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American Dreamers

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From left: Daniel Berger, Joseph Curran, and Megan Kludt
Law Sections
Curran & Berger Works to Ease the Path to Immigration

From left: Daniel Berger, Joseph Curran, and Megan Kludt

From left: Daniel Berger, Joseph Curran, and Megan Kludt

The immigration lawyers at Northampton-based Curran & Berger paint a picture of immigration far different from commonly held stereotypes about foreigners scaling walls and taking advantage of the system. They say they work with people unjustly separated from their families over technicalities, and of extremely talented professionals with much to offer this country. These lawyers must overcome a maze of statutory barriers and systemic suspicion that makes their jobs more challenging — but the inevitable success stories even more gratifying.

Joseph Curran likes to talk about a “culture of no.”
Well, ‘likes’ may be inaccurate. He would much rather talk about a culture of ‘yes,’ but Curran — a partner with Curran & Berger in Northampton — is just being realistic about some of the challenges of being an immigration lawyer.
“The culture of no is firmly entrenched. We’ve made very little headway,” he said, referring to changes in immigration policy at the federal level that came about after 9/11. Prosecutors tasked with enforcing those laws “are supposed to use prosecutorial discretion; they’re supposed to be focusing on drug dealers, criminals, terrorists — the bad guys.
“No one ever gets punished for overzealously prosecuting even small things,” he added, “but they could face discipline if anyone thinks they’re being too slack and easy on these people.”
One such ‘small thing’ involved a Portuguese man who had lived in America since 1980 and had grown children and grandchildren living here. He ran into some trouble recently in his home country — it involved surgery — and apparently spent too much time there. “When he returned, the Immigration Service wanted to send him back; they said he had abandoned his green card,” said attorney Megan Kludt, who joined the firm last year.
She went to the prosecutor, who worked for the Department of Homeland Security, Curran recalled, “and said, ‘there are only so many hours in the day; do you really want to waste a whole half-day on an 80-year-old man who has never done anything wrong, when there are so many other cases to work on?’ Even the judge was irritated.”
While immigration is the firm’s specialty, Curran said, there are many subspecialties within that field.
“We are a full-service firm,” Curran said, noting that he, partner Daniel Berger, and Kludt — along with a diverse staff of paralegals and researchers — work with a wide variety of clients, from businesses and colleges looking to bring foreign workers on board to families trying to stay together in the U.S. when one member is faced with deportation.
“I deal personally with a lot of foreign national doctors coming to the U.S.,” he noted. “They make a deal with the Immigration Service and the Department of Labor to work in medically underserved areas in exchange for a green card — and there are a lot of medically underserved areas in Western Mass., including Springfield, Holyoke, Greenfield, and outlying towns. They can’t find physicians, especially primary-care physicians.”
In fact, Kludt said, despite rampant unemployment in the U.S., many businesses and health care organizations are in desperate need of skilled workers that they cannot find, and talented foreign-born workers can fill that gap. The Department of Labor must perform a balancing act in these situations, she added, because it wants to make sure businesses have the staff they need, yet it also needs to protect the interests of U.S. citizens who might lose out on jobs.
Still, “people are not scaling the fence coming in from Mexico; that’s a common misinterpetation of the immigration situation,” she told BusinessWest. “The border is actually fairly quiet, but we’re seeing some highly eduated people struggling to get in, people who could benefit the U.S. One researcher from Iran won’t travel [outside the U.S.] because it’s always a hassle, and he’s never sure he’ll get back in.”

People Who Need People
Early in his law career, Curran explained, he was drawn to a field that gave him more personal satisfaction than, say, divorce law or tort law.
“I chose early on to do just immigration,” he said, noting that his passion was likely sparked at a young age, by a family heavily involved in international matters. “We always had foreign students in our house — maybe a dozen different students over the years. There would be someone from Botswana or Korea or Brazil, talking to me about what life was like in other parts of the world. I didn’t really think about it until later on, but it was something ingrained in me. Then after law school, I met a couple of immigration lawyers and got into this field.”
The firm’s newest lawyer said she was drawn into the immigration niche by the opportunity to make a positive difference in people’s lives.
“I thought I was heading into a career in international relations,” said Kludt, who holds degrees in that field. “My plan was always to do international work, but after graduating from law school, I realized I could do much more here in the U.S. In another country, you make a small difference as part of an international organization, but here, you can make a difference with every single family; every time you win a case, you can look at that person and see them smiling. It’s gratifying.”
She said the job is endlessly varied, and she essentially travels the globe from her office; in a single week before speaking with BusinessWest, she had worked with clients from Denmark, the United Kingdom, China, Brazil, Mexico, and other nations.
But the field can be heartwrenching as well as gratifying. One client had a green card pending when he took an unauthorized trip to Brazil to be with his dying mother, which jeopardized his immigration status. Curran & Berger has been fighting to allow him to stay in the U.S., with no positive resolution yet. “He might give up and go home,” Kludt said. “Sometimes it comes down to that.”
Both Curran and Kludt say they enjoy working through the highly complex statutes surrounding immigration law, but it’s a challenge as well.
“The statute part is very complex, like a Sudoku puzzle,” Kludt said. “Immigration law is one series of immigration reform piled onto another.”
Differences in state laws can pose difficulties as well. Typically, a “crime of moral terpitude” will jeopardize someone’s immigration status, she explained, yet definitions of those crimes can vary from state to state, often with severe consequences.
For example, one state might define assault as any innocuous scuffle, while another might reserve the charge for more serious matters. Yet, because a simple admission of guilt carries the same weight as a conviction in immigration law, someone who admits to a very minor assault charge, resulting in no real punishment, may do permanent damage to his chances of staying in the U.S., so it’s often better to go to court. Kludt said she is often consulted by criminal lawyers to help them avoid such pitfalls.

