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Megan Kludt

Megan Kludt

Curran, Berger & Kludt announced that Megan Kludt has become its newest partner. She joined Curran & Berger in October 2010 after working as an immigration attorney for four years in Boston. She is a founding member of the Immigrant Protection Project of Western MA, and has recently gained media attention for her work to free asylum seekers from ICE detention. Kludt holds a bachelor’s degree in foreign service from Georgetown University, a master’s degree in international relations from Boston University, and a juris doctor with an international concentration from Boston University School of Law.

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Decorti Rodgers-Tonge

Decorti Rodgers-Tonge

Decorti Rodgers-Tonge, chair of the Undergraduate Accounting department and assistant professor of Accounting at Bay Path University, has been selected to receive an African American Female Professor Award (AAFPAA). This award was presented to Rodgers-Tonge at the African American Female Professor Awards (AAFPA) Celebration on Sept. 27 at American International College in Springfield. Rodgers-Tonge is the second Bay Path professor to receive the AAFPAA. Janine Fondon, assistant professor and chair of Undergraduate Communications, was honored at the inaugural event in 2017. The goal of the AAFPA is to recognize African-American female faculty who are full-time, part-time, or adjunct, with the hope that this recognition will help institutions recruit and retain African-American female professors, as well as inspire African-American female educators to continue their work in the classroom and pursue post-secondary assignments.

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Michael Kelley

Michael Kelley

Michael Ostrowski, president and CEO of Arrha Credit Union, recently welcomed Michael Kelley as the institution’s new mortgage loan originator. Kelley has more than seven years of experience in mortgage lending, most recently as mortgage loan originator at Polish National Credit Union. Kelley was recognized as Banker and Tradesman Top 5 Originator for Credit Unions in Western Massachusetts for two years in a row. He is a member of the Springfield Rotary Club and assistant coach for the SOY Boys Basketball team.

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Berkshire Bank announced the promotion of Deanna Markham to first vice president, Retail Distribution manager. In her new position, she will maintain a strong leadership presence and community involvement as she remains local to the Berkshires, working from the company’s Pittsfield office. Markham has held many positions throughout the company since her start with Berkshire Bank in 2006 as a branch manager in Lee. In her 12 years at the bank, she has advanced in the company, including promotions to AVP branch manager; vice president, regional manager in Berkshire County; and, most recently, vice president, Sales and Delivery in 2017. In 2016, Markham graduated from the American Bankers Assoc. Stonier Graduate School of Banking and is a Wharton Leadership Certificate recipient. She attended Marist College, where she received a bachelor’s degree in business administration with a concentration in marketing and a minor in fashion merchandising. Committed to giving back to her community, Markham is a Porchlight VNA and Homecare finance committee member and active in the Berkshire Bank employee volunteer program.

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Jacquelyn (Jackie) Guzie

Jacquelyn (Jackie) Guzie

Michael Ostrowski, president and CEO of Arrha Credit Union, recently introduced Jacquelyn (Jackie) Guzie as Arrha’s new Springfield branch manager. Guzie has more than 18 years of banking experience and been recognized throughout her banking-industry career with several promotions at Rockville Bank. Since 2007, she has been a branch manager, most recently in the Suffield Branch at First National Bank of Suffield. A graduate of the New England College of Business and Finance in Boston, Guzie is also an emergency medical technician volunteering at Suffield Volunteer Ambulance Assoc.

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The United Way of Pioneer Valley (UWPV) announced it has hired Paul Mina as its new president and CEO as part of an overall management agreement. Mina brings 30 years of United Way experience to the Pioneer Valley. In addition, Steve Lowell, president and CEO of Monson Savings Bank and chairman of the UWPV board, announced that the organization is entering into a management agreement with the United Way of Tri-County (UWTC). Mina will be reporting to the UWPV board of directors so that local control and oversight is maintained. The UWTC is responsible for overseeing the Mass 211 program, the statewide source for essential community services. Mina noted that more than 45% of the phone calls to the Mass 211 helpline originate from the UWPV service area, so he is familiar with the work being done in the community.

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Melissa Tetreault

Melissa Tetreault

Michael Tucker, president and CEO of Greenfield Cooperative Bank, announced that Melissa Tetreault has re-joined Greenfield Cooperative Bank as a mortgage loan originator in its Northampton Cooperative division. She will work out of the Florence office for Northampton Cooperative, but is available to meet customers in any of the bank’s 10 offices throughout Hampshire and Franklin County. Tetreault has more than 30 years of experience in banking and mortgage lending, including 16 years with Greenfield Cooperative Bank. She holds a mortgage originator license from the Commonwealth of Massachusetts and is a graduate of UMass Amherst with a bachelor’s degree in education. She is also a graduate of the New England School for Financial Studies at Babson College. She is active with the United Way Women’s Way, an affiliate member of the Realtors’ Assoc. of Pioneer Valley, active with the Shelburne Falls Woman’s Club, and a former director of the YMCA and the United Way.

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Matthew Smith

Matthew Smith

Bay Path University announced that Matthew Smith has been promoted to the position of director, Computer Science & Cybersecurity Programs. Smith has been with Bay Path University’s American Women’s College for nearly two years, first serving as an adjunct faculty member and later being named full-time academic director, Cybersecurity and Applied Technology. In June, he was promoted to academic director, Technology, Security & Justice. Smith brings more than 20 years of experience in technology and information-security leadership across the government, financial-services, and technology sectors to his teaching, most recently as a subject-matter expert in digital forensics and incident response at MassMutual Financial in Springfield. He has also held related positions with other Fortune 500 companies, such as General Dynamics and Dell-EMC Corp. He also holds a federal security clearance and is classified within U.S. federal courts for testimony as an expert witness. A veteran of the U.S. Navy, Smith received his MBA from Norwich University, his master’s degree from San Diego State University, and his bachelor’s degree from the University of Maryland.

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UMass Amherst Chancellor Kumble Subbaswamy has been named by Gov. Charlie Baker to the new Massachusetts Cybersecurity Strategy Council, which will advise state leaders on ways to spur economic growth and cyber-resilience in the Commonwealth. The appointment of the 19-member council, which includes representatives from state government, the private sector, and the Commonwealth’s leading research institutions, was announced on Sept. 27 during the 2018 Massachusetts Cybersecurity Forum in Boston. Baker also announced the appointment of Stephanie Helm as the first director of the MassCyberCenter at the Mass Tech Collaborative. The Cybersecurity Strategy Council is chaired by retired Rear Admiral Michael Brown, the former director for Cybersecurity Coordination in the National Protection and Programs Directorate of the federal Department of Homeland Security. He now serves as president of Spinnaker Security, LLC.

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Lam Nguyen

Lam Nguyen

Mayhew Steel Products (Mayhew Tools) has selected Lam Nguyen to fill the role of plant manager at the company’s Basque Plastics Division in Westminster. With more than a decade of manufacturing leadership and operational expertise, Nguyen will oversee the plant’s daily operations while simultaneously improving overall operational efficiency and productivity. Nguyen, whom will report to Mayhew Tools President John Lawless, has a proven track record for implementing lean operational techniques that result in significant cost savings while increasing yield and quality. His managerial responsibilities will include, but not be limited to: production, workflow, automation, quality control assurance, purchasing, raw materials management, assembly, maintenance, and strategic planning. Before joining Mayhew Tools, Nguyen spent seven years as vice president of Manufacturing for Advanced Cable Ties Inc. Prior to that, he was plant manager and general foreman for same Gardner-based company, spending more than 18 years there overall. Nguyen holds an associate degree in business management from Quinsigamond Community College and boasts several certifications, including Six Sigma, CSP600 Lean Manufacturing, JIT, Industrial Electric, Project Management, and Scientific Injection Molding, to name a few.

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Morgan Russell has joined the Main Street Hospitality team as the manager of Guest Experiences across four Main Street Hospitality Group properties. Originally from Boston and having grown up in the Berkshires, Russell brings 10 years of luxury hospitality concierge experience to this new position. Prior to joining Main Street Hospitality, he specialized in building guest-engagement programs for various high-end boutique hotels in Colorado, including the Arrabelle at Vail Square, the Sebastian Hotel, and the Christiana. Russell will work collaboratively with partners throughout the region to expand the guest-experience program at all of Main Street’s hotels and provide visitors an added layer of connectivity to the Berkshires experience. Russell will build out the guest-experience program at the Red Lion Inn in Stockbridge, Porches Inn at MASS MoCA in North Adams, Hotel on North in Pittsfield, and Briarcliff in Great Barrington. Russell graduated from the University of Colorado with a bachelor’s degree in international affairs. In his early career, he worked at the Red Lion Inn, filling various positions from busboy and bellhop to the sales office.

