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Breaking Down the Trickier Aspects of Massachusetts Laws

By Ludwell Chase and Amy B. Royal, Esq.

State and federal laws pertaining to minimum wage, tips, overtime, and employing minors are complicated. As a result, these are areas where mistakes are often made.

Ludwell Chase

Ludwell Chase

Amy B. Royal, Esq

Amy B. Royal, Esq

Employers, however, cannot afford these errors because the consequences of not complying with these laws can be very costly. In fact, in Massachusetts, there are mandatory treble (triple) damages for violations of wage-and-hour laws relating to minimum wage, tips, and overtime. This means that, if an employer is found in violation of state law, at a minimum, for every dollar an employer does not pay in accordance with wage-and-hour laws, that employer will have to pay three times that amount.

Under Massachusetts and federal law, employers are allowed to pay employees who receive tips an hourly wage that is lower than the minimum wage. This works by allowing employers to take a ‘tip credit’ for a certain amount in tips that the employee earns. The employee must not make less than minimum wage when their tips and hourly wage are combined. Under the federal law, the Federal Labor Standards Act, all hourly workers must be paid the federal minimum wage of $7.25. Tipped workers may be directly paid $2.13 per hour if their tips and hourly wage combined are at least equal to the minimum wage. In other words, employers can claim a ‘tip credit’ of $5.12 per hour.

The U.S. Department of Labor (DOL) recently released new proposed regulations for tipped workers that reinstate the 80/20 rule. This rule limits the amount of time tipped workers can spend performing activities that are related to tip-generating duties, while their employers can still claim the tip credit. Tipped workers must spend at least 80% of their time performing directly tip-generating activities, such as serving customers, and no more than 20% of their time performing not directly tip-generating activities, such as setting tables. This rule was previously in effect but was replaced by DOL guidance in 2018.

The 2018 guidance provided that employers could claim the tip credit if non-tipped duties were performed at the same time as tipped duties, or if the non-tipped duties were performed for a reasonable time before or after tipped duties. This new proposal returns to the 80/20 rule. In addition, the new proposal specifies that, if an employee performs non-tipped activities for 30 minutes in a row, the employer cannot pay the employee the lower tipped hourly wage for that time.

For employers with tipped workers that are subject to federal wage-and-hour law, this proposal is a good reminder that they need to pay attention to these potential changes and their effects on how they compensate employees.

 

Caution on the Menu

Massachusetts has its own complex laws relating to tips, minimum wage, and overtime. As a result, these are areas where it is easy for employers to make mistakes. Therefore, employers need to pay special attention to ensure they are complying with both state and federal laws. As of Jan. 1, 2021, the minimum wage in Massachusetts is $13.50 per hour. Massachusetts is incrementally increasing the minimum wage in order to reach a $15 minimum wage by 2023. For now, employers may pay workers who make at least $20 a month in tips a tipped hourly wage of $5.55 and take a tip credit of up to $7.95 per hour, for a combined minimum wage of $13.50.

The Massachusetts Tip Law mandates that all tips must be given to employees whose work directly generates tips, and that employers and managers may not keep any portion of their employees’ tips. The law applies to three categories of employees: waitstaff employees, service bartenders, and service employees. Waitstaff employees include waiters, waitresses, busboys, and counter staff who serve beverages or food directly to patrons or clear tables, and do not have any managerial responsibilities. Service bartenders prepare beverages to be served by another employee. Service employees include any other staff providing service directly to customers who customarily receive tips but have no managerial responsibilities. For the purposes of this law, managerial responsibilities are duties such as making or influencing employment decisions, scheduling shifts or work hours of employees, and supervising employees.

Massachusetts law allows for ‘tip-pooling’ arrangements. This means all or a portion of tips earned by waitstaff employees are pooled together and then distributed among those employees. Employers must be cautious when administering a tip pool and ensure that only waitstaff, service bartenders, and service employees are being paid from the pool. This means managers and back-of-house employees like cooks and dishwashers cannot share in tips. Even employees with limited managerial roles who also directly serve patrons are not considered waitstaff employees on days when they perform managerial duties.

