — or, sometimes, the misuse — of powers of attorney. Estate-planning attorneys routinely, and rightly, encourage clients to execute a power of attorney, which gives the appointed agent broad (often very broad) power to act for the individual’s financial affairs. In general, executing a power of attorney is far preferable to undertaking a court proceeding to establish a conservatorship.

Agents appointed under a power of attorney have a fiduciary duty to follow the principal’s wishes to the extent known; however, unlike a conservatorship, the attorney-in-fact’s actions will not be subject to court oversight. In short, the document can, and sometimes is, abused by the agent, who is often a child of the principal. These abuses usually do not come to light until after the parent’s death, and rectifying them can involve the same drawn-out court process mentioned above.

We have also seen the opposite occur — that is, instances where an appointed child/agent, with no malicious intent and without benefit to the child, inadvertently exceeds his or her powers in the document. In the hands of a sibling looking to cause trouble, such a technical breach of the child/agent’s duty can give rise to a possible court surcharge against that child.

Again, risks associated with these issues can be lessened at the drafting stage. Choice of agent when considering executing a power of attorney is crucial. Similarly, the document should be carefully tailored to the principal’s needs so as to lessen the tendency for abuse. Finally, what an agent can or cannot do should be explained to the agent at the outset.

Other Potential Issues

Not every sibling divorce is quite as stark or clear on wrongdoing as those mentioned above. Often, there are genuine factual questions at issue. It is a common situation for one child to become the caretaker for his or her parent, with the other siblings being remote, either geographically, emotionally, or both. Sometimes, the parent will make extra provision for the caretaker child in his or her estate plan, or make gifts to the child during the parent’s life.

This can result in accusations and possible challenge from other siblings, particularly if the parent’s planning had previously called for an equal distribution.

Then there’s the very common undocumented-loan situation, where the last living parent provides, or has in the past provided, funds to one child but not to the others. The question can, and often does, arise: was that a loan, with repayment expected, or a gift? Usually, there is no evidence for either, other than one child’s recollection that the parent indicated it was a loan, and another child’s recollection that the parent indicated it was a gift. Both of those recollections may well be true: in order to appease the children, the parent told each child what he or she wanted to hear.

Reality Check

Unfortunately, while telling your children what they want to hear is perfectly understandable behavior from a family-harmony perspective while the last living parent is alive, it can lead to disastrous consequences after death. And that, really, is at the heart of minimizing the risk of a sibling divorce.

While one or both parents are alive and competent, an estate-planning attorney should encourage them to think openly and honestly about their family dynamic, and how that dynamic might change when they are gone. Such a reality check will greatly assist in properly structuring the parents’ estate plans, as well as in the organization of their assets and any additional steps that need to be taken.

No parent would relish the idea of their children publicly feuding in probate court after their death. An honest evaluation of potential issues, together with an estate plan addressing them, is the best defense against such a sibling divorce.

Mike Simolo and Katherine McCarthy are attorneys with Springfield-based Robinson Donovan, P.C. Simolo concentrates his practice in estate planning, probate matters, and business work. McCarthy focuses her practice on family law and probate matters; [email protected]; [email protected]

Mandate for Change

By BusinessWest Staff October 7, 2014

Law Sections

New Law Requires Employers to Provide Domestic-violence Leave

By KARINA L. SCHRENGOHST, Esq.

Massachusetts recently enacted new legislation related to domestic violence.

The new law, which was effective immediately when signed by Gov. Deval Patrick on Aug. 8, impacts some employers in the Commonwealth. Under this law, employers with 50 or more employees must provide up to 15 days of leave during any 12-month period if the employee, or a family member of the employee, is a victim of “abusive behavior.” This includes domestic violence, stalking, sexual assault, and kidnapping, and the employee is using the leave to: (1) seek or obtain medical attention, counseling, victim services, or legal assistance; (2) secure housing; (3) obtain a protective order from a court; (4) appear in court or before a grand jury; (5) meet with a district attorney or other law-enforcement official; (6) attend child-custody proceedings; or (7) address other issues directly related to the abusive behavior.

An “employee” is broadly defined as an individual who “performs services for and under the control and direction of an employer for wages or other remuneration.” This means that the law applies to any employee whether he or she is full-time or part-time and regardless of how many hours he or she works. There is also no requirement that an employee work for a particular period of time before becoming eligible to take leave.

Karina L. Schrengohst

This means that an employee is eligible for domestic-violence leave from the day he or she is hired. An employee’s family member includes a spouse, a partner the employee resides with, an individual the employee has a child with, a parent or stepparent, a child or stepchild, a sibling, a grandparent, or a grandchild. An employee, however, is not entitled to leave if he or she is the perpetrator of the abusive behavior.

As with other leaves of absence, employees must provide advance notice of the leave. However, when there is a threat of imminent danger to the health or safety of the employee or the employee’s family member, advance notice is not necessary, and the employee must notify his or her employer within three workdays that leave is being taken due to abusive behavior. Notably, a request for leave may come from an individual other than the employee, including a family member of the employee or the employee’s counselor, social worker, healthcare worker, member of the clergy, shelter worker, legal advocate, or other professional who has assisted the employee.
Employers may require that employees provide documentation supporting the need for domestic-violence leave. Documentation that will support leave under this law includes:

• A sworn statement by the employee or a counselor, social worker, healthcare worker, member of the clergy, shelter worker, legal advocate, or other professional;
• A court-issued protective order;
• A document on court, provider, or public-agency letterhead showing that the employee or family member sought assistance relating to abusive behavior;
• A police report or statement of a victim or witness provided to police;
• Documentation that the perpetrator has admitted to sufficient facts to support a finding of guilt, was convicted, or has been adjudicated a juvenile delinquent by reason of abusive behavior; or
• Medical documentation of treatment as a result of the abusive behavior. This documentation must be kept confidential and may be maintained only as long as is needed for the employer to determine whether the employee is eligible for leave.

Upon an employee’s return from leave, the employee must be restored to his or her original job or an equivalent position without loss of any employment benefit accrued before taking leave. Employers are prohibited from discharging or discriminating against an employee for exercising his or her rights under this law. Complicating matters, an employer cannot take any adverse action against an employee for an unscheduled absence if the employee provides documentation supporting the need for domestic violence leave within 30 days from the unauthorized absence (or within 30 days from the last unauthorized absence in the instance of consecutive days of unauthorized absences).

The good news for employers is that leave under this new law does not have to be paid. It is entirely an employer’s discretion whether the leave is paid or unpaid. Also, an employee must exhaust all of his or her vacation time, sick time, and personal days before they are eligible for domestic violence leave.

Employers must provide employees with notice of their rights and responsibilities under this new law. One step employers can take toward complying with this law is creating and implementing a domestic violence leave policy. Distributing this new policy will satisfy the requirement of notifying employees of their rights and responsibilities under this law. In addition, employees should review existing leave and attendance policies to ensure they are in compliance with the law and the new policy. Finally, employers should ensure supervisors and managers are trained to understand their obligations under this new law and how to handle requests for domestic violence leave.

As always, with new legislation comes new challenges. One of the challenges employers will face is the intersection this new law will have with other employment laws. For instance, this measure does not address whether domestic violence leave may run concurrently with other leave such as leave under the Family and Medical Leave Act. In addition, there may be times when an employee who is a victim of domestic violence needs a reasonable accommodation under the Americans with Disabilities Act. Consequently, employers would be wise to consult with employment counsel to ensure compliance with this new law and when confronted with questions related to domestic violence leave.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

Advice — on the House

By BusinessWest Staff October 7, 2014

Law Sections

Check Your Homestead Protection Now to Prevent Problems Later

By DAVID K. WEBBER, Esq.

David Webber

If you own a small business, you should carefully choose a business entity and buy good insurance. But a properly prepared homestead declaration can be the single most important tool in protecting your personal assets against the claims of creditors.

The rules have changed, so if you haven’t checked yours lately, now is a good time. The Massachusetts homestead statute, M.G.L. c. 188, became much more complex in 2011. In fact, a bankruptcy judge recently called it a “statute of teeth-cracking complexity.” This complexity means new opportunities for asset protection. But it also sets many traps for the unwary. Now, more than ever, the document must perfectly describe your home, its ownership, and its occupants.

What Is It?

A homestead declaration is simply a sworn, written statement that an equitable owner resides, or intends to reside, in a particular home. The document must be signed by the legal owner, notarized, and recorded in the registry of deeds where the property is located. Once recorded, it serves as legal notice to potential creditors that the equity in your home is off limits.

Why Do I Need It?

If, for example, you file for personal bankruptcy, default on a debt, or a court judgment enters against you, a properly recorded homestead declaration will protect your home equity against subsequent claims by unsecured creditors. The law limits this protection depending on who occupies the property. The general rule is that the exemption is limited to the first $500,000 in equity.

However, the individual exemptions for disabled individuals and owners age 62 or older can ‘stack’ to provide a $1 million exemption for a married couple, or $750,000 for joint owners where only one owner is over 62 or disabled. If you do not record a homestead declaration, an ‘automatic’ homestead protects only the first $125,000 of your equity, regardless of the number, age, or ability of the occupants.

Note that a homestead declaration will not protect against foreclosure under a mortgage or home-equity line of credit. In that case, the lender has priority over the homestead exemption. And if you recorded a homestead declaration years ago, consult a real-estate attorney before you decide to record a new one, just to be sure.

Many old homestead declarations are still effective, and recording a new declaration can unwittingly expose you to claims filed in the interim. A title search can usually detect any such problems.

What Property Is Eligible?

You can protect almost any kind of home, but at least one residential unit of the home must be your primary residence. It can be a single-family or multi-family home (up to four units), manufactured home, condominium, or cooperative housing unit. A vacation home can be protected as long either you or your spouse can establish it as your primary residence, but unless one or both spouses are over 62 or disabled, you will divide the exemption ($250,000 for each home). Note that an accurate property description and deed reference are critical, especially if your residence includes more than one building or one lot.

Under most circumstances, a homestead declaration also protects proceeds from the sale of, or damage to, your home. In the event that your home is sold or taken, the proceeds will be protected for up to one year or until you buy new home, whichever comes first. And if your home is damaged or destroyed by fire or other casualty, the insurance proceeds will be protected for up to two years, until it is repaired, or until you buy a new home, whichever comes first.

Which Owners Are Eligible?

No matter how you own your primary residence, you are likely to qualify for homestead protection. Section 1 of the statute defines an owner as being “a natural person who is a sole owner, joint tenant, tenant-by-the-entirety, tenant-in-common, life-estate holder, or holder of a beneficial interest in a trust.” In most cases, your deed will state which type of ownership applies to you.

The new definition of owner allows many homes held in trust to qualify for homestead protection. This opens up new estate-planning opportunities, both for devising the family home to your children without giving up control during your lifetime, and for avoiding probate. However, we are finding that many homes conveyed into trust before 2011 are not yet protected by a homestead declaration.

The rules are very specific. Section 5 of the statute requires the trustee of the trust to sign the declaration. The resident beneficiaries must each be named in the document, and will share the exemption in proportion to their shares of the trust. Note that the exemption applies only to the primary, lifetime trust beneficiaries, not to remainder or contingent beneficiaries.

Unfortunately, homestead protection is not available when the residence is owned by a corporate entity, like a limited-liability company. If a corporate entity is the owner, and the home’s equity is at risk, it may make sense to retitle the property and record a homestead declaration. Leased property is also generally ineligible, unless you have an equity interest associated with it, such as a cooperative housing share linked to a particular residential unit and long-term lease.

How Do I Do It?

With so many ownership variations, there is no one-size-fits-all homestead declaration form. While the Mass. Real Estate Bar Assoc. and some registries of deeds provide sample homestead forms, they will not work in every situation. The attorney preparing the homestead declaration should begin with a careful inspection of your deed. The names on the homestead declaration must match the deed exactly, including any ‘also-known-as’ names. It should cross-reference the book and page of the deed or other ownership document. If only one spouse owns the home, the declaration should identify the other spouse as a benefitted party.

If the home is held in trust, be sure to record a declaration of trust, trustee’s certificate, or nominee trust, and include a registry cross-reference. If one owner is under 62 and the other is over 62, you each need a separate homestead declaration. Again, the purpose is to give legal notice to creditors that you are claiming the homestead exemption on your property.

Conclusion

When things go wrong, a homestead declaration can suddenly become very important. It is wise to confirm that ours is valid now, so that it is already in place in the unlikely event you need it. Because courts are reluctant to allow seizure of the family home, the law is construed liberally in favor of the homeowner. However, even the Supreme Judicial Courts will not “stretch that principle in a manner that fundamentally ignores the words of the statute,” according to Weiss v. Boyle, 461 Mass. 519 (2012).

Following the letter of the law gives the best chance of protecting the family home. Given the complexity of the law, this article is intended to be informative but should not be relied upon as legal advice. Consult your attorney if you have any doubts. n

David K. Webber is an attorney at Shatz, Schwartz and Fentin P.C. in Springfield, Massachusetts. He practices in the areas of real estate, business transactions, business planning, estate planning, probate, and bankruptcy; (413) 737-1131; [email protected]

Strong Suits

By BusinessWest Staff October 7, 2014

Law Sections

A chart of the region’s law firms

Click here to download the PDF

Firm Resolve

By BusinessWest Staff August 12, 2014

Law Sections

Robinson Donovan Is in a Growth Mode

Jeff Roberts, managing partner with Robinson Donovan, P.C.

Jeff Roberts, managing partner with Robinson Donovan, P.C.[/caption]For Jim Martin, understanding where Robinson Donovan, P.C. is headed requires an appreciation of the past.

“I always think it’s illustrative, when we talk about Robinson Donovan, to acknowledge our historical connections,” he said of the Springfield-based law firm that will mark its 150th anniversary in 2016. “We trace our roots back to Gov. George Robinson, and we’re the longest continuing law firm in the Pioneer Valley — perhaps in the state.”

Martin, a partner at the firm, said the late Milton Donovan — one of the founders of the practice long known as Robinson Donovan Madden & Barry — always stressed client service, and that’s what the six current partners and nine associates continue to emphasize today. “We feel we’re able to deliver high-quality legal services in an effective manner.”

According to Jeffrey Roberts, the longest-tenured partner at Robinson Donovan, building that reputation has been a multi-generational effort.

“When I started here, there were six or seven lawyers,” he told BusinessWest. “But even at that size, I never had the impression that the firm was being run by a few owners doing it for themselves, who didn’t care to leave anything behind. And today, I think all the partners want this firm to keep going after they’re gone.

“That’s why we keep hiring, why we made the decision to remodel the place,” he said of the firm’s offices high in Tower Square. “We’re looking for people to come here in the early stage of their career and stay here, stay in the community. And it’s working. It’s enjoyable to see everyone working as a team here and growing. Even through the recent recession, we’ve been in the game the whole time and expanding again.”

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 last decade — more than 30 lawyers worked there as recently as 15 years ago — business is growing in virtually all those specialties, Roberts said, and the practice is on the rise again, hiring five attorneys over the past five years.

“With employment-law work, we’re talking about all types of employment-law issues — harassment, wrongful termination, age discrimination, all kinds of discrimination claims, and counseling employers,” Roberts explained. “Another area that’s been really active for us has been family-law work — divorce and domestic relations.

“We continue to have a lot of demand,” he said, “so we’ll likely keep hiring. But we try to be careful in how we grow, so we don’t grow just for the sake of growing. We want to keep our level of service up, keep our expertise up, while bringing in more people. We’re pretty confident, notwithstanding swings in the economy, that we’ll keep growing.”

For this issue’s focus on law, BusinessWest sits down with several attorneys with Robinson Donovan to talk about why this firm with an extensive history is anticipating a bright future.

Raising the Bar

Roberts was quick to note that the firm’s recent hires have spanned most of its specialties.

“It’s interesting to note, when you look at the people we’ve hired, they work in general litigation, trusts and estates, corporate transaction law, labor and employment, domestic relations. In each one of those areas, the partners and lawyers say there’s more work coming in, and we need to hire more people. That’s a good indication where the key practice areas are in Western Mass.”

He and Martin said Robinson Donovan has been quick to assimilate fast-growing subspecialties into its roster of services. Take, for example, the growth of solar projects and other installations involving ‘green’ forms of energy production — projects that require legal services to navigate a host of real-estate, zoning, and regulatory issues.

Associate Mike Simolo, right, says younger attorneys at Robinson Donovan benefit from a culture of mentorship promoted by Jim Martin, left, and the other partners.

“Every time you pick up the paper, there’s something new with these projects,” Roberts said. “We’ve become involved in these opportunities to the point where one of our younger lawyers, Nick Lata, is extremely knowledgable about them.

“We now have a considerable amount of expertise in solar work,” he continued. “There aren’t too many wind farms around, but Jim started representing a company putting up windmills. As you do these projects, you learn a lot, acquire a lot of expertise. We’re excited about that.”

Martin, an expert in transactions who is also a leading automotive franchise attorney, said the transfer of closely held businesses is another fast-growing field. “People would be very surprised how difficult it is to effectuate a smooth transition of a family business from one generation to the next. It’s fraught with variables and rarely as smooth as the owners or their successors would like it to be.”

Nancy Frankel Pelletier, a partner who specializes in litigation, also has plenty on her plate these days, including municipal issues ranging from zoning to civil rights. “It’s a substantial amount of work. The law is very broad, but the aspect of litigation is somewhat specialized. You need someone experienced in the courtroom, and we are.”

One growth area in litigation involves dissolving business partnerships in which only one partner wants to walk away. “In these cases, no one really thought about what would happen if they didn’t want to stay together anymore; they didn’t create an agreement that didn’t allow for someone to walk away. I’ve seen a spike in people trying to get out of those arrangements.”

Jeff Trapani, another associate who works in litigation, noted that cost factors tend to drive trends, which is why alternative dispute resolution and arbitration continue to rise in popularity.

Meanwhile, Roberts noted that estate planning has taken on new importance at a time when Baby Boomers are aging and estate-tax rules have drastically changed, with exemptions rising from $1 million in 2000 to $5.5 million today.

All these factors, he said, contribute to a fertile environment in which a law firm can thrive and expand its reach — and he expects Robinson Donovan to continue to do just that.

The Next Generation

Martin said this growth is possible because the firm has long emphasized a culture of mentoring, with senior partners, influenced by those who came before, constantly training the younger generation, including tax-law specialist Lata, estate-planning specialist Michael Simolo, and family-law specialist Katherine McCarthy. “We continue to build a foundation of new talent, which we’re proud of.”

Simolo, for one, appreciates that culture. “It’s comforting to me to know I’ve got help available to me from both the partners and associates and the paralegals, if I need to turn to someone with an issue.”

Gesturing to Roberts and Martin, he noted, “there’s probably 65 years worth of legal experience sitting at this table, and it’s nice to be able to draw on that both in terms of not only getting the work done in a professional manner, but also client development. The culture here is to be applauded. Frankly, I feel totally comfortable going to any one of the partners with a question — ‘want to grab lunch? I’ve got an issue I want to talk over.’ That kind of thing happens here all the time. It’s very collegial, very team-oriented. For me, that’s one of the real pluses.”

It’s also a practical matter, Roberts said, to make sure all attorneys are up to speed.

“We’re big enough that we can take on big projects. On the other hand, we’re not too big. Clients want effiency, they want service, and when things go awry, they want someone to talk to,” he explained. “We’re well-positioned to do that. When we get young lawyers in, we get them involved right away in things that the other lawyers are doing. We don’t hide them for five years; we get them directly involved with clients. It gives a lot of depth to the practice. I’m on vacation, they know who to call. If somebody’s in a meeting or out of the office for two days, there’s always somebody they can call.”

Martin also praised the firm’s paralegal staff, many of whom have been at Robinson Donovan for many years. “We work as a team here, and we draw on their areas of training and deliver services in an efficient way, which is important to us.”

Attorneys Jeff Trapani and Nancy Frankel Pelletier say their litigation work has become more complex in recent years.

The firm has also built strong bonds in the community, with partners and associates serving on the boards of dozens of area nonprofits.

“It’s hard to do because everyone is so busy at work,” Roberts said, before emphasizing that such efforts are more than worth the time and energy. “I don’t think we’re any different than any other law firm. It’s hard to have a family, do all your work, and stay involved in the community. When somebody is able to do that, it really reflects some strong character. And we really like to see it.”

Looking Up

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, Martin noted, the firm is being 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. Simolo expects more of the same in the future.

“I think they’ve made some great hires since I’ve been here,” he said. “It’s encouraging to me to see the partners investing in the future of the firm.

“They’re very pragmatic and results-oriented in helping people solve issues,” Simolo continued. “They do that very well, as a result of having decades of experience. And it works out very well for the client.”

“We’re very results-oriented,” Frankel Pelletier agreed. “People don’t always perceive it this way, but we’re problem solvers. That’s what we do.”

Joseph Bednar can be reached at [email protected]

Coping with a New Reality

By BusinessWest Staff August 12, 2014

Law Sections

WNEU, Like All Law Schools, Is Adjusting to Lower Enrollment

Eric Gouvin says WNEU Law, like any business weathering a storm, is focused on both increasing revenues and reducing expenses.

Eric Gouvin says there is ongoing discussion and debate within higher education about why enrollment is down at law schools across the nation.

But there is no debating that this decline is real and quite dramatic — some observers are even speculating that some institutions may not survive it — and that there is little to suggest that things are going to improve significantly any time soon, said Gouvin, dean of the Western New England University School of Law.

“It’s all across the country, a national trend, and while people have different perspectives on what’s happening and why it’s happening, no one can deny that it is happening,” he told BusinessWest. “There are fewer people going to law school — it’s as simple as that.”

Nationally, first-year enrollment for the fall of 2013 fell 11% from the previous year, and 24% over the past three years, according the American Bar Assoc., and, overall, law-school enrollment is at its lowest level (39,675 for 2013-14) since the late ’70s. At WNEU, first-year enrollment in the day (full-time) program has fallen from 133 in 2009 to a projected 95 for this fall, a 28% decline.

But that fall number actually represents an increase from a year ago, when only 85 people entered the program.

“We exceeded our expectations for this fall — we budgeted for fewer than 85,” said Gouvin, crediting “talented admissions people” and apparently attractive pricing and programs (more on those variables later) for the slight surge in the numbers for this fall. But sharp enrollment declines from the days before the Great Recession are real, and most analysts expect them to continue, he went on, adding that WNEU, like most other schools, is adjusting to what some are calling a new reality.

Overall, the law school is doing what businesses do when they face fiscal adversity, said Gouvin, and that is creating ways to both enhance revenues and cut expenses without impacting quality. The school is trimming staff through attrition — several faculty members have retired, and more are expected to do so over the next few years — while also adding 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, and other programs.