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Jeffrey Trapani

Jeffrey Trapani

Robinson Donovan, P.C. announced that Jeffrey Trapani, a partner with the firm, has received appointments from the Hampshire County Bar Assoc. and the Supreme Judicial Court. Trapani was unanimously approved to fill the upcoming vacancy on the Joint Bar Committee on Judicial Appointments for the Hampshire County Bar Assoc. The committee is an independent, non-partisan entity comprised of two dozen attorneys from across Massachusetts, including three members each of the Massachusetts and Boston bar associations. The Supreme Judicial Court appointed Trapani to the Standing Advisory Committee on the Rules of Civil and Appellate Procedure. As part of the committee, he will assist in reviewing and recommending amendments to the Massachusetts Rules of Civil Procedure and the Massachusetts Rules of Appellate Procedure. Trapani concentrates his practice in civil litigation, including insurance defense, employment law, municipal liability, business litigation, and professional malpractice. He also represents many landlords in summary process action and housing-discrimination claims, and insurance companies in unfair-settlement claims and coverage issues. In addition to trial work, Trapani also represents clients in mediations and arbitrations. He is a member of the Defense Research Institute and the Massachusetts Defense Lawyer Assoc., and since 2008, he has been selected to the Super Lawyers Rising Stars list.

Opinion

Editorial

What’s in a name — or a brand?

Sometimes, very little, especially when it comes to government agencies, state or federal offices, or administrative programs. Changes in names and titles undertaken to eliminate confusion and generate progress rarely succeed in those missions.

We don’t believe that will the case with the state’s decision to rebrand, if you will, its many workforce-oriented agencies under the umbrella name MassHire. For example, the Regional Employment Board of Hampden County is now the MassHire Hampden County Workforce Board; CareerPoint in Holyoke is now the MassHire Holyoke Career Center. Springfield-based FutureWorks is now the MassHire Springfield Career Center; you get the idea.

There are 29 career centers and 16 workforce boards across the state, and they are now all unified under the MassHire brand, replacing what were 45 different names.

It sounds like a simple bureaucratic initiative perhaps designed to save money. But it’s much more than that; it’s an effort to simplify matters for job seekers and employers alike and bring more focus and energy to what is easily this state’s biggest and most vexing ongoing issue when it comes to business and economic development — creating and sustaining a large and effective workforce.

Rebranding to MassHire won’t solve all the problems, but it will make the system that’s been created — and it is a very good system, to be sure — far more user-friendly and reduce a great deal of confusion about where employers, employees, and job seekers should turn for help.

And a good deal of help is needed when it comes to each of those constituencies.

For employers, these are very intriguing times, as we’ve noted on many occasions and in several different ways. The economy is chugging along and doing very well in most respects. Many companies across a number of sectors are in a growth mode, but they are challenged — as in severely challenged — to find talented help that will enable them to achieve that growth.

Rebranding to MassHire won’t solve all the problems, but it will make the system that’s been created — and it is a very good system, to be sure — far more user-friendly and reduce a great deal of confusion about where employers, employees, and job seekers should turn for help.

It’s a numbers game, and it’s reaching a critical stage as unemployment rates continues to fall, even in urban markets such as Springfield and Holyoke, where they have been consistently higher than the state and national averages. In fact, in many states, and in this one, according to most accounts, we’re at what’s known as full employment.

That’s a technical term to describe a situation where, by and large, everyone who needs a job, and is qualified to hold one, has one. Full employment is a good thing, in most respects, but it’s also a dangerous state, because employers are under more duress as they look to fill their ranks.

Meanwhile, this situation is made much worse by the huge numbers of Baby Boomers that are retiring each year.

The phrase you hear most often these days, whether it’s the manufacturing sector (that’s probably where it’s heard most) or healthcare, or even financial services, is that candidates ‘lack the skills’ companies require. The career centers and workforce boards were created to help people acquire those skills and make them workforce-ready.

But because each one had a different name, there was often confusion about just where employers and employees should turn to get the help they needed.

As we said, rebranding to MassHire is not, by itself, going to solve the many workforce challenges facing this state. But it is a big step forward in many respects.

What’s in a name? In this case, plenty.

MGM Springfield

In Good Company

Editor’s Note: From the start, one of the main focal points of the discussion involving MGM Springfield has been the employment opportunities it will bring to the region. Overall, MGM has had to fill roughly 3,000 positions, and it’s filled most of them with residents of the 413. With each job awarded, there is a story. Here are five of them:

Karisma Roach

Karisma Roach

Name: Karisma Roach
Age: 24
Residence: Springfield
Position: Cage Cashier

Why did you seek employment at MGM Springfield?:

I’ve been looking for a better job opportunity for so long and it is finally here. When I came from St. Thomas a couple years ago I never thought I would have the opportunity to build my career at such an amazing company.”

What does this opportunity mean for you?:

This feels just like a dream come true. This is my first full-time and steady job. I remember I cried when I got the position, because I really needed it. I have no words to describe how I feel. But I feel like I’m part of MGM Springfield. I love the management and the staff.”

 

Keishla Morales

Keishla Morales

Name: Keishla Morales
Age: 21
Residence: Springfield
Position: Table Games Dealer

Why did you seek employment at MGM Springfield?:

First of all, I think that MGM is one of the biggest companies worldwide, but most of all in United States. I am taking advantage of the opportunity of working for the first casino at Springfield. This is my reward for all my hard-work successfully completing the Blackjack and Carnival Games courses at MCCTI.”

What does this opportunity mean for you?:

This opportunity means EVERYTHING to me. I have never gambled before, but now I love dealing cards. I’m thankful for all the instructors that helped me out in the process. I’ve had so many struggles in my short life, but being part of this company makes me feel that I can finally take control and secure my future. It makes me feel that I will be able to raise and provide my daughter everything she needs. I’m very happy to finally be here. I look forward to being in the casino life and meet all my co-workers. This experience makes me feel excited, comfortable, but most of all thankful.”

Miguel Figueroa

Miguel Figueroa

Name: Miguel Figueroa
Age: 43
Residence: Longmeadow
Position: Executive Chef at TAP Sports Bar

Why did you seek employment at MGM Springfield?:

I saw the opportunity to grow and the stability the company provides. It’s exciting to grow a concept like TAP. I’m very lucky to lead an outlet like this. I’ve been to Vegas a few times, and I thought it would be great to have something like that in Springfield. It was a no-brainer when I was asked to join the team.”

What does this opportunity mean for you?:

This means a lot. It solidifies that I have made it far, and my hard work has paid off. Running this operation means the world to me, and gives me a sense of pride. Leading one of the outlets the casino has is the ultimate goal as a chef. It separates the good from the great. I feel like I have arrived.

Timothy Mock

Timothy Mock

Name: Timothy Mock
Age: 40
Residence: Connecticut (Moving to Springfield)
Position: Security Officer

Why did you seek employment at MGM Springfield?:

I wanted to be a part of the SHOW. I am a people person, and I love helping people. I wanted to meet different types of people from all different cultures, and MGM provides that. I wanted to be a part of it all.”

What does this opportunity mean for you?:

Working here allows me to be me. I’m fun-loving, outgoing, and I love life. This is who I am. I appreciate MGM for giving me this opportunity. It’s dear to my heart. Being chosen to be a part of this family is very special, and I get to embark on this journey of my life.

Jonathan De Arce

Jonathan De Arce

Name: Jonathan De Arce
Age: 32
Residence: Springfield
Position: Executive chef for the South End Market

Why did you seek employment at MGM Springfield?:

Because I’m from Springfield! I heard about this property since the beginning. I went to Boston for five years, I gained experience, and as soon as I knew that this was real I knew it was my opportunity to come back. I know what MGM Springfield means to the area, I’m aware of where this city has been, and excited about where it is going to be very soon.