When employees do not receive enough in tips to make up the difference between the tipped hourly wage and the minimum wage, employers must pay the difference. Employers are required to calculate tipped employees’ wages at the end of each shift, rather than at the end of the pay period. This requires employers to keep track of how much workers receive in tips for each shift. This may also require employers to pay their tipped employees additional amounts in order to compensate for slow shifts.

Under Massachusetts law, certain businesses, including restaurants, are exempt from paying employees overtime; however, they may not be exempt under federal law. If subject to federal law, employees working in restaurants must be paid one and one-half times the minimum wage (not one and one-half times $5.55 per hour) for all hours worked in excess of 40 hours per week.

Under the Massachusetts Tip Law, if a restaurant includes a service charge, which serves as the functional equivalent of an automatic tip or gratuity, all the proceeds from that service charge must be paid only to waitstaff employees, service employees, or bartenders as a tip. Employers may, however, charge a ‘house fee’ or an ‘administrative fee,’ which they may use or distribute at their discretion, but only if it is clearly stated to customers that the fee is not a tip, gratuity, or service charge for tipped employees. Thus, any fees not intended as gratuities and not paid solely to tipped employees should not be labeled as a service charge.

 

Food for Thought

These complexities are especially important to Massachusetts employers, given that the consequences of failing to comply with wage-and-hour laws can be costly, and the penalty is the same regardless of whether the employer violated the law willfully or by mistake.

Considering the consequences of violations, businesses with tipped employees should regularly consult with their employment counsel to review their practices and policies to ensure compliance with state and federal law.

 

Ludwell Chase and Amy B. Royal work at the Royal Law Firm LLP, a woman-owned, boutique, corporate law firm; (413) 586-2288; [email protected]

Law

Policy Decisions

By Timothy M. Netkovick, Esq.

The COVID-19 pandemic has caused many businesses to examine their balance sheets. One of the areas that could be looked at is how much benefit a business is getting from its current insurance portfolio, and whether downsizing coverage could be an option.

In today’s world, a common feature of a business-insurance portfolio is employment-practices liability insurance (EPLI), which is different than traditional liability insurance and provides coverage for discrimination, wrongful termination, and other workplace issues.

EPLI typically covers discrimination claims based upon sex, race, national origin, age, and all other characteristics prohibited by law. This includes claims made under the Americans with Disabilities Act, the Family Medical Leave Act, associated state discrimination statutes, and other federal laws. EPLI policies usually provide coverage to the company, management, supervisors, and employees from claims that arise under the policy. EPLI typically does not cover wage-and-hour law violations, unemployment issues, ERISA, or COBRA matters.

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

“COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.”

Perhaps your business has been fortunate enough to avoid employment litigation over the past few years. Therefore, the cost/benefit analysis to your business will be different than a business that has been tied up in employment litigation in the recent past. The first obvious cost is the cost of purchasing the policy. Higher insurance coverage costs more than a policy with a lower-policy limit. In addition to the cost of purchasing the policy, businesses will also need to factor in the cost of the ‘retention’ it is required to pay in the event of a claim.

Retention is similar to a deductible in other insurance policies, and is the amount of expenses for which the business is responsible before the insurer will begin paying for the cost of defense. Insurers use retention as a way to avoid incurring the expense of defending against nominal or frivolous claims by passing on that expense to the business. Conversely, the business will also want to evaluate the amount of their retention prior to obtaining EPLI.

A business will need to evaluate its options if it is faced with a high retention and a small amount of discrimination claims that are usually resolved at the administrative level. Has your business had EPLI for several years and never exhausted its retention? Or does your business have a high volume of discrimination cases at the administrative level and also never exhausted its retention?

Another factor to consider in evaluating the cost of EPLI is your company’s approach to employment lawsuits. Businesses will need to have a consistent strategy when it comes to employment lawsuits. Is your company going to vigorously defend against all claims? If so, that may impact your decision on the cost of the EPLI policy you intend to purchase. How many claims are made against your company? The more claims are reported, the more the policy will cost, and the higher the retention amount will be. The increased retention will have an impact on the company’s budget for the next policy period.