“That’s a supplemental source of income for us,” he said of the LLM offering, adding that the school will roll out a similar program for non-lawyers in 2015.

“This is for accountants, financial planners, and insurance professionals who need to deal with a lot of heavy-duty legal issues around planning for clients, but don’t want to spend three or four years getting a JD, and don’t need to,” he explained. “They just need some working knowledge of those technical provisions that will allow them to work better with counsel, and that’s why we think this will be an attractive offering.”

What’s more, the school is taking steps to make itself more competitive when it comes to attracting those who are willing to go to law school. These include freezing tuition for the next three years and becoming more aggressive and imaginative with scholarships and other forms of aid.

“We need more revenue, obviously, but increasing tuition for the JD (juris doctor) program is a non-starter — there’s a lot of price sensitivity right now,” Gouvin explained. “One of the things applicants focus on is affordability and a cost-benefit analysis. So we have frozen tuition for the next few years and are using that as a tool so students can look at us and say, ‘I know what I’m getting into here — I’m not going to be surprised by a tuition jump in the second or third year.’”

For this issue and its focus on law, BusinessWest talked with Gouvin about the decline in law-school enrollment, — and how WNEU is responding to what has become a considerable challenge for institutions across the country.

Making a Case

Gouvin said that, overall, many people in academia are uncomfortable with the notion of talking about higher education as a business and discussing matters within the framework of the law of supply and demand.

But for administrators at the nation’s law schools, there is no real choice in the matter. The decline in enrollment is that severe, and the outlook for the immediate future calls for little change in the forecast.

As Gouvin mentioned, there is some debate about why this happening, with theories including the recent troubles law-school graduates have had finding work amid an economic recovery that has been less than robust in many parts of the country, as well as an unwillingness among larger numbers of young people to take on the massive amounts of debt that most law-school students incur, given the uneasiness in the job market.

While the talk and speculation continue about why law schools are facing what many are now describing as a crisis, much of the discussion has shifted to what schools are doing in response.

Indeed, steps taken by various institutions have included everything from freezing tuition to offering buyouts to faculty and staff to creating more programs to people who won’t ever practice law, but may well need some of the skill sets lawyers possess. At New England Law School in Boston, the dean took a voluntary 25% pay cut to help balance the books.

At WNEU, said Gouvin, the broad goals are to trim expenses without impacting the overall quality of the program, become a more efficient operation, and make the school as competitive as possible in what has become a more intense battle for top students.

The school already has some competitive edges, said the dean, adding that the task at hand is to take full advantage of them.

One such advantage is price.

“Our tuition is $39,400, and while that sounds like a lot of money, when you compare it to other law schools, it’s a bargain,” he said. “Among private institutions, we’re very low.”

Another edge, says Gouvin, is simple geography. Western New England is the only accredited law school in the Commonwealth west of Greater Boston, he noted, adding that this uniqueness provides opportunities in the form of internships and clerkships in area courts and with judges assigned to courts in this region. Meanwhile, the rural location is attractive to those who don’t want to go to school in a big city and have no intention of working in one.

“We have a monopoly on really great placement with judges and agencies,” he said. “In addition, we have some great clinical programs that provide hands-on experience.

“A lot of the people who come here don’t want to be in a big city,” he went on. “Many of our students are from small and medium-sized cities, and they intend to go back to those communities to practice law.”

Still another advantage for the school is its programming, which Gouvin believes is more experiential in nature than what many competitors are offering.

“Addressing what lawyers do in real life is high on our list,” he told BusinessWest, “and we’re hoping that program offerings, together with an attractive price, make a good case for us.”

While working to increase revenues, the school is also focused on the other side of the equation — expenses, said Gouvin, adding that WNEU has become more efficient out of both desire and necessity.

“No one loves to see a downturn, but they often make you focus on things that maybe you took for granted,” he explained. “You look at things and ask yourself, ‘can we do that differently and better?’ And there have been several instances where we could.”

As examples, he listed merging some operations, such as the library and alumni services, with the university, and other steps that help avoid duplication of efforts.

“We have people in the law who are now what I would call utility players,” he noted. “They don’t say, ‘I do this, and this is all I do’; now it’s ‘I do whatever needs to be done to move the ball ahead.’”

Final Arguments

Gouvin said much of the conjecture regarding the decline in law-school enrollment concerns whether this all temporary, and if so, how temporary.

“That’s the million-dollar question,” he said, adding quickly that no one really knows the answer. Variables include everything from how much more the economy will rebound to when the Baby Boom-age (and older) attorneys will retire en masse (many have put retirement on hold because of the economy), and much more work traditionally handled by attorneys will instead be undertaken by paralegals and others without law degrees — an ongoing trend that has many in the industry concerned about job security.

While watching all these factors play out, law-school administrators have little choice but to adjust to a changing landscape and not merely hope that conditions will improve.

As Gouvin said, they have to make their case — and make it a compelling one.

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

Legal Landmines

By BusinessWest Staff August 12, 2014

Law Sections

Questions Can Cause Problems During Fitness-for-duty Exams

By CHANNEZ M. ROGERS, Esq.

Employers, beware of the questions you ask your employees during their annual fitness-for-duty examinations. All-too-familiar questions regarding family medical history and past trips to the hospital may run afoul of the Americans with Disabilities Act (ADA) and the Genetic Information Nondiscrimination Act of 2008 (GINA) when posed by employers on questionnaires meant to determine whether employees can do their jobs.

Channez M. Rogers

“Have you or any of your family members had any of the following medical conditions?” This is a routine question we all answer at the doctor’s office without hesitation. However, for employers, this question in the context of an employee’s annual fitness-for-duty exam can be a minefield.

The Equal Employment Opportunity Commission (EEOC) has found seemingly routine questions requesting family medical history, as part of an employer’s fitness-for-duty exam, violate the ADA and GINA.

GINA prohibits employers with 15 or more employees from using genetic information to make employment decisions, in order to protect an employee from adverse employment action because an employer thinks the employee is at an increased risk for developing a disease. Therefore, inquiries regarding family history used for the purpose of discovering an employee’s likelihood of having a certain disease or disorder violate GINA.

Likewise, the ADA prohibits employers with 15 or more employees from discriminating against employees based on a disability. Typically, the ADA does not allow for disability-related inquiries or medical examinations for current employees unless the employee has made the employer aware of a disability and requests an accommodation, or if the employer has noticed a change in the employee’s performance that makes him question the employee’s ability to do his job.

So, when may an employer ask health-related questions without violating the ADA or GINA?

Like GINA, the ADA carves out an exception for fitness-for-duty exams for employees in fields affecting public safety. Employers may require employees to submit to an annual fitness-for-duty exam in order to assess whether they are able to perform the essential functions of their jobs as long as there is a legitimate business reason for the inquiry. The purpose of the exam must be to gauge whether an employee is physically able to do his or her job or if the employee will pose a direct threat to safety due to a medical condition. The types of questions and the scope of the medical exam must be job-related and consistent with business necessity.

Appropriate Question Content

The EEOC found that the question regarding family history did not align with the ADA’s requirement that disability-related inquiries be narrowly tailored to address specific, job-related concerns. After all, the employee’s health matters, not her family’s. The question above was too broadly stated and required employees to reveal much more information than is necessary to address their ability to do their job.

Another question the EEOC cautioned employers against asking was whether an employee had been hospitalized overnight for any reason in the past five years. Such a question requires an employee to list any number of ailments or injuries that would require hospitalization, but may have nothing to do with the employee’s ability to do the job now. Additionally, requiring a five-year medical history across the board for employees asks them to reveal information about conditions that may not even affect their ability to work anymore.

A question regarding whether an employee has seen a doctor in the last year for anything other than a routine checkup also violates the ADA in that it is too general and does not address a specific, job-related concern. Instead, such an inquiry requires an employee to reveal private information about a medical condition that may be completely unrelated to the employee’s work, which should not be used to assess the employee’s ability to perform.

Even if no adverse action is taken against an employee, employers should beware of information they receive from a fitness-for-duty examination that might open the door to an obligation to engage in a conversation with the employee to determine whether or not he or she is entitled to a reasonable accommodation to aid in job performance (the interactive process). Absent a showing of undue hardship, which is very rare, an employer is required to provide a reasonable accommodation to an employee with an impairment who has requested and needs one.

Finally, employers should be aware that, if an employee is terminated based on information disclosed in response to a question on the fitness-for-duty form, the employee would likely fall under the protection of the ADA. As a result, the employer would be required to show that the employee could not perform the job’s essential functions or, where the concern is safety, that the employee would pose a “direct threat.”

In light of the EEOC’s explicit warnings regarding medical history and disability-related inquiries, employers would do well to tread lightly when asking questions that may be deemed too broad during their fitness-for-duty exams. When drafting questionnaires for fitness-for-duty exams, employers should carefully consider the employees’ job descriptions, pose only questions specifically related to the abilities required to successfully complete the work, and consult employment counsel with any questions.

Employers should specify on the forms for medical examination that they are only looking for certain information and request medical professionals do not provide anything beyond what is asked. This may ensure employers do not inadvertently receive too much information from third-party medical providers.

Finally, employers should make sure their managers and supervisors are up-to-date with their training to ensure that the interactive process is followed when necessary, and that no medical information is being used inappropriately.

Channez M. Rogers, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

Filling the Holes in Medicare

By BusinessWest Staff August 12, 2014

Law Sections

Coverage May Be Unjustly Denied in Many Circumstances

By ANN I. WEBER, Esq. and MICHAEL A. FENTON, Esq.

Ann I. Weber

Michael A. Fenton

Millions of seniors rely upon Medicare and supplemental Medigap policies to pay for hospital and skilled-nursing care, but many find out at the worst possible time that a big bill is due.

In particular, coverage may be unjustly denied when 1) a patient is admitted to a hospital under ‘observation status’ rather than as an inpatient, 2) a skilled-nursing-care facility declares that a patient has plateaued, or 3) a hospital stay exceeds 90 days for the same illness. If you or a loved one run into this type of problem, here is what you need to know.

Observation Status

Medicare Part A covers hospital inpatient stays for 60 days and skilled-nursing-home care for the first 20 days, but only if you are discharged from a hospital after admission as an inpatient for three days. If you are admitted under observation status, you are billed as an outpatient under Medicare Part B. Although Part B may cover most of your expenses in the hospital, patients who are discharged to a nursing home without the requisite three days as an inpatient will not be covered for their nursing-home stay.

Many hospitals have increasingly admitted patients under observation status for longer stays, even though the Medicare policy manual specifies 24 hours as a benchmark. Observation status has been extended to cover multi-day stays at the hospital with tests and procedures. If this happens to you, when you are discharged to a skilled-nursing home, you will be responsible for the cost of such care, frequently running at more than $400 per day.

Here’s what you can do:

• Be sure you have a healthcare proxy granting a trusted person access to your medical records and the authority to make medical decisions if you cannot do so;

• Find out your status;

• If you are classified as admitted under observation status and you believe that is incorrect, try to get your status changed by asking for a review or, if possible, a consultation with your community physician;

• If you are unsuccessful and able to safely return home, ask your hospital or community physician to order home care for you. This care will be covered by Medicare; and

• If you need skilled-nursing-home care, you will be responsible for paying privately, but, provided you have been hospitalized for at least three nights, you should initiate Medicare appeals relative to both the hospital and nursing-home stays. These appeals have been successful for people in this circumstance. Note that there is currently a federal case on appeal regarding notice and review procedures for patients placed on observation status to help prevent abuse.

Plateaued Patients

Medicare has long had a practice of denying coverage to patients in skilled-nursing homes who are not improving and have been deemed ‘plateaued.’ This is in spite of the fact that this ‘improvement standard’ does not appear anywhere in Medicare regulations or policies and is expressly contradicted, in the federal regulations, at 42 CFR 409.32(c), which states that “a patient may need skilled services to prevent further deterioration or to preserve current capabilities.” The improvement-standard policy has resulted in the denial of coverage for numerous patients with chronic conditions such as Parkinson’s, multiple sclerosis, arthritis, diabetes, and more.

Now, under the settlement agreement in a Vermont district-court class-action case, Jimmo v. Sebelius, the Center for Medicare and Medicaid Services has agreed to revise all publications and guidelines to explain that coverage will be provided to individuals who need skilled care to prevent or slow further deterioration. Nevertheless, some facilities are still using this criteria to move a patient to custodial nursing-home services, which are not covered at all by Medicare or Medigap policies.

Lifetime Days

For a hospital stay, Medicare will cover only the first 90 days for the same spell of illness under Medicare Part A. For days 1-60, you are billed a deductible, and for days 61-90, you are billed an additional co-pay. For the 91st day and beyond, you will be covered only if you have lifetime reserve days available (you get 60 lifetime reserve days that can be used at any time you go beyond the 90-day threshold).

Medicare is no help to patients who have exhausted their days during a hospital stay. This is why many people invest in a Medigap policy. These policies cover the deductibles and co-insurance payments. Also, under Section 8.B(3) of the NAIC Model Standards for Regulation of Medicare Supplemental Insurance, Medigap policies are required to provide patients with an additional 365 lifetime reserve days for hospital care.

Medigap policies cover only Medicare-approved expenses, and Medicare will deny your claim if lifetime reserved days are available but remain unused. Providers have been known to have faulty data when it comes to knowing the exact number of lifetime reserve days that remain for a particular patient. In this environment, lifetime reserve days are not always utilized properly, resulting in unjustly denied claims.

Conclusion

Should you or a loved one get a large or unexpected summary notice due to issues with any of the matters addressed in this article, a written notice containing the reasons for termination of Medicare coverage should be requested.

An appeal might be necessary. You may want to contact a knowledgeable attorney for assistance in the appeal.

Attorney Ann I. Weber is a partner with the Springfield-based law firm Shatz, Schwartz and Fentin, P.C., and concentrates her practice in the areas of estate-tax planning, estate administration, probate, and elder law. She has a particular interest in creative estate planning for authors, artists, farmers, and landowners. She has recently been named one of the “Top Fifty Women Lawyers in New England” by Super Lawyer magazine and is a frequent author and speaker on issues regarding estate planning; (413) 737-1131; www.ssfpc.com. Attorney Michael A. Fenton is an associate with Shatz, Schwartz and Fentin, P.C. He concentrates his practice in the areas of business law, real-estate development, and estate planning. He has served on the Springfield City Council since 2010; (413) 737-1131; www.ssfpc.com

Coming to Terms

By BusinessWest Staff August 12, 2014

Law Sections

EEOC Issues Enforcement Guidance on Pregnancy Discrimination Act

By SUSAN G. FENTIN, Esq.

Employers’ obligations under the Pregnancy Discrimination Act made news in July when the U.S. Equal Employment Opportunity Commission (EEOC) issued new enforcement guidance on the Pregnancy Discrimination Act (PDA). This announcement from the EEOC follows the U.S. Supreme Court’s July 1 decision agreeing to hear Young v. UPS, a case that arises out of an employer’s decisions regarding a pregnant employee who was unable to perform the essential functions of her position.

Susan G. Fentin

The PDA was enacted to extend the protections of Title VII to encompass pregnancy, childbirth, or related medical conditions, considering discrimination based on those circumstances to be a form of sex discrimination in violation of Title VII. The issue in the Young case involves a UPS policy that limits light-duty assignments to individuals with work-related injuries or those who are considered disabled under the ADA. UPS denied a light-duty assignment to Ms. Young because her lifting restrictions were not work-related and she was not considered disabled under the ADA, with the result that she was forced to take unpaid leave from her job.

Her suit against UPS was dismissed on the grounds that a pregnant worker with a temporary lifting restriction isn’t “similar in her ability or inability to work” to the other types of employees for whom UPS willingly provided light duty. UPS successfully argued that its policy is “pregnancy blind” and therefore not discriminatory. The Appeals Court decision dismissing the case was appealed to the Supreme Court, which has accepted the case for its 2014-15 term.

Significantly, the new enforcement guidance specifically covers the issue pending before the court: whether a pregnant employee is entitled to light duty if her employer would grant a light-duty assignment to other workers who are subject to the same work restrictions.

The EEOC Guidance

Although the EEOC’s PDA enforcement guidance does not have the force of law, it’s generally considered persuasive by the federal courts. So the provisions of this new guidance are significant for employers who are considering their obligations to their pregnant workers. Much of the guidance restates an employer’s existing obligations to its pregnant employees:

• The PDA and Title VII protect women who are currently or have been pregnant, could potentially or are trying to become pregnant, and medical conditions that result from pregnancy;

• Employers may not make decisions about pregnant employees based on stereotypes, assumptions, or fears that a pregnant worker could harm herself or her baby by continuing to work;

• Employees who are breastfeeding are also considered protected under Title VII;

• Employers may not discriminate against employees who have had or are contemplating an abortion; and

• Employers are cautioned against making employment decisions based on a woman’s potential caregiving responsibilities.

Potentially Problematic Provisions

However, some of the provisions of the new guidance could be potentially problematic for employers. The guidance states that even a seemingly neutral policy, such as a weight-lifting requirement, could have a disproportionate impact on pregnant women.

Although such cases generally require statistically significant data, the guidance suggests that such evidence might not be required if all or substantially all pregnant women would be negatively affected by the policy. To defend such a claim, an employer must be able to show that the requirement is “necessary to safe and efficient job performance,” and even then, an employer can still be held liable if there is a less discriminatory alternative, but the employer refuses to implement it.

Similarly, a company policy, such as the UPS policy in Young, can be considered a violation of the PDA if it denies light duty or other accommodations to pregnant women while granting those benefits to other employees with similar restrictions. The guidance specifically states that that a pregnant worker with a work restriction who is denied light duty can establish a case of discrimination by identifying any other employee, including employees injured on the job and/or covered by the ADA, who is similar in his or her ability or inability to work and who was accommodated or granted light-duty work. In this section of the guidance, the EEOC specifically rejected the idea that an employer does not have to provide light duty for a pregnant worker if it has a policy that limits light duty to workers injured on the job and/or to employees with disabilities under the ADA.

In addition, the new guidance states that a policy that restricts sick leave might also have a disparate impact on pregnant women, citing examples where a 10-day ceiling on sick leave and a policy denying sick leave during the first year of employment have been found to disparately impact pregnant women. The guidance also underscores the impact of the 2008 amendments to the ADA, noting that, while pregnancy itself is not a disability, pregnancy-related impairments may be disabilities under the new version of that statute.

Of course, this is not news to Massachusetts employers, who have long been required to consider pregnancy-related conditions as disabilities under state law. And the guidance specifically states that an employer’s health-insurance plan must cover “prescription contraceptives on the same basis as prescription drugs, devices, and services that are used to prevent the occurrence of medical conditions other than pregnancy,” although the EEOC concedes that it does not address whether an employer may maintain a religious exemption from this requirement, as dictated in the Supreme Court’s recent Hobby Lobby decision.

The new enforcement guidance is available at www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm. The EEOC has also published a fact sheet for small employers at www.eeoc.gov/eeoc/publications/pregnancy_factsheet.cfm.

Bottom Line

Employers should exercise caution when making decisions about the ability of pregnant employees to perform the essential functions of their positions. If an employer cannot accommodate any worker with a lifting restriction, regardless of whether or not that employee is female and pregnant, then a claim for failure to accommodate or pregnancy discrimination will not likely be successful.

But employers who limit their light-duty policies to those with work-related injuries should be careful about denying a light-duty position to a pregnant worker with work restrictions. And Massachusetts employers should continue to engage in the interactive process with their pregnant workers to determine whether there are any accommodations that would allow a pregnant worker with a restriction to perform the essential functions of her job.

Attorney Susan G. Fentin is a partner at Springfield-based Skoler, Abbott & Presser. 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; (413) 737-4753; [email protected]

Strong Suits

By BusinessWest Staff August 12, 2014

Law Sections

A chart of area law firms

Click here to download the PDF

Time to Be Flexible

By BusinessWest Staff June 17, 2014

Law Sections

Avoiding Discrimination Claims Based on Caregiver Responsibilities

By KARINA L. SCHRENGOHST and CRYSTAL BOATENG

Karina L. Schrengohst

Crystal Boateng

Over the past 30 years, the demographics of the workforce have changed. Women comprise approximately half of the working population, many of whom are working mothers. In addition, although women primarily continue to carry caregiver responsibilities, gender lines related to family and caregiver responsibilities have shifted, and the number of men who take on or share in primary caregiver responsibilities continues to increase.

Further, many employees, both female and male, have caregiver responsibilities for elderly parents and other family members, which is a trend that will likely continue to increase as the Baby Boomer population ages. Additionally, a growing number of employees face both child-care and elder-care responsibilities simultaneously. Finally, some employees have caregiver responsibilities for children, spouses, parents, and other family members who are disabled.

Whether they have children, elderly parents, disabled spouses or family members, or a combination of caregiver roles, many employees have family and caregiver responsibilities that they must balance with work responsibilities. What does that mean for employers? In a nutshell, it means that many employees are asking their employers for flexible work schedules and leave (sometimes beyond that required by state and federal law).

‘Caregiver responsibilities’ is not a protected category under state or federal law. However, despite the absence of state or federal laws that prohibit discrimination based on family or caregiver responsibilities, claims based on caregiver discrimination may be pursued under the umbrella of other protected categories, such as sex or race. This is because employment decisions that give rise to discrimination claims based on caregiver responsibilities are often based on assumptions and stereotypes about gender roles and race or ethnicity. Consequently, caregiver discrimination is frequently unintentional, which makes it even more challenging for employers.

Supervisors sometimes make assumptions about how committed, ambitious, and dependable an employee with caregiver responsibilities is. These assumptions impact the employment decisions they make. For instance, female caregivers may be perceived as more committed to caregiving than to their jobs and as less competent than other employees, regardless of how their caregiver responsibilities actually impact their work. As a result, women may be denied employment opportunities or other benefits available to men.

On the flip side, male caregivers may be perceived to be poorly suited to caregiving. As a result, men may be denied parental leave or other benefits that are available to women. Stereotypes may further limit employment opportunities for people of a particular race or ethnicity.

How can employers reduce the risks associated with discrimination claims based on caregiver responsibilities? To begin with, employers should consider adopting best practices such as:

• Developing, disseminating, and en-forcing a strong policy of equal employment opportunity;
• Focusing on specific, job-related qualification standards;
• Ensuring that employment decisions are based on such standards and are well-documented; and
• Investigating complaints of caregiver discrimination promptly and thoroughly.

In addition, employers need to understand what their obligations are (and aren’t) under state and federal law to provide leave for caregiver responsibilities. Some employers may have an obligation to provide leave under the federal Family Medical Leave Act (FMLA).