Dream On
The firm has also been supportive of the Development, Relief, and Education for Alien Minors (DREAM) Act first introduced in the U.S. Congress a decade ago and reintroduced earlier this year. The legislation addresses the plight of young immigrants who have been raised in the U.S. without proper documentation, and would offer a path to legal status to those who have graduated from high school, have stayed out of trouble, and plan to attend college or serve in the U.S. military for at least two years.
“We’re doing a lot of work with students all over the country, and we’ve been hoping for passage of the DREAM Act for the sake of people who came in very young, grew up here, and are highly educated with no place to go,” Kludt said. “We’re working with as many students as possible; a lot of them never talked with immigration lawyers and have no idea what their options are. We’re seeing what we can do for them.”
The problem with current hurdles to immigration, she said, is that too many bright, foreign-born people — some with hard-to-come by skills that could benefit medicine, science, the arts, and other fields — are studying here and then taking that valuable knowledge back to their home countries.
In fact, Curran & Berger specializes in serving “aliens of extraordinary ability,” Kludt said, a legal term for foreign-born individuals who are at the top of their field and are able to self-petition the government for citizenship without being sponsored by a university or other organization.
“Typically, what these people do is extremely complicated, like a seismologist discovering new things about earthquakes,” she said. “We spend a lot of time learning about these things ourselves so we can explain it to the government; we put together packets sometimes two inches thick to try to convince the government that this person is unique, and we don’t want to lose them.”
Of course, many cases are more emotional, such as people who have found their way into the U.S. through educational or humanitarian means and who petition the government for asylum because they have been battered, tortured, or harassed in their home country. Sometimes it takes a long time, with many meetings, for such people to fully explain their story to the point where it will be convincing to a judge.
It’s the successes, Kludt said, that stand out most and continue to energize and motivate the whole team — like in the case of the old man making his way back from Portugal.
“We had the whole family in the back of the courtroom, crying,” she said. “It was a really celebratory event.”

Joseph Bednar can be reached at [email protected]

Crisis in the Courts

By
Diana Sorrentini-Velez
Law Sections
Bottlenecks Across the System Are Limiting Access to Justice

A perfect storm of conditions, but especially a hiring freeze within the state’s judicial system and a still sagging economy that has many people seeking various forms of relief through the courts, has created a huge bottleneck that is in many ways limiting access to justice across Western Mass. The planned closing of Westfield District Court, a step being fought by judges, lawyers, and state legislators, would make a difficult situation much worse, but even if that facility stays open, there appears to be little light at the end of this tunnel.

Diana Sorrentini-Velez

Diana Sorrentini-Velez says the bottlenecks in the area’s courts force justice seekers into a waiting game she compared to purgatory.

Diana Sorrentini-Velez was searching for the right words to sum up, or put into context, what the worsening bottleneck within the region’s judicial system — especially in Probate Court and District Court, where most of her work takes place — means for her clients.
And she managed to find several poignant ways to qualify the problem.
“People are being held in purgatory,” she said in reference to the weeks- or sometimes months-long waits for resolution of issues. “You don’t know which direction you’re going in, and you don’t know how to plan as a result. You know the rug is going to be pulled out from under you at some point; you just don’t know when it’s coming.”
And not knowing is the worst.
“District Court is the peoples court,” she continued. “Everybody goes to District Court, whether it be for personal issues, criminal law, civil issues, or whatever. And when you have individuals who are seeking justice and can’t even get before a judge, what does that do for their confidence in the judicial system? If they can’t be educated as to the alternatives, then they feel they have none, and they’re essentially stuck where they are.”
Tom Kenefick

Tom Kenefick says the region’s courts are in crisis, and will continue to be in that state until they are adequately funded by the state.

Tom Kenefick, president of the Hampden County Bar Assoc., was much more succinct in his commentary. “Our courts are in crisis,” he told BusinessWest. “There’s no other way to put it. Our judicial system is taking some enormously painful financial hits that are now starting to manifest themselves to the public — we’re to the point where the public is really starting to feel it.”
With those and other colorful statements, area attorneys tried to put into words their sentiments about a judicial bottleneck fueled by state budget cuts, a hiring freeze within the judicial system, and economic conditions that are only making the courts that much busier. Things are as bad as most people can remember, and the situation is almost certain to get worse before it gets any better.
Especially if the Westfield District Court is closed, as Robert Mulligan, chief justice for Administration & Management (or CJAM, as he’s called), intends. The closing is being fought on many levels and by many people, said Kenefick, adding that shuttering the facility will force people to drive longer distances to find justice and probably wait longer for it in the long run.
Kevin Maltby

Kevin Maltby says judges are doing the best they can given the circumstances, but they can’t be in two places at once.

“If it does close, that will cast a very long shadow, and I don’t know where it will end,” he explained. “You’re going to have displacement of court personnel, and you’re going to see cases move to other courts that are already overburdened. Meanwhile, people from the Westfield and the hilltowns are going to have to go Holyoke or Chicopee. It will have a huge impact.”
But even if the Westfield court remains open, the bottleneck created by unfilled positions and an unrelenting workload will impact people on a number of levels, said Kevin Maltby, an attorney with Springfield-based Bacon Wilson, who handles large amounts of probate work.
“The problem is there’s a bottleneck at the top,” he explained. “We have cases coming in, but we just don’t have enough judges, clerks, and support staff to move them through efficiently.”
In response to the crisis, the bar association and individual attorneys are stepping up through pro-bono work, much of it aimed at reducing the number of pro-se cases currently clogging the courts, said Kenefick. These efforts are making a small dent in the logjams, but significant steps are needed to bring a needed measure of relief.