What does this opportunity mean for you?:

It means everything! The possibilities are endless. Learning from all the leaders, being able to receive training in Vegas, visiting other properties, meeting all the Executives, this is definitely an eye opener! Sky is the limit!”

Employment

Talking Pot

By Erica E. Flores, Esq.

It took almost two years, but Massachusetts regulators have finally started to issue licenses to businesses looking to grow, manufacture, distribute, and sell recreational marijuana products in the Commonwealth.

The first license went to a cultivation facility in Milford back in June; since then, the Cannabis Control Commission has issued licenses to six other businesses, including provisional licenses for retail locations in Northampton and Easthampton.

Erica E. Flores, Esq.

Erica E. Flores, Esq.

Despite this progress, however, retailers cannot open their doors just yet — retail marijuana products must be tested for various contaminants before they can be sold, and the commission has yet to issue a license to a testing facility. But with the licensing process finally picking up steam, and public pressure on the commission to allow the voter-approved industry to take root, Western Massachusetts employers may be wondering how these changes will affect their workplace and what they can or should be doing to prepare.

Here’s what you need to know now:

Marijuana in the breakroom?

The recreational marijuana law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”

This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana for recreational purposes, even when they are off duty.

That being said, the availability of marijuana products for sale at retail locations (and, eventually, at so-called “cannabis cafes”) will likely drive an increase in marijuana use by adults across the state. This means that employers may see a rise in positive drug-test results by applicants and those who are subject to random testing. Employers may also see an uptick in employees arriving to work impaired and/or using marijuana products on the job.

To combat these potential problems, employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.

Employers may also want to adopt a reasonable-suspicion drug-testing program, if they do not have one already, and train their managers and human resources professionals about how to recognize the signs and symptoms of marijuana impairment and how to properly document their observations. Such evidence, in combination with a positive test result, can help an employer prove that its reasons for disciplining or terminating an employee were legitimate should the employee challenge that decision in a legal forum, particularly given the fact that currently available drug-testing methods do not measure current impairment; they can only detect that the drug is in an employee’s system.

Drug-testing Considerations

Employers may also want to reconsider the scope of their pre-employment drug-testing programs. Such tests are legal in Massachusetts, but a 2016 decision out of the Mass. Superior Court suggests that employers who screen applicants for non-safety-sensitive positions run the risk of being sued for an invasion of privacy. Accordingly, employers can reduce their risk of a privacy claim (and possible liability) by eliminating marijuana from the testing panel for non-safety-sensitive positions or even doing away with drug screens for such positions altogether.

“… employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.”

Finally, employers should be prepared to address requests by prospective and current employees to tolerate the use of marijuana as a reasonable accommodation for a disability. Last year, the Supreme Judicial Court ruled that Massachusetts employers have a legal obligation to accommodate a disabled employee’s off-site, off-duty use of medical marijuana, pursuant to a valid prescription, unless there is an “equally effective alternative” or the employer can demonstrate that the accommodation would be unduly burdensome.

The decision relied, in part, on the language of the medical marijuana law, which guarantees to registered users the continued benefit of all “rights and privileges.” But many disabled employees may choose to bypass the medical marijuana registration process when they are able to obtain the drug at a recreational shop, potentially at a lower cost, while avoiding the cost, time and potential stigma associated with becoming a registered medicinal user. Must these employees also be accommodated?

Technically, the SJC’s decision applies only to employees who have registered as part of the medical marijuana program. Additionally, both the legislature and the Cannabis Control Commission may seek to keep it that way. To be sure, it may not be such a good idea for doctors and other healthcare providers to be able to recommend marijuana as a treatment for a medical condition without going through the process that would enable them to actually prescribe the drug.

Further, it may be bad public policy to encourage disabled persons to self-medicate by using marijuana products that are designed for recreational use as medication. On the other hand, if an employee can demonstrate a disabling condition and the absence of an equally effective alternative to marijuana, allowing employers to deny the accommodation just because the employee obtained the drug at a recreational shop seems somewhat arbitrary.

Bottom Line

These competing considerations are not likely to be resolved all at once, and certainly not right away. So employees who do not want to risk becoming the test case should give some thought to the pros and cons of accommodating such employees and devise a strategy that makes the most sense for their unique business.

When in doubt, employers should consider retaining employment counsel to help them navigate these difficult and ever-changing legal issues.

Erica E. Flores is an attorney at the firm Skoler, Abbott & Presser, P.C.; (413) 737-4753 or [email protected]

Employment

Language Course

 By Timothy M. Netkovick, Esq.

Big changes may be on the horizon regarding non-competition agreements. For the first time, there may be legal restrictions on the terms of those agreements, and, in a major development, employers may be required to pay former employees during the non-compete period.

This is the result of a bill passed by the Massachusetts state legislature that, if signed by Gov. Baker, will mandate the timing of non-competition agreements, the employees who can enter into those agreements, and certain language within the agreement.

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

Employers use non-competition agreements in order to protect their business interest in the event an employee leaves the company and begins to work for a competitor. In that scenario, the now former employee could be motivated to entice clients to their new place of business or to use confidential information of the former employer for the benefit of a competitor.

Historically, there has been little restriction on the contents of a non-competition agreement other than what terms would be enforced by a court in the event of a dispute. However, that may be about to change. If signed by Gov. Baker, the bill states that a non-competition agreement will need to include:

• A reasonable geographic reach in relation to the interest sought to be protected;

• A reasonable scope of the activities prevented;

• That the agreement be supported by a garden-leave clause (more on that later); and

• That the agreement comply with public policy.

The new bill is the result of the Legislature’s perception that non-competition agreements have become overused in the Commonwealth. As such, the bill requires that certain steps be taken at each stage of the employment process. At the outset, the bill mandates that non-competition agreements are unenforceable against:

• Nonexempt employees under the Fair Labor Standards Act (hourly workers);

• Interns;

• Employees terminated without cause or due to layoff; and

• Employees under 18 years old.

In a typical scenario, non-competition agreements are entered into at the beginning of the employment relationship, and can be included as part of the employee’s ‘on boarding’ documents, along with a copy of the Employee Handbook and other standard documents.

The Legislature’s apparent concern is that an employee could sign a non-competition agreement without understanding what they are signing.

In order to protect employees, the bill requires that a non-competition agreement must be entered into by the earlier of a formal offer of employment or 10 business days before the start of employment. In addition, the agreement must be signed by both the employer and the employee and, further, must include a statement that the employee has the right to consult with counsel of their choosing prior to entering into the agreement. In effect, this makes a non-competition agreement the subject of a separate negotiation well prior to the first day of employment.

In the event the agreement is entered into after employment has started, the bill requires that there be a 10-day waiting period before the agreement becomes effective, and that it include the same statement that the employee has the right to consult with counsel of their choosing prior to entering into the agreement.

The bill further requires that “fair and reasonable consideration” be exchanged in order to support the agreement. The bill doesn’t state what “fair and reasonable consideration” is, however, it specifically states that “fair and reasonable consideration” must be more than just the employee’s continued employment.

Since there is no definition of “fair and reasonable consideration,” there can be a variety of potential interpretations as to what that phrase means. Could it be a raise for the employee to support the agreement? A bonus? Unfortunately, the legislation is silent. However, it is clear from the overall text of the legislation that the intent is for more than just nominal consideration, i.e. $1.00.

For the most part, once the agreement is signed, the bill adapts the standards typically used by Massachusetts courts in enforcing non-competition agreements in terms of duration and scope. For instance, Massachusetts courts have typically held that non-competition agreements are enforceable so long as they are reasonable in time and scope.

Courts have also typically interpreted non-competition agreements narrowly in terms of enforcing the agreement for a short period of time and limited to the areas where the employee actually performed services for the former employer. In addition, several professions are exempt from non-competition agreements due to public policy reasons, such as doctors and lawyers.

The major potential change is the requirement for employers to pay their former employees during the non-compete period. Under the bill, the agreement must be supported by a “garden leave clause” or other mutually agreed upon consideration. The bill defines a “garden leave clause” as 50% of the employee’s highest annualized salary within the two years preceding termination. In effect, employers will be required to pay the former employee not to work during the non-compete period.