In addition, in some states, including Massachusetts, some employers may have an obligation to provide leave in addition to that required under the FMLA. Under the Massachusetts Small Necessities Leave Act, an employee who is eligible for FMLA leave is also eligible for a total of 24 hours in a 12-month period to accompany his or her child or elderly relative to medical appointments or appointments for other professional services related to the elder’s care.

Further, employers would be wise to consult with employment counsel when developing or revising policies and procedures that may impact employees with caregiver responsibilities to ensure compliance with state and federal law.

Finally, it is important for employers to train managers and supervisors about company policies and procedures, the company’s legal obligations, and how to handle requests for a flexible schedule and time off, to ensure that employment decisions concerning employees with caregiver responsibilities are consistent with state and federal law.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]. Crystal Boateng is a law clerk at Royal LLP.

What’s in a Name?

By BusinessWest Staff June 17, 2014

Law Sections

Holland & Bonzagni Helps Clients Protect Their Intellectual Property

Partner Donald Holland

Don Holland says most people don’t realize that a patent application in the U.S. can be a long, tedious process, taking on average three to five years. It’s more believable when one considers the sheer volume of existing and potential patents.

For example, back in the 1970s, Holland — who has an aerospace engineering degree in addition to his law degree — was employed at the U.S. Patent and Trademark Office, working on rotary pumps and turbines for jet engines.

“It’s amazing to think there are 230,000 patents in that area alone,” he told BusinessWest — representing a tiny sample of all the patents issued by the U.S., across all industries.

It doesn’t help, he added, that patent examiners almost always reject an application on first submittal, because they want to build a record of diligence and avoid the impression that they’re not doing their job. “So it’s not a smooth road.”

But it’s a fascinating one for Holland, who left the Patent Office in 1981 to launch his own intellectual-property law firm. He was joined in 1989 by a partner, Mary Bonzagni — a former student from his teaching days at Western New England College School of Law — to form Longmeadow-based Holland & Bonzagni.

Although they’re registered as ‘patent attorneys’ (the only term technically allowed by the American Bar Assoc.), their work runs much deeper than that, encompassing patents, trademarks, copyrights, trade secrets, product licensing, litigation, and general counseling — in other words, just about anything a client needs to bring new products to market and then zealously safeguard those products.

“In this field,” Holland said, “I like to say that nobody dies, and nobody goes to jail. Instead, you do everything you can to help clients succeed with their products and services without impediments from copycats.”

He detailed one memorable case involving a manufacturer of household items who took action against Christmas Tree Shops. The discount chain had bought seconds from the client one year, then wanted firsts at seconds prices the following year. When the client refused, the chain commissioned Asian manufacturers to create cheaper knock-offs of his products.

Holland & Bonzagni did some investigating, then assembled a team of sheriffs to seize 117,000 items from the stores to assess the level of damage to the plaintiff. Within six weeks, Christmas Tree Shops ceased its knockoff sales, wrote the plaintiff a six-figure check — and then became its best customer.

Another high-profile case involved Yankee Candle, which successfully sued New England Candle Co. for copying the look of the Yankee Candle storefronts at its Enfield store.

Those types of cases might make news, Holland said, but they only scratch the surface of a broad palette of services — and a rich education in intellectual-property law — that the firm brings to its clients. For this issue’s focus on law, BusinessWest sat down with Holland to learn more about a field that continues to challenge and gratify him today, 33 years after taking on his first client.

Stock in Trade

The firm has expanded its client base significantly since then, he noted, working with between 100 and 200 companies every year and dealing with patent and trademark issues in between 50 and 75 countries.

“We’re no different than any other intellectual-property firm,” he said. “Most patent attorneys are either engineers or have strong science backgrounds. Recently, there are patent attorneys who are computer programmers, too. I’m an aerospace engineer, and Mary is a chemist.” In fact, she was working with a solid-waste management firm on a sludge-recycling project in Detroit when she started to consider other career paths for her organic-chemistry background, and pursued her law degree at WNEC.

The firm’s clients are generally industrial corporations, both foreign and domestic, and include manufacturers of aircraft, food, paper products, biomedical equipment, computer software, chemicals, electronic components, and other high-tech items. It also services chains of restaurants, hospitals, and other businesses. Bonzagni does a good deal of work for paper companies, including one area firm that makes security threads for currency.

“My work is 50% trademark work, which is a lot of fun,” Holland said, adding that the firm has a long-standing policy of representing only companies it admires, from regional names like Yankee Candle and Friendly’s to much smaller firms. “We’ve said we don’t do work for anyone we don’t like, and we stand by that. Early in our practice, we wanted to work for people we respect and enjoy, and that’s what we still try to do.”

The first step in trademark work, he explained, is determining which brands are the most sacred to a company — “the brands a company would be ticked if someone else copied.” Why not protect all of them? It comes down to budget, as each action costs money and time.

“If you say, ‘you have 40 trademarks, and you need to register all of them,’ you’re not going to get the work,” he said. “They don’t want to spend that kind of money. Typically, you take a look at the top three to five trademarks, and analyze which can be protected and to what extent. We suggest to them which marks should be registered.” Trademarks, he added, are applied to products, and service marks to services.

This work to protect trademarks becomes critical when another company copies a product name or look.

“If a client has registered its name and the registration has become incontestable, that’s one half of the lawsuit; you don’t have to prove who owns your name,” Holland said. “So when you go to court, you’ve already proven one of two things. The second is whether someone has infringed that trademark, or has used a mark confusingly similar.” Generally, consumers are surveyed as part of the legal action, and if 35% of them are confused by the similar names or logos, the plaintiff has proven his case.

Litigating a trademark violation can take one to three years and cost upwards of $200,000, but patent litigation — a claim that a company has copied a patented product design — can be much more involved, lasting four to eight years and costing between $500,000 and $2 million, depending on the type of case and the parties involved.

Knowledge Is Power

Beyond litigation and consulting with clients on how to bring their products to market and grow their business, education is a large part of Holland & Bonzagni’s mission.

After teaching intellectual-property law for 23 years at WNEC, Holland now teaches in the Paralegal Studies program at Bay Path College. “I have a lot of fun teaching,” he said. “My patent professor was able to get a patent job for anyone in class who wanted to go into the patent profession, so it has been my pleasure to teach students about the fun and rewards of being intellectual-property attorneys.”

The firm also presents seminars on a number of subjects in the broad realm of trademarks, trade secrets, counterfeit goods, licensing technology, Internet piracy, and more.

“We have 10 different seminars tailored for different clients, which we give at no charge after we establish a relationship with the client,” he said, before adding, “I typically will tell the owner or president of the company that there will be no charge for the seminar — if somebody will give me a tour.”

Holland has also authored a booklet titled Corporate Guide to Patents, Trademarks, Copyrights, and Trade Secrets, and the firm posts industry news on its website, www.hblaw.org. Currently, visitors can read about the America Invents Act passed by Congress last year that shifts the U.S. from a first-to-invent to a first-to-file system, meaning only the first person to file a patent application can receive a patent, unless the first inventor publicly disclosed the invention beforehand and filed a patent application within 12 months after that disclosure.

In other words, there is no longer a one-year grace period for an inventor to keep an invention totally secret before deciding to file a U.S. patent application. Someone with knowledge of the invention could conceivably beat the earlier inventor to Patent Office and prevail.

“A lot of companies don’t know this until they’ve been burned,” Holland said. “Under the old system, you had a grace period. Now, if you’ve invested $2 million, $3 million, $5 million in a product, competitors could copy the product and don’t have to spend the millions you did in research and development.”

Other challenges exist for inventors, he added. For instance, there’s no such thing as a worldwide patent, meaning if someone wants to market a product in, say, Europe, Canada, and Australia, they need to pay separate fees and go through individual processes in each country. Fortunately, 2015 will see the emergence of a single European patent, covering most European Union members and reducing filing costs by more than 75%.

Meanwhile, the Internet age has produced its own raft of trademark issues, including the practice known as ‘typosquatting,’ where someone will create a website almost named after a real company — www.smythandwesson.com, for instance, with the ‘i’ replaced with a ‘y’ — to draw in users who misspell a URL.

Back to the Drawing Board

Holland continuously came back to how impressed he is with the clients he works with, and how much he learns from them.

“People are brilliant at what they do, but sometimes too humble to recognize it,” he said, citing as one example the man who created the x-ray arm that moves around a patient. “Previously, the table moved. His invention is now in 5,600 hospitals.”

Then there’s another favorite client, a company that claims roughly 10% of the U.S. market share for beef. “It was fun going out to visit them and represent them in all sorts of trademark matters and patent matters.”

When it comes to fascinating clients, however, “everyone has them,” he told BusinessWest. “I’m not alone. Go to any intellectual-property firm, and they have clients as good as ours or better.”

And, as a general rule, those clients are not in the mood for lengthy legal battles. They just want to get on with their business.

“Some law firms are all about wins and losses,” Holland said. “But I’ve learned that our clients just want to solve a problem and move on to the next matter. They just want to sell their product or service and not get involved in a lawsuit.”

He laughed when he recalled his fastest-ever litigation, a copycat case where the documentation was clear and the case was settled in two weeks — and the defendant ended up purchasing work from the client. Most cases are much more complex, keeping the staff at Holland & Bonzagni — which also includes two paralegals and four support staff — busy.

Holland said the firm wants to grow, but it’s difficult to get lawyers to commit to Springfield. “We’ve been looking for three or four years. If you graduate law school, do you want to go to Boston or New York, or Springfield? Unless you grew up here and know how great the area is, it’s tough to see it.”

So hiring, like patent law, isn’t a smooth road, either. But it’s all part of the challenge for an engineer and a scientist who found, in the broad realm of intellectual-property law, a far more satisfying path. n

Joseph Bednar can be reached at [email protected]

No Good Deed Goes Unpunished

By BusinessWest Staff June 17, 2014

Law Sections

Managers Must Understand the Term ‘Adverse Employment Action’

By HUNTER S. KEIL

Hunter Keil

When an employee sues their employer, it is often obvious why they are upset. They may have been fired, their hours may have been cut, or they may have been passed over for a promotion. Sometimes, however, the employer action is not obviously adverse or apparently detrimental to the employee. This leads to the important threshold question of what constitutes an ‘adverse employment action.’

While the term ‘adverse employment action’ does not appear anywhere in the Massachusetts anti-discrimination statutes, courts have long used it to differentiate between terms, conditions, or privileges of employment that are material — and therefore governed by the anti-discrimination statute — and those effects that are trivial and not properly the subject of a claim. In order for a plaintiff to successfully bring a claim against their employer for discrimination or retaliation, they must prove they were subject to an adverse employment action.

The courts and the Mass. Commission Against Discrimination (MCAD) have interpreted what constitutes an adverse employment action broadly, and what may appear to an employer to be a neutral and rational action could be found by the courts or the MCAD to be an adverse employment action resulting in large damages.

This is exactly what happened this past March in Superior Court. In Kelley v. Commonwealth of Massachusetts Department of Conservation and Recreation, a Superior Court judge upheld a jury’s finding that a lateral transfer of an employee, which could have been seen as a promotion, was an adverse employment action for the purposes of a retaliation claim. The trial judge upheld the jury’s award of $500,000 in emotional distress and $250,000 in punitive damages. While the employer may have felt that its actions were a rational response to a difficult situation, and that the plaintiff was not negatively impacted, the jury and judge saw it differently.

The plaintiff in this case was employed by the Department of Conservation and Recreation as a clerk in the sign shop. The plaintiff was educated only to a seventh-grade level. She had previously applied to have her position upgraded to an administrative assistant I, but that request was denied because she was not deemed to have the requisite skills for that position. In 2005, a co-worker and a supervisor began having an affair, resulting in what the judge called “blatant favoritism.” In January 2006, the plaintiff complained about the situation, and this complaint eventually resulted in a sexual-harassment investigation by human resources into the relationship between the plaintiff’s supervisor and the co-worker.

During the course of the investigation, the plaintiff was interviewed at her place of employment in alleged disregard for her privacy. The supervisor under investigation was told to stay away from the sign shop, but the plaintiff saw him there. Further, an e-mail the plaintiff sent summarizing the allegations was shared with the co-worker, and was found in other places in the workplace. This upset the plaintiff to the extent that she took approximately five weeks of sick leave.

The investigation concluded that the relationship between the co-worker and supervisor had been inappropriate and detrimental to the workplace. After the findings were released, the plaintiff sent a letter to the defendants voicing her displeasure with some of the findings and informing her employer that she may file a complaint with the MCAD. When she returned to work, there were changes to her starting time and lunch break, and she was asked to take a refresher course for a skill she claimed she no longer performed. The plaintiff was upset enough by these changes to leave work and go back on sick leave.

Approximately a week later, the plaintiff was transferred laterally to a position as an administrative assistant in a different location. The reason given for this transfer was to make the plaintiff more comfortable, but the plaintiff was never consulted as to whether the transfer would in fact make her more comfortable.

The trial judge explained that job transfers are reviewed under the “totality of the circumstances,” and that multiple factors in this case supported the jury’s finding of an adverse employment action. These reasons included a longer commute, new duties that the employer had previously determined the plaintiff did not possess the skills for, different hours, and a loss of the comfort the plaintiff had felt in her previous position.

This case highlights just how cautious employers must be when transferring employees or making any significant changes to the terms and conditions of employment. The employer may have thought it was doing the right thing in this case by removing the employee from a work environment that she was clearly struggling with and giving her a job title she had previously applied for. The employer likely did not even consider many of the factors the court relied on in finding that the transfer was an adverse employment action.

The courts and MCAD will consider how the transfer will affect the employee in ways besides salary and benefits, and employers must consider these factors as well. The easiest way the employer in this case could have protected itself was by discussing the move with the employee. Some of the factors taken into account — such as commute times — may not have been known to the employer at the time of the transfer. The only way the employer could have understood the multiple factors the court considered would have been to engage with the employee to understand what factors the employee saw as significant. While the standard for an adverse employment action is an objective one — an employee’s subjective feelings are not enough — this case highlights how it is difficult to determine whether the employee has been materially disadvantaged without understanding his or her subjective feelings.

Finally, extra care must be taken when an employee has engaged in protected activity. The employer knew in this case that the employee had engaged in protected activity by filing the sexual-harassment complaint, and the employer knew that she was considering action in the MCAD. In such a scenario, employers must take extra caution before any change is made to the terms and conditions of employment.

Hunter Keil is an associate with Robinson Donovan, P.C., where he concentrates on employment law and litigation; (413) 732-2301; hkeil@robinson-donovan.

Tipping Point

By BusinessWest Staff June 17, 2014

Law Sections

Restaurateurs Must Take Steps to Avoid Costly Penalties

By MARK A. TANNER, Esq.

Mark A. Tanner

It is impossible to order a cup of coffee or sandwich without being confronted by a ubiquitous jar labeled “tips for tuition,” “tipping isn’t just for cows,” or some such other catchy phrase. While many patrons smile and happily drop their spare change in the tip jar or leave a gratuity following a meal, the seemingly selfless act of tipping can lead to unintended consequences for restaurateurs who are either unaware that Massachusetts closely regulates tips, or have implemented unlawful tip-sharing procedures.

These unintended consequences may include the imposition of multiple damage awards and civil and criminal penalties for unwary restaurateurs who violate Massachusetts General Laws c. 149 § 152A.

The far-reaching impact of this law is demonstrated in the 2012 case of Matamoros v. Starbucks Corp. In this class-action lawsuit, a group of coffee baristas brought and won a lawsuit against Starbucks over the distribution of tips from the jar placed alongside the store’s cash registers. Under Starbucks’ policy, tips from the collective tip jar were distributed to workers, including workers who had managerial responsibilities for Starbucks such as ‘shift supervisors.’ In finding for the baristas and against Starbucks, the federal appellate court held under Massachusetts law that no employee with managerial responsibilities could participate in Starbucks’ tip-sharing procedure, even though the lion’s share of the shift supervisors’ day-to-day work involved the same job function as the baristas, serving Starbucks’ guests.

As applied to restaurants in Massachusetts, the law mandates that management may not keep, demand, request, or accept any portion of a tip given to waitstaff or a service bartender, and prohibits management from distributing tips or service charges to anyone who does not fall into one of these two categories. Restaurant management may, however, require that waitstaff and service bartenders pool or share tips or service charges with other employees who fall into one of these categories, but all tips or service charges must be paid by the end of the same business day.

A tip under Massachusetts law is broadly defined as “a sum of money, including any amount designated by a credit-card patron, a gift, or a gratuity, given as an acknowledgment of any service performed by a waitstaff employee or service bartender.” Most mandatory service charges imposed by restaurants must be treated the same as tips.

Under the law, ‘waitstaff’ is a broad category of employees that includes servers, bus people, and counter staff, who: (1) serve beverages or prepared food directly to patrons, or who clear patrons’ tables; (2) work in a restaurant, banquet facility, or other place where prepared food or beverages are served; and (3) have no managerial responsibility. ‘Service bartenders’ are employees who prepare alcoholic or non-alcoholic beverages for patrons to be served by another employee, such as a waitstaff employee. Stated plainly, the law allows tip pooling or sharing or ‘tipping out’ between servers, counter people, bus people, and all bartenders, but specifically excludes any individual with managerial responsibility, no matter how slight, as well as those individuals not specifically included, such as doormen, cooks, hostesses, and expediters.

As evidenced in the Starbucks case and a number of other recent lawsuits and settlements, restaurateurs who violate this law are subject to far greater liability than the wrongfully withheld tips. Under the law, an employee, and often an entire class of employees (say, your entire front-of-house staff for the past three years) may seek up to three years worth of prior unpaid tips, multiple damages equal to three times the wrongfully withheld tips, as well as their attorneys’ fees and costs. Additionally, any restaurateur who violates the act, even if it does so innocently, may be liable to the Commonwealth for fines of up to $25,000 and criminal penalties. Put into context, the judgment against Starbucks in the barista case was slightly over $14 million.

Courts have ruled that the Legislature’s intent in passing the act was to ensure that service employees receive the tips, gratuities, and service charges that customers intend them to receive. With the potential for huge judgments and onerous civil penalties, unless the law is amended, restaurant management should, at a bare minimum, implement these practical suggestions for tips and service charges:

• Do not allow restaurant employees with supervisory responsibility, no matter how slight, to share in tips earned by waitstaff or service bartenders;

• Have a written tip pooling/sharing policy that excludes individuals who are not waitstaff or service bartenders, and ensure it is followed by all employees;

• Pay out pooled tips only to eligible employees and on the same day the tips were earned; and, finally,

• Hold regular trainings with managers, supervisors, and employees to ensure compliance with the law and your individual restaurant’s tip-sharing policies.

Mark A. Tanner is a shareholder in the Northampton office of Bacon/Wilson, P.C. Prior to practicing law, he graduated from the Hotel Restaurant Management program at UMass Amherst, received an MBA from the University of Colorado, and managed numerous restaurants throughout the country. Tanner currently advises restaurateurs and other businesses in litigation and business-planning matters. This article is provided for information purposes only and does not constitute legal advice; (413) 584-1287; baconwilson.com/attorneys/tanner

Hiring Unpaid Interns

By BusinessWest Staff June 17, 2014

Law Sections

This Controversial Practice Is Coming Under Intense Scrutiny

By AMELIA J. HOLMSTROM, Esq.

Amelia J. Holstrom

Summer is here, and as the temperature rises, so do the number of job applications and résumés found in an employer’s mailbox. It isn’t any secret that college students nationwide are aggressively applying for summer jobs or internships that will provide them with the experience they need after graduation. In addition, because of the downturn in the economy, employers are doing more with less and do not have extra money available to hire and pay these individuals.

In response, more employers have been striking the balance between work and resources by classifying workers as unpaid interns instead of hiring them as employees. The increase in unpaid internships has not gone unnoticed by the Department of Labor (DOL) and the courts.

Unpaid internships have come under increasing scrutiny in the past few years. Wage-and-hour lawsuits filed by unpaid interns are receiving national news coverage more and more frequently.

Just last year, a federal court judge found that unpaid interns at Fox Searchlight Pictures who worked on the movie Black Swan were entitled to wages as employees. The unpaid interns in that case performed tasks such as photocopying, taking lunch orders, and answering the phones, all tasks that had previously been performed by paid employees.

Fox Searchlight Pictures was not the only company in the news. There have been others: Warner Music Group, Charlie Nash, and publishers Conde Nast and the Hearst Corporation have also been sued by former interns.

With employers under the microscope, now is the time for companies to carefully review when a for-profit company can legitimately classify a worker as an unpaid intern without setting themselves up for a costly lawsuit. Private-sector internship programs may offer unpaid internships only under very specific criteria. The six criteria that must be met in order to properly classify a worker as an unpaid intern are as follows:

• The internship must provide training similar to training the individual would receive in an educational environment;
• The intern must benefit from the experience;
• The intern does not displace other employees and works under the close supervision of already-existing staff;
• The employer derives no immediate advantage from the work of the intern;
• The intern is not necessarily entitled to a job after the internship; and
• The intern and employer both understand that the intern is not entitled to wages for the hours worked.

An employer must carefully consider all of the facts and circumstances when determining whether interns must be paid. If all six criteria are not met, then an employment relationship exists between the business and the intern, and, consequently, the intern must be paid at least the minimum wage, plus overtime if the intern works more than 40 hours in a workweek. For employers in Massachusetts, misclassification of interns can lead to mandatory treble damages plus payment of their attorneys’ fees under the state’s wage-and-hour laws.

Internships can be extremely valuable to both the intern and the employer, but can lead to legal risks if an unpaid intern position does not meet all of the six criteria. There are some things employers can do to limit their risk:

• Draft a written agreement confirming that no wages will be paid for the time spent performing work and that the intern is not entitled to employment at the completion of the internship, and have the intern sign it;
• Do not use interns to cover vacations or as temporary employees while a position is vacant;
• Establish a specific duration for the internship and stick to it;
• Provide close supervision to the intern by existing staff;
• Ensure that the internship is for the benefit and experience of the intern, rather than the employer; and
• Make the internship as academic an experience as possible.

Given the recent attention directed toward internships, employers need to be vigilant about their unpaid internships. To do so, employers must carefully examine every internship they want to offer and ensure that it is in compliance with state and federal wage-and-hour laws. To be sure that you are making the right choices, you should consult with your labor and employment counsel before hiring an unpaid intern.

Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. She is a 2011 graduate of Western New England University School of Law, where she was the managing editor of the Western New England Law Review. Her practice is focused in labor law and employment litigation; (413) 737-4753; skoler-abbott.com

Making a Strong Case

By BusinessWest Staff April 22, 2014

Law Sections

MassMutual Steps Up Its Pro Bono Work in the Community

Mark Roellig says one of the responsibilities any business has is to give back to the community, and MassMutual’s pro bono work is one example of doing just that.