Court of Opinion
All the attorneys who spoke with BusinessWest went out of their way to commend those who are still left working in courthouses across Western Mass. They used strong words and phrases to describe what they consider Herculean, but also Sisyphean efforts to keep the wheels of justice turning, albeit slower than most everyone would like.
“They’re being forced to do things with one hand tied behind their backs,” said Sorrentini-Velez. “There’s only so many hours in the day, only so many people who can look at a piece of paper, and so many hours a judge has to review motions and prepare for court hearings. And the consequences are always going to be felt by the general public, because no matter what, at 4:30 everyone’s gone, and people’s problems don’t go away at 4:30; their problems continue.”
Said Maltby, “everyone wants to be able to point the finger at the courts. But if they can’t hire the bodies they need to go through the amount of paperwork that gets filed there on a daily basis, there’re nothing they can do about it.
“Judges can’t be in two places at once,” he continued, adding that the cutbacks are forcing justices to often shuttle back and forth, with their commuting time further limiting their ability to get work done.
The situation is summed up in a recent CJAM edict concerning changes in the schedules for public office hours at the courts. The order to close those offices at 4 p.m. and use the time to catch up on paperwork is designed to help reduce delays, although those we spoke with are rather skeptical about that claim — and Thomas Moriarty, Hampden Register of Probate, is defying the order, noting that he won’t deny the taxpaying public access to justice.
“Our severe staffing reductions require an adjustment in some public office hours so that employees can more effectively serve those who depend on the courts,” Mulligan wrote in the missive. “Court staff have made remarkable efforts to deliver timely justice during three years of significant budget and staff cuts. However, almost one-third of courts now need some uninterrupted time to address backlogs and reduce delays, as already done by courts in other states.”
Quantifying the broad problem, at least from a dollars-and-sense standpoint, Kenefick noted that there has been an overall budget reduction of $85 million over the past three years, requiring implementation of a hiring freeze, among other steps. Overall, the Trial Court has lost 1,167 people statewide, which translates to a 15% reduction in staff.
There are currently 13 judicial vacancies statewide, and eight in Western Mass. alone, Kenefick continued, adding that the hiring freeze has put the remaining judges in a position where they’re often typing their own decisions because there are no clerks or secretaries able to do it for them.
“As people retire or get sick, they’re not being replaced,” he explained. “Staff members are trying to do the work of two or three people.”
Complicating matters further, he continued, is that the crisis comes at the same time legal aid programs are being slashed to the levels they were at 10 to 15 years ago, to roughly $300 million nationwide, said Kenefick, adding that the net effect of these various factors is a serious impact on overall access to justice.
And this phenomenon has a number of manifestations, said those we spoke to — from those agonizing waits for decisions to use of the clogged courts as leverage to gain desired ends.
This latter consequence can be seen in divorce cases, said Ellen Randle, an attorney with Springfield-based Bulkley Richardson and Gelinas Inc. and head of the firm’s Domestic Relations Department, noting that some attorneys and their clients are taking full advantage of the difficult circumstances.
“They put pressure on the spouse by shutting off the money,” she explained. “And that’s a real problem because of the length of time it takes to get even a child-support order.”

Taking a Long Recess
Meanwhile, the logjams in the courts are prompting more parties to look closely at alternative dispute resolution (ADR) options such as mediation and arbitration, as well as limited-assistance representation, in which an attorney takes part of a case — thus reducing the cost to the client — with the goal of moving matters through the process more quickly and easily.
However, many individuals, especially pro-se litigants, are often not aware that such programs exist, or have limited direction concerning them, which adds to the problem, said those we spoke with.
“I’ve had I can’t say how many calls from people saying, ‘I got your name from the court from the list’ — and that’s what it is, literally just a list with contact numbers of every attorney in Hampden County who’s certified to practice limited-assistance representation,” said Sorrentini-Velez. “So you have pro-se individuals who are already frustrated because they’re not in Probate Court for anything pleasant, and are emotionally taxed as a result of whatever is bringing them to the fourth floor [Family Court], and you add to that the fact that there’s not enough clerks because of the hiring freeze, and if they’re lucky enough to make it in front of a judge they’re not going to get a decision for a longer period of time because judges don’t have the staff they need to type up their decisions.”
In response to the growing bottleneck, bar associations and many individual lawyers are doing their part through limited-representation work and various forms of pro-bono work, said Kenefick, noting that these initiatives are having an impact.
“We try, as a bar association, to provide support services, and they are helping in many ways,” he said, adding that initiatives range from a panel dedicated to helping victims of the June 1 tornadoes to a host of legal-aid programs, to initiatives designed to help with the rising tide of pro-se cases, many of them spawned by the recession and its aftereffects.
Beyond such efforts, Randle, who’s taking part in many of them, offered the hope that attorneys across the region will recognize the scope of the problem facing the judicial system and those it serves and commit to putting their efforts toward mitigating the problem by working to revolve matters outside the courtoom.
“If they’re not the one that has control of the money, they need to get an order to get money flowing back into their household, and it’s difficult to tell them, ‘well, we can’t get into court for four weeks,’” she explained. “You hope that all the lawyers who do this kind of work on a regular basis are having this same experience, and so they’re going to be stepping up and being more cooperative in terms of working things out and staying out of court, which is always your first preference.”
Those who can’t stay out will likely wind up playing the waiting game, said Sorrentini-Velez, adding that the bottlenecks in the courts are essentially forcing people to put their lives on hold, and very much against their will.
“And as an attorney, there’s only so much comfort you can provide, because you’re in the same position,” she explained. “You’re also just waiting; you’re at the mercy of the court, and the court is at the mercy of whoever funds them.”

Final Arguments
Kenefick and others said efforts on behalf of many lawyers are helping to keep a bad situation from becoming even worse.
But all those we spoke with expressed real concern about the fact that there appears to be no relief on the horizon, and said the outlook for the courts, and the people served by them, looks very bleak unless lawmakers in Boston take steps to end the hiring freeze and properly fund the judicial system.
“It’s hard to know where this is going to go,” said Randle. “We’re down to two judicial case managers in the Hampden Probate Court for four judges. They’re the gatekeepers of the courtrooms; you have to go through them, and they just can’t keep the cases moving. And Hampshire County doesn’t even have a case manager.”
In other words, it may be some time before there’s anything approaching an end to the crisis in the courts.

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

Social Media and the NLRB

By
Law Sections
What Employers Need to Know to Avoid Problems

There is no getting around it. We live in a social-media-driven world. People regularly tweet on topics ranging from global economic policy concerns to their favorite pizza toppings. A film about the founding of the social-networking Web site Facebook won three Academy Awards last year. Even President Obama is in on the act.
After hosting ‘town halls’ using Facebook and Twitter, the president recently teamed up with LinkedIn for another town hall-style event. The social media-savvy Obama is now the third-most-followed Twitter user in the world, according to Twitter Counter, which tracks the social network’s 14 million users (Justin Bieber currently ranks second on the list, with Lady Gaga taking the top spot).
With instant tweets and Facebook posts literally at an employee’s fingertips, it should be no surprise that social media-related labor and employment litigation is on the rise. Recently, the associate general counsel of the National Labor Relations Board (NLRB) issued a report analyzing the board’s recent social-media enforcement actions. The report reviewed the facts and legal principles in more than a dozen unfair-labor cases involving employee use of Facebook, Twitter and YouTube.
The issue most-commonly raised involved allegations that an employer unlawfully discharged or disciplined one or more employees over the contents of social-media posts. The board’s attorneys also addressed the legality of several social-networking corporate policies accused of being overbroad and restrictive of lawful employee social-media use. The report provides guidance to employers who want to ensure that their social-media policies appropriately balance employee rights and company interests.