In addition to the other provisions put in place, it seems that the Legislature’s goal is to provide an additional disincentive for an employer to enter into a noncompetition agreement unless the employer views it as absolutely necessary for a legitimate business interest. Given the other restrictions in terms of the category of employees specifically excluded from entering into non-competition agreements, it’s clear that the Legislature intends for non-competition agreements to apply to only executive or upper level management.

If enacted, these new requirements will require employers to review and modify their existing non-competition agreements. Employers will want to monitor the situation and consult their employment counsel regarding any revisions that may be necessary before they seek to enter into new agreements, or run the risk that those agreements will be unenforceable when the employer needs them the most.

Timothy M. Netkovick, an attorney at Royal, P.C., has 15 years of litigation experience. He has successfully tried several cases to verdict. In addition to his trial experience, he has specific experience in handling labor and employment matters before a variety of administrative agencies including the Mass. Commission Against Discrimination, Equal Employment Opportunity Commission, National Labor Relations Board, and Department of Industrial Accidents. He also assists employers with unionized workforces during collective bargaining, at arbitrations, and with respect to employee grievances and unfair labor practice charges; (413) 586-2288.

Law

Degrees of Improvement

By Kayla Ebner

Claudia Quintero was inspired by a lawyer who helped her — and now gets to do the same for others.

Claudia Quintero was inspired by a lawyer who helped her — and now gets to do the same for others.

In the years immediately following the Great Recession, many law-school graduates were challenged to find employment, let alone their dream job. But the picture is gradually improving, as evidenced by the experiences of recent graduates of Western New England University School of Law.

Claudia Quintero calls it her dream job.

That’s how she characterized the position she landed as a migrant/farmworkers staff attorney at the Central West Justice Center in downtown Springfield.

It’s a dream job, because she’s doing essentially what she always wanted to do and what she went to Western New England University School of Law to do — help people, but especially in the same way that an attorney helped her when she was 16 years old.

She met an attorney through a legal-services program in Los Angeles, where she grew up, who helped her apply for and obtain her permanent residence in just five short months. Quintero was always impressed and grateful for her own attorney’s diligence, and thought, “I want to be just like her.”

Like she said, hers is a dream job.

And those have been quite hard for law-school graduates to attain in recent years. In fact, for some time after the Great Recession, taking any job became the goal and, for most, a hard reality.

But the situation is improving, said Laura Fisher, director of Law Career Services at WNEU Law. She used the phrase “pretty steady” to describe the current climate, and while that’s a long way from ‘robust,’ ‘healthy,’ ‘solid,’ or other, more positive terms, it represents an improved picture and a better forecast for recent graduates.

“When the economy really took a hit in 2008 and 2009, every sector of the economy was disrupted, including law schools and law graduates,” said Fisher, adding, however, that “we’re seeing a rebound now.”

She offered some numbers to back up those words.

At WNEU Law, the class of 2017 graduated 101 students. According to data from the American Bar Assoc. (ABA), 43 of those graduates were employed at long-term, full-time, bar-passage-required jobs 10 months after graduation. Nineteen graduates were employed at what are known as ‘JD advantage jobs,’ meaning passage of the bar exam is not required, but that having a juris doctor degree provides a significant advantage.

Of the 101 graduates, eight were unemployed and seeking. Others were employed at both professional and non-professional positions or seeking a graduate degree full-time.

“The 10-month report for the class of 2017 indicates that the percentage of students with full-time, bar-passage-required, JD advantage, and other professional positions is 71.2%,” said Fisher. “This figure is approximately equivalent to, but slightly elevated, over the previous year, which was 68.9%.”

Laura Fisher

Laura Fisher

The ABA gathered that, nationally, 75.3% of the class of 2017 had long-term, full-time jobs requiring or preferring JDs. This is an increase from the previous year’s sum of 72.6%. However, the ABA credits the higher percentage of employment to “an approximately 6% decrease in the size of graduating classes at law schools nationally” (more on that later).

“When the economy really took a hit in 2008 and 2009, every sector of the economy was disrupted, including law schools and law graduates. We’re seeing a rebound now.”

Slicing through all those numbers, Fisher sees an improving job market and more opportunities for the school’s graduates — in the field of law, but also other sectors where a law degree is quite valuable, and these sentiments are reflected in the experiences of some of WNEU’s recent graduates, like Quintero.

For this issue and its focus on law, BusinessWest talked with Fisher and several recent graduates to get some barometric readings on the job market and where a law degree can take someone these days. For many, their landing spot was, in fact, a dream job.

Cases in Point

In 2013, the graduating class at WNEU included 133 students, said Fisher, summoning more numbers to get her points across. At that time, 49 students were employed at long-term, full-time, bar-passage-required jobs.

Although the class size at WNEU has decreased since then, Fisher said this is entirely by design. She noted that WNEU, along with other schools, are keeping the class sizes at “a reasonable size that’s reflective of what the market entails.”

Daniel carey

Daniel carey

Despite smaller class sizes, Fisher believes these numbers do not reflect a lack of opportunity in the job market.

“Although the market out there still feels pretty flat and we’re being careful about the number of law students we’re producing, I still feel like there’s plenty of opportunity out there,” she said. “Our alumni go on to do wonderful things.”

“Law school to me seemed like a natural way to really combine a lot of my interests and abilities. I’ve always kind of viewed the law as a way to help people.”

And she used that phrase to describe work both inside and outside the courtroom.

Daniel Carey, assistant district attorney (ADA) at the Northwestern District Attorney’s office and WNEU Law class of 2017 graduate, fits into both categories.

“Law school to me seemed like a natural way to really combine a lot of my interests and abilities,” said Carey. “I’ve always kind of viewed the law as a way to help people.”

Beginning law school in 2013, he was looking for a way to get his foot in the door, so he applied for a job at the DA’s office. He landed one as district court administrator, working behind-the-scenes to help the ADAs. He’s been there ever since, but has continued to move his way up. Since starting his role as ADA, Carey has served as director of the Drug Diversion and Treatment program for two years, a new initiative he helped launch for people struggling with addiction. It assists with treatment, rather than putting people through traditional criminal-justice prosecution.

In addition to his role at the DA’s office, he also served on the Easthampton School Committee and was elected to the Easthampton City Council. And he’s currently running for state representative — a significant change in career-path course from his original plan of being a high-school English teacher.

He is not the only one who was initially unaware of where a law career could take them. Nicole Mule, another member of WNEU’s class of 2017, did not know she was interested in law until she took classes during her time as an undergrad.

Nicole Mule

Nicole Mule

With a major in criminal justice and a minor in communication at the University of New Haven, she was required to take several law courses that were taught by lawyers. She mentioned that the classes were taught very much like they are in law school.

“It made me realize why advocating for businesses was so important. As an attorney, I can have a significant effect on my clients’ businesses for their benefit.”

“After that, I was hooked,” she told BusinessWest.

When in law school, she noted that she did not put all her focus into one practice area, and eventually gravitated toward employment law. In 2016, she accepted a summer position with the firm Robinson+Cole, which has offices in Massachusetts, Connecticut, and several other states, and was offered a job.

She’s currently an associate in the firm’s labor and employment group, representing both public-and private-sector employers in a variety of labor and employment matters.

Both of her jobs during law school helped her realize her love for this profession.

“It made me realize why advocating for businesses was so important,” said Mule. “As an attorney, I can have a significant effect on my clients’ businesses for their benefit.”

Firm Resolve

Both Carey and Mule graduated with law degrees but have gone on to completely different professions. This wide variety of career options is another reason why the job market for law school graduates is doing better than it was 10 years ago.

For Caroline Montiel, another 2017 graduate from WNEU, combining two of her biggest passions was important, and she was able to find the perfect fit.

She completed her undergraduate studies in chemical engineering, and after receiving some inspiration from her host dad while studying abroad in Spain, she decided to get her law degree. However, Montiel had a different experience than some of her peers while applying for jobs during law school.

“I was applying every week, at least one job a day,” said Montiel, adding that she applied to five jobs a weekend. For every 50 applications she filled out, she hoped to get one interview.

After she passed the bar exam, she began her career with a judicial clerkship in Connecticut Superior Court. In mid-June of this year, she began her new job as patent examiner at the Patent Trademark Office in Washington, D.C., working in the field she fell in love with during law school.