Mark Roellig was adding up in his head the number of lawyers MassMutual has working for it in Western Mass., Northern Conn., and elsewhere.

He didn’t have an exact figure, but by doing some quick math, Roellig, the Fortune 100 company’s executive vice president and general counsel, could say without hesitation that the number for this region alone would far exceed that of any law firm in the Greater Springfield area.

And if this roster of attorneys comprised an actual firm, it would have a responsibility, he said, to give back to the community in a number of ways, but especially with pro bono work for residents who cannot afford to hire legal help. It is this thought process that helps explain why, during Roellig’s eight-year tenure as general counsel, MassMutual has certainly stepped up its participation in a number of pro bono initiatives and other efforts involving its legal team.

For starters, there’s something called Just the Beginning, a week-long program during which nearly two dozen area high-school students meet with lawyers from MassMutual, as well as area judges and other volunteers, to explore the different professional opportunities within the legal profession. The week includes a networking reception at the firm’s headquarters on State Street, a mock trial, oral appellate arguments, a courthouse tour, and visits to law firms. There is also something called the Pro Bono Partnership, a clearinghouse of sorts that works to connect in-house lawyers with area nonprofits for transactional work.

But perhaps the most significant undertaking by the company has been its multi-faceted commitment to the Hampden County Legal Clinic, a legal-aid program that assists individuals at no charge who have limited financial resources and who meet specific eligibility guidelines.

Support comes in many forms — from helping those facing eviction in Housing Court to assisting individuals appealing denial of unemployment benefits in District Court — and together, these avenues provide a natural, and highly effective, way for the company’s legal team to escalate its pro bono work in the community, said Roellig.

“If you are operating as a business in a community, whether it be a major corporation like MassMutual or a law firm, frankly, you want your community to be one that’s vibrant and strong and one that attracts and retains high-quality talent,” he explained. “In many ways, Springfield has been challenged over the years, so one of the things we want to do through our law department, and in keeping with our obligations as lawyers, is to ensure that we’re adding value to the community.

“When I arrived here, we didn’t have much of a program, or any program at all, really,” he went on. “And this is something I believe in; if you’re going to do business in a community, you need to give back to that community, and our legal team has been consistently ramping up its commitment.”

The company’s support for the legal clinic, for example, takes several forms, including financial assistance after the previous sponsor opted not to continue its commitment in 2011. Indeed, a $20,000 contribution for this year will help defray the cost of a support staffer at the Hampden County Bar Assoc. (HCBA) tasked with recruiting, scheduling, and assisting lawyers taking part in the various volunteer programs, and also directing consumers to these initiatives.

But the most visible form of support has been the steadily growing number of legal staff from the company — lawyers, paralegals, and other professionals — who have volunteered for the initiatives in Housing Court, District Court, and Probate Court.

More than 20 attorneys have volunteered for the various lawyer-for-a-day (LFD) programs involving those aforementioned courts, said Dorothy Varon, an in-house attorney who is part of that group, and the total number of hours donated by staff members increased from just over 100 in 2012 to more than 400 in 2013, a trend that is projected to continue in the year ahead.

For this issue and its focus on law, BusinessWest takes an in-depth look at how MassMutual and its large legal team are working with various partners, such as the bar association, to assist the rising number of people who need free legal assistance.

Strong Testimony

It’s called ‘eviction day.’

As that name suggests, this is the one day each week (Thursday) at Hampden County Housing Court that is devoted to eviction cases. It’s a long, often emotional day for tenants and landlords alike, one where many of those present aren’t sure if they will have a roof over their head when they leave.

Roellig has volunteered his services for a few eviction days, and can provide compelling testimony regarding the gravity of what’s taking place.

“It’s an intense day,” he said, “because people are coming in with serious problems on either side, whether it’s someone who’s being evicted or someone who feels that he needs to evict someone, and they need some help.”

Assistance in Housing Court has become one of the many ways in which MassMutual has stepped up its pro bono work within the community, said Varon, one of the company’s in-house attorneys, who credited Roellig with getting the ball rolling and keeping it rolling.

“He gave us the green light to propose to him how we could go about creating a pro bono program that would be effective,” she explained, noting that a pro bono committee was formed and a mission statement drafted. “And one of the things that we concluded early on was that connecting with our local bar association would be the most logical way of creating a pro bono program without reinventing the wheel; this was a very logical connection.”

And support from the corporate giant is needed, said Varon, because, while Springfield has a large and diverse legal community, the landscape lacks the very large firms found in Boston and Hartford that provide the critical mass of attorneys needed to effectively staff the many types of pro bono programs that have been created.

“If you think about Boston or New York or Chicago, there are a gazillion lawyers at these megafirms, and there’s all this support coming from these firms — associates can do pro bono work as part of their workload,” she noted. “In a market like Springfield, where you have a lot of solos and a lot of small firms, it’s not so easy to be out there doing a lot of pro bono work. It’s a very difficult market to generate income.”

Meanwhile, need within the community for volunteer legal assistance is growing, said Charles Cassartello, an attorney with Springfield-based Pellegrini, Seeley, Ryan & Blakesley, former HCBA president, and active participant in the legal clinic.

Indeed, while the economy has improved somewhat in the past few years, he said, there has been no decline in the number of people seeking help through various pro bono programs.

And while such initiatives help provide access to justice for people of low or no income, they also play a pivotal role in keeping the wheels of justice turning, said Cassartello, noting that, when individuals decide to represent themselves in legal matters — usually because they have no choice in the matter — the pace of business slows.

“The Springfield District Court is perhaps the second-busiest district court in the Commonwealth — lots of business is conducted there, criminal and civil, and many of the people who come there are unrepresented; they’re pro se litigants,” he explained. “We wanted to develop a program in the District Court to not only assist self-represented people, but take some burden from the court.

“It’s very difficult to deal with self-represented people,” he continued, emphasizing the word very. “It slows things down, and it can really clog the court’s docket.”

To help unclog matters, the District Court lawyer-for-a-day program assists such pro se litigants outside the court, during regularly scheduled office hours, providing help with forms, general problem-solving, and legal advice in civil matters, said Cassartello.

“They walk away with a basic notion about how to approach their case, how to put together a defense, how to make a claim, and more,” he went on, adding that those seeking assistance may also get referrals to lawyers participating in programs featuring sliding fee scales and other vehicles for providing assistance to the poor.

MassMutual’s assistance, in terms of both volunteers and funding to support an administrative infrastructure, has enabled the LFD programs to continue and ultimately assist more individuals, said Cassartello, who used the term “force multiplier” to describe the firm’s impact on HCBA initiatives.

Varon agreed.

“MassMutual can contribute in a lot of ways,” she noted. “One of the ways is with volunteers, but the other way is with resources. To support the clinic means that there’s someone in the community trying to rally all the lawyers — not just the MassMutual lawyers, but also the broader community.

“If we can support the legal clinic and the bar association, we have a much bigger impact on how pro bono services are delivered than if we we’re just sending volunteers, and that’s our basic strategy,” she went on. “It’s important to volunteer, but we also want to support this on a community level.”

Bottom Line

The goal moving forward is for the firm and the bar association to continually look for ways to add new programs and assist more people, said Varon, who described the current roster of initiatives as a “work in progress.”

“We keep trying to grow what we’re doing and improve what we’re doing,” she told BusinessWest, adding that one priority is to improve data-collection efforts, one of the keys to tracking progress and gaining additional support.

In many ways, MassMutual has helped lay the foundation for a comprehensive system of legal assistance, she said, and now the mission is to build atop that foundation.

The financial-services giant is not a law firm, Varon said in conclusion, but its legal department is determined to act like one — and work within the community is certainly a big part of that assignment.

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

The Rules Have Changed

By BusinessWest Staff April 22, 2014

Law Sections

New Regulations Aim to Level Playing Field for Veterans, IWDs

John S. Gannon

Last year, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) announced new rules intended to promote the hiring and employment of veterans and individuals with disabilities by federal government contractors. OFCCP is responsible for ensuring that employers doing business with the federal government comply with laws and regulations requiring affirmative action and nondiscrimination.

Two laws the agency oversees are Section 503 of the Rehabilitation Act of 1973, which prohibits employment discrimination against individuals with disabilities, and the Vietnam Era Veterans Readjustment Assistance Act (VEVRAA), which requires federal contractors to take affirmative action to employ specified categories of veterans.

Background

The Department of Labor (DOL) has stated that the new rules “help level the playing field” for veterans and individuals with disabilities (IWDs). According to fact sheets released by the DOL, the unemployment rate in 2012 for Gulf War II-era veterans — those who served in the Armed Forces sometime since September 2001 and have since returned to civilian life — was 9.9%, compared to 7.9% for non-veterans.

The disparity increased for males ages 18 to 24. Similarly, IWDs had high rates of unemployment; the unemployment rate for working-age IWDs in 2012 was 15%, compared to 8.8% for individuals without disabilities. The poverty rate for IWDs, ages 18 to 64, was 28.8%, compared to 12.5% for non-disabled people. The new rules are aimed at addressing both of these target populations.

Major Provisions

The new rules impose significant new obligations for covered federal government contractors and subcontractors. First, the final VEVRAA rule requires contractors to establish annual hiring benchmarks for protected veterans, a group that includes Vietnam-era veterans, special disabled veterans, veterans separated from service for three years or less, and veterans who served on active duty during a war or in a campaign or expedition for which a campaign badge has been authorized.

Contractors can either use the national percentage of veterans in the civilian workforce as a benchmark (currently 8%), or develop their own custom benchmarks using criteria outlined by OFCCP. Although progress toward the benchmark needs to be tracked, failure to meet the benchmark alone will not carry a penalty. A violation could result, however, from failure to establish a benchmark and collect corresponding data.

The final Section 503 rule contains a similar provision that establishes a 7% workforce utilization goal for employment of IWDs. The 7% goal applies to employees in each job group, unless the total workforce is under 100 employees. Employers of fewer than 100 may apply the 7% IWD goal to the entire workforce.

Again, OFCCP states that failing to meet the IWD utilization goal alone will not constitute a violation of the regulation and won’t lead to a fine or penalty. However, it may lead to an audit by OFCCP. Following an audit, OFCCP may request that the contractors enter into conciliation agreements with remedial benchmarks for hiring IWDs.

Self-identification

Both final rules require contractors to invite applicants to self-identify as a veteran or IWD during the application process. In addition, covered contractors must ask employees to voluntarily self-identify IWD status during the first year following the implementation of the new regulations and every five years thereafter. OFCCP has released a Section 503 self-identification form that contractors are required to use, which can be found at www.dol.gov/ofccp/regs/compliance/sec503/voluntary_self-identification_of_disability_cc-305_sd_edit1.24.14.pdf.

The agency has not released a similar VEVRAA form, but sample invitations to self-identify can be found in the new regulations. Contact employment counsel for guidance on creating this form.

Employers who are up to speed on their Americans with Disabilities Act (ADA) obligations might be concerned with the new Section 503 self-identification process. The ADA generally prohibits employers from asking applicants and employees to provide information concerning their physical and/or mental condition. However, the Equal Employment Opportunity Commission issued an opinion letter last year supporting OFCCP’s new self-identification requirements. Therefore, covered contractors do not need to worry about ADA obligations when issuing Section 503 self-identification forms to applicants and employees.

Data Collection

The new regulations require contractors to document and annually update several quantitative comparisons for the number of veterans and IWDs who apply for jobs and are hired. This includes information about the number of veterans and IWDs who applied, the total number of applicants and the total number hired, and the total number of openings filled.

Who Must Comply?

The new VEVRAA rule impacts all employers who have federal contracts or subcontracts of $100,000 or more. Section 503 rules apply to employers with federal contracts or subcontracts of $10,000 or more.

Timing

The effective date for the new regulations was March 24, 2014. However, contractors with affirmative-action plans (AAPs) already in place on March 24 can keep them in place until the end of their current AAP year and defer compliance until their new AAP plan year.

Bottom Line

Federal contractors need to make sure their hiring and employment practices comply with the new rules. Additionally, AAPs need to be modified for compliance. Contact experienced counsel for assistance updating your AAPs or general information about the new OFCCP rules. n

John Gannon is an attorney at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]

Estate Planning for Second Marriages

By BusinessWest Staff April 22, 2014

Law Sections

Here Are 10 Important Points to Ponder — and Remember

By MICHELE J. FEINSTEIN and ANN I. WEBER

When you decide to get married for the first time, estate planning is probably the last thing on your mind. But if your marriage does not endure because of death or divorce and you later want to remarry, marriage, life, and death may be a little more complicated.

Here are some pointers to keep in mind if you or someone you love are contemplating remarriage.

• Do you have a will? If not, the Commonwealth has written one for you.

If a spouse in a second marriage dies without a will and has children from a prior marriage, under Massachusetts law, the survivor will receive the first $100,000 and one-half of the balance of the estate.

If this is not your plan of choice, you should have a will and perhaps a revocable trust which clearly sets out your wishes.

• If you want to leave your estate entirely to your children, your spouse may have the right to challenge your will and receive the share prescribed by statute.

Under Massachusetts law, a spouse can waive the provisions in the decedent’s will and elect to take the share prescribed by statute. For example, if you die leaving children from a prior marriage, your spouse can force a distribution equal to the income interest in one-third of your probate estate (and potentially the assets of your revocable trust if you have one) plus $25,000 distributed outright from that share.

Your spouse cannot benefit from any provisions in the will in his or her favor, but can continue to receive the benefit of property passing outside of the probate process, i.e., proceeds of life insurance or retirement plans and jointly held assets, etc.

• If you have a will which was signed prior to your marriage and you die before signing a new one, your spouse may receive a share of your estate even though he or she is not mentioned in the will.

In such a case, your spouse will receive the share he or she would have received if there had been no will from the portion of the estate not left to your children or grandchildren, unless your will was made in contemplation of the marriage or you provided for your spouse outside the will with life insurance, retirement benefits, jointly held assets, etc.

• Do you have minor or disabled children?

While your former spouse will probably be guardian of your children, your may not want him or her to control assets passing to or for the benefit of your children. You can name a conservator or a trustee of a children’s or special-needs trust to control these assets for the benefit of your children.

• Do you have a prenuptial agreement?

If so, you and your spouse may have relinquished rights to each other’s estates. You can, however, include your new spouse in your will, as any provisions in favor of your spouse will trump the prenup.

• Do you have a divorce decree or separation agreement?

If so, you may have obligations under these agreements. Your attorney should review these documents in order to be sure that your new plan does not contravene these obligations.

• Do the combined assets of you and your spouse exceed $1 million? Do they exceed $5.34 million?

If so, you may need a revocable trust or perhaps some additional planning to minimize your state and federal estate taxes, respectively.

• Are you receiving Social Security retirement benefits based on a former spouse’s earning records?

If so, your remarriage may affect your benefits. If you are receiving benefits based on your divorced spouse’s earnings record, your benefits will end upon your remarriage and be recalculated based on you or your new spouse’s earnings, whichever is higher. If your benefits are based on a deceased spouse’s record and you are 60 or older at your remarriage, you will receive the higher of the three worker’s benefits. However, if you are under 60 when you remarry, you will forfeit your widow’s benefits permanently.

• Are you concerned about the costs of long-term care? Your marital status may affect your eligibility for benefits.

MassHealth has different eligibility criteria for single and married persons applying for nursing-home coverage, with some very favorable options applying to married couples. In particular, assets can be transferred to the well spouse without a transfer disqualification, special types of annuities can be purchased to accelerate eligibility, and the well spouse will be entitled to keep $117,240 of countable assets.

While this works well when the children likely to inherit belong to both spouses, traditional planning can cause problems down the line for blended families if the ill spouse’s children are excluded as beneficiaries of the well spouse’s estate.

• Do you want your children or other individuals to be beneficiaries of your qualified retirement plan(s)?

If so, your new spouse will need to sign a notarized waiver of these benefits in order for these beneficiaries to take. Qualified plans include defined benefit or contribution plans, profit-sharing plans, and 401(b) and 401(k) plans.

Attorneys Ann I. Weber and Michele J. Feinstein are partners with the Springfield-based law firm Shatz, Schwartz and Fentin, P.C. Weber concentrates her practice in the areas of estate-tax planning, estate administration, probate, and elder law; (413) 737-1131; www.ssfpc.com. Feinstein concentrates her practice in the areas of estate planning and administration, elder law, probate litigation, health law, and corporate and business planning; (413) 737-1131; www.ssfpc.com

When It’s Not Obvious

By BusinessWest Staff April 22, 2014

Law Sections

There Are Discrimination Issues That Can, and Do, Sneak Up on You

By ANNIE L. LAJOIE, Esq.

Annie E. Lajoie, Esq

Not all discrimination is open or obvious.

Sometimes it can sneak up on you in ways you have not imagined. In fact, you may face a viable discrimination claim even when you did not intend to discriminate against someone.

Under a disparate-impact theory of discrimination, intent is irrelevant. Instead, liability is based upon the effects or impact of a policy or practice, rather than the employer’s motivation behind it. In other words, a disparate-impact claim arises when an employer’s policies and practices, seemingly neutral and non-discriminatory on their face, result in a negative impact on a protected class of employees, based on factors such as race or age.

Disparate-impact claims often arise in the context of employee-selection criteria, pre-hire assessments, employee testing, organizational restructuring, and reductions in force.

In 1971, the U.S. Supreme Court noted for the first time that Congress directed the thrust of Title VII to the consequences of employment practices, not simply the motivation. At the end of the day, Title VII was enacted to protect a vulnerable group from overt or unintentional discrimination when practices that are fair in form have a discriminatory impact.

In this seminal case of disparate-impact discrimination, an employer required employees doing manual labor to have high-school diplomas. The court found that this requirement was discriminatory because this requirement was substantially limiting the amount of black applicants who could be hired. Why was this an issue? Because a high-school diploma did not correlate to how well someone would perform this manual-labor job. Therefore, a good practice for employers is to make sure that any requirements or policies are related to and necessary for the job.

Necessary Measures

When an employer’s policy is challenged as having a disparate impact on a specific group of people, the employer may defend itself by claiming that the policy is job-related and necessary. The types of policies that are necessary, even if they impact certain groups differently, are those that are related to safety or ensure that an applicant is qualified to perform the job. However, employers should be careful not to make such tests or policies more difficult than the actual job.

In one case, a company was experiencing a high rate of employee injury, so it implemented a strength test for applicants. After implementing these strength tests, the employment rate for women at that company decreased from 46% to 15%. While this appeared to be the result of a job-related and necessary strength test, the tests were substantially more difficult than the actual work.

Because a less difficult strength test would have determined if someone was able to do the job without disqualifying as many women, the court deemed the company liable for disparate-impact discrimination. To reduce the risk of a similar fate, employers should make sure their tests are commensurate with the difficulty of the job.

Even if a test is appropriately related to the job, it is still important to reassess whether it will cause the least amount of disparate impact of all the options. In another case, an employer implemented a test that measured verbal, numerical, and spatial reasoning skills to evaluate applicants’ mechanical aptitude. Before implementing this test, the employer undertook significant research and analysis to ensure that it was appropriately related to the job.

However, this test was found to exclude black applicants at a disproportionately high rate. Additionally, the court determined there was a less discriminatory method the employer could have used, but the employer never considered newer methods after implementing the original test. Since the employer was using a test that affected a protected group more than other groups, and there were other methods the employer could have used that would affect protected groups less, the employer was liable for disparate-impact discrimination.

With this example in mind, it would be wise for employers to re-evaluate their policies and procedures annually so that superior methods may be discovered and incorporated.

Finally, employers should also be careful when attempting to rectify situations where a protected class has been disparately impacted by a test or policy that is job-related and consistent with business necessity. In a U.S. Supreme Court case, a group of white and Hispanic firefighters sued their employer for disregarding test results where black firefighters failed the test at a significantly higher rate.

The employer feared that using the test results as the basis for promotions, as was originally planned, would bring a claim of discrimination. However, the court stated that, because the employer was careful to ensure that the test was job-related and consistent with business necessity, it was unlawful discrimination to disregard the results only because a protected class performed badly on it at a higher rate.

Steps to Take

As you can see, disparate-impact discrimination claims truly can sneak up on you. These claims are some of the most difficult to prepare for and deal with because they are often based on policies and tests that appear neutral. Further, as you can see from the case discussed above, trying to avoid a claim of discrimination can open you up to a different one.

To reduce their risk of disparate-impact discrimination claims, employers should:

• Make sure job requirements are job-related and necessary;

• Make sure physical tests are commensurate with job requirements;

• Review policies and procedures annually to make sure there is not an available practice with a less disparate impact;

• Train supervisors often; and

• Review any new policies or practices with employment counsel prior to implementation, then annually.

The bottom line is that you should keep track of your numbers. Statistics play a key role in disparate-impact analyses and disparate-impact claims. Employers would also be wise to review with their employment counsel any new policies or practices before implementation and conduct annual reviews of the same.

Annie E. Lajoie, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

Case Study

By BusinessWest Staff February 11, 2014

Law Sections

Clerk of Courts Laura Gentile Has a Lot on Her Docket

Clerk of Courts Laura Gentile

For almost two decades, Laura Gentile has been exposed to plenty of things she’d rather not think about — violent crimes, sex offenders, families torn apart, and much more. As a parent, it affects her.
“My son says I worry about him too much,” she told BusinessWest, “but it’s because I’ve seen so much over the years.”
That boy was just a toddler when Gentile left her position at her family’s law firm 18 years ago to become an assistant clerk in Hampden County Superior Court.
“That’s how I got my start in the field of law,” said Gentile, who earned her law degree at Western New England College. “I initially worked with my father and brother at a law firm called Santaniello, Posnik & Basile. It was great fun, but then the opportunity came up to be an assistant clerk. My son was 2 at the time, and it provided more regular hours. So I decided, even though I loved practicing law, that it was in his best interest that I take more stable hours.”
And 16 years later, she decided it was time for another change — this one rather unexpected — when Clerk of Courts Brian Lees decided in early 2012 not to run for that position again. Gentile believed her many years in that office qualified her for the clerk’s job, and those sentiments were supported by collegues who encouraged her to run.
She did, and eventually prevailed in a crowded Democratic primary before running unopposed in the November election. All through that often-contentious campaign, she said that experience — not just in managing an office, which some of her opponents had, but as a lawyer — was the key to handling the position effectively.
And 13 months into her tenure, she believes she’s more than validated that argument.
She said her experience both as a lawyer and in the clerk’s office has helped her make some needed changes — in matters such as cross-training personnel, for example — and with some issues that some might consider out of the clerk’s purview.
At the top of that list has been her recent, and persistent, efforts to convince the Legislature, the press, and anyone else who will listen that the 35-year-old Hampden County Hall of Justice must be replaced with a more modern, better-located facility.
In reference to the former, she said many courtrooms are too small and the technology being used is old and obsolete. As for the latter, she said the probable construction of a $1 billion casino across State Street from the Hall of Justice is a nightmare in the making.
“MGM is going to be built,” she said, adding that, between the probable highway reconstruction and then constant casino traffic, she worries about accessibility issues for the courthouse. “I think it will be very problematic. I’m not sure the powers that be have focused on that enough, to find out what our impact will be. Before they start to build the casino, I think somebody needs to look at that. That’s my first concern.”
For this issue’s focus on law, BusinessWest sits down with Gentile to talk about the expansive responsibilities of her office, the physical limitations of the courthouse, and the kinds of cases she has dealt with closely over the years — and have caused her so much parental anxiety.

