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Business Talk Podcast Special Coverage

We are excited to announce that BusinessWest, in partnership with Living Local, has launched a new podcast series, BusinessTalk. Each episode will feature in-depth interviews and discussions with local industry leaders, providing thoughtful perspectives on the Western Massachuetts economy and the many business ventures that keep it running during these challenging times.

Episode 96: January 17, 2022

George Interviews State Senator Eric Lesser

Eric Lesser

BusinessWest Editor George O’Brien has a lively, wide-ranging discussion with State Senator Eric Lesser. The two talk about everything from the prospects for high-speed rail finally becoming reality, to Lesser’s recent decision to run for lieutenant governor. There’s a lot to unpack, and it’s all must listening, so join us on BusinessTalk, a podcast presented by BusinessWest in partnership with Living Local.

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Law

No Breach January

By Lauren C. Ostberg

 

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

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

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

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

 

Inventory the Personal Information You Possess

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

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

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

 

Learn to Encrypt Personal Information

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

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

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

 

Train on Phishing

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

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

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

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

 

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

Cover Story Economic Outlook

COVID Complicates Generally Optimistic Projections

A year ago, business and economic development leaders were looking beyond a surge in COVID to what they were seeing as better times — when the pandemic would be a thing of the past, the economy would rebound, and ‘normal,’ as in the life we experienced before March of 2020, would return. Most of that, especially the parts about COVID being over and returning to normal, didn’t happen. And that explains why, a year later, amidst another strong surge in COVID cases, there is quite a bit of optimism about the year ahead, but also some hedging of bets. This past year showed that we just can’t predict what will happen with this pandemic or with many of its side effects, everything from an unprecedented workforce shortage to inflation and supply chain woes, to a still white-hot housing market. In the stories that begin on page 16, area business leaders look ahead and project a year in which most all of the stern challenges from 2021, and especially the pandemic, will linger. But they also see a new and perhaps better chance to more effectively move on from COVID.

The Economy >>

Optimism Abounds, but Many Factors Make It Difficult to Project


The Region >>

There Were Glimpses of Progress in 2021, and More Are Expected


Small Business >>

Many Are Busy, But Challenges Linger as the New Year Dawns



Higher Education >>

Region’s Colleges, Universities Face More Stern Tests in 2022


Healthcare >>

The Prognosis Is for Another Year of Stern Challenges in 2022


Tourism >>

Sector Is on the Rebound, but Hospitality Still Faces Staffing Issues


Law Special Coverage

What Can Business Owners and Managers Expect in 2022?

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

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

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

John Gannon

John Gannon

Meaghan Murphy

Meaghan Murphy

Employer Vaccination Mandates

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

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

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

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

 

Accommodations to Vaccination

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

 

Biden Administration’s Support for Unions

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

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

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

 

Paid Family and Medical Leave

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

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

 

Employee Mobility: Tackling the Labor Shortage

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

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

 

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

Opinion

Editorial

 

When you talk with people in business about COVID-19, and especially those early days, in March 2020, when the state and the country were shutting down, many will share a similar story that goes something like this:

“When we packed up our computers and went home, we thought it would be for a few weeks or maybe a few months, and then we’d be back — it would be over, and we’d be back to normal.”

Such thinking was certainly understandable. None of us had been through a pandemic before, and this is what we thought: we’ll stay home for a few weeks, hunker down, and then this will pass.

It didn’t take long to realize that those thoughts were unrealistic and perhaps naive. We soon came to grips with the fact that we had a longer wait for ‘normal.’ Much longer.

Nearly two years later, we’re still waiting, and the unfortunate truth is that this is still a long way from being over. Unfortunate, because we all desperately want and need for it to be over, and it isn’t.

“When we packed up our computers and went home, we thought it would be for a few weeks or maybe a few months, and then we’d be back — it would be over, and we’d be back to normal.”

These days, quite a few conversations begin with “I can’t believe we’re still talking about this,” or “I can’t believe we’re talking about this again.”

What we’re talking about are COVID cases rising, long lines for testing, and hospitals being pushed to and then beyond their limits. And in the business world, what we’re talking about, again, are postponed events, canceled business meetings, people avoiding restaurants and movie theaters, colleges not sure if they’ll be able to open their doors when the semester break ends in a few weeks, and area school systems not sure if they’re going to be able to open their doors and stay open, leaving parents wondering what they will do if they don’t.

Yes, we’re still talking about these things, or talking about them again. The COVID fight continues, and the end is nowhere in sight. Meanwhile, a workforce crisis continues, inflation is no longer talked about as ‘transitory,’ production and supply-chain issues persist, and the many businesses that stayed afloat with the help of government lifelines like PPP and the employee-retention credit will not have that net underneath them in 2022.

So why is there is so much optimism about the year ahead, as revealed in our special Economic Outlook section, starting on page 15? Maybe people are thinking that things simply must get better in 2022. Or that COVID has to finally run its course and will now cease controlling our lives.

Perhaps, but there are other reasons. We especially feel a sense that the region did, indeed, catch a glimpse of a post-COVID world in 2021, and it was a very encouraging experience.

It was a brief window, to be sure, and it came roughly between Memorial Day and just before Labor Day. The state had lifted virtually all of its restrictions on businesses, and people started doing things they hadn’t done in a while — like put their masks aside, go to a restaurant, gather as a family, go on a summer vacation, stage a Chamber After 5, or gather for a retirement party.

As noted, it was a brief window, and by the time the Big E staged its return and BusinessWest feted its 40 Under Forty class at the Log Cabin (both in late September), there was plenty of apprehension about a variant called Delta.

Now, there’s far more apprehension about another variant called Omicron, and there are serious questions, and trepidation, about what the first few weeks, or even the first few quarters, of 2022 will be like.

But amidst all that, there is a prevailing sense of optimism that we can finally see a lot more of what we saw during that brief window in the year ahead. We sense that the ingredients may finally in place for actually getting to that proverbial ‘other side’ of the pandemic.

We’re not there yet, and there are some rough weeks and perhaps months ahead, but the signs are there.

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