Fired over Facebook
The National Labor Relations Act (NLRA) protects employees, both union and non-union, when they engage in “protected concerted activity” — the coming together to discuss working conditions. This is commonly referred to as an employee’s Section 7 rights (Section 7 of the NLRA protects the right of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection”).
But when employees complain about their jobs or their boss on Facebook, are they discussing working conditions with fellow co-workers in a ‘water-cooler’ setting, or are the postings unprotected individual gripes? The NLRB’s report demonstrates that this remains an important and difficult question to answer.
In one case referenced in the report, a luxury-car salesman was fired after criticizing his employer on Facebook following a promotional event that demonstrated a new car model. The employee posted photos and comments disparaging his employer for serving hot dogs, stale buns, bottled water, and other inexpensive items. Apparently, the employee felt that more upscale refreshments were called for. One picture comment mocked the dealership owner for going “all out” for the promotional launch by providing an atmosphere where “clients could attain an overcooked wiener and a stale bun.”
Several days later, the general sales manager called the employee at home and told him to remove the photographs and comments from his Facebook page. The employee complied but later was fired.
The NLRB concluded that the employee’s critical Facebook posts were legally protected. The employee, who worked entirely on commission, had legitimate concerns about the impact the employer’s choice of refreshments would have on his bottom line. The employee also had shared his frustrations over the refreshment display at a staff meeting before posting the pictures and commentary. The board’s attorneys considered the Facebook posts an extension of his earlier expressed displeasure.
Following the release of the NLRB’s report, an administrative-law judge agreed with the board’s attorneys, noting that “there may have been some customers who were turned off by the food offerings at the event and either did not purchase a car because of it or gave the salesperson a lower … customer-satisfaction rating because of it.”
Two restaurant employees were similarly fired after commenting about their employers’ tax policies on the web. After a former employee expressed frustration on Facebook over the employers’ tax-withholding practices, a current employee ‘Liked’ the post, and another posted a derogatory comment about the restaurant owner. Both were let go for not being “loyal enough.”
The board’s attorneys concluded that their discharge was unlawful because the employees’ Facebook conversation shared concerns about important terms and conditions of their employment — the employer’s administration of income-tax withholdings.
Not all employees were as fortunate. For example, a Wal-Mart employee went to Facebook to complain about management “tyranny,” and suggested that the store was in for a wakeup call because several employees were about to quit.
After co-workers responded to his comment and asked why he was so “wound up,” the employee complained that his assistant manager had been chewing him out for misplacing merchandise. The employee’s tirade continued, as he threatened that, if things did not change, the store could kiss his “royal” behind.  The employee was subsequently disciplined for his conduct.
In this instance, the board’s attorneys concluded that the discipline was justified. The employee’s comments were an individual gripe, rather than an attempt to foster discussion about the workplace. The statements did not contain any language suggesting that other employees engage in group action, and were nothing more than a projection of personal frustration over a job.

Is Our Policy Unlawful?
A number of the cases reviewed by the board’s attorneys also addressed employers’ social-media policy provisions. In one case, the employer maintained a “blogging and Internet posting” policy that prohibited employees from posting any pictures on the Internet that depicted the company in any way. This included a prohibition on pictures that portrayed a company uniform or vehicle, or displayed the company logo.
The policy was deemed unlawfully overbroad because it prohibited employees from engaging in protected activity. For example, pursuant to the policy, an employee could not post a picture of workers carrying picket signs portraying the company logo, or wearing a company T-shirt in connection with a protest involving the terms or conditions of employment.
Another case involved a company policy that prohibited employees from using social media in a manner that compromised or disregarded another individual’s privacy rights. The policy also prohibited postings that embarrassed or damaged the reputation of other employees. Again, the NLRB indicated that the policy was overbroad because the rule provided no definitions or guidance as to what the employer considered to be private or confidential. Absent any limitations on what was covered, the rule could be interpreted as prohibiting protected employee discussion of wages and other terms of employment.

Where Are We Now?
It is clear from the NLRB’s report that the board considers a broad scope of social-media activity to be protected. Although ‘concerted’ activity typically involves two or more employees acting together to improve their conditions of employment, or at least a single employee seeking to initiate or to prepare for group activity, a lone employee’s social-media commentary likely will be protected when the statements express his or her sentiments about working conditions.
Follow-up comments or ‘Likes’ from other employees are not necessary to demonstrate that the social-networking activity is a concerted effort. Employers should also carefully craft all of the provisions in a company social-media policy. It is critical that the policy is free of ambiguity.  Employees, union and nonunion alike, should not be led to believe that protected social-media activity is prohibited.

John H. Glenn has been a member of a member of Skoler, Abbott & Presser, P.C. since 1979.  Prior to joining the firm, he was employed by the National Labor Relations Board in Cincinnati. He also has served as an adjunct professor of Labor Law at Western New England College School of Law. John S. Gannon, an associate at Skoler, Abbott & Presser, P.C., joined the firm in 2011. He is admitted to practice in state and federal courts in Connecticut.

Law

By
Law Sections
Autism Legislation: What It Means for Your Child

By MELISSA R. GILLIS, Esq. and DENNIS G. Egan Jr.