Face of the Court

Laura Gentile has been busy persuading legislators and others that the 35-year-old Hampden County Hall of Justice would be seriously and negatively impacted by a Springfield casino, and should be replaced.

Looking back over her first year at the helm of the clerk’s office, Gentile said her transition has been a relatively smooth, easy one, and for those reasons she mentioned earlier.
“I knew what the job entailed,” she explained. “What has been challenging for me, but in a good way, an exciting way, is dealing with the administrative, managerial aspect of it. And I know that my experience as an assistant clerk for 16 years provided me with the skills to effectively manage this office.”
It’s an office that those with law degrees understand and greatly respect, but one that most not in that profession need a primer on. So Gentile offered one.
“The Superior Court clerk’s office in Springfield is, essentially, where every case, criminal and civil, begins and ends,” she explained. “If it’s a civil case, it begins with the lawyer filing a complaint and us taking it over the counter. We keep all the records, anything that goes into the court or comes out of the court. On the criminal side, it begins with an indictment; we take the indictments and we process them. Again, we start a file, and anything that goes into court or out of court comes through us.
“Once the case goes to trial, we are responsible for assisting the court, and we’re the conduit between the court and the jury for many things,” she continued. “We keep all exhibits, all evidence; we’re responsible for storing it. When the case is concluded, whether it’s civil or criminal, we close it up. And we’re always a conduit between the lawyers and the court. We’re the face of the court, basically.”
When she moved into the clerk’s office, she recognized some things that needed changing.
“One thing I set about doing was cross-training employees,” she said, noting that this initiative was launched out of sheer necessity — there are currently nine assistant clerks doing the work once handled by 12.
“Over the years, I realized that work came to a halt if someone was on vacation or out sick because only that person did that particular job,” she explained. I didn’t think that was an effective or efficient way to run an office, so one of the first things I did was cross-train employees, so now the work continues to flow.”
Another problem, she explained, was that bail monies were not always accounted for when transferred between courts. “For instance, bail that should be in Superior Court was still in the outlying district court, and there was no procedure in place to make sure that bail got transferred to this office. So I completely revamped that procedure.
“Again, it’s the knowledge I had being in this office for many years that gave me the skills to do all those things and make these different changes,” she added. “I hardly consider myself any kind of bookkeeper or anything like that, but just knowing the procedure and the legal aspect of how bail goes from one court to another made it very easy for me to come up with a procedure and policy to follow to make sure we’re getting the bail money that needs to be transferred here.”
Those are just two examples, Gentile said, in a job that offers something new to tackle every day.
“That’s what I like about the job. This morning, walking in, someone stopped me and said, ‘I can’t believe the way the office is being run.’ Everyone is so happy and more efficient, and it makes me feel good to hear that. From the feedback I’m getting, the people who work here seem much happier. My philosophy is, if you’re happy at work, you’re going to come to work and do a good job. And I think that’s what’s happening here.”

Assisting the Assistants
Gentile said she can still do the work of an assistant clerk, in a pinch, but they have their own broad set of responsibilities. There are eight courtrooms in Superior Court — six criminal and two civil — and a judge is assigned to each courtroom. “I assign an assistant clerk to each judge for the month, or a session; a session begins the first Monday of the month. Each clerk is responsible for his or her session.”
Assistant clerks prepare cases for trial, work with the judge to select and empanel the jury, and handle all the evidence and exhibits — and the paperwork attendant to all these roles.
These days, “I spend most of my time in the office because there are duties I have to attend to every day for the managerial, administrative aspect of the job. In the courtroom, you’re primarily dealing with the judge,” Gentile said, noting that the assistant clerk is responsible for bringing motions for the judge to rule on, then getting the responses back to the office so they can be processed.
Cases run the gamut — including serious crimes such as murder, home invasion, assault and battery, and robberies.
“We deal with life felonies all the time,” she said, noting that last year’s murder trial involving a Domino’s pizza driver wound up in both criminal and civil court, when the victim’s family sued the pizza chain for wrongful death. “In that case, the criminal case is the underlying basis for bringing the civil action against Domino’s; in their contention, Domino’s was negligent in carrying out their responsibility to their employee.”
Civil cases can include some serious matters as well, including ‘Mary Moe’ cases involving minor girls seeking the permission of the court to have an abortion. “We talk them through that procedure,” Gentile said.
Superior Court also processes SDPSs, or sexually dangerous person cases, which deal with the question of releasing someone convicted of a sexual crime back into the community, and a judge must determine whether that person is still a public risk. “Even though it feels like a criminal case, and it’s sort of administered as a criminal case, technically it’s a civil case,” Gentile explained.
Often in such cases, the district attorney’s office is the plaintiff, trying to block an impending release, but many times, the convicted individual initiates the process. “They’re entitled to ask for a review periodically to have their case presented, and they hope to have some new information that would allow them to be released.”

A Gamble for the Court?
Gentile has recently added a new line to her job description — that of being a vocal advocate for building a new Hampden County Hall of Justice. She’s working with state Sen. Gale Candaras and other legislators to bring courthouse issues to the state’s attention, and has won considerable attention in the local press.
“There are some really compelling issues that I feel warrant us getting a new courthouse,” she told BusinessWest. “I know people say, ‘this courthouse is only 30 years old; why do we need a new courthouse?’ What people don’t understand is, the money is there for new courthouses; it’s just a matter of, is it going to be built someplace where they need it more than we do, or built someplace where it’s not needed as much as we do? That’s the reason for advocacy — not because, ‘hey, we need a newer, prettier building.’”
To Gentile, the question comes down to MGM’s plans to build a casino across the street. If the plan is approved by the state’s Gaming Commission — and most observers believe it will — there will be traffic problems during a construction process expected to take at least two years, and then more when the resort casino opens.
But it’s not her only issue. Space has become a problem as well; five of the six criminal courtrooms aren’t big enough by modern standards, a dearth of elevators leads to waits of 15 to 20 minutes in the morning, and security isn’t state of the art.
“Our court officers are not allowed to carry guns or weapons, and there’s really no mechanism in place, no technology in place, to be able to alert other officers when there’s a problem. They have to rely on these antiquated radios,” she said.
“And there’s no technology in the building as far as wi-fi and things of that nature. In the courtroom, we still have a DVD player with knobs on it,” she said, adding that modern courthouses rely much more on cutting-edge, wireless technology, rather than grappling with cords and plugs.
In addition, “the lockup facility is way too small, and that segues into constitutional issues; there’s really no place a lawyer can have a private conversation with his client,” she said, while space to store evidence is tight as well.
But the casino remains her number-one concern. “I like it here, but I just don’t think anyone has taken a look at what the impact of the casino is going to be if we remain in this location.”

Great Escapes
Modern courtrooms are designed for safety for a reason, Gentile said, noting that it’s a running joke among her colleagues that she always seemed to be the clerk when a defendant totally lost his composure.
“I’ve been in the courtroom on a number of those occasions when a defendant was found guilty,” she said. “Two cases come to mind immediately, both murder cases, where the defendant flipped out. Both times it was because he heard his mother crying, and that was the trigger, and he went crazy.
“I remember one case where it took something like three court officers and two police officers that had been in the courtroom because they were involved in the case, plus the defendant’s lawyer, to subdue this man, who was a really big guy,” she recalled. “He was literally right next to me, and I had nowhere to go; I was basically trapped, unless I wanted to jump over the desk — and I would have, had he gotten any closer to me.
“In these situations,” she continued, “you need to know how to act quickly and calmly, and you have to know how to assist the judge and how to assist the jurors, who are very, very frightened. You need to look out for the court staff and make sure that you can get help.”
She praised her courthouse’s officers as being particularly adept at analyzing situations and recognizing when additional security needs to be on hand.
“We don’t have nearly as many melees as we would if we didn’t have such good court officers,” she said. “But as an assistant clerk, your responsibility is to the entire courtroom.”
She doesn’t get the same opportunities these days, of being in the courtroom and making sure proceedings run smoothly and justice is done — a role that extends from responding to those occasional melees to informing the judge if a juror is falling asleep.
“The clerk is a conduit between the judge and everyone else in the courtroom,” Gentile said. “Everything goes through the clerk.”
And now, the whole office goes through her. It’s a challenge she courts every day.

Joseph Bednar can be reached at [email protected]

Mind Games

By BusinessWest Staff February 11, 2014

Law Sections

ADA-related Claims May Rise Due to New Psychiatric Disorders

Kimberly Klimczuk, ESQ.

In the U.S., the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM) is the primary authority for the diagnosis and treatment of psychiatric disorders. It is updated periodically to conform to new developments in the field of psychiatry. The most recent edition of the manual, DSM-5, includes several changes that may impact employers’ obligations under the Americans with Disabilities Act (ADA) and similar state laws prohibiting discrimination against — and requiring accommodations for — individuals with disabilities.
These changes include the addition of entirely new diagnostic categories as well as changes in the application of existing diagnostic categories.
What this means is that a broader range of behaviors are now officially considered disorders by the American Psychiatric Assoc., and therefore such behaviors have the potential to be considered ‘disabilities’ as that term is defined under the ADA (a physical or mental impairment that substantially limits one or more major life activities).
Some of the new diagnoses recognized in the DSM-5 include hoarding disorder, excoriation (skin-picking) disorder, gender dysphoria, gambling disorder, tobacco use disorder, mild neurocognitive disorder, premenstrual dysphoric disorder, and social communication disorder. In addition, there are changes, such as the removal of the ‘bereavement exception’ from depressive disorders, that could have implications for employers. Previously, individuals who experienced short-term depressive symptoms due to the death of a loved one would be excluded from a diagnosis of clinical depression. The DSM-5, however, characterizes bereavement as a severe psychological stressor that can incite a major depressive episode.
With this expansion of psychiatric diagnoses, employers can expect to see an uptick in requests for accommodation due to these sorts of conditions. The Americans with Disabilities Act requires employers to provide reasonable accommodations to individuals who are able to perform the essential functions of their job with or without an accommodation. So, for example, employees experiencing the loss of a loved one may request time off in excess of what’s allowed under the employer’s bereavement policy. Depending on the individual employee’s circumstances, an employer may now be required to provide such leave.
Employees with mild neurocognitive disorder, which is characterized as “a level of cognitive decline that requires compensatory strategies and accommodations to help maintain independence and perform activities of daily living,” may exhibit forgetfulness, difficulty performing job duties, or difficulty learning new skills. What many employers previously would consider grounds for disciplinary action or termination, now may form the basis of a request for accommodation.
Of course, there is a limit on employers’ obligations to provide accommodations — employers are not required to alter or remove essential job functions, nor do they have to provide an accommodation if the employer can show that the accommodation would cause “significant difficulty or expense.” However, employers should be aware of the expanded categories of psychiatric disorders, which may require them to consider accommodations that it previously would not have.
In addition to the increase in accommodation requests, the recent changes to the DSM may also lead to an increase in claims for disability discrimination. In order to successfully claim disability discrimination, an employer must show that he or she is disabled. As more and more behaviors are classified as psychiatric disorders, more employees will fall into the protected class of disabled individuals.
An individual who is disciplined for rude or inappropriate behavior may claim discrimination on the basis of his social-communication disorder, a symptom of which is “problems with inappropriate responses in conversation.” Although employers are not required to overlook inappropriate behavior that is caused by a disability, employers may be faced with increasing requests for accommodation that will assist employees in controlling inappropriate behavior caused by a disability.
Only time will tell what the precise impact of the DSM-5 will be on workplace-accommodation requests and claims for disability discrimination. In the meantime, employers should be aware of the potential issues. When in doubt, employers should consult with labor and employment counsel when faced with requests for reasonable accommodation.

Kimberly Klimczuk is a partner at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]

Cupid’s Arrow Can Be Painful

By BusinessWest Staff February 11, 2014

Law Sections

Employers Should Update Policies on Office Dating, Sexual Harrassment

By ANNIE E. LAJOIE, Esq. and TANZANIA C. CANNON-ECKERLE, Esq.

Annie Lajoie

Tanzania C. Cannon-Eckerle, Esq.

Jill arrives at work on Valentine’s Day to find a box of chocolates, a teddy bear, and a card on her desk. Smiling, she reaches for the card. Her smile fades as she identifies her admirer.
Valentine’s Day is a reminder of a common challenge many employers face: the office romance. According to a 2013 survey, more than 50% of the workforce has participated in an office romance on at least one occasion. Even though these relationships appear to be somewhat common in the workplace, they can still be problematic.
Often these workplace relationships can make some employees uncomfortable, can create the perception of favoritism for certain employees over other employees, and in extreme cases can create a hostile work environment. Then there are the ramifications of a workplace relationship and breakup — like a possible multiple-plaintiff sexual-harassment claim.
For example, let’s say Jack and Jill are constantly visiting each other. Sandra, whose desk is next to Jill’s, thinks the two are spending too much time flirting and consequently not getting enough work done. Sandra also feels constantly distracted and very uncomfortable due to their inappropriate conversations, including the sexually explicit comments from Jack regarding Jill’s body, all of which Jill is obviously enjoying. That was until Jack and Jill broke up.
Jill moves on, but Jack is intent on getting her back. He has continued to engage in the once-welcomed conduct, but now, according to Jill, it is unwelcome. Jack constantly stops by Jill’s desk and makes frequent sexual comments about her body. He sends her flirty messages and pictures of himself on the company’s e-mail. Jill asked him to stop, but he refuses because he knows their love is still strong, which frightens both Jill and Sandra. Making things worse, Jill has started to date another co-worker, Bob.
Jack and Bob used to work well together, but ever since Jack found out that Jill is dating Bob, Jack has been openly hostile to Bob. Sandra, all the while, has had to endure the whole of the conflict.
In this example, there are multiple labor and employment issues. Though the Jack and Jill relationship and breakup might be considered a foreseeable debacle, Sandra’s impending hostile-work-environment claim based on sexual harassment and workplace violence may not be so predictable. The major question is, how does an employer continue to be open to the activities of such a festive occasion as Valentine’s Day, but also protect its employees from being uncomfortable and its own interest in remaining free of litigation?
The answer: it depends. But prevention is key. An employer has an obligation to ensure that its workplace is free of sexual harassment. An employer’s best defense against sexual-harassment claims is implementing a comprehensive sexual-harassment policy, which has a procedure for reporting harassment, sexual-harassment training for all employees, and regular supervisor trainings.
Next, because Valentine’s Day is the perfect storm for misunderstandings, it would be best if an employer has relevant rules and policies in place that govern holiday activities in the workplace and other acceptable and unacceptable behavior. Employers should already have the necessary policies and procedures in the employee handbook.
A prudent employer may just want to send a gentle reminder to the workforce stating that, when employees choose to recognize Valentine’s day, they should keep in mind that all of the employer’s policies and procedures, as found in the employee handbook, still apply. Then the employer must enforce it.
An employer may also want to implement an office romance policy, in addition to its sexual harassment policy. This may seem like overkill, but employers can never be too safe. What some employees find to be fun and flirty comments, cards, e-mails, text messages, or jokes, other employees may consider offensive and inappropriate. As co-workers increasingly communicate via social-media sites, there are even more opportunities for problems. The employer’s social-media policies should also refer to the sexual-harassment policies and the office-romance policy, if one exists.
Valentine’s Day is associated with love and romance; therefore, an innocent gift or card can easily be misinterpreted. This issue is compounded by the fact that employees may choose adult themes for their Valentine’s Day cards. The outside of Jill’s card might say, “On Valentine’s Day, remember…” As Jill opens her card, she sees it is from a co-worker, Cal, who regularly asks her to go out on a date with him, and the inside of the card says, “… candy is dandy, but sex won’t rot your teeth! So what do you say?”
Matters are further complicated when such a card is given to a subordinate by a supervisor. While gifts between co-workers are troublesome, gifts between supervisors and employees are even more problematic. For instance, if Cal is Jill’s supervisor, Jill may feel pressure to date Cal so her work will not be negatively affected. Other employees may also feel that Jill is getting preferential treatment.
Even if the Valentine’s card contains a more innocent message, and Cal thinks it simply shows how much he appreciates and values Jill’s work, Jill might interpret it as his way of saying he wants to be involved with her romantically.
With Valentine’s Day fast approaching employers would be wise to shield themselves against Cupid’s arrow by reviewing their office-romance policy and their sexual-harassment policy with their employees.

Annie E. Lajoie, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected].
Tanzania C. Cannon-Eckerle, Esq. specializes exclusively in management-side labor and employment law at Royal LLP; (413) 586-2288; [email protected]

A Solar Boom in the Pioneer Valley

By BusinessWest Staff February 11, 2014

Law Sections

State Creates a Hospitable Environment for Photovoltaic Developers

Michael Fenton

All across the four western counties of Massachusetts, solar farms are popping up on previously unutilized or underutilized land. This green technology that was once seen as an energy source of the future is thriving in Massachusetts because the Commonwealth has created financial and permitting incentives that have created a growing solar industry.
Massachusetts has become a leader in the nation for the development of solar facilities because of increased by-right zoning in municipalities, solar renewable-energy certificates, net-metering credits, federal tax benefits, and local payment in lieu of tax agreements.
What follows is a primer on these solar-power incentives, and the apparently bright future of this technology.

By-right Zoning
Massachusetts General Laws Chapter 40A, Section 3 prevents all municipalities from “prohibiting” or “unreasonably regulating” small solar-energy systems such as those commonly installed atop a home or business. However, it is not clear whether ths section applies to the construction of large-scale, ground-mounted systems which are commonly developed for private commercial purposes.
Purportedly to make up for this discrepancy and to promote green technology, the Commonwealth has made it financially lucrative for municipalities to remove zoning barriers for commercial solar developments.
In order to satisfy the Massachusetts Green Communities Act of 2008 and to be eligible for millions of dollars in state grant funding, municipalities must enact as-of-right zoning for solar photovoltaic (PV) installations that utilize ground-mounted systems which individually have a rated name-plate capacity of 250 kW (DC) or more. Cities and towns across the Pioneer Valley that are anxious to become eligible for these state funds have enacted the expedited ‘by-right’ zoning process for large-scale PV installations.
As a result, the permitting environment is now more certain for solar developers who have long seen Massachusetts as an untapped market. To sweeten the pot even more for solar developers, the state has passed legislation allowing for the solar companies to re-sell the energy it harnesses from solar developments.

Solar Renewable-energy Certificates
Massachusetts retail electric suppliers are required to buy solar renewable-energy certificates (SRECs) for an increasing portion of the electricity that they deliver each year. SRECs are created as qualifying solar installations generate electricity. One SREC is created for every 1,000 kHn (1 MWH) of electricity generated by a qualifying Massachusetts PV array. This has created a market demand for SRECs. The owner of a solar PV array can sell SRECs generated by the project directly to the retail electric supplier or work with a broker who will help them identify buyers of the SRECs.

Net Metering
Additionally, customers of Massachusetts’ investor-owned utilities — National Grid, NSTAR, Western Massachusetts Electric Co., and Unitil, have the option of selling net excess electricity generated from a qualifying solar project via net metering. Net metering allows a project host to offset its electricity usage with electricity generated on site, reducing the amount of electricity the customer must buy from the distribution company. Electricity produced which is greater than the amount used by the PV facility can be sold in the form of a credit to another customer.

Federal Tax Benefits
Qualified solar PV projects are eligible for a federal investment-tax credit of up to 30% of eligible system costs if installed by Dec. 31, 2016. Additionally, under the federal Modified Accelerate Cost Recovery System (MACRS), businesses are able to recover investments in eligible solar PV through a six-year accelerated depreciation schedule. Moreover, for systems that were installed in 2012, bonus depreciation is available — businesses were able to depreciate 50% of the value of the system in the 2012 tax year.

Property-tax Benefits
Some Massachusetts towns have provided property-tax relief for large-scale solar arrays through payment in lieu of tax (PILOT) agreements. Under current Massachusetts law, municipalities have the discretion to tax energy-facility equipment or to negotiate PILOT agreements. However, the future of state law on this matter is uncertain, as there have been recent attempts to mandate a PILOT system for solar developments.
Recently proposed energy legislation on Beacon Hill would have exempted certain renewable-energy facilities, including commercial solar facilities, from local property tax, leaving communities with tax revenues equal to only 5% of electricity sales. After aggressive lobbying from the Massachusetts Municipal Assoc., that provision of the bill did not make it into the final law; however, the attempt to further incentivize solar developments through mandated local property-tax relief appears to be an ongoing discussion in Massachusetts.
The Commonwealth has emerged as a leader in the nation for the development of solar facilities; however, navigating the complex and ever-changing regulatory environment for solar development requires the assistance of experienced legal counsel. Interested renewable-energy businesses and private investors, as well as potential landlords and sellers of land for solar facilities, should speak with an attorney before pursuing a solar development in Massachusetts.