Much like Carey, Montiel, and Mule, Quintero completed several internships during her time at law school, including one with the people who helped her obtain permanent residency. She began applying for jobs during her third year of law school, and ended up sending in applications to about 10 jobs. Quintero’s strategy was simple: apply to places where she knew she would be happy.

“I was very picky about the kinds of jobs that I applied to just because I have a very specific thing that I want,” said Quintero. “I don’t like to divert energy or waste time doing things that I know I’m not going be happy doing.”

She got about three offers and ended up at Central West Justice Center. She said she was nervous that she wouldn’t get a job she wanted or that made her happy, but having a strong network was an important factor. Though it was a fairly seamless process for her, she noted that it took some of her friends much longer to find jobs.

“I was very cognizant that I was lucky,” she said.

There are certainly benefits to knowing what you want, and Montiel noted that having an idea of the type of career one wants to go into before starting law school can be very helpful.

Overall, Fisher said she sees that JD-advantage jobs are rising in popularity, both nationally and at WNEU. She noted that a lot more people are using their degrees for JD-advantage jobs in positions like higher education, data privacy, and security.

The JD-advantage sector is a route that students are becoming more interested in, she went on, not because there are fewer jobs elsewhere, but because they are interested in trying alternative paths.

Fisher mentioned that some students choose to opt out of the traditional path at a law firm because it can be stressful, and they want a good work/life balance.

Market Forces

Fisher wouldn’t say the market is booming for law-school grads — again, ‘steady’ was the word she chose, and she chose it carefully — but she does believe there are many opportunities out there in the legal job market because of how valuable it is to have a law degree in countless professions.

“A law degree is valuable far above and beyond how it can help you practice law,” said Fisher. “There’s a lot more you can do with it. Going through the process of learning how to think about laws and regulation and risk, I think all of that just lends itself to creating an employee who’s very aware, very mindful, and very responsible.”

For the graduates, that means a better chance of landing a dream job.

Workforce Development

By the Numbers

By Nikki Graf, Richard Fry, and Cary Funk

Workforce

Employment in science, technology, engineering, and math (STEM) occupations has grown 79% since 1990, from 9.7 million to 17.3 million, outpacing overall U.S. job growth. There’s no single standard for which jobs count as STEM, and this may contribute to a number of misperceptions about who works in STEM and the difference that having a STEM-related degree can make in workers’ pocketbooks.

A new Pew Research Center analysis of U.S. Census Bureau data takes a broad-based look at the STEM workforce from 1990 to 2016 based on an analysis of adults ages 25 and older working in any of 74 occupations. These include computer, math, engineering, and architecture occupations, physical scientists, life scientists, and health-related occupations such as healthcare practitioners and technicians.

Here are seven facts about the STEM workforce and STEM training.

1. STEM workers enjoy a pay advantage compared with non-STEM workers with similar levels of education. Among those with some college education, the typical full-time, year-round STEM worker earns $54,745 while a similarly educated non-STEM worker earns $40,505, or 26% less.

And among those with the highest levels of education, STEM workers outearn their non-STEM counterparts by a similar margin. Non-STEM workers with a master’s degree typically earn 26% less than STEM workers with similar education. The median earnings of non-STEM workers with a professional or doctoral degree trail their STEM counterparts by 24%.

2. While STEM workers tend to be highly educated, roughly a third have not completed a bachelor’s or higher-level degree. A substantial share (35%) of the STEM workforce does not have a bachelor’s degree. Overall, about three in 10 STEM workers report having completed an associate degree (15%) or have some college education but no degree (14%). These workers are more prevalent among healthcare practitioners and technicians, computer workers, and engineers.

Some 36% of STEM workers have a bachelor’s degree but no graduate degree, while 29% have earned a master’s, doctorate, or professional degree. Life scientists are the most highly educated among STEM workers, with 54% having an advanced degree.

3. About half of workers with college training in a STEM field are working in a non-STEM job. Among workers ages 25 and older with at least a bachelor’s degree, 33% have an undergraduate degree in a STEM field of study. But only 52% of these STEM-trained workers are employed in a STEM occupation.

Among non-STEM occupations, management, business, and finance jobs attract a substantial share of college graduates with STEM training (17%), particularly those who majored in engineering. Roughly a quarter (24%) of engineering majors are in a managerial, business, or finance job.

Overall, among adults with a STEM college major, women are more likely than men to work in a STEM occupation (56% versus 49%). This difference is driven mainly by college graduates with a health-professions major (such as nursing or pharmacy), most of whom are women.

However, 38% of women and 53% of men with a college major in computers or computer science are employed in a computer occupation. And women with a college degree in engineering are less likely than men who majored in these fields to be working in an engineering job (24% versus 30%). These differences in retention within a field of study for women in computer and engineering occupations are in keeping with other studies showing a ‘leaky pipeline’ for women in STEM.

4. STEM training in college is associated with higher earnings, whether working in a STEM occupation or not. Among college-educated workers employed full-time year-round, the median earnings for those who have a STEM college major are $81,011, compared with $60,828 for other college majors.

The earnings advantage for those with a college major in a STEM field extends to workers outside of STEM occupations. Among all non-STEM workers, those who have a STEM college degree earn, on average, about $71,000; workers with a non-STEM degree working outside of STEM earn roughly $11,000 less annually.

5. The share of women varies widely across STEM job types. Women are underrepresented in some STEM job clusters, but in others they match or exceed their share in the U.S. workforce overall. In fact, women comprise three-quarters of healthcare practitioners and technicians, the largest occupational cluster classified as STEM in this analysis, with 9.0 million workers — 6.7 million of whom are women.

And women’s gains since 1990 in the life sciences (up from 34% to 47%) have brought them roughly on par with their share in the total workforce (47%), a milestone reached in math occupations (46%) as well. Women remain underrepresented in engineering (14%), computer (25%), and physical-science (39%) occupations.

6. Women have made significant gains in life and physical sciences, but in other areas their shares have been stable, and in computer jobs it has declined. While there has been significant progress for women’s representation in the life and physical sciences since 1990, the share of women has been roughly stable in several other STEM job clusters.

In engineering, the job cluster in which women have the lowest levels of representation on average, women’s shares have inched up only slightly, from 12% in 1990 to 14% today. And the share of women has actually decreased in one of the highest-paying and fastest-growing STEM clusters — computer occupations. In 1990, 32% of workers in computer occupations were women; today, women’s share has dropped to 25%.

7. Blacks and Hispanics are underrepresented in the STEM workforce relative to their shares in the U.S. workforce as a whole. This underrepresentation is evident across all STEM job clusters, with one exception: 11% of healthcare practitioners and technicians are black, similar to the share of blacks in the total workforce.

Within job clusters, however, the share of blacks and Hispanics varies widely. For example, 37% of licensed practical and licensed vocational nurses are either black or Hispanic. By comparison, other health-related jobs have smaller shares of workers who are black or Hispanic, including physicians and surgeons (11%), pharmacists (10%), dentists (9%), and physical therapists (9%). Just 5% of optometrists, veterinarians, and chiropractors are black or Hispanic.

Asians are overrepresented across all STEM occupational groups, particularly among computer workers and life scientists. They account for 19% of workers in both of these fields, which is much higher than their share in the workforce overall (6%).

The share of Asians varies substantially within occupational groups, however. For example, in engineering jobs, the share of Asians ranges from 30% among computer-hardware engineers to 2% among surveying and mapping technicians. Among healthcare practitioners and technicians, 21% of physicians and surgeons are Asian. But Asians comprise a far smaller share in other occupations, such as veterinarians (3%) and emergency medical technicians and paramedics (2%).

Nikki Graf is a research associate focusing on social and demographic trends at Pew Research Center. Richard Fry is a senior researcher focusing on economics and education at Pew Research Center. Cary Funk is director of science and society research at Pew Research Center.

People on the Move

Local news hires, promotions, awards, and appointments

Daniel Bonelli

Daniel Bonelli

Comcast announced the appointment of Daniel Bonelli as vice president of Finance for the company’s Western New England Region, which includes more than 300 communities in Connecticut, Western Mass., New York, Vermont, and Western New Hampshire. In this role, Bonelli will oversee all financial operations, including finance and accounting, warehouse and materials, information technology, facilities, security, fleet management, and environmental health and safety. Bonelli began his career with Comcast in the Western New England Region in 2007 as a financial analyst. He quickly progressed to manager and then director before being promoted to senior director of Finance in 2014. In 2016, he relocated to the Philadelphia area, where he served as senior director of Finance for one of Comcast’s largest regions, overseeing a team of 60. Bonelli graduated with a bachelor’s degree in finance from Central Connecticut State University.