Melissa R. Gillis

Melissa R. Gillis

Imagine this: an issue so big that when the governor signs a much-anticipated bill into law so many parents and families want to view the historic event that the signing has to take place at Fenway Park in Boston, instead of the State House, to accommodate the crowd.
Well, that’s exactly what happened on August 3, 2010 when Gov. Deval Patrick signed House Bill 4935 (an Act Relative to Insurance Coverage for Autism Spectrum Disorder, or ARICA) into law. As the crowd cheered, Massachusetts, finally having recognized the unfair and unreasonable burden imposed on families with children diagnosed with autism, became the 23rd state to pass such legislation.
Effective Jan. 1, 2011, private health-insurance plans, employees and retirees under the state plan, hospital service plans, and HMOs are now required to provide coverage of evidence-based, medically necessary autism therapies for diagnosed persons of all ages. After being deemed medically necessary by a doctor, coverage will include habilitative and rehabilitative treatments, psychiatric and other therapeutic care, diagnostic tests, applied behavioral analysis and health treatments, pharmaceuticals, and other care provided, prescribed, or ordered by a licensed physician or psychologist for a person on the autism spectrum, including speech, occupational therapy, and physical therapy. There is no age restriction for any of these treatments to begin or end.
Additionally, insurers cannot establish dollar-amount, annual, or lifetime service limitations on the required coverage that are less than that for other physical conditions, and they are prohibited from limiting the number of visits an individual makes to an autism-service provider. Implementation of ARICA is, however, based on each policy’s specific annual renewal date, so coverage goes into effect only when your company’s insurance plan renews after Jan. 1, 2011.
Dennis G. Egan

Dennis G. Egan

There are several types of plans, however, that are not subject to ARICA. These include self-funded plans, which are regulated by ERISA and therefore subject to federal laws, unless they comply with state laws as a matter of practice. Importantly, services received under MassHealth and CommonHealth are also not subject to ARICA.
Contacting your employer is the easiest way to determine if they are subject to this new law, and for those covered by MassHealth and CommonHealth, families with autistic children under the age of 9 can apply for the Mass. Children’s Autism Medicaid Waiver through the Department of Developmental Services. Additionally, if your plan is regulated by ERISA, the recently enacted federal health care reform contains language that will eventually cover autism treatment. Other caveats to the new law include a clause wherein insurers can opt out of providing coverage for three years if their costs rise by more than1% per year. However, this determination is to be made based on an independent review and not by the insurers themselves.
Opponents of ARICA and small-business owners argue that the cost of providing health care benefits to employees will become even more difficult for businesses already struggling to absorb rising plan premiums. Concerned that increased costs will ultimately cause business owners to offer less-quality health care packages or be reluctant to hire new employees who would be eligible for health insurance, they may have no alternative but to pass the cost along to employees.
ARICA leaves those who are skeptical asking, ‘what’s the catch?’ Many suspicious parents believe the insurance companies will use it as a way to deny claims and force parents to jump through a number of hoops before agreeing to cover services, or that some will simply give up trying. Others don’t want their children to be forced into a label of being on the autism spectrum disorder, and urge everyone to make sure there are proper medical assessments and treatments prior thereto, which seemingly is a catch-22 scenario in and of itself.
Yet advocates, including Autism Speaks, say this law is one of the most comprehensive in the nation, and will finally provide families with the relief desperately needed so that children can receive the therapies they deserve in order to meet their full developmental potential. Your child will no longer be denied, and parents will no longer have to pay out of pocket for health treatment if it’s deemed medically necessary because of an autism diagnosis. Other ARICA proponents argue that, until now, many parents were prevented from actually getting a diagnosis of autism for their child because of a lack of proper insurance coverage.
Under ARICA, educational services provided under an individualized education plan are unaffected. But while insurers are not required to pay for in-school services, studies show that, in other states that have similar legislation, towns and the states themselves end up actually saving money because, when children with autism receive appropriate treatment, more of them are likely to be able to participate in regular classes, thereby reducing the cost of expensive special-education services.
That said, as with any new law or significant change, time is required to work out the kinks, but generally speaking, Massachusetts has certainly made a huge step in the right direction with the acknowledgement that autism is a growing national health crisis, if not an epidemic, and that the time is now for insurance companies to assist families in ensuring their children get the proper treatment and care, just as they would for the flu or common cold.

Melissa R. Gillis, Esq. is an associate with Bacon Wilson, P.C. in the special education, family, and real estate departments; (413) 781-0560; [email protected]. Dennis G. Egan Jr. is an associate with Bacon Wilson, P.C, concentrating in special education, business, and corporate law; (413) 781-0560; [email protected]

Giving Credit Where It’s Due

By
Peter Shrair
Law Sections
Businesses Must Take the Necessary Steps to Protect Themselves

Peter Shrair

Peter Shrair

The Great Recession taught many of us a number of lessons in dealing with our own business and that of our customers. As the businesses that survived the recession learned, in addition to monitoring expenses and trying to carefully guard scarce resources, there are protocols that can be implemented on a regular basis to protect ourselves.
One such instrument is a commercial credit application. This article is not intended to discuss consumer credit transactions; rather, it is simply trying to elaborate on some of the mechanisms that might be used in a commercial setting.
Most entrepreneurs know that two types of credit are available — secured credit and trade credit. Secured credit is typically borrowing from a bank or other institutional lender, which places a lien on business assets and provides a business with working capital or term debt for equipment and other asset acquisition. The majority of credit, however, is trade credit from one business to another. Trade credit is an unsecured promise to pay for the delivery of goods or services.
Most businesses decide on an informal basis what credit terms to provide to their various customers. In order to do this effectively, many use credit-reporting services, and others employ informal procedures they have developed and implemented over time. This writer advocates that a complete credit application should be had from all trade creditors, which can provide information that could prove critical in determining whether to extend credit, how much credit to extend, and what to do if there is a default in payment.
Generally, on a credit application you want to start with the exact name of the account debtor. Whether it is a corporation, limited liability company, partnership, or an individual, you should be careful to specify its correct name. Oftentimes, businesses use a ‘trade name,’ and you should look at the secretary of state’s Web site to verify the correct entity name. The credit application should not be done in the trade name. Further, a responsible person in your organization should review each credit application prior to any credit being extended.
Under the credit application, I would recommend obtaining information as to the owner of the real estate, as well as the owner of any equipment. It is helpful to obtain bank-account information because you have the ability at times to attach certain bank accounts prior to judgment if a default occurs.
In Massachusetts, as in most states, legal fees are the responsibility of each party unless the rule has been varied by contract or statute. As such, you generally want to include a sentence such as, “the undersigned agrees to pay all costs of collection, including reasonable counsel fees if any invoice or other obligation is past due.” By having a representative of the customer sign the credit application and agree to these terms prior to extending credit (not simply placing them on an invoice), you have a better chance that you will be awarded counsel fees if a collection action is started.
You may wish to include terms for service charges as well, and these would also need to be stated in your terms and conditions.
Often, you may be able to secure a guarantee whereby an owner of a business will become personally responsible for the debts of his or her company. This becomes a bargaining consideration and could prove useful. Again, you want to be cautious that the person who executes the personnel guarantee is not a salesman, but rather the owner of the business.
Some companies that extend large amounts of credit or sell large pieces of equipment actually take a security interest in the items being sold. This, too, can be accomplished through a credit application if a security agreement has been included.
If you are operating in the state of Connecticut, then it is imperative that you include the so-called Connecticut pre-judgment waiver paragraph in your document, which allows you to attach assets without notice in certain cases.
If you use general terms and conditions, you want to be sure that an account debtor has agreed to them, and I would advocate that these general terms and conditions also be placed directly on the credit application.
While this article is intended to simply be a brief overview of some of the protections afforded with a credit application, you should remember that the application can be as large or small as necessary to fulfill the needs of your business in determining the critical questions outlined above.