Attorney Michael A. Fenton is an associate with the Springfield-based firm Shatz, Schwartz and Fentin, P.C. He concentrates his practice in the areas of business law, real-estate development, and estate planning. He has served on the Springfield City Council since 2010, and was elected president in 2014; (413) 737-1131; www.ssfpc.com

Estate Planning in the Digital Age

By BusinessWest Staff February 11, 2014

Law Sections

Make Sure Your Heirs Can Access Your Online Information

Todd C. Ratner

As a society, we have become more reliant on the Internet as a mechanism to keep in touch with family members and friends, share photographs, pay bills, and store other personal types of information. Digital assets are emerging as a new category of personal property.
They include digital images, electronic bank and investment account statements, e-mail records, and associated passwords, as well as social-media accounts such as Facebook, LinkedIn, Twitter, Pinterest, and YouTube. The use of digital assets will only continue to grow and evolve, and estate planners must recognize the emergence of digital assets when advising clients relative to their estate plans.
Many people erroneously believe that their spouse or next of kin may automatically step in to administer digital assets upon their incapacity or death. Although discussions have increased among legislatures regarding administration of digital assets, federal privacy laws prohibit service providers from knowingly divulging the contents of electronically stored documents, and only seven states (not including Massachusetts) have enacted statutes relative to the administration of digital assets. The validity of these state laws is unclear, since they sometimes conflict with federal law. In most cases, the user and their estate will be governed by the service-provider agreement provided by the online site.
Service-provider agreements play a large role in determining what happens to a decedent’s digital assets. Many times the user is made aware, or at least has the opportunity to be made aware, of these policies upon registering for an online service, typically by clicking a box signifying that they agree to the provider’s terms of use. However, these agreements greatly vary:
• Yahoo! explicitly provides within its agreement that the account may not be transferred, and Yahoo! retains the right to delete the content within the decedent’s e-mail account upon receipt of a death certificate.
• Gmail has a policy for potentially releasing e-mails to the personal representative of a decedent’s estate, but the agreement makes it clear that there is no guarantee that the e-mail content will be released, and a court order may be required.
• In April 2013, Google became the first service provider to offer a solution to obtaining access to a user’s account upon their death or incapacity. The feature, called the ‘Inactive Account Manager,’ may be accessed by the user during their lifetime on the user’s profile page. The Inactive Account Manager will become ‘activated’ after the user’s account is inactive for a period of three, six, nine, or 12 months, as determined by the user. The user may also determine what will happen to their data upon becoming inactive. For instance, the user may elect to delete the data, or some or all may be sent to a specific individual.
• Facebook, upon receiving notice that the user has passed away, will place the user’s profile in a ‘memorial state’ so that certain profile sections are available for viewing. That is, only the decedent’s confirmed Facebook friends may locate and post on the decedent’s profile. Facebook will also remove a decedent’s account from the site upon request by verified family members.
• Twitter will remove the decedent’s account from its ‘Who to Follow’ suggestions upon verification of death. And family member can contact Twitter to delete the decedent’s account entirely. However, Twitter will not allow family members access to a decedent’s account.
• YouTube will allow a power of attorney to access the decedent’s account.
• LinkedIn prohibits transferring a LinkedIn account to another party and provides that California law will govern all disputes.

Steps to Take
A personal representative has the fiduciary responsibility of administering a decedent’s estate, which includes discovering, protecting, and facilitating the transfer of all of the decedent’s property. Even in the event that the personal representative takes possession of a decedent’s tangible technology device, the personal representative may still face the challenge of accessing the digital assets. Therefore, it is recommended that the following steps be undertaken to facilitate access by your loved one to your digital assets:
• Create a list of your digital assets, including related account numbers, user names, and passwords. It is imperative to continually update this list every time you create a new digital asset or change a password.
• Keep that list in a secure place. There are a number of paid service companies that will retain this list for you and, upon your demise, provide the list to your designated beneficiaries. You may also use your own computer or a secure cloud-based service, such as Dropbox, to store your list. Just make sure that your decedents know where it is and how to access it. You do not want to place any passwords within your will, since a probated will becomes a public document. However, you may, alternatively, request that your estate-planning attorney retain this list within your estate-plan file.
• Leave deailed instructions regarding your wishes regarding how to use, terminate, or distribute your digital assets.
Our world has evolved. Instead of sending letters and keeping photo albums on a bookshelf, people are increasingly sending e-mails and loading pictures to social-media accounts. Currently, privacy laws and limited government interaction are hindering families of decedents from gaining access to a decedent’s online assets without prior planning, as the laws have not yet caught up with the practical issues and values that we now face relative to our digital assets. As such, proper planning and contemplation of digital assets in an estate plan will help your personal representative successfully administer your estate.

Todd C. Ratner is an estate-planning, elder-law, business, and real-estate attorney with the regional law firm Bacon Wilson, P.C. He serves as co-chair for the Alzheimer’s Assoc. Tri-County (Hampden, Hampshire, and Franklin) Partnership and is a member of the National Academy of Elder Law Attorneys and the Estate Planning Council of Hampden County. He is also a recipient of Boston Magazine’s Super Lawyers Rising Stars distinction from 2007 to 2012; (413) 781-0560; baconwilson.com/attorneys/ratner_2

Well Suited

By BusinessWest Staff February 11, 2014

Law Sections

A chart of law firms in Western Mass.

Click here to download the PDF

Reverse Mortgages for the Affluent, Too

By BusinessWest Staff December 31, 2013

Law Sections

Are You Up to Speed on the Advantages and New Regulations for 2014?

Hyman G. Darling

More and more people are starting to realize that reverse mortgages aren’t just for those struggling to keep their homes. These loans can also work for affluent retirees as a tax-savings strategy (using income-tax-free funds to pay off traditional mortgages rather than using taxable retirement-savings income) and for those who are looking for a cushion to keep them from selling investments at the wrong time. In prior years, it was fairly expensive to get a reverse mortgage, because the fees were considerably higher than those of a typical mortgage or home-equity loan, but that has changed. A reverse mortgage, also known as a home-equity-conversion mortgage, becomes a good solution for people who may wish to cash in on the equity in their house.
If you (or your parents) need additional funds for home care or possibly to pay the costs of living, including heat, taxes, insurance, etc., then a reverse mortgage is a valuable alternative, since it does not need to be paid back during your lifetime. One of the problems, however, is that, once the limit is reached on the withdrawal amount of the loan, further funds are not available, and you may have to either sell the house or attempt to obtain a new reverse mortgage if the value of the home has increased sufficiently.
A reverse mortgage is similar to a regular mortgage, except that the bank advances funds to you, either in a lump sum or on an annuity basis, or possibly merely on a credit basis, which means that you can withdraw funds as desired up to the allowed maximum. The loan does not have to be paid back unless you die or live out of the house for at least six months, possibly in a long-term-care facility. As long as at least one spouse lives in the home, however, no payments need to be made, nor does the house have to be sold.
In most cases, your assets and income are not considered for a loan to be approved or denied, as the bank is merely funding it based on the equity in your house. Also, in most cases, the funds received from a reverse mortgage do not adversely affect your eligibility for any governmental benefits, since it is not construed to be income, but rather, merely the withdrawal of equity from your home.
Many retirees have already transferred their houses to their children and reserved a life estate. In these cases, provided that they (the homeowners) are at least 62 years old, many banks will consider providing them with a reverse mortgage, but their children will have to sign off on the mortgage also. If this is a concern for your kids, they could deed the house back to you, but this may trigger an additional five-year waiting period, in the event that you wish to re-transfer the property to your children, in order to protect the asset from long-term-care expenses.

What’s New in 2014?
Created by the Consumer Financial Protection Bureau, one of the most important new regulations that go into effect Jan. 1, 2014 prohibits banks from approving mortgages for anyone whose debt-to-income ratio is higher than 43%. This means that borrowers’ total debt liability, including housing, should not be more than 43% of their income. A qualified mortgage is one that would be eligible for resale on the secondary mortgage market.
The other new rule requires banks to limit the fees for originating mortgages to no more than 3% of the loan amount. This could discourage many institutions from pursuing loans for lower-priced houses.
While the ability-to-repay rules, effective in January 2014, will now apply to most mortgage loans, they exclude certain types of loans, such as home-equity lines of credit, time-share plans, and reverse mortgages.
Until the new rules become effective, almost any homeowner who had equity in a home could qualify for a reverse mortgage. However, starting Jan. 13, 2014, there will be new underwriting standards for new applications to ensure that borrowers have the ability to continue to pay taxes and insurance on an ongoing basis. Additionally, homeowners may be able to draw only 60% of the available principal limit, unless there are mandatory obligations, such as mortgage payoffs or liens. Credit-card debt is not considered a mandatory obligation.

Conclusion
Prior to obtaining a reverse mortgage, the federal government requires that you be counseled as to its pros and cons. This counseling is free, and you may obtain information from the AARP Reverse Mortgage Education Program by calling (800) 209-8085. You may also wish to contact an elder-law attorney who is also skilled in advising clients as to the benefits and detriments of obtaining a reverse mortgage.

Attorney Hyman G. Darling is chairman of Bacon Wilson, P.C.’s Estate Planning and Elder Law departments. His areas of expertise include all areas of estate planning, probate, and elder law. He is a frequent lecturer on various estate-planning and elder-law topics at local and national levels, and he hosts a popular estate-planning blog at bwlaw.blogs.com/estate_planning_bits; (413) 781-0560; [email protected]

Suit Yourself

By BusinessWest Staff December 31, 2013

Law Sections

A chart of law firms in Western Mass.

Click here to download the PDF

Firing Range

By BusinessWest Staff December 31, 2013

Law Sections

Social Media Poses a Legal Minefield for Employers

The missive on Facebook reads like a typical workplace rant.
“It’s pretty obvious that my manager is as immature as a person can be, and she proved that this evening even more so. I am unbelievably stressed out, and I can’t believe NO ONE is doing anything about it! The way she treats us is NOT okay, but no one cares, because every time we try to solve conflicts, NOTHING GETS DONE!”
The poster worked in a San Francisco clothing store, and this message, and comments like it from fellow employees, led to numerous firings once the employer found out about them. But one of the booted employees filed an unfair-labor-practice charge with the National Labor Relations Board (NLRB) — which sided with the workers.
Why? Well, the store was located in a rough neighborhood of the city, and stayed open an hour later than other stores in the vicinity. The employees had complained to their manager about being harassed by “street people” upon leaving late at night. When the manager refused to change the store hours, the workers took to social media.

John Gannon says the National Labor Relations Board has recently taken a keener interest in making sure companies’ social-media policies aren’t too vague to be enforced.

“They went online and complained about their supervisor,” said attorney John Gannon, an associate with Skoler, Abbott & Presser in Springfield. “The NLRB said they were complaining about working conditions and were concerned about safety, and as a group, they were trying to get their supervisor or store manager to close that store earlier.”
And that, the board maintains, falls under the umbrella of ‘protected, concerted activity’ which employees are allowed by law to undertake. The fact that the complaints were posted very publicly and could have embarrassed the employer did not limit their rights.
“One issue that arises with respect to social media is, can we fire somebody for comments they have made online that may not be favorable to us, or that we perceive as disparaging?” said attorney Amy Royal, owner of Royal LLP in Northampton. “Before they take such adverse action, companies need to take a careful look at whether the comments are expressing an individual gripe or if the employee is trying to induce other employees to undertake group action that could potentially be seen as concerted activity.”
The difference is crucial, and gets to the heart of what employers need to know about their workers’ private use of social media.
“If it’s collective, and more than one employee is complaining online, is the complaint about the terms and conditions of employment?” Royal asked. “For employers, the frustrating piece is that the NLRB has a broad view of what constitutes terms and conditions of employment.
“If I read, ‘it’s pretty obvious that my manager is as immature as a person can be,’ human nature being what it is, if I’m the manager, I’m not going to happy with that, and I might want to take action because I feel slighted or slandered. But in this case, other employees joined in and made comments, and the NLRB said this is protected.”
That’s different, she said, than someone lashing out randomly at their employer with no such context, and no support from fellow workers.
“The number-one issue when talking about social media in the employment-law context is whether or not an employee’s activity, whether on Facebook or elsewhere, is protected by the National Labor Relations Act,” said Gannon, adding that the NLRB periodically issues ‘advice memorandums,’ examining about a dozen recent cases and discussing whether the employers’ conduct violated the act, or whether their policy on social media is too broad to be enforced.
“Through all those advice memorandums, they distinguish between someone’s individual gripes and somebody complaining about workplace conditions,” he said. “That’s the bright line — and it’s actually more of a gray line. Is somebody actually talking about improving workplace conditions, or is the employee just complaining about his supervisor? In a recent case, an employee said, ‘hey, my supervisor needs to back the f— off. If he wants to fire me, go ahead, make my day.’ The board said that’s your classic individual gripe; they weren’t talking about other employees or referencing any working conditions.”
Kate O’Brien, an attorney with Springfield-based Sullivan, Hayes & Quinn, noted that the NLRB has been busy assessing cases decided by administrative-law judges. “For the most part,” she said, “they’ve affirmed the approach of evaluating them for the potential chilling of employees’ right to engage in protected, concerted activity.”

Group Think

Amy Royal says screening job applicants on social media can be helpful — but poses certain legal risks.

None of this, however, applies to employee use of social media on work time. Companies have long been well within their rights to police what their staffers do while on the clock, and routinely bar the recreational use of the Internet during work hours.
“Companies can and should have a policy that prohibits employees from using social media at work, and it should also extend to the use of their own devices,” Royal said. “In the real world, it becomes difficult for companies to police that, or they may not want to have a total prohibition, but they need to know that, if they allow some level of use of social media, employees can use it for union-organizing purposes.”
But when it comes to off-the-clock activity, she said, many employers — especially those with non-unionized workforces — still aren’t aware of workers’ rights when it comes to freedom of expression, laid out in Section 7 of the National Labor Relations Act.
“Section 7 applies to both union and non-union workforces and gives employees the right to come together and complain about the terms and conditions of their workplace,” Royal noted. “That particular section is implicated when we’re talking about social-media issues in the workplace.”
However, Gannon noted, although the NLRB remains engaged in complaints about unjust firing, it has also taken proactive steps to examine various companies’ social-media policies and determine which ones too broad to withstand scrutiny.
“They’ve reviewed a lot of policies dating back to 2010 and 2011 that prohibit certain kinds of behavior — prohibitions against inappropriate comments or unprofessional comments or misleading comments on Facebook — and they’ve come out and said that’s overly broad and not specific enough, that it could chill somebody’s Section 7 rights, so they’d be afraid to speak out.”
One recent case involved Giant Foods, which had a policy prohibiting employees from discussing confidential, non-public information on social media.
In an advice memorandum issued in July, “the board came out and said that’s overbroad, that they need to be more specific,” Gannon explained. “A lot of people were surprised by that; they think an employer has a right to protect its confidential information. But the board’s point was that, yes, you need to protect your confidential information, but make sure employees understand what that confidential information is.”
In another case — an actual decision, not just a memorandum — the board determined that Costco’s policy, barring employees from posting things that might damage the company’s reputation, was also overbroad.
In yet another case, Royal noted, an employer’s policy said workers must be courteous, polite, and friendly to customers and fellow employees, and not use language that injures the image or reputation of the company. “That sounds like a policy any company would want to implement, but the NLRB said that policy is problematic because it’s too vague,” she said. “They want specifics in these policies.”
So how should employers craft a policy that stands up to the law? “One thing I recommend is to link it to other policies,” Gannon said. “For example, I’ll recommend that the employer, in their social-media policy, reference the anti-harassment policy and make it clear that employees have to follow the anti-harassment policy in social media, and can’t post things that are harassing in nature.”
The same applies to confidentiality policies, he added. “You have to treat it as if it happened in the workplace.”

Searching for Clues
Still, O’Brien said, while overbroad policies are certainly a consideration, “I think a more prevalent consideration is the discipline or termination of employees for their comments and activity in social media.”
And it’s not just current workers employers must be concerned with. Job applicants pose their own kind of minefield. Specifically, employers who use sites like Facebook to gauge an applicant’s character often discover information about his or her beliefs or race or sexual preference — issues that shouldn’t be used in hiring decisions, but sometimes are.
“It’s a double-edged sword,” Royal said. “You want to investigate an unknown commodity before you invest in them. We know that bringing someone into a workplace is a huge investment, and social media is a great way to find out information about a person’s character, their reputation, their likes, and their interests. But on the flip side, you may be given information that you wouldn’t otherwise have in the application process, that could then be used as ammunition against you.”
Importantly, even if a decision not to hire is based solely on job qualifications and experience, simply knowing certain things about an applicant can open an employer up to the perception of discrimination — and lawsuits can follow.
“That’s not to say you shouldn’t use social media as part of background check into an applicant — I think you should — but you need to know the parameters,” she said. “And if you use social media inconsistently, you open yourself up to attack as well. If you’re going to use it, then use it for all applicants when they reach a certain point in the application process.”
Gannon said much of the strategy depends on what sites employers are checking.
“Generally speaking, I think there’s a lot of information out there that would be valuable to employers in their recruiting efforts. LinkedIn is a very good place employers can use to double check what their employees say in an interview; you can find out if there’s some conflict there.”
However, he added, “some other sites present problems stemming from learning too much information. Even visiting someone’s Facebook page and learning information that isn’t part of an application — information about an applicant’s religion, disability, genetic information — all of that can lead to an unlawful-hiring lawsuit, claiming the information learned through social media was the reason the individual wasn’t hired.”
Gannon agreed that hiring managers need to be consistent about what searches they perform, and then document those efforts.
“But the most important thing an employer can do is have a gatekeeper perform the search, an individual who is not connected to the hiring decision itself,” he said. “If they find any negative characteristics, they report back to the hiring manager.”
That way, he continued, “if someone brings a failure-to-hire lawsuit, you can defend the hiring — management didn’t know you were Muslim, for instance. That’s really the key in recruitment.”

Media Messages
Royal stressed the importance of keeping tabs on the NLRB’s evolving thought process on social media as it relates to Section 7 of the National Labor Relations Act and other factors.
“A lot of employers do have social-media policies, and now that we’re coming up on a new year, it’s a good time to revisit those policies to make sure they’re still compliant with NLRB decisions that have come in over the past year,” she said.
For example, “a semi-pro-employee decision came out of the NLRB that basically said that, if an employee is publicly critical in a way that the comments are maliciously untrue, then you can fire them — but employers need to be able to demonstrate that the comments were made with knowledge of their falsity or with a reckless disregard for their truth. That’s a high threshold to meet under those circumstances.
“Because this area is still emerging,” she added, “employees need to connect with their counsel to sort through these issues before they take action. You can’t unring that bell.”
Another potential shift in current thought involves the ‘like’ button on Facebook — specifically, whether simply liking a comment on Facebook is enough to be considered concerted activity, Gannon noted. “That’s something the NLRB is currently looking at. It’s kind of an interesting issue.”
O’Brien agreed that the picture is far from settled. “The board has provided a little more guidance on what’s acceptable or not acceptable. But it’s still constantly evolving, and an area employers need to stay on top of.”
Part of the reason social media has become such a scrutinized issue is the sheer volume of personal information being revealed on public websites.
“It’s a different world, but an interesting world, and employers really have to rely on outside counsel to keep them up to speed on what’s changing,” Gannon said.
“A policy that was OK in 2010 might not pass muster in 2013 based on advice memorandums that have come out from the board,” he continued. “Those policies might need to be revised. Employers need to be aware that this is an area of the law that’s constantly in flux. I’d be reviewing those policies in some way, shape, or form at least on an annual basis.”

Joseph Bednar can be reached at [email protected]

New Year, New Legislation

By BusinessWest Staff December 31, 2013

Law Sections

Many Pending Bills Will Have a Significant Impact on Employers

By ANNIE E. LAJOIE, Esq. and KARINA L. SCHRENGOHST

Annie Lajoie

Karina L. Schrengohst

As we usher in the new year, employers should be mindful of pending legislation that has the potential to impact their businesses. Here are some things to keep an eye on.

Independent Contractors
One piece of legislation related to independent contractors potentially offers game-changing good news for employers. There are several bills proposed that would make independent-contractor status more feasible, one of which is universally germane. With the change of one word, this proposed legislation would make a previously insurmountable hurdle less challenging.
The proposed bill would change the ‘and,’ which currently requires satisfying an essentially impossible three-prong test, to an ‘or,’ which would allow categorizing an individual as an independent contractor even though he or she performs services that are within the company’s usual course of business. While there would still be a presumption of employment, it would be phenomenally easier to establish an independent-contractor relationship.
In more good news for franchisors, another proposed bill would clarify that franchisees are independent contractors and not employees. A third bill would allow freelance writers, editors, proofreaders, artists, and similar persons who work out of their own residence whose work constitutes intellectual property, to which copyright laws apply, to be classified as independent contractors.
Massachusetts independent-contractor law is long overdue for a change. The proposed changes would allow employers to maintain independent-contractor relationships where previously the burden was virtually impossible and misclassification was a large risk with hefty penalties.

Non-compete Agreements
Our governor would like to do away with non-compete agreements. The first step toward this is proposed legislation that would further limit the enforceability of non-compete agreements between employers and employees. Pending bills seek to limit the duration of these restrictive covenants to as little as six months.
In addition, pending legislation would limit use of non-compete agreements to employees with a minimum salary of $75,000 per year. Similar to California employers, restrictive covenants may eventually be a thing of the past for Massachusetts employers.

Raising Minimum Wage
One challenge employers may face in the next year is an increase to the minimum wage. The Massachusetts Senate has already voted to raise the state’s minimum wage from $8 per hour to $11 per hour over a three-year period, and future increases would be tied to the rate of inflation.
Restaurant owners should take note that this legislation could have a detrimental impact on their business. This pending bill would increase the minimum wage for tipped employees from $2.63 per hour to half the minimum wage.
If this legislation passes, employers would see an increase as early as July 1, 2014.

Paid Sick Time
Pending legislation would mandate that employers provide sick time to full-time, part-time, and temporary employees. Here’s a breakdown:
• Employers with 11 or more employees would be required to provide up to seven paid sick days per year;
• Employers with six to 10 employees would be required to provide up to five paid sick days per year;
• Employers with five or fewer employees would be required to provide up to five unpaid sick days per year; and
• Employees would earn one hour of sick time for every 30 hours they work.
Unlike accrued vacation time, employers would not be required to pay unused sick time at separation. Also, seasonal employers would be exempt from these requirements. Finally, employers would still be able to require proof of need for the sick time, such as a doctor’s note.

Parental Leave Act
Legislators have set out to make the Massachusetts Maternity Leave Act gender-neutral. The Parental Leave Act would expand coverage to men. Significantly, under this bill, employers would be required to give written notice to employees prior to the commencement of the leave that taking longer than eight weeks of leave may result in the loss of rights and benefits or denial of reinstatement.

Domestic Violence Bill
Finally, under proposed legislation, employers with 50 or more employees would be required to provide up to 15 days of job-secured leave per year for victims of domestic violence, sexual assault, or stalking to take time off to attend to court, housing, health, or other issues related to the abuse.
With new legislation comes new challenges. Consequently, employers would be wise to consult with employment counsel to stay abreast of new legal obligations to ensure compliance.

Annie E. Lajoie, Esq. specializes exclusively in management-side labor and employment law at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]. Karina L. Schrengohst, Esq. is an attorney at Royal LLP; (413) 586-2288; [email protected]

Woman’s World

By BusinessWest Staff November 4, 2013

Law Sections

Royal LLP Helps Clients Get Down to Business

Amy Royal, founding partner of Royal LLP.