COVID has prompted myriad adjustments in the business world. EPLI is one of the expenses a company will want to examine to see if it is getting the most bang for its buck.

 

Timothy M. Netkovick, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

 

Law

Changing the Dynamic

By Jeremy M. Forgue

 

The COVID-19 pandemic has impacted the workplace forever.

According to a report titled “Women in the Workplace – 2020,” women have been hit especially hard. As the report explains, “the COVID-19 crisis has disrupted corporate America in ways we’ve never seen before. No one is experiencing business as usual, but women — especially mothers, senior-level women, and black women — have faced distinct challenges. One in four women are considering downshifting their careers or leaving the workforce due to COVID-19.”

Gender and racial diversity are unquestionably beneficial to the workplace as it can lead to a wider talent pool with people who provide different perspectives and skill sets to utilize. With job rates slowly climbing back towards pre-pandemic levels, businesses need to put a conscious effort on recruiting and retaining female employees, and females of color in particular. Businesses small and large should re-evaluate their current practices and consider several ways to increase or maintain women in the workforce. Here are some suggestions from an employment-law attorney.

 

Flexible Schedules and Core Hours

This can be the easiest strategy, depending on your business. Allowing employees to establish their own schedules or flex the typical 9-5 business model can assist them in better balancing their home and work responsibilities. This option can allow parents to mold their schedule around daycare availability (e.g., 7 a.m. to 3 p.m. or 10 a.m. to 6 p.m.) or split their shift around home responsibilities.

 

Forgiving Gaps in Workers’ Employment History

According to a study by ResumeGo, applicants with work gaps of greater than six months have a 45% lower chance of receiving job interviews. Millions have lost their jobs during the pandemic and remain unemployed. With so many individuals forced to exit the workforce over the past year, accepting gaps in employment is critical to eliminating these hiring barriers.

 

Offering Job Training or Cross-training

The COVID-19 pandemic has made it clear that new job skills are critical in a more digitized working environment. Remote work and Zoom meetings are here to stay. Offering initial job training for skills and requirements that do not require certification or a degree will allow displaced workers a chance to gain useful skills in a new working environment. Similarly, cross-training employees to learn each other’s responsibilities (so long as their positions have enough overlap) can be effective when emergencies arise due to absences from work or other staffing challenges.

 

Create Mentorship Programs or Opportunities

A female-led or minority-led mentorship program can support and promote the advancement of under-represented groups within the workplace. Seasoned women employees can be great support structures for other women trying to begin their careers or advance within the company. Women who are currently excelling at their position or working in an executive-level position can assist other women dealing with similar daily challenges, such as work-life balance.

 

Re-evaluate the Businesses Culture

This one is more abstract and requires internal inquiries, but you should ask if your business provides a culture where women are valued or has a diverse demographic that is often desired by applicants. Ask yourself: is your workforce gender-diverse? What about the leadership positions? If the answer to these questions suggests unequal gender representation in the workplace, ask whether it is because of a culture that does not support women. Perhaps it’s more of a recruiting issue. In any event, you should dig deep for answers and insist on change.

 

 

Childcare Options

Providing on-site childcare is probably an option only for larger businesses. However, here are a few suggestions for all businesses to consider:

• Revisit your employee benefits. Do you already, or can you afford to, provide a childcare subsidy, childcare referral services for nearby locations, or extended paid leave?

• Partner with surrounding businesses. If your business space is too small to provide on-site childcare, reach out to nearby childcare locations and discuss rates and hours that could create a partnership between the businesses or, at the very least, a referral resource.

• Offer extended FFCRA benefits, which are available until Sept. 30, 2021, and can be used by employees to take time off for childcare or other COVID-19-related reasons.

 

Final Thoughts

After making positive strides in the workforce over the past decade, women’s participation in the workforce declined over the last year. To correct this trend, businesses will need to put a conscious effort toward recruiting women into their workforce.