Peter Shrair is managing partner of the Springfield-based law firm Cooley Shrair; (413) 781-0750.

Lessons from the Wal-Mart Case

By
Law Sections
Massive Employee Class Actions Are More Difficult to Maintain

By AMY B. ROYAL, Esq. and BENJAMIN A. BRISTOL, Esq.

Amy Royal

Amy Royal

The U.S. Supreme Court’s recent decision that halted the Dukes v. Wal-Mart 11-year litigation saga appears to signal an end to certain types of employee class actions.
A class action is a lawsuit that is brought by an individual plaintiff, or small group of individual plaintiffs, who represent a larger group of plaintiffs. Many in the media have reported that this decision will frustrate a majority of class actions. However, in reality, this decision will likely have a much narrower scope, and may prove effective only against class actions involving a very large number of plaintiffs.
In the Dukes case, 1.5 million female employees and ex-employees of Wal-Mart — the “nation’s largest private employer,” according to Justice Antonin Scalia — from across the country claimed that their local managers, who had discretion in making pay and promotion decisions, favored men in making those decisions, and that such actions had an unlawful, disparate impact on women in violation of Title VII of the Civil Rights Act of 1964.
The female workers claimed that they were entitled to various forms of relief, including back pay and punitive damages. The workers claimed that the discrimination was common to all female employees at Wal-Mart due to a strong and uniform corporate culture that permits bias against women and infects the discretionary decision-making of every Wal-Mart manager. The class initially received certification at the federal trial-court level, which was then affirmed in the appellate court.
Benjamin Bristol

Benjamin Bristol

The general question before the Supreme Court was whether this ‘class’ of 1.5 million female workers had enough facts in common to join together as a legal class to sue Wal-Mart. The court concluded that it did not.
Rule 23 of the Federal Rules of Civil Procedure governs class certification and provides that a party seeking class certification must demonstrate the following:
• the class is so numerous that joinder is impracticable;
• there are questions of law and fact common to the class;
• the claims and defenses of the representative party are typical of the claims or defenses of the class; and
• the representative parties will fairly and adequately protect the interests of the class.
In reaching its decision, the Supreme Court found that this megaclass could not meet the commonality prong as required under the rules. Specifically, the court noted that the female workers failed to point to a common corporate policy that led to gender discrimination against all of them. “The only corporate policy that the plaintiffs’ evidence convincingly establishes is Wal-Mart’s ‘policy’ of allowing discretion by local supervisors over employment matters,” the court explained. “On its face, of course, that is just the opposite of a uniform employment practice that would provide the commonality needed for a class action; it is a policy against having uniform employment practices.”
This ruling was procedural in nature, i.e., this particular class did not meet the definition for certification as defined under the rules. There was no substantive ruling on the merits of any of these claims, i.e., whether or not discrimination actually occurred. This means these cases are not necessarily over. Although they cannot be brought in this massive form because of the lack of commonality among the individuals, they could be brought in smaller classes or as individuals.
Class actions can arise in numerous employment contexts due to the abundance of laws that apply to the relationship between an employer and its employees. For instance, wage-and-hour laws can provide fertile ground for class actions because violations of such laws can be committed uniformly against a group of employees, or even an entire workforce.
Some examples of wage-and-hour violations that could form a basis for class actions include failing to provide employees with the statutorily mandated meal period, minimum wage, overtime compensation, or compensation for certain types of time spent traveling. Misclassifying employees as exempt or paying nonexempt employees on a salary basis are some other missteps that may lead to class actions. Such actions may also arise where employees are misclassified as independent contractors.
Wage-and-hour class actions can be particularly expensive for Massachusetts employers because the Massachusetts Wage Act awards successful plaintiffs with treble damages, or three times the amount they are owed, for certain violations. Independent-contractor misclassification can result in additional costs due to the numerous laws that are implicated besides wage and hour laws, such as workers’ compensation laws.
In light of these considerations, employers are well-advised to remain vigilant and routinely review their policies and practices for compliance with applicable laws, even in light of the Dukes decision. For, even if a group of employees fails to become certified as a class, that result may prove to be an empty victory if each class member elects to proceed on their own, and a single lawsuit begins multiplying into many more.