It’s an accepted trope that society has become more litigious, Amy Royal says, but not every business understands the implications of that fact.
“When someone loses a job, nine times out of 10, they don’t accept ownership or think it was anything they did, but it must be someone else’s fault,” said Royal, founding partner of Royal LLP, a Northampton-based, management-side labor and employment law firm.
“Unfortunately, our system makes it very easy for disgruntled employees to file claims against their former employer,” she continued. “You can go to a state agency and file for free. You can go to an attorney and engage their services without any real out-of-pocket costs. Because of that, numerous frivolous claims are filed every single day. A lot of people who may have engaged in misconduct are still able to take advantage of the system. It impacts everyone.”
Therefore, one service Royal provides its business clients is helping them to be proactive in a litigious world and develop practices that will save money and headaches in the long run.
“Documentation is key — and adequate documentation,” Royal told BusinessWest. “On the litigation end of things, when I get a case, I meet with the client and hear about how awful this employee was, stories of acts of misconduct, times they didn’t show up for work, and I think this is going to be a slam dunk. And I ask to see the personnel file, and there’s nothing in there to support that, or the documentation isn’t very good.”
So Royal teaches supervisors not only the importance of creating a paper trail, but how to write disciplinary actions that will stand up to scrutiny later on. “You’re writing it for the future — for courts, judges’ eyes, investigators’ eyes. What information do you want to put in there? It goes back to the journalistic principles of who, what, when, where … just stick to the facts.”
That’s one example of how Royal LLP aims to be a partner with its clients, not just a resource they turn to when they’re in legal hot water.
This month marks the five-year anniversary of the firm, which was launched first as Royal & Munnings — with Aimee Munnings, who now runs a large nonprofit organization in Washington, D.C. — and later as Royal & Klimczuk, with Kimberly Klimczuk, who currently works at Skoler, Abbott & Presser, P.C. in Springfield.
Since operating under her solo name, Royal has built a law firm of nine attorneys and has largely realized her initial goal “to create a pre-eminent management-side labor and employment law firm that would support the growth of women and minority attorneys.” Five full-time attorneys are women, and one is African-American.
“It’s really been my mission to provide these opportunities to women and minorities, primarily because, when I started my career, I didn’t see that support, or depth of support,” she recalled. “What prompted me in particular was a report that came out of MIT, around 2007 or 2008, that basically talked about the fact that women attorneys were leaving the private practice of law in large, startling numbers.”
She wondered why, then found the answer. “The women that MIT polled, who took part in the study, said there was no work-life balance in the law firms; they just didn’t support it. I thought, how can that be, especially with the technology today? With the way law firms are structured, a lot of the work can be done at any time, so why is that happening? There must be a solution.”
For this issue and its focus on law, BusinessWest takes an in-depth look at that solution and how this firm intends to stay on its current pattern of consistent growth.

Case in Point

Amy Royal (center, with Karina Schrengohst, left, and Tanzania Cannon-Eckerle) says she set a goal early on of establishing a law practice where women attorneys could succeed and still maintain a healthy work-life balance.

Royal said the economic downturn of the past few years caused many companies to scale back their budgets — in some cases, cutting out preventive work such as training, policy development, audits, and record keeping. But that’s not smart practice, she added.
“I’m a firm believer that, if you spend a little bit of money now, it goes a long way to prevent headaches later,” she said. “While I think I’m really good at putting out fires for clients and problem solving and coming up with innovative solutions immediately, from a business perspective, that’s not the way you want to operate. You don’t want to always be reacting.”
That applies to a wide variety of situations, not just dealing with disgruntled ex-employees.
“For example, fairly recently, I had a company that has always been union-free, and hopefully will continue to be union-free, but they’ve had some union chatter in their organization, and once that train gets going, it’s harder to stop.” So she worked with the client on strategies to reduce the risk of unionization.
“Obviously, there are steps you can take to prevent a union from successfully coming through the door,” Royal said, “but there are many steps you can take before they even arrive, and it’s so much harder to stop it once it’s already on that course than to think about the steps you want to take over the next year, two years, three years to prevent it from ever happening.”
The launch of her own law firm coincided with the financial collapse of 2008, and building a practice over the next five turbulent years has given Royal some strong ideas about what clients want.
“It got me thinking about the future of the law and trends in the law and the delivery of legal services,” she said. So, this year, the firm introduced a flat-fee system that can be structured in several different ways. “I do believe the trend is move away from traditional billable hours, because in what other field do you purchase a product without knowing what the price is going to be? It’s only human that people want certainty in their billing; they want to know what they’re paying for. So we’ve come up with different flat-fee programs; one is all-inclusive and encompasses litigation as well.
“Even some law firms that may be on the cutting edge and have decided to provide some flat-fee services, I don’t think they have done that in the context of litigation because litigation can be so unknown,” she continued. “However, since we have this niche in management-side labor and employment law, we’re able to predict the costs, and we’re able to provide a very reasonable flat-fee arrangement to clients, similar to what you get with insurance, where you share in the risk, so to speak.”

Navigating a Minefield
The risk for businesses comes in many forms, especially at a time when employment law is becoming more complex and tilting, in many ways, toward broader workers’ rights. For instance, the Americans with Disabilities Act of 1990 was amended in 2008 to define virtually anyone with any form of physical and mental impairment as ‘disabled,’ granting them added protection in the workplace.
“That has obviously created a lot of issues and uncertainties,” Royal said. “It’s also an area our state agencies and the Massachusetts Commission Against Discrimination have focused in on. They’ve taken the position that everyone is disabled, and therefore your company needs to be providing accommodations and engaging in dialogue with employees about what accommodations you can give them.”
Those issues can, frankly, be confusing for businesses, which often need a consultant like Royal LLP to train them in how to engage in that dialogue.
The training she and her fellow attorneys provide often takes the form of role-playing exercises with a company’s supervisory staffers, which can be a more effective learning tool than a dry lecture. “We’ve tried to make our trainings very practical and very interactive,” she said.
Other expertise the firm offers has nothing to do with litigation or employee grievance. For example, it helps companies create succession plans — not just for key executives, but for other critical staffers, such as a program manager for a nonprofit. “Do you have a plan in place to deal with the loss?”
The broad range of issues involved in employment law appeals to Royal, as do the long-term relationships she has built hammering out those issues for clients.
“We end up being their trusted business confidant, and that’s the really exciting thing,” she said. “We get to wear different hats — we get to be their advocate in court and litigate hard and aggressively for the client; we get to be their counsel that advises and helps them make plans that are both business-based and have legal implications; and we also get to be their educator, get to train them and their staff in how to stay out of trouble, or at least miminize their exposure to legal risk.”
The steps companies need to take might seem obvious, she told BusinessWest, but aren’t always followed in the day-to-day struggle to survive in a down economy.
“A lot of what I hear from management is there’s not enough time in the day to document issues, and I’m sensitive to that, because I run a business, too,” Royal said. “Again, if you go back to the training and the journalism approach of who, what, when, where, if you jot that down on a piece of paper, it’s not going to take you all that long, and it’s going to save you time in the long run, when you’re embroiled in litigation.”

Community Ties
As she builds the firm’s reputation in area communities — it has a second office in Springfield — Royal said it’s equally important to stay involved in civic life outside the workplace.
“Something I hope to instill in the other attorneys is being active in the community and giving back to the community,” she said. “It’s so important and so beneficial to everyone. So we do have a lot of our staff active in the community.”
Specifically, Royal serves on four different boards and chairs the United Way of Hampshire County, while the other attorneys are active on various boards or nonprofits. “It’s really important to me, and something that has really engaged the attorneys here and gets them to connect with our clients and the community in a different way.”
That’s the kind of work-life balance she knew was possible when she set out with a goal to establish, as she puts it, the pre-eminent labor and employment law firm in this region.
“I do expect additional growth, especially in the Connecticut arena,” she told BusinessWest. “Three of our attorneys are admitted to practice there, and I do have a Connecticut client base.”
Royal LLP has come a long way in just five years, but that doesn’t surprise its founder.
“That was my hope and my vision and my push. I’ve worked really hard to get the Royal name out there in every way I possibly could. So I’m really pleased, but I continue to make that push and want to continue to grow.”

Joseph Bednar can be reached at [email protected]

Divorce in the Electronic Age

By BusinessWest Staff November 4, 2013

Law Sections

Modern Technology Results in a Number of Novel Legal Issues

By KATHERINE McCARTHY
There is no question that communication has become more convenient and accessible due to advancements in technology. Computers, mobile devices, and other types of electronics play a significant role in much of our daily lives. But the everyday use of such modern technology has resulted in many complex and novel legal issues.
This article will highlight the particular issues the use of electronics presents in family-law cases, and what every spouse anticipating or involved in a divorce proceeding should know.

Electronic Evidence
Technology has changed the face of traditional evidence. Common types of electronic evidence attorneys routinely come across in their practice include information obtained from social-media sites (Facebook, Twitter, MySpace, LinkedIn, YouTube), global positioning system (GPS) tracking, text messaging, e-mail, blogging, files stored on a computer, and websites.
These types of electronic evidence are increasingly being introduced into family-law cases. For example, in the context of a highly contested divorce case, a family-law attorney is aware that a wealth of relevant information may be gleaned from the opposing party’s public Facebook or other social-media page. Too often, spouses do not realize the implications of posting comments and pictures on social-media sites. A spouse could easily damage his or her credibility in a divorce proceeding by posting questionable content on social media.
In a divorce case, custody is often an issue that is front and center. If, for example, a parent appears in pictures or makes comments on Facebook that suggest overindulgence in alcohol or other substances during his or her time with the parties’ child, this could negatively impact that parent’s request for custody. More generally, it is important to recognize that anything published on a social-networking site can resurface in litigation, and can have a negative impact on the parent or spouse’s credibility before the court.
Deleting a particular comment, message, or picture from a social-media site may not be enough. It is, perhaps, not surprising that technology exists that can resurrect information a person mistakenly believed had been successfully deleted from a website or computer hard drive. Similarly, changing one’s Facebook security settings to private is not enough because the user’s information could show up on the Facebook pages of those on their ‘friend’ list who have not made their pages private. Social-media account records can also be subpoenaed for use in a court proceeding.
Additionally, individuals should be aware that posting derogatory or negative comments about their spouse on a social-media site could have legal consequences. Such comments could result in an unnecessary defamation lawsuit, or, depending on the severity of the circumstances, a lawsuit for harassment or infliction of emotional distress.
The point here is that individuals involved in family-law disputes must be extremely careful before publishing anything on social media. As a best practice, spouses should refrain altogether from publishing any information about their pending case, their spouse, or anything else that could negatively affect his or her credibility before the court. If an individual has already posted such information, they should take the material down immediately to mitigate any potential repercussions that may follow.

Privacy Concerns
Another increasingly common issue in family-law cases concerns one spouse surreptitiously monitoring or spying on the other spouse. Emotions can run extremely high during a divorce, and some individuals have an inclination to spy on a spouse whom they suspect is behaving poorly, perhaps believing that discovered information may give the spying spouse an upper hand in a divorce. However, these individuals fail to recognize that their actions are oftentimes in violation of the law and could make them susceptible to serious ramifications.
It is true that privacy and wiretapping laws tend to vary from situation to situation. Even so, all too often spouses incorrectly assume that, because they are married, it is OK to log on to their spouse’s social-media and e-mail accounts or look at their spouse’s cell-phone content. It is important to understand what types of actions are potentially illegal.
In the electronic age, spying has become much more sophisticated. An increasing number of people are utilizing spyware technology to monitor their spouses’ online activity. Spyware is software that may be uploaded onto a computer, enabling a user to monitor and track the web activity of a specific person. Spyware software is available at retail stores and online for a modest cost. Once uploaded, the software is often difficult for the novice computer user to detect.
What many people do not know is that Massachusetts has adopted several protective privacy and wiretap laws that carry both civil and criminal penalties for violations. Uploading spyware software to a spouse’s computer, even if that computer is shared with the spouse, could run afoul of these laws. Further, just because one can purchase spyware online or at a retail store, that does not necessarily mean that the software may be legally used to monitor a spouse’s web or cell-phone activity. Illegally obtained evidence not only raises ethical considerations for the spying spouse’s attorney, but such evidence will likely be kept out of a court proceeding by a judge, rendering it useless.
Individuals also too often have the misconceived notion that it is permissible to secretly hack into their spouse’s e-mail, cell-phone and social-media accounts, and are surprised to hear that what they are doing could be illegal. A typical scenario a family-law attorney may encounter involves a client who feels strongly that, because they are still married, he or she is free to monitor the other spouse’s communications.
Similarly, because two spouses share a computer, one spouse may feel justified in monitoring the other spouse’s Internet activity. However, it is illegal under both Massachusetts and federal law to gain unauthorized access to a computer system. Individuals should be aware that logging onto their spouse’s online accounts and viewing his or her e-mails or messages without permission could subject the spying spouse to criminal penalties. This is especially true if the spied-on spouse maintains exclusive control over the device or if the account is password-protected. Further, as a general rule, secret video or voice recording of another person, even a household member, is illegal.
The current state of the law regarding unauthorized access to a spouse’s cell phone is less clear. Courts have recognized a diminished expectation of privacy between spouses, which means that what may be deemed an offensive invasion of privacy between non-married persons may not be recognized as such between spouses. But it is important that individuals are aware that the trend in Massachusetts courts is toward protecting the privacy of individuals, including individuals within a marriage. Hence, just because a spouse guesses or secretly learns the password to the other spouse’s cell phone does not mean that it is permissible to view its contents. Additionally, cell phones, particularly smartphones, are similar to computer systems. Courts could interpret the unauthorized access of a cell phone as falling within the purview of the law prohibiting the unauthorized access to a computer system, resulting in possible criminal liability.
Very often, information obtained by a spying spouse involves the other spouse’s extramarital affair. However, proof of adultery in and of itself does not hold much weight in a contemporary divorce action in Massachusetts. Hence, the risks simply outweigh the benefits in most cases.

What Everyone Should Know
Family-law cases are emotionally charged proceeding. Rational people may display seemingly irrational behavior in the midst of a highly contested divorce. That is why it is important for everyone who is party to a divorce to have a clear understanding from the outset of proper use of electronics and social media. Information about a pending divorce or child-custody issues simply should not appear on social-media accounts. Individuals should also avoid posting anything that may be harmful to their case.
And no matter how tempting it may be to secretly monitor a spouse’s e-mail, social-media accounts and cell-phone contents, doing so could expose the spying spouse to criminal or civil penalties. Anyone considering taking any such action should refrain from doing so and consult a qualified divorce attorney.

Katherine McCarthy works at Robinson Donovan, P.C., where she concentrates on domestic relations. She received her J.D. from Northeastern University School of Law in May; (413) 732-2301; kmccarthy@robinson-donovan

The Bay State’s Personnel Records Law

By BusinessWest Staff November 4, 2013

Law Sections

Beware — There Are Some Traps for the Unwary Employer

By KATHRYN S. CROUSS, Esq.

Kathryn S. Crouss, Esq.

The Commonwealth of Massachusetts has strict regulations regarding employee records, and non-compliance can be costly for employers. Employers and employees should be aware of certain obligations and rights regarding an employee’s personnel file under the Massachusetts personnel records statute.
Amended in recent years to expand employers’ duties, the statute outlines certain affirmative obligations on the part of employers regarding an employee’s personnel record.
The statute defines a personnel record as a “record kept by an employer that identifies an employee, to the extent that the record is used or has been used, or may affect or be used relative to that employee’s qualifications for employment, promotion, transfer, additional compensation, or disciplinary action.” In short, all documents such as internal memos, letters, disciplinary actions, or notes that are being used, have been used, or could potentially be used to affect an employee’s employment are considered part of that employee’s personnel record.
Whether the employer keeps records in the employee’s formal personnel file or in various files, these records are subject to the requirements of the Massachusetts personnel records statute.
Here are more things you need to know:

Review of Personnel Records
The statute has several notable requirements relevant to both employers and employees. Employees and former employees have the right to request any documents that their employers used to evaluate, investigate, or discipline them. They also have the right to review their personnel records within five business days, provided that the request to review the record is made to the employer in writing.
In response, the employer is required to produce all information identifying the employee that is subject to the statutory requirements. While the employee’s written request may imply that the employee is requesting only information formally kept in his or her personnel file, employers must be mindful that the statute’s definition of an employee’s ‘personnel record’ is very expansive, and must carefully examine all records related to the requesting employee to ensure full compliance with the statute’s requirements.
Notably, employers will be in compliance with the statute if they simply allow the requesting employee to review his or her personnel record at the business itself; the statute does not require the employer to copy and forward all records to the employee.

Notice Requirement
New to the most recent amendment, employers must now notify employees within 10 days whenever a document potentially affecting an employee’s employment is placed in the personnel record. Specifically, the statute states that “an employer shall notify an employee within 10 days of the employer placing any information in the employee’s personnel record to the extent that the information is being used, has been used, or may be used to negatively affect the employee’s qualification for employment, promotion, transfer, or additional compensation, or the possibility that the employee will be subject to disciplinary action.”
The implications of this recent requirement are significant for employers. They must now be more vigilant about how they document personnel issues, as each time a document meeting the expansive requirements of the statute is placed in an employee’s personnel file, the employee must be notified. Additionally, employees now have the right to explain or rebut all information they may dispute in their personnel files in response to notification regarding negative information. The statute requires that an employee’s rebuttal to any negative information be transmitted to third parties along with the disputed information.

Exceptions
The most recent amendment to the statute provides that employees will not be permitted to review their personnel records more than twice in a calendar year. However, if an employee makes a request to review his or her personnel record after being notified of negative information, as discussed above, the amendment specifically exempts such reviews from the two reviews permitted each year.
In addition, the statute specifically indicates that a personnel record cannot contain information about another employee if disclosure of the information would be likely to invade the other employee’s privacy. Employers should be careful to edit any information that identifies other employees in disciplinary action forms, notes, memoranda, and the like, in order to comply with the statute’s privacy provision.

Specific Requirements for Larger Employers
Larger employers should note that the statute specifies what written information or documents must be contained in personnel records kept by employers with 20 or more employees. Such personnel files must contain the employee’s name, address, date of birth, job application, résumés, job title and description, compensation, starting date, lists of probationary periods, performance evaluations, written warnings of substandard performance, any other documents relating to disciplinary action, dated termination notices, and waivers signed by employees.

Enforcement
The statute does not provide for a private right of action, so employees cannot file a lawsuit if they believe that their employer has violated the statute. However, the Massachusetts personnel-records law is enforced by the attorney general, who may impose fines between $500 and $2,500 for violations. These fines are applicable regardless of the number of employees an employer has.
The statute leaves many questions open regarding an employer’s responsibility related to an employee’s personnel file, so employers are advised to contact an employment-law attorney to create a compliant personnel-records policy.

Kathryn S. Crouss, Esq. is a member of Bacon Wilson’s litigation department and handles all aspects of civil litigation, including employee and management-side employment-law litigation, personal injury, and domestic-relations litigation; (413) 781-0560; baconwilson.com/attorneys/crouss

A Time to Be Proactive

By BusinessWest Staff November 4, 2013

Law Sections

Take Steps to Reduce Risk of Disability-discrimination Claims

Karina L. Schrengohst

The Massachusetts Commission Against Discrimination (MCAD) and its federal counterpart, the Equal Employment Opportunity Commission (EEOC), have identified disability discrimination as one of their top priorities. Consequently, employers would be wise to take preventive steps to reduce their risk of liability, such as implementing anti-discrimination and anti-harassment policies and training their employees about such policies.
In a nutshell, under state and federal law, it is unlawful to discriminate on the basis of disability in employment decisions such as hiring, promotion, compensation, discipline, discharge, and other terms and conditions of employment. Employers have an obligation to engage in the interactive process and provide reasonable accommodations to a qualified individual with a disability, unless such accommodation would cause an undue hardship to the employer.
Under the Americans with Disabilities Act Amendments Act’s significantly expanded definition of ‘disability,’ when faced with a request for an accommodation, the focus should not be about whether the employee is disabled. Instead, the focus should be on engaging in the interactive process, which is triggered when an employee asks for an accommodation or when an employer recognizes the need for an accommodation.
A reasonable accommodation is a modification or change to the workplace that enables an individual with a disability to apply for a job, perform job duties, or enjoy the benefits and privileges of employment. This may include, for example, modifying work schedules, granting time off, making the workplace accessible by wheelchair, or providing an interpreter.
The interactive process is simply an informal, interactive dialogue between the employer and the employee. It is a conversation during which limitations are identified and reasonable accommodation options are discussed. There should be direct communication between the employer and the employee in which both parties explore possible accommodations. The employee may offer options for what he or she thinks would be the most effective and preferred accommodation, and the employer may offer alternative suggestions. The goal of the interactive process is for the employer and employee to work together to identify reasonable accommodations. Problematically, however, employers sometimes skip this very important conversation.
Many employers have anti-discrimination and anti-harassment policies, but do not go that extra step to train their workers. Employees with supervisory responsibilities in particular should be trained to identify disability discrimination issues. Supervisors, as the eyes and the ears of the company, play an important role in preventing disability discrimination and harassment. Also, because of the MCAD’s and EEOC’s focus on the interactive process, supervisors need to be able to recognize the variety of ways in which a request for accommodation may be articulated so they can identify when there is a need to engage in an interactive dialogue with the employee. Providing supervisors with adequate training is essential to ensure that they do not skip this conversation.
Further, when faced with an MCAD or EEOC claim, one way a company can demonstrate that it takes its anti-discrimination and anti-harassment policies seriously is to show that not only does the company have a policy, but it also took affirmative steps to implement its policy by training its employees and supervisors. The MCAD clearly sees the value in training because the agency has increasingly been ordering that employers conduct training as part of settlement agreements or in addition to monetary damages.
The cost of defending against expensive litigation far exceeds the investment in providing preventive training. Effective anti-discrimination and anti-harassment training is strategically designed. For instance, interactive workshops keep employees engaged with real-life hypotheticals. Also, there are advantages to training rank-and-file employees separately from employees with supervisory responsibility. And the size of the group of individuals per training session and the length of time per session impact the experience.
Another important aspect of training is ensuring that supervisors understand that, when a request for an accommodation has been made, they need to be mindful of the potential risks that accompany employment decisions that are made related to that employee. Employment decisions such as giving a poor performance evaluation, changing job responsibilities or shift, transferring to a different department or location, or discharging an employee who has requested an accommodation can be perceived as discriminatory, harassing, and retaliatory.
This is also important when claims are filed by current employees, as they can be particularly difficult to navigate. However, when an employee puts his or her employer on notice that she or he is disabled and needs an accommodation, or files a claim of discrimination or harassment, it does not give that employee a free pass on otherwise bad behavior. Employers just want to make sure, if they are taking an adverse employment action, that there is documentation that supports that decision.
Finally, it is always a good idea to consult with employment counsel before disciplining or firing an employee who has requested an accommodation.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

Altered States

By BusinessWest Staff November 4, 2013

Law Sections

Benefits Landscape in Massachusetts Changes After DOMA Ruling

By AMELIA J. HOLMSTROM, Esq.