 

Jeremy M. Forgue is an attorney with the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

Law

MREs and HCAs

By Mary-Lou Rup

Under Massachusetts’ recreational-marijuana statute, those seeking to operate a marijuana retail establishment (MRE) must obtain a license to operate from the Cannabis Control Commission (CCC). Municipalities exercise local control over MRE applicants through ordinances or bylaws setting ‘reasonable’ controls on the time, place, and manner of operations and limiting the number of MREs within their borders.

During the first step of the licensing process, MRE applicants must obtain approval from the municipality, and the municipality and applicant execute a host-community agreement (HCA), which sets forth the conditions under which the MRE can operate. During the second step, the CCC determines to which approved applicants it will issue licenses, which in part requires a one-page certification that the applicant and municipality have executed an HCA.

Municipalities may require that MREs pay a ‘community impact fee,’ statutorily capped at 3% of the MRE’s gross sales for five years, to cover a variety of actual costs to the municipality reasonably related to the MRE’s operations.

“An appeal now pending in the Supreme Judicial Court (SJC) may resolve issues related to the degree to which municipalities exercise control over which applicants move on to the second step.”

In HCAs, many municipalities require additional payments by the MREs, often based on an additional percentage of gross sales and/or charitable donations to entities selected by the municipality. These additional costs have, for the most part, gone unchallenged by MRE applicants anxious to obtain the HCA necessary in order to be licensed to operate.

An appeal now pending in the Supreme Judicial Court (SJC) may resolve issues related to the degree to which municipalities exercise control over which applicants move on to the second step. The case involves Mederi Inc., which sought to operate one of five MREs permitted by the city of Salem. Mederi received the necessary special permit and alleges it met all other requirements of the city’s application process. A city committee reviewed the applications before entering HCAs with four applicants; Mederi was not among them and sued. Dismissal of that suit lead to Mederi’s appeal.

Two arguments made by Mederi are of interest. Mederi challenges the city’s authority to select with which qualified applicants it would enter HCAs, effectively controlling those which the CCC could then consider for licensing. Mederi also argues that the city exceeded its lawful authority by, among other actions, imposing as a condition of its HCA fees in excess of the 3% community-impact fee. Specifically, the city required five annual payments of 1% of gross sales to a ‘traffic-enhancement fund’ and at least $25,000 in charitable contributions to local causes.

Mederi posits that allowing municipalities to utilize these ‘pay-to-play’ provisions and to pre-select which qualified applicants it will allow to advance to the CCC adversely impacts the statute’s provisions giving priority to economic-empowerment applicants — provisions intended to assist areas of disproportionate impact disadvantaged by high rates of criminal activity involving marijuana.

In opposition, the city argues that it could properly decide with which applicants to enter into HCAs. It asserts that the local-control step of the MRE-licensing process allows municipalities to weigh competing proposals and exercise discretion in choosing the most suitable applicants. The city argues that its selected applicants were the “strongest possible operators” based on experience in the marijuana industry and intent to operate in the “least impactful locations” in Salem.

The CCC filed an amicus brief in the case. Pointing to competing legislative mandates, it asserted that, while the statute does not authorize it to regulate or participate in the initial local-control portion of the licensing process, the statute also requires that it give MRE licensing priority to existent medical-marijuana treatment centers and economic-empowerment applicants.

It noted that municipalities’ exclusive control of the HCA process seemed to advantage more experienced and better-resourced applicants, leaving economic-empowerment applicants at a competitive disadvantage, and, in effect, controlled those whose license applications the CCC is able to consider. The CCC has recommended amendments to the statute, addressing, among other matters, this issue and the additional fees imposed in HCAs. Its recommendations are presently under consideration in the legislature.

Stay tuned. The SJC heard arguments on Feb. 3 and, under its usual 130-day timeline, may be expected to issue its decision by early summer.

 

Mary-Lou Rup served as associate justice of the Massachusetts Superior Court until her retirement in 2018, when she joined the litigation group of Bulkley Richardson as senior counsel.

Law

Knick-knack Knockouts

By Valerie Vignaux, Esq.