Amy B. Royal, Esq. and Benjamin A. Bristol, Esq. specialize exclusively in management-side labor and employment law at Royal LLP, a woman-owned, boutique, management-side labor- and employment-law firm; (413) 586-2288; [email protected]; [email protected]

Estate Planning: Not Just for Elders

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Law Sections
You Should Prepare Now to Prevent Future Problems

Hyman G. Darling

Hyman G. Darling


Maintaining your estate plan is very important, regardless of your health or age. In fact, the Commonwealth of Massachusetts has already drafted a will for you, so if you want to make your own decisions about the distribution of your assets, the only way to do so is through your own will. But that’s just the first step.
This year has brought many state-specific changes in laws that require an update of your plan. For instance, in Massachusetts, there is a new homestead declaration law, which was enacted to provide an automatic exemption for homeowners. There is an additional increased exemption available if it is claimed; however, a document must be prepared, notarized, and recorded in order to become effective.
In addition, the federal law relative to estate taxes has changed so that the exemption is now $5 million per person, but only for two years. Then you must also consider your own state-specific tax laws and tax rates. Since no one knows what the law will be in two years, you shouldn’t count on the $5 million exemption forever, and therefore should plan around an anticipated reduction in the exemption.
Additional documents also need to be revised regardless of the size of your estate. One of the most important is the health care proxy, also known as a health directive, advance directive, or living will in some states. This is not just for the elderly. In fact, everyone over the age of 18 should have one, and this includes your college-age kids, because hospital privacy laws may actually prevent you from obtaining information about them if they become hurt or sick. Three of the most-highly publicized cases regarding the right to die included Karen Quinlan, Nancy Cruzan, and Terri Schiavo, all relatively young women who did not have a health care proxy in place.
This document allows you to designate who will be your decision maker in the unfortunate event of incapacity, as well as whether you wish to be kept alive by machines, and donate your organs. It also may include directives for funeral arrangements, such as cremation, burial, memorials, etc.
The power of attorney is another vital document that every individual should have. It nominates an individual or an entity, such as a bank or trust company, to make financial decisions for you when you become incapacitated and are unable to attend to your own financial matters. This would include paying bills, attending to investments, maintaining or selling a residence, paying a mortgage, filing tax returns, and all other financial matters.
Please note that the person nominated under the power of attorney does not have to be the same person who is serving for health-related decisions. This is an important concept, and the people that you nominate may serve different roles and have different strengths in performing various tasks. Care should be given when making these decisions to select the most appropriate, responsible, and trustworthy individuals to carry out these duties. If you already have a health proxy and power of attorney, it may be appropriate to review them at this time to be sure that the individuals named are still able and competent to make these decisions.
Your will should also be reviewed to be sure that the individuals who are named as executors and beneficiaries remain appropriate for the tasks. If your child or grandchild is named as a beneficiary and has financial or marital problems, or has been declared disabled, it may be appropriate to have their share held in a trust as opposed to providing an outright distribution for them. If a trust is being established, care should be given to choose a trustee who will be capable and willing to attend to all financial affairs.
Consideration for guardians to care for your minor children if you are unable to do so is another important consideration. Please also consider this if you are a grandparent caring for your grandchildren.

Financial Matters
Other areas of concern that must be considered include retirement planning and financial planning. It’s never too early to plan for retirement and provide funds for your children’s education. Setting up so-called 529 Plans, as well as establishing IRAs, Roth IRAs, and funding a 401(k) and other qualified plans, are a necessity. Funds that are contributed at an early age may contribute significant appreciation with compounding and will provide for additional retirement funds to augment whatever your private pension or Social Security may fund.
Other considerations in your planning process include verifying beneficiary designations of life insurance, annuities, and retirement plans. Be sure that the individuals named are still appropriate and listed in the correct percentages and amounts. Also, charitable planning is a major consideration if you want charitable deductions, either during your lifetime or upon your death. Long-term care insurance is also important if you want to alleviate the need to spend private funds for long-term care, be it institutionalized care or home care. The sooner and earlier a policy is purchased, the less costly the premiums, and the more likely you will be insurable, since medical issues may prevent coverage in the future.
In addition, preparing an inventory of your assets, making a list of your professional advisors, and also providing your login names and passwords to online accounts should be completed, so if you become disabled or pass away, there won’t be any delay or problems in accessing those accounts and paying your bills. This includes social-media sites, because your family may wish to create an online memorial or take your pages down.
Nobody likes to contemplate what the future inevitably holds, but it is critically important to follow through on the planning process and complete the necessary documents to minimize taxes, avoid probate, and preserve assets for the next generation.

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; (413) 781-0560; baconwilson.com.

Trials and Tribulations

By
LawSchoolDPart
Law Sections
Law-school Graduates Find Evidence of a Soft Job Market

LawSchoolDPartThey entered law school just as the economy started to collapse and the legal field began to downsize in dramatic fashion. The members of the Western New England University School of Law class of 2011 knew early on in the pursuit of their degree that the job market wouldn’t be healthy when they graduated, and thus they are not surprised by what are generally meager prospects. Some have managed to find quality jobs, but many are looking at an immediate future clouded by question marks.

Peter Meggers described himself as one of the fortunate ones … and then quickly tacked on an adverb to punctuate that assessment.
“I’d guess I’d say I’m one of the extremely fortunate ones,” said Meggers, a member of the class of 2011 at the Western New England College School of Law, who will soon be carrying a business card that identifies him as an associate with the Hartford-based firm Halloran & Sage.
He told BusinessWest that he’ll be handling a diverse mix of duties, but probably a steady diet of insurance defense work to start, and will be earning a salary that exceeds expectations grounded mostly in anecdotal evidence about what he would likely find in the job market.
Much of that evidence came in the form of commentary from friends of colleagues who are simply not as fortunate as Meggers, and whose job-search results would more closely resemble the norm than the exception.

Art Gaudio

Art Gaudio says the laws of supply and demand clearly indicate a need for fewer law-school graduates for the foreseeable future.