Amelia J. Holmstrom, Esq.

Massachusetts law has recognized same-sex marriages since 2003, but until recently, the Defense of Marriage Act (DOMA) had interfered with Massachusetts employers’ ability to grant same-sex couples full equality under the law.
DOMA governs all federal statutes, including the Employee Retirement Income Security Act (ERISA) and the Family and Medical Leave Act (FMLA). Section 3 of DOMA defined the term ‘marriage’ as between one man and one woman, and ‘spouse’ meant a person of the opposite sex. On June 25, however, the Supreme Court ruled that Section 3 of DOMA was unconstitutional.
The decision, United States v. Windsor, means that state law will now apply to the definition of marriage and spouse, which means that in states where same-sex marriages are legal, state law will take control. Under Massachusetts law, same-sex spouses will now receive all the benefits granted under federal law to opposite-sex spouses. The Windsor decision requires employers to adopt new policies and procedures because the decision impacts employee benefits and certain job-protected leaves and also has tax implications.
ERISA governs some health-benefit plans as well as retirement benefits offered to employees. Many Massachusetts employers have fully insured health plans, and those plans are governed by state law. Since DOMA governs federal laws, same-sex spouses have been covered under state plans since 2003. Some employers have self-insured health plans, which are governed by ERISA.
Prior to the Windsor decision, Massachusetts employers with self-insured ERISA benefit plans were not required to offer such plans to the same-sex spouses of their employees. The court’s decision changes this; Massachusetts employers with ERISA benefit plans are now required to offer insurance to a qualifying employee’s same-sex spouse. And, under COBRA, same-sex spouses who are already enrolled in the company’s insurance will need to receive the opportunity to continue their health-insurance benefits under the same circumstances that apply to opposite-sex spouses.
Qualified employee retirement plans, such as 401(k) and pension plans, are also affected by the decision. The ruling affects who is considered an automatic beneficiary, spousal consent for non-spouse beneficiaries, QDRO protection, automatic death benefits, and the timing and amounts of death-benefit payments, special roll-over rules, hardship distribution criteria, and minimum distribution rules.
These changes to employee benefit plans also raise tax implications. Many employers in Massachusetts already allowed same-sex spouses to be covered under the employee’s insurance plan, but for most such employees, the value of the healthcare coverage provided to the same-sex spouse was subject to federal income and employment taxes. To make matters more complicated, the value of the benefits was not subject to Massachusetts income and employment taxes because those benefits were not considered income under Massachusetts law. After the court’s ruling, same-sex spouses are considered spouses for employee benefit purposes under federal law, and the value of health-insurance benefits provided to those spouses is not considered taxable income.
The court’s decision also affects a same-sex spouse’s use of FMLA leave. Before the Windsor decision, DOMA prevented employers from granting FMLA leave to employees to care for their same-sex spouses. Accordingly, an employer who granted leave to an employee to care for his or her same-sex spouse could not count that leave time against the employee’s FMLA entitlement. This meant that employees who were granted non-FMLA leave time to care for their same-sex spouse were still entitled to leave under the FMLA for reasons other than caring for their same-sex spouse. Thus, some employees received double the amount of job-protected leave. Since the DOMA decision, Massachusetts employers must permit employees to take FMLA leave to care for a same-sex spouse with a serious health condition, and that leave may be counted against the employee’s annual FMLA allotment.
For Massachusetts employers with operations in other states that do not recognize same-sex marriage, the Internal Revenue Service and Department of Labor (DOL) have issued guidance clarifying the impact of the decision in those states. Specifically, same-sex couples legally married in a jurisdiction with laws authorizing such marriages will be treated as married for federal tax and ERISA purposes, regardless of whether they reside in a state where their marriage is recognized. In contrast, however, the DOL’s FMLA guidance provides that an individual will only qualify as a spouse for FMLA purposes if the employee was married to the same-sex spouse in a state where such marriages are legal and if the couple also resides in a state that recognizes same-sex marriages.
You need to take steps to ensure that your policies and procedures are in compliance with the changes in federal law that have followed the court’s Windsor decision. To be sure that you are making the right changes, you should consult your insurance carrier, retirement-benefits administrator, and labor and employment counsel.

Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. Her practice is focused on labor law and employment litigation; (413) 737-4753; skoler-abbott.com

Rx for Trusts in Trouble

By BusinessWest Staff November 4, 2013

Law Sections

Remember: ‘Irrevocable’ Ain’t What It Used to Be

By CAROL C. KLYMAN, Esq.

Carol C. Klyman, Esq.

So, who has a trust and why do we care if it’s ill?
It turns out that there are more people than you think who have set up or are beneficiaries of irrevocable trusts that, for one reason or another, are no longer desirable.
Maybe the law or the reasons for the trust have changed. Sometimes businesses that have been managed through a trust for a period of time may not currently be operating optimally for tax, business, and/or family purposes. Perhaps some provisions of the trust that were originally helpful now cause legal or family problems for the beneficiaries. Maybe the trust has simply outlived its usefulness. Perhaps the laws under which the trust was created are no longer in force.
Can you get out, how, and who decides where you end up? What, exactly, does ‘irrevocable’ mean when applied to a trust?
The Bay State has a long and fairly rich tradition of allowing modification to irrevocable trusts, which now has been amplified by the passage of the Massachusetts Uniform Trust Code in 2012 and a new court decision in 2013. The types of irrevocable trusts that could be affected are, among others, irrevocable trusts holding life insurance, trusts holding businesses for family and/or non-family members, special-needs trusts, and family and revocable trusts that have become irrevocable at the settlor’s death. What follows are some of the ways to modify irrevocable trusts under current law.

Pursuant to the Trust Instrument
• Contingency clauses. Many well-drafted trusts contain contingency clauses that allow the trustee to terminate the trust, to merge it with similar but not identical trusts, and to amend it to bring it into compliance with tax or other laws.
• Termination clauses. These clauses allow the trustee to distribute trust property out to the beneficiaries when it is too small to make trust administration economically viable.
• Special powers of appointment. These are powers that can be retained by the settlor or granted to a beneficiary. They allow trust property to be distributed or held in trust as directed by the person holding the power. This can be very helpful for minor or disabled beneficiaries or those who may have creditor issues, and is an elegant way of amending the trust without recourse to the trustee, the courts, or other beneficiaries.

Under the New Uniform Trust Code
A trust can be modified under the new UTC as follows:
• Without court approval but with the consent of all the beneficiaries and the settlor (M.G.L. c 203E, Section 411);
• With court approval with consent of the all the beneficiaries and with a court determination that modification is not inconsistent with a material purpose of the trust (M.G.L. c 203E, Section 411); and
• By the court where, because of circumstances not anticipated by the settlor, modification or termination will further the purposes of the trust (M.G.L. c 203E, Section 412).

Pursuant to Case Law
The courts in Massachusetts have allowed trust modification in some of the following circumstances:
• To distribute trust property outright or to appoint property in further trust pursuant to a special power retained by the settlor or granted to a beneficiary even though the trust option may not be specifically mentioned (Loring v. Karri-Davies, 1976);
• To implement intended planning to reduce estate or generation-skipping taxes (First Agricultural Bank v. Coxe, 1990, and its progeny);
• To disclaim a trustee power or beneficiary provision even though there is no express provision in the trust (McClintock v. Schahill, 1998); and
• To ‘decant’ trust property into a successor trust without consent of a court or trust beneficiary under the trustee authority, to distribute to or for the benefit of trust beneficiaries (Morse v. Kraft, 2013).

Some Pitfalls
But, beware, there are traps for the unwary!
Sometimes changes can trigger tax, creditor, or government eligibility problems that didn’t exist previously, and this can make the cure much worse that the disease. Here are some of the pitfalls:
• Loss of tax benefits such as the marital deduction or the generation-skipping tax exemption. Many revocable trusts are set up to maximize the use of the Massachusetts or federal estate-tax exemptions ($5.25 million and $1 million, respectively). At the death of the settlor, the trust becomes irrevocable. Any changes made pursuant to any of the methods above must take care not to lose the benefit of these exemptions.
• Loss of eligibility for MassHealth or other benefit programs. Supplemental-needs trusts and other discretionary trusts may be designed to allow the beneficiary to maintain eligibility for MassHealth, supplemental security income, Social Security disability insurance, veterans-assistance programs, or some rent-subsidy programs. Any outright distribution or transfers to a successor trust that allows the beneficiary independent access to trust assets or income can result in loss of eligibility for these benefits and a disaster for the affected beneficiary.
• Exposure to creditors. Some trusts are designed to shield a beneficiary from the claims of creditors. If these protections are not maintained in the successor trust, the beneficiary may end up with nothing.

Moral of the Story
If you have an irrevocable trust, have it reviewed by a knowledgeable attorney to be sure it meets your needs under your current circumstances, and, if not, ask about using one or more or the above methods to make changes. If you are contemplating creating an irrevocable trust, discuss viable exit strategies as part of your plan.
Remember … irrevocable just ain’t what it used to be!

Carol Cioe Klyman, Esq. is a shareholder of Shatz, Schwartz and Fentin, P.C., whose practice concentrates in the areas of elder law, estate and special-needs planning, estate administration, and trusts and estates litigation. She is a fellow of the American College of Trust and Estates Counsel and immediate past president of the Hampden County Estate Planning Council; (413) 737-1131; www.ssfpc.com

On-the-Job Training

By BusinessWest Staff September 10, 2013

Law Sections

Skoler, Abbott & Presser Helps Employers Navigate Legal Minefields

Susan Fentin says she much prefers helping clients sidestep employment-law pitfalls than defending them in court.

Employment litigation was a lot easier a generation ago.
“In the late ’70s and early ’80s, the courts started looking for exceptions to employment at will,” said Ralph Abbott, a partner with Springfield-based employment-law firm Skoler, Abbott & Presser, referring to a company’s right to fire someone for any reason. “Prior to that, when somebody sued a company on an employment matter, you went to court and said the magic words ‘employment at will,’ and then it was over.”
However, the regulatory landscape surrounding employment law has changed dramatically since Title VII of the Civil Rights Act of 1964 barred discrimination on the basis of sex, race, color, religion, and national origin. The evolution of that law, and new protections under the Americans with Disabilities Act (ADA) of 1990 and the Family Medical Leave Act (FMLA) of 1993, just to name two developments, have significantly broadened the scope of workers’ rights.
“Now, if an employee feels they’ve been treated unfairly and looks around for a reason to file a lawsuit, it’s pretty easy to find one,” said Susan Fentin, another partner at the firm.
“It’s just become so much more complicated,” added Timothy Murphy, another partner. “You really do need to have the support of a law firm that specializes in this.”
Specifically, Skoler, Abbott & Presser practices only management-side employment law, counting among its clients businesses of all types, from mom-and-pop companies to multinationals. However, its work spans much more than defending companies against worker grievances in court.
“We much prefer keeping clients out of trouble than defending them when they get into trouble,” Fentin said. “With just a 15-minute phone call, we can say, ‘let’s handle it this way.’ It doesn’t always mean we avoid litigation, but they can set themselves up in a better position.”
Abbott explained that the practice is divided into three “buckets.” There’s traditional labor work, such as negotiations, arbitrations, and advising clients on remaining union-free. Another bucket is employee litigation, including actions under the Mass. Commission Against Discrimination and a host of other state and federal agencies. The third area of practice is the everyday work, as Fentin described, of advising clients on the ever-changing world of employment law and how it applies to their companies.
Take wage-and-hour claims, which Abbott called the “lawsuit du jour” in his field these days, with issues ranging from unpaid overtime hours to misclassification of employees as independent contractors.
“The state law changed a few years ago, with triple damage mandatory for any state wage-and-hour violation — even ones that are good-faith mistakes,” Murphy noted. “As you can imagine, as these claims become more lucrative, more folks are looking at these types of lawsuits, so we’ve seen a real spike there.”
The result, Abbott said, is that there’s more risk than ever for employers and their management and human-resources teams, who often don’t have the resources to keep up with how quickly regulations are changing.
“People aren’t born to be managers; they don’t come out of the womb like that,” he told BusinessWest. “They’ve been promoted, usually because of meritorious service, but they need the skills and training to avoid the pitfalls. People just don’t know this stuff.
“That’s where we come in,” he continued. “We see employers as basically well-meaning people trying to do the right thing under difficult circumstances.”
They might do everything right and still get sued, Fentin noted. “All we can do is manage the level of risk and minimize the possibility of a suit to the greatest extent possible.”

Union Labels
Since its inception in 1964, Skoler, Abbott & Presser has worked with employers in the realm of labor relations and collective bargaining, including all aspects of the National Labor Relations Act of 1935.
But that law, too, has evolved with the times. “One major change is that it’s starting to expand the concept of protected, concerted activity into areas where it was never utilized before,” Abbott said. “We’re seeing that they’re poking more into employment relationships than they have in the past.”
Take the brave new world of social media, for example. The National Labor Relations Board (NLRB), which administers labor law under the act, has made several high-profile rulings regarding the right of employees to complain about their jobs on Facebook and other sites.
Abbott cited the term ‘electronic water cooler’ when talking about the Internet and social media. “In the old days, when employees gathered around and moaned and groaned about their supervisor or what the company was going or not doing, they’d do it around the water cooler. Now it’s done online, and that has created problems for employers, who see all their dirty linen exposed to the world.”
The NLRB has stepped forcefully into this new paradigm, ruling on multiple occasions that such speech is protected. “The world has changed, and (so has) the way people communicate; people will say things on Facebook and not realize the implications,” Abbott said — and companies must understand and learn to deal with this reality.
This federal push for expanded workers’ rights comes at a time when only seven in 100 private-sector workers in the U.S. are in a union, Murphy noted.
“The NLRB is trying to establish some relevance in an environment where the standard labor relationship is not as predominant as it used to be,” Fentin added.
Abbott agreed. “We’re not seeing the uptick in union organizing — in New England and other parts of the country — that was expected with the present administration and its pro-labor view,” Abbott said of President Obama’s five years at the helm. “That hasn’t materialized into greater numbers of new members for unions or significant organizing drives, so the NLRB is now looking for relevance; they’re looking to expand their clout in the world.”
That’s evident in the recent strikes of fast-food restaurants by employees looking to significantly increase their wages. “That’s not related to a union,” he said, “but it’s clearly aided and supported by unions that want to pressure the fast-food industry on the wage issue.”
Meanwhile, unions are certainly not dead, Fentin said, which is why the firm continues to offer strategies to clients looking to remain non-unionized. “The manufacturing sector in Massachusetts has obviously shrunk over the years,” she noted, “but a fair number of clients in human-services agencies are now big targets for unions. We’ve had a couple of clients targeted by union-organizing drives.”

Educate and Connect
The firm’s client training goes well beyond union avoidance, however, encompassing seminars and briefings on topics such as personnel policies, sexual harassment, wage-and-hour laws, discipline and documentation, drug testing, workplace safety, and, of course, the broad implications of the aforementioned ADA and FMLA.
“The firm teaches master classes in both of those,” Fentin said. “The FMLA is a complicated statute to administer; it requires a lot of procedural paperwork.”
It also has a higher profile than it used to, she added. “More people are aware of it, and more likely to believe that they were treated wrongly because of their protected class.”
In addition, “we do a lot of training in discipline and documentation to make sure supervisors understand the importance of being fair and having a business-based reason” for firing, she explained. “We have an at-will law in Massachusetts, but, frankly, if you don’t give a good reason, people will feel they’re not being treated fairly.”
The firm’s educational efforts extend beyond its clients, she added. “We also write and edit the Massachusetts Employment Law Letter. That requires us to be constantly on top of what’s going on. It’s really written for the HR professional — it’s not esoteric; it’s written in plain language so anyone can take an issue we’re talking about and apply it to their own situation.”
Fentin said her work sometimes feels more like family law than business law because it often involves people with long-standing relationships, and when someone feels wronged, the process can get messy. “I had a mediation yesterday that failed because the employee wanted her day in court, and wanted to be vindicated,” she recalled. “It can be an emotional relationship.”
Murphy said the firm encourages clients to talk with a lawyer before they make any personnel decision that can lead to litigation.
“We walk through what the options are so the problem doesn’t happen,” he said. “We take a lot of pride in keeping people out of trouble, even though that’s not the most lucrative course. We’re building long-term relationships — we’ve had some clients since the 1960s. We don’t want to have one transaction with a client; we want to understand their business and be a partner with them, to help them thrive without having to worry about litigation or union problems.”
Abbott said a good result often comes down to simply treating people well and keeping the lines of communication open. “Unions aren’t going to get any traction in a company that treats their employees fairly. You don’t have to be the best-paying company in the world, but you do have to be focused on the employer-employee relationship. And that commitment starts at the top of the company.”
Fentin sees much of her role as trying to keep honest business people out of trouble. “All they’re trying to do is run their businesses. They don’t want to discriminate against anybody, and they want to make sure they’re doing things the right way.
“It is expensive if it ends up in court,” she added. “Talk about a drain on management morale, a time drain, a financial drain. It’s not fun. The better route is to develop strategies that keep you out of trouble.”

Something New
From anti-bullying policies in the workplace to regulations regarding the use of smartphones at work, “there’s always something new bubbling up,” Fentin said. “There’s never a dull month.”
Medical marijuana is another one of those new, hot issues, partly because of the rift between state laws, in states like Massachusetts where its use has been sanctioned, and federal law, which still maintains that it’s illegal. For instance, what if someone uses marijuana for health reasons at home, then fails a drug test at work because traces are still in his system?
“We’re still looking for court guidance on that,” she said. “Frankly, these decisions will take a long time to bubble through.”
Yet, such uncertainty isn’t frustrating to Fentin, but gratifying in a way, because she knows that clients have much at stake from such issues, and she and her fellow attorneys at Skoler, Abbott & Presser are equipped to help employers deal with them.
“This isn’t something abstract — I’m talking about people and how to help them keep their jobs and make their businesses more efficient,” she said. “I love my clients; my clients are my friends.”
Abbott had a similar take. “I believe a lot of people think of a company as a logo, a building, a product,” he said. “Our view of a company is of people — it’s managers, it’s HR people, trying to do the best they can under tough circumstances.”

Joseph Bednar can be reached at [email protected]

A Primer on GINA

By BusinessWest Staff September 10, 2013

Law Sections

Genetic Information, Employment Discrimination, and the Law

Karina L. Schrengohst

In May 2013, actress Angelina Jolie announced that she underwent a preventive double mastectomy after learning through genetic testing that she carries a genetic mutation (BRCA1), which significantly increases her risk of breast and ovarian cancer. The very same month, the Equal Employment Opportunity Commission (EEOC) brought the first lawsuits it ever filed alleging genetic discrimination under the Genetic Information Nondiscrimination Act (GINA).
This relatively new federal law, which was passed in 2008, prohibits employers with 15 or more employees from discriminating against applicants or employees because of their genetic information. Massachusetts’ anti-discrimination law, which applies to employers with six or more employees, also prohibits discrimination on the basis of genetic information. Genetic information includes, for instance, information about an individual’s genetic tests and the genetic tests of family members, as well as information related to an individual’s family medical history. This means that employers cannot request genetic information of applicants or employees and cannot use genetic information as a basis for employment decisions such as hiring, firing, pay, promotion, and other terms or conditions of employment.
GINA protects individuals, like Jolie, from being discriminated against because an employer believes they are at an increased risk of developing certain medical conditions, such as cancer. Jolie’s genetic information, however, can be found in publicly available sources, which falls within one of GINA’s narrow exceptions.
On May 7, 2013, the EEOC filed its first-ever lawsuit under GINA against fabric distributor Fabricut Inc., which had offered a temporary employee, Rhonda Jones, a permanent job subject to a pre-employment drug test and physical. As part of her medical examination, which was conducted by a third-party medical examiner, Jones was required to fill out a standard questionnaire, which asked her to disclose family medical history, such as whether there was a history of heart disease, hypertension, cancer, diabetes, arthritis, or mental disorders in her family. Fabricut rescinded its job offer after Jones’ medical examination resulted in the conclusion that she needed further evaluation to determine whether she suffered from carpal tunnel syndrome.
The EEOC filed a lawsuit claiming that Fabricut violated GINA when it asked for Jones’ family medical history in its post-offer medical examination (and violated the Americans with Disabilities Act when it refused to hire her because it regarded her as disabled). Fabricut immediately settled the case for $50,000.
In its press release about the Fabricut settlement. The EEOC noted that one of the six national priorities identified in its strategic enforcement plan is emerging and developing issues in equal-employment law, which includes genetic discrimination. Thus, it came as no surprise when, on the heels of this lawsuit, on May 16, 2013, the EEOC filed its first-ever class-action lawsuit under GINA against Founders Pavilion Inc., a nursing and rehabilitation center. Similar to the Fabricut situation, the EEOC claimed that Founders violated GINA by requesting family medical history from prospective and current employees as part of its pre-employment, annual, and return-to-work medical exams. The EEOC also alleges that Founders violated the Americans with Disabilities Act by withdrawing offers of employment based on the results of post-offer medical exams.
In light of the EEOC’s recent heightened interest in enforcing employee rights under GINA, employers should take steps to reduce their risk of liability. Obviously, employers should be careful to ensure that they do not inquire about an applicant’s or an employee’s genetic information.
Another way employers can reduce their risk is to include the following cautionary language on all forms requesting medical information about applicants or employees: “The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. ‘Genetic information,’ as defined by GINA, includes an individual’s family medical history, the results of an individual’s or family member’s genetic tests, the fact that an individual or an individual’s family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual’s family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.”
This safe-harbor provision from the GINA regulations provides a level of protection because genetic information received in response to a request for medical information, such as those pursuant to the Americans with Disabilities Act or the Family Medical Leave Act, will be deemed inadvertent and, thus, not a violation of GINA. Finally, the two recent cases filed by the EEOC illustrate the importance of employers working with their third-party medical providers to ensure that the providers’ practices do not violate GINA by requesting family medical history or other genetic information.
Just as Angelina Jolie took preventive measures to reduce her risk of cancer, employers can take preventative steps to reduce their risk of facing a lawsuit for genetic discrimination.

Karina L. Schrengohst, Esq. is an attorney at Royal LLP, a woman-owned, SOMWBA-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

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