The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money. In my experience, the highest level of emotional warfare is reserved for tangible, personal property, or the ‘stuff’ that mom and dad, or grandma and grandpa, leave behind in the house.

The $7 porcelain ballerina that sat on the mantel for 50 years, the carbon-steel chef’s knife in the kitchen, costume jewelry, a crocheted Kleenex holder, photo albums, even the washing machine, if you can believe it — these are the objects that can send otherwise well-behaved, loving, and gentle family members to opposite corners of the boxing ring to steel themselves for a fight. And fight they do.

“Not me, and not my family,” we all say. But it can happen to the best of us, and the conflict has the potential to do serious damage to a family already grieving the loss of a loved one. Adult siblings revert to traits and behaviors not exhibited since ages 6 to 12. Beloved in-laws who were once an integral part of the family are now interlopers who deserve nothing. And only after mom is gone do we learn that she seems to have promised her cuckoo clock to all four of her children. (Pro tip: none of you should take the cuckoo clock. Your own families will thank you for letting that one go.)

How do we prevent such consternation at a time when we should be coming together in our shared sadness? A list. A simple, old-fashioned list. I call such a list a will memorandum, and Massachusetts General Laws recognizes such a “separate writing identifying [the] devise of certain types of tangible property.”

One of the most appealing aspects of the will memorandum is that this list can be updated, changed, thrown out, and begun anew at any time, without having to change the will itself. In fact, a properly written and executed last will and testament document typically provides that the author (the testator or testatrix) may leave such a memo, listing specific items for specific people.

“The most prolonged and venomous arguments I’ve witnessed in my estate-administration practice have not been over money.”

For any object of significant monetary value — jewelry, works of art, vehicles, and rare books are all such examples — I recommend providing for distribution directly in the will or trust document, as opposed to a separate memorandum. Similarly, a will memorandum is not an appropriate place to include gifts of money or real estate. But for all those personal belongings that have more emotional than dollar value, such a list is perfect.

Some of my clients have also placed notes on the backs or bottoms of objects around the house, stating who is to receive it upon the client’s death. This works, but I prefer a list that is dated and signed and kept with the client’s copy of his or her will. It is helpful, too, if I, as the client’s estate-planning attorney, have a copy in my file.

How does one start writing a will memorandum? Ask your family members what they want. Understandably, many people are not eager to have these conversations, but it is a gift to those you leave behind to prepare for your passing, and a gift to prevent discord in the family.

Want to achieve the next level of preparedness? Start giving possessions away before you die. If you know that your niece would enjoy your bamboo fishing pole, give it to her now so you can see her smile, hear her thank you, and forestall any arguments about it later. Further, giving away some of your possessions now will reduce the burden on those you leave behind to clean out your residence.

Take a look around your home. Is there decluttering that could be done now? (For almost all of us, the answer is assuredly yes). Start making a list of items that you can part with now, and ask your family and friends if they’re interested in any of them. By starting the process during your life, you are lessening the burden you might otherwise leave your loved ones.

‘But I’m only 40 (or 50 or 60),” you say. You’re not too young to start. Do yourself and your family members a favor and start making that list. Every one of us has at least a few things that would be meaningful to another. If you don’t have children, consider your siblings, nieces, nephews, and friends.

One last thing: although it can feel like tempting fate, please be assured that making a will memorandum (or having a will prepared, for that matter) will not cause your death. It will not court the agents of your demise. It will be an exercise of control over the uncontrollable. It will actually make you feel better, not worse. And it will make things markedly easier for those loved ones you leave behind.

 

Valerie Vignaux is an attorney with Bacon Wilson, P.C., and a member of the firm’s estate-planning and elder-law team. She assists clients with all manner of estate planning and administration, including probate, and provides representation for guardianship and conservatorship matters. She received the Partner in Care Award from Linda Manor in 2017 and served on the board of directors for Highland Valley Elder Services; (413) 584-1287; [email protected]

Law

Non-competition Agreements

By Timothy M. Netkovick, Esq.

Everyone is aware of the honeymoon phase of the employment relationship — that time period when the employee begins work and both parties are filled with high expectations for