“From what I hear, not everyone is having much luck,” he said, referring to classmates. “It’s pretty grim out there right now.”
Melanie Stevens, another of those in the ‘fortunate’ category, agreed. She has a job waiting for her at the Portland, Maine-based firm Friedman, Gaythwaite, Wolf & Leavit pending her passing the Maine bar exam. But most of her classmates are not faring as well.
“From what I’m hearing, it’s awful out there,” she said. “There are no jobs, and when you do find a job, the firm wants attorneys who have experience. I don’t know many people who have been able to find a job.”
Art Gaudio, dean of the law school, says he probably won’t have a very clear picture of just how the latest graduates of Western New England College School of Law are faring in their search for employment until next February. That’s when the results of a survey of that class, detailing where they are working and in what capacity, should be in. (The school waits nine months after commencement for this exercise because history has shown that this is a suitable timeframe to give graduates time to pass the bar and conduct a job search.)
But he has a pretty good idea what that survey will show.
Indeed, he predicts only slight improvement after this past February’s results, which revealed that 77% of all graduates and 83% of survey respondents had found work in the legal field. (When times are better, that first number is closer to 90%).
This modest trend northward shows that, while the recession is technically over, recovery has been slow, and many businesses still lack the wherewithal or confidence (or both) to add employees, said Gaudio, adding that law firms of all sizes fall into this category. Meanwhile, if firms are hiring, they are generally being more selective about who they bring on, simply because they can, with many experienced lawyers looking for a job, or a better one, after industry-wide downsizing at the height of the downturn.
As a result of all this, the employment picture remains fuzzy not merely for the class of 2001 but for the foreseeable future as well — so much so that the law school is cutting admissions for next fall by 20%, from 125 down to 100, a move consistent with what other institutions are doing, Gaudio continued, adding that the simple laws of supply and demand dictate such action.
“At least for the short term, the need for lawyers is down, and the faculty here is taking a proactive stance on this,” he said. “We’re going to reduce the number of people we’re admitting, at least for now, and the reason is what’s happening on the demand side. Why should we put out lawyers who can’t get jobs?”
Similar reductions have come during other severe economic downturns, Gaudio told BusinessWest, citing the early ’80s and early ’90s as examples. The duration of these challenging periods varies, he went on, but this one will likely be longer than normal because of the severity of the economic turmoil and the decline in demand for a number of legal services, from real estate to business transactions to simple wills, which people are apparently content to put off until their economic situation improves.
Eventually, though, the job market will bounce back, said Gaudio, as the economy inevitably improves and, perhaps more importantly, the huge numbers of Baby Boom-age lawyers begin to retire in large numbers.
For this issue and its focus on law, BusinessWest talked with several members of the class of 2011. Most of these individuals have jobs with firms or attractive clerkships lined up, but collectively, they relate a story of a still-lackluster job market.

Offering Testimony
Those who donned caps and gowns for ceremonies at Springfield Symphony Hall on May 21 began their journey through law school in September 2008, or just as the bottom was falling out of the U.S. economy.
By then, the stock market, which was still above 12,000 in early June, was moving south of 9,000 and seemingly losing a few hundred points a day. Financial giants were either going under — Lehman Brothers, for example — or getting bailed out by the federal government, like AIG.
The Great Recession that ensued took its toll on virtually every sector of the economy, including the legal profession, as firms of all sizes responded to sharp reductions in real-estate, transactional, and corporate work by laying off staff, cutting salaries, and imposing formal and informal hiring freezes.
Matters were worst for the class of 2008, said Gaudio, noting that, by the time they’d passed the bar, the job market was in tatters. Things weren’t much better for those graduating in 2009, but there was some improvement for last year’s class, and the needle continues to move in the right direction, but in modest increments, and certainly not fast enough for many of this year’s class.
With no hard data on the class of 2011 coming for another eight months, Gaudio based his projections for the most recent graduates on the experiences of the class of 2010 and commentary from several sources, including the National Assoc. of Law Placement, that matters are slowly improving.
“Many of them [members of the class of 2010] were able get jobs, and the kinds of jobs they were looking to get, but there just weren’t as many as in the past,” he said, again speculating that this year’s graduates will fare slightly better.
But testimony from some of the fortunate ones would indicate that, while the market may well have improved, finding a good job takes persistence, a varied résumé, and a little luck as well.
Meggers took what in better economic times would be considered a typical route to his job at Halloran & Sage, which has a number of offices in Connecticut. He applied at the firm at the beginning of his second year, and earned one of three highly sought-after summer associate’s positions. A month after that 12-week assignment was over, he was offered permanent employment.
For most members of his class, it’s been a longer, harder search, and one that is likely just beginning. “I’d have to say that only a small percentage of people in my class have solid jobs right now, and many of those who do have jobs had to settle for something less than what they wanted.”
And this has left more than a few second-guessing their decision to go to law school, he continued, adding that many members of his class have large amounts of debt and earning potential (for the immediate future, anyway) that doesn’t justify the advanced degree.
Stevens had a similar assessment.
“Most people I know don’t have jobs and don’t know what they’re going to do when they pass the bar,” she told BusinessWest, adding that many are already looking for work outside the legal field. “Everyone’s fear is that loans are going to come due in the fall and no one’s going to be able to pay them.
“Everyone thought that, if you went to law school, you’d have job offers — and that changed very quickly over the last years,” she continued, adding that while most are not surprised by the sluggish job market, they are nonetheless disappointed. “It’s scary right now; there are just no jobs. And that made commencement somewhat bittersweet; people were happy to be done with law school, but in the back of their minds they’re wondering where they’re going to find something and when.”
Rob Preziosi is another of the fortunate few. He’s been accepted into the Army Judge Advocate General (JAG) Corps, and will be attending JAG School in Charlottsville, Va. perhaps as early as next February. But while his path is clear, most of his classmates are confronting question marks.
“Unfortunately, I know of plenty of smart, capable colleagues that simply have no prospects,” he said.
Robin Gallagher, who has secured a clerkship in the Federal District Court in Hartford and is quite content with that assignment, said that, in this tough job market, those faring well, or at least better, managed to diversify their experiences in law school.
“Those who participated in a number of areas, like Moot Court, Law Review, externships [as she did, in Federal Court in Springfield], and public-interest opportunities, are the same ones that are finding jobs,” said the South Windsor, Conn. resident. “Some people are disappointed with the job opportunities that are out there, but I’ve found that the people who took greatest advantage of the opportunities available in law school are the ones finding work now.”

Degree of Difficulty
For the longer term, the job prospects for recent law-school graduates will eventually improve, said Gaudio, noting that, while the recession may push back the retirement date for many Baby Boomers in the legal profession, members of that large constituency will ultimately move on.
“And we’ll need to replace those people,” he continued, putting himself in that category, having graduated from law school 44 years ago. “Eventually, I think there’s going to be considerable improvement on the demand side.”
For now, though, good jobs are at a relative premium, and for many members of the class of 2011 — those outside the ‘extremely fortunate’ category — it may be a while before they can put to use those skills they’ve acquired over the past three years.

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