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Rania Kfuri

MaryLynn Murray

The Women’s Fund of Western Massachusetts (WFWM) announced that Rania Kfuri and MaryLynn Murray have joined its Board of Directors. They will each serve a three-year term. Kfuri currently works as the Communications and Partnerships officer for the Solidago Foundation. Throughout her life experiences, she has worked to support educational opportunities and access to resources that improve the lives of women and girls. She has a professional background in international development, with a master’s degree in ethics, peace, and global affairs from American University in Washington D.C. Murray is vice president for Commercial Lines and Sales at the Insurance Center of New England. She holds an MBA with a concentration in human resources and has been employed in the insurance industry since 2002. She previously served on the board of the Agawam Small Business Assoc. and on the Women’s Fund marketing committee. In addition, new officers elected include Haydee Lamberty-Rodriguez as board president (formerly vice president), Leigh Rae as vice president (formerly board clerk), and Pia Kumar as clerk. Layla Taylor, immediate past board president, will remain on the board through June 2019.

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Valley Venture Mentors CEO Liz Roberts announced that she will be leaving her position as of July 13, at which time current chief operating officer Kristin Leutz will take the helm of the organization that has been dedicated to nurturing entrepreneurship in Western Mass. Roberts plans to depart after a period of growth for Valley Venture Mentors (VVM). During her tenure, she launched the Startup Accelerator program, in which entrepreneurs receive five months of training, mentoring, office space, and access to equity-free funding. Entrepreneurs who graduated from all VVM programs generated $51 million in revenue and fundraising during the past three years, and created 500 full-time and part-time jobs over the course of 2017. The Startup Accelerator program earned recognition as a model rural accelerator by the Obama administration. Prior to joining Valley Venture Mentors as COO in 2017, Leutz served as vice president for Philanthropic Services at the Community Foundation of Western Massachusetts, where she helped create programs such as Valley Gives. Leutz also aided entrepreneurs at VVM as a volunteer mentor for many years before joining the team. She has had a career in global philanthropy and business leadership spanning organizations like MassMutual and RefugePoint, a Cambridge- and Nairobi-based, globally recognized social-impact startup. She has led operations, fundraising, and marketing, and brings decades of experience to her role at VVM.

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Patrick Love

Springfield College announced that Patrick Love will serve a two-year interim appointment as vice president for Student Affairs and program director of the Student Personnel Administration (SPA) program, effective Aug. 6.  The college will resume a national search for both positions in 2020. Love will serve as a member of the president’s leadership team in his role as VP for Student Affairs and will work closely with the leadership of the Division of Academic Affairs in his role as SPA program director. He brings to Springfield College a career in higher-education leadership and teaching, spanning managerial work in student affairs and academic affairs, and as a professor in Student Affairs. He is a lifelong educator who focuses on growth, development, and transformation.  He is also an experienced writer, author, speaker, coach, and trainer on leadership and management development.  He has consulted with or spoken at more than 40 colleges and universities, was a tenured professor at two research universities, and is nationally known for his innovative approaches to management as well as a commitment to student education and development.  He is active in both the American College Personnel Assoc. and the National Assoc. of Student Personnel Administrators. Most recently, Love was executive in residence at Bowling Green State University, serving as senior lecturer. Previously, he was vice president for Student Affairs at New York Institute of Technology, associate vice president for Student Affairs at Rutgers University, associate provost for Student Success at Pace University, co-director of the Higher Education Program at New York University, and director of the Master’s Higher Education Program at Kent State University.

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Hector Toledo

Jocelyn Walsh

Jacqueline O’Connell

Joseph Dallair

Greenfield Savings Bank (GSB) announced four team members for its new Hadley office: Hector Toledo, Jocelyn Walsh, Jacqueline O’Connell, and Joseph Dallair. Toledo has been named office manager of the new Hadley office. He joins Greenfield Savings Bank with 28 years of experience in banking. In his role as manager, he will concentrate on business development, in addition to managing the operations of the Hadley Office. Among his volunteer roles for numerous local nonprofit organizations, Toledo is a board member and chair of the finance committee of Baystate Health and a member of the board of the Food Bank of Western Massachusetts. He has previously chaired the board of Springfield Technical Community College and served as a board member of both the YMCA of Greater Springfield and the United Way of Pioneer Valley. Walsh has been promoted to the Hadley office as a super banker. GSB super bankers are customer-service professionals who can assist customers with a wide range of banking services, including account openings, online and mobile banking, as well as account transactions. Before joining the staff in Hadley, she worked for GSB at the Shelburne Falls office for more than two years. O’Connell has joined the staff of the Hadley office as a super banker. She has worked for GSB for more than three years at the Amherst office on University Drive. Dallair has joined the staff of the Hadley office as a teller. Prior to joining the team at Greenfield Savings Bank, he worked for three years in customer-service positions in other industries. He began working at GSB in 2017 as a teller in the Greenfield office.

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Kimberley Lee, a recognized leader in the nonprofit sector of the Western Mass. region, has joined the staff of MHA, a nonprofit provider of residential and support services to people impacted by mental illness, developmental disabilities, substance abuse, and homelessness. Lee is taking on the newly created role of vice president of Resource Development and Branding for MHA. Lee previously served in communications and development roles in several local nonprofit organizations, including CHD, Square One, the Basketball Hall of Fame, and the Community United Way. She has advanced these organizations and the people they serve with an active voice in the community and through vigorous advocacy achieved by constant policy influence at the local, community, and state level. A lifelong resident of Western Mass., Lee earned her bachelor’s degree in mass communication from Westfield State College.

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River Valley Counseling Center (RVCC) named Anna Dyrkacz to be its director of Finance. She was appointed to the position last month by Rosemarie Ansel, RVCC’s executive director. Dyrkacz has more than 17 years experience in the healthcare and human-services industry and came to River Valley Counseling Center from a leadership position at Pathlight. She has also held leadership positions at Southgate Retirement Community, Cooley Dickinson Hospital, and Kindred Healthcare of Springfield. She has a bachelor’s degree and MBA from Western New England University, majoring in finance.

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Jeremy Melton

Florence Bank promoted Jeremy Melton to the position of first vice president/Risk Management, Compliance and Community Reinvestment Act (CRA) officer. Melton joined Florence Bank in 2012. Prior to his recent promotion, he served as vice president/Risk Management, Compliance and CRA officer. Melton supports his community as the board chair and finance/audit committee member at Tapestry. He also serves as a board member for the Western Massachusetts Compliance Assoc.

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Mary Ann Coughlin, associate vice president for Academic Affairs at Springfield College, was recently awarded the John E. Stecklein Distinguished Member Award from the Assoc. for Institutional Research (AIR). The award recognizes an individual whose professional career has significantly advanced the field of institutional research through extraordinary scholarship, leadership, and service. Coughlin has a long-standing relationship with the AIR, including serving as a past president and as a trainer for national workshops sponsored by the association. In 2012, she was the recipient of the Assoc. for Institutional Research Outstanding Service Award, recognizing her professional leadership and exemplary service to AIR and for actively supporting and facilitating the goals and mission of the association. During her tenure at Springfield College, Coughlin has served in a variety of positions, including faculty member, president of the faculty senate, and her current administrative position in Academic Affairs. Coughlin worked as a professor of Research and Statistics at the college prior to moving into administration. In her current role, she supervises academic support services and provides leadership for program review, outcomes assessment, faculty development, student success initiatives, and institutional research.

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The Rotary Club of Springfield elected its new President, Susan Mastroianni, and board of directors at its recent meeting.Originally from the Bronx, N.Y., Mastroianni worked in Springfield for more than 26 years, first as media director for FitzGerald & Robbins Advertising and then as a partner and director of Media Services at FitzGerald & Mastroianni Advertising in Springfield, which closed in 2016. She has been a member of the Rotary Club of Springfield since May 2006. In addition to being president, she chairs the club’s publicity committee also serves as vice president of the board of directors for the Gray House in Springfield. She is a graduate of Marist College in Poughkeepsie, N.Y., with a bachelor’s degree in communication arts.

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Every year, the Massachusetts Commission on the Status of Women asks every state legislator to nominate someone from their district as an “Unsung Heroine.” For state Rep. Aaron Vega, this year’s pick was Debbie Flynn-Gonzalez, program director at the Gándara Center’s Hope for Holyoke peer-recovery support center. Flynn-Gonzalez began her career in social work as a mental-health clinician performing outreach work in Holyoke 24 years ago before her personal background in recovery led her to work with the recovery community. She launched the first peer-recovery program for pregnant and parenting women in Holyoke and led that program for eight years. She has been program director for three years at Hope for Holyoke, which has 300 active members, with an average of 50 people accessing the center daily. Flynn-Gonzalez earned her bachelor’s degree in social work at UMass Amherst and her master’s degree in counseling and psychology from Cambridge College.

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The United Way of Pioneer Valley announced that Kathryn Dube is serving as interim president and CEO as the board of directors conducts a search for a new CEO. Dube is a former chairman and vice chairman of the board at United Way of Pioneer Valley and has served as chairman to a number of United Way of Pioneer Valley committees. Most recently she was employed as senior advisor for the United Way of Pioneer Valley since her retirement in December 2017 and was recognized as United Way Volunteer of the Year in 2014 and 2015. Prior to retirement, Dube was a senior vice president of Retail Banking and Wealth Management at TD Bank and Berkshire Bank.

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KeyBank recently announced the addition of new retail leaders in markets across Connecticut and Massachusetts. Locally, Brandon Ojakian joined KeyBank with the title of vice president and area retail leader in the Northern Conn. and Western Mass. markets. Ojakian has 20 years of experience in the banking and finance industry. He joins KeyBank from Santander Bank, where he served as a district executive leading branch teams in Connecticut, Massachusetts, and Rhode Island. Prior to Santander, he led several retail regions for Citizens Bank. He holds a bachelor’s degree from Albertus Magnus College.

Employment

Shades of Gray

Free Speech in the WorkplaceRecent high-profile issues around free speech in the workplace — from the NFL’s new national-anthem policy to ABC’s blackballing of Roseanne Barr — have elicited much debate in the public square, with the point often made that private-sector employees have no right to free expression. But that’s not exactly true — or, at least, it’s not as black-and-white as some might believe. That fact creates uncertainty for employers, who must balance their own interests with their employees’ very human desire to speak their mind.

When NFL Commissioner Roger Goodell, backed by 31 of 32 owners, announced a new national-anthem policy last month, they hoped it would quell an issue that seemed to be dying down on its own.

They were wrong, to judge by the wave of debate — in the media, online, and among players — that followed, and promises to bleed into the 2018 season. Even President Trump, whom the NFL hoped to placate with the new policy, only intensified his tweeted attacks on players and teams — a tactic he knows plays well to his base.

The new policy removes the existing requirement that players be on the field during the playing of the national anthem, but does require that players who are on the field must stand, and authorizes the NFL to fine teams whose players violate this policy. Supporters of forcing players on the field to stand have repeatedly argued — in internet comment boards and elsewhere — that private employees have no free-speech rights in the workplace.

But is that true?

To a significant degree, it is, area employment lawyers say, but the issue is far more gray than the black-and-white terms on which it’s often debated.

“Obviously, the Bill of Rights is a constraint on government action; clearly, the First Amendment doesn’t restrict what a private-sector employer can do or not do” when it comes to establishing workplace rules, said Timothy Murphy, an attorney with Skoler, Abbott & Presser. “And, if you think about it, the vast majority of employees work in the private sector and are at will, and can be terminated for any reason, as long as it’s not illegal.”

However, he went on, according to the National Labor Relations Board (NLRB), employees are generally protected when speaking out on issues that impact the workplace. In other words, companies can’t just fire an employer over anything he or she says on social media, even criticism of the company itself — particularly if that criticism specifically targets an employee policy or the workplace environment. In fact, the NLRB has likened such talk to water-cooler chatter, only in a more public forum.

Tim Murphy

Tim Murphy says private-sector workers have far fewer free-speech rights than public-sector workers — but that doesn’t mean they have no rights.

“If you’re taking a knee because you’re concerned about police brutality, are you making a statement on an issue of mutual concern that impacts your workplace?” Murphy asked. “The NLRB does tend to take a broad view of what impacts your workplace. Would something like that be viewed as protected speech under the NLRB? I don’t know.”

Because the NFL’s anthem-policy changes were not collectively bargained with its unionized workforce, they may be susceptible to legal challenge, notes Michael McCann, a sports-law expert who writes for Sports Illustrated. But, intriguingly, free expression of this kind may find even more protection now than before, if a player chooses to file a complaint, because he could argue that kneeling is also a protest against an onerous, hastily implemented workplace policy.

“Players could argue that such a change will impact their wages, hours, and other conditions of employment,” McCann notes. “To that end, a player could insist that, while the new policy does not lead to direct league punishments of players, it nonetheless adversely affects the employment of players who do protest in ways that violate the new policy.”

It’s just one example of many of the ways in which free speech in the workplace is an amorphous beast, pulling in competing issues of discrimination, harassment, and other labor laws.

“That’s why people like me have jobs. The law provides a lot of areas for employers to get in trouble doing things that seem like common sense,” said Daniel Carr, an attorney with Royal, P.C. “It’s entirely reasonable for employers to think employees being critical of them at work are guilty of some egregious conduct, but they may not realize that criticism does contain some protected rights.”

Power to the People

Because the NLRB has established a bit of a record on this front, the issue of speaking out against an employer on social media is a bit clearer right now than other, related situations.

“Generally, if the speech is oriented toward addressing some workplace condition or benefit, if it’s targeted toward concerted activity for the mutual benefit of workers, that can have the largest amount of protection,” Carr said. “But it’s sometimes unclear where the lines are. If you say, ‘company X is awful,’ well, how are they awful? Do they treat their employees badly? That might be protected.”

Daniel Carr

Daniel Carr says employees generally have the right to speak out about work conditions, but it’s sometimes unclear where the lines are.

Even without specifics, he went on, the NLRB has often come down on the side of employees, he noted. For example, saying “the products they sell are terrible” might be protected if someone works on commission, and the product really is terrible, so they don’t sell a lot of them.

“My thinking is, if you work for company X, you couldn’t go online and say, ‘do business with company Y.’ That crosses a line,” he added. “But the NLRB does have a lot of protections for employees criticizing their own companies, and even moreso if the criticism is based on the way employees are treated, or other conditions of employment.”

What to make, then, of the NLRB’s statement in January that Google didn’t violate labor laws last summer when it fired engineer James Damore? He was terminated after distributing a memo criticizing the company’s diversity program.

He filed a complaint, and Jayme Sophir, associate general counsel with the NLRB, concluded that, while some parts of Damore’s memo were legally protected by workplace regulations, “the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.”

Sophir made it clear that, in this case, an employer’s right to enforce anti-discrimination and anti-harassment policies permits it to restrict the kinds of speech that could lead to a hostile workplace.

“Where an employee’s conduct significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination or harassment,” she noted, “the board has found it unprotected even if it involves concerted activities regarding working conditions.”

Indeed, Carr noted, as one example, employers are expected to grant accommodations for religious expression — certain dress codes, or short breaks for prayer — but not necessary for proselytizing to co-workers.

“There’s a lot of gray area where somebody’s religious beliefs may conflict with somebody else’s protected rights,” he said. “For example, if you have a religious belief against gay marriage, you don’t necessarily have the right to advocate for that in the workplace, where you might potentially discriminate against a gay employee. There are a few areas of anti-discrimination law where one person’s right conflicts with another person’s.”

Even clearer are employers’ rights when it comes to online speech by employees that has nothing to do with work conditions but theatens to cause the company embarrassment or reputational harm — such as ABC shutting down its hit show Roseanne last month after its namesake star, Roseanne Barr, fired off a racist tweet comparing Valerie Jarrett, a prominent African-American woman, to an ape.

Barr’s case is muddled by the fact that the public doesn’t know what stipulations she might have agreed to in her contract — and, considering her past tendencies to be controversial, such stipulations would probably be a wise move by the network.

“That certainly deals with a private employer’s ability to sanction speech it doesn’t agree with,” Murphy noted, adding that employers have much more to worry about in this realm than it did a decade or more ago. “These days, reputational damage can go viral at the drop of a hat, and employers want to be able to act to protect their brands.”

To measure the speed at which this can happen, look no further than the Justine Sacco debacle of 2013. A senior corporate communications director for IAC, an international media firm, she began tweeting travel-related jokes from Heathrow Airport while waiting to board a flight from London to South Africa. The last one was a joke intended ironically: “Going to Africa. Hope I don’t get AIDS. Just kidding. I’m white!” Then she turned off her phone. By the time she turned it back on in Cape Town, she was famous.

Although Sacco had only 170 Twitter followers, tens of thousands of angry responses to her ‘joke’ flooded Twitter, and she even became a trending hashtag, #HasJustineLandedYet — all in the space of a few hours. By day’s end, IAC had fired her. She’s certainly not the only employee to run afoul of an employer’s right to protect its brand through such a termination; Barr is just the latest in a long string of cases.

Public or Private?

It’s clear, Carr said, that private-sector employees need to be more careful about what they say than government employees, who do have greater protections.

“It is true that the First Amendment does not apply to private actors; there has to be a government actor. And there’s even some gray area in terms of what is and what is not a private employer,” he said, citing, for example, the example of a private contractor working on a government project.

“It gets tricky because these free-speech kinds of issues are often less about free speech and the First Amendment and more about labor law,” he said, citing, as one example, anti-discrimination laws that protect employees against being fired for religious reasons. “You don’t have an unfettered right to political speech in a private workplace, but there may be some overlapping and intermingling of, say, political speech with protected speech.”

For example, he noted, “the policies that political figures make do often affect the workplace, and insofar as employees have a right to engage in concerted activity, that can become a gray area. For example, somebody is advocating for a candidate that is proposing to pass anti-union legislation, then you’re clearly intermingling political speech with issues of labor law.”

Murphy noted that these issues tend to proliferate around election time, and employers often handle them on an ad hoc basis as they arise. “Employers want a civil workplace, but they don’t want to seem like heavy-handed censors. I’ve never seen a policy that deals with talking politics or the issues of the day at work; in general, employers say, ‘for everybody’s sanity, let’s try not to ratchet this up too much.’ Because these issues reflect society, and there can be a lot of hard feelings.”

On the matter of off-duty speech, on the other hand, employers are often taken aback by what the law and NLRB rulings actually say, Murphy said. “Is off-duty misconduct something employers have a right to weigh in on or sanction? Most employers say, ‘yes, we do, if it impacts our reputation or customers.’”

Some wrinkles of labor law have decades of case guidance behind them, Carr noted, while others are fairly new — social media being a prime example. “As each successive change in the law occurs, there’s a huge lag in getting guidance from judges. And for every law that’s passed, it’s impossible for us to predict all the possible eventualities. That’s what the judicial system is for — to interpret the law and define those edges.”

That said, he added, there has been a feeling in the legal world that the NLRB under the current administration may be amenable to clawing back some of the speech protections it originally granted employees.

“The pendulum is swinging back a little bit,” Murphy agreed. “They’re actually looking anew at some of those decisions and rules about employers’ handbooks and social-media policies. Generally, under the NLRB, you can speak out about matters of mutual concern among employees. But that’s fluid.”

At the end of the day, he went on, employers simply want a productive workforce and resist anything that might stir the pot, whether it’s a peaceful demonstration in favor of racial justice, an unhinged tweet that promotes racial strife, or something in between.

“There are people who say we’ve become less tolerant as a society and we’re not respectful enough of opposing viewpoints. They say, ‘get out of the bunker and listen to your employees; you don’t necessarily need to be censors,’” Murphy said. “But an employer’s primary responsibility is to protect that business and brand. That’s what they’re up against.”

Joseph Bednar can be reached at [email protected]

Employment

Under Pressure

By Marylou Fabbo

In the year that’s passed since President Donald Trump signed the Buy American and Hire American Executive Order, there’s been increased federal scrutiny on the employment-based visa petition process that has made it more difficult for businesses to hire foreign employees.

President Trump and other critics of employment visa programs believe they displace American workers and drive down wages, while employers maintain they need foreign labor to fill jobs that Americans are not willing or qualified to fill. So far, however, the administration’s actions have taken place through heightened agency action, such as government I-9 audits and immigration ‘raids,’ rather than legislation.

Enforcement Action Substantially Increased

When it comes to employing non-immigrant workers, the message is clear: companies’ hiring practices must be able to withstand heightened scrutiny. In September 2017, Asplundh Tree Expert Co. was ordered to pay a record fine of $95 million for employing thousands of unauthorized alien workers.

The U.S. Customs and Immigration Services (often referred to as ICE) has implemented a worksite-enforcement strategy that focuses on criminal prosecution of employers, human-resources personnel, and talent officers who knowingly hire illegal workers or are ‘willfully blind’ to the same. ICE has already doubled the number of worksite-enforcement cases that it pursued all of its last fiscal year. In New England alone, ICE made more than 680 arrests during the first quarter of its fiscal year. Even companies that don’t employ any immigrants or foreign workers are subject to an ICE audit and can face significant fines and penalties for things such as failing to fully and accurately complete I-9 forms for U.S. citizens.

Number of H-1B Visa Petitions Down

President Trump’s Buy American and Hire American Executive Order is purportedly designed to increase wages, protect the jobs of U.S. citizens, and increase employment rates. Among other things, the order requires federal agencies to review and propose new rules and guidance to protect the interests of U.S. workers and to prevent fraud and abuse in the H-1B visa program. This program allows companies in the U.S. to temporarily employ foreign workers in occupations that require the theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations typically include fields such as science, engineering, and information technology.

About 65,000 regular visas and 20,000 masters-level visas are awarded each year through a lottery system, although the ultimate goal is to switch to a point-based merit system. While ICE received more than double the amount of petitions needed to fill the quotas, the total number of petitions submitted decreased by about 10,000 from last year and has decreased more than 50% since its high in 2016. Trump’s executive order — designed to reform the H-1B visa program by making it more difficult to get such a visa — may be driving some away from using the program at all.

Spouse Employment Authorizations Likely to Be Rescinded

Certain spouses of H-1B workers may be eligible to work pursuant to an H-4 visa. However, the Department of Justice and the Department of Homeland Security have stated that they intend to rescind employment authorization for H-4 visa holders, and it now appears that at least some form of the rescission is likely to take place in the near future.

Yet, some questions remain unanswered. Will current H-4 visa holders be able to renew them? Will there be a drop-dead date after which H-4 authorization is no longer valid at all? What’s clear is that employers who hire H-4 workers need to start thinking about alternate means of legally employing them.

Tougher Standards for H-1B Workers at Third-party Locations

ICE also has increased the scrutiny on employers who petition for H-1B employees and intend to place them at third-party sites. Earlier this year, ICE issued a policy memorandum stating that, for an H-1B visa petition involving a third-party worksite to be approved, the petitioner must show “by a preponderance of evidence” that, among other things, the worker will be employed in a specialty occupation and the petitioning employer will maintain an employer-employee relationship with the beneficiary for the duration of the requested validity period. The third-party recipient of the H-1B worker will also have to come up with some evidence corroborating what the employer provides.

Organizations that provide H-1B workers to third parties should be prepared to respond to requests for evidence beyond what they have experienced in the past, denials of petitions, and, possibly, the granting of H-1B visas for less than the usual three-year period.

Moving Forward

Employers should expect the Trump administration to continue to aggressively pursue immigration reform. Like the visas mentioned in this article, the state of those with C-33 visas — non-immigrants who have been granted Deferred Action for Childhood Arrivals (DACA), remains up in the air, and employers that have DACA recipients with employment authorization may face the loss of the ability to continue their employment.

Companies that have not already done so should carefully review their hiring practices and evaluate alternate means of employing non-immigrant workers regardless of their current visa status. Those employers that have H-1B workers at third-party sites should scrutinize their vendors and their contracts with those third parties. And, perhaps most importantly, companies should make sure their I-9s and other immigration-based records are complete and accurate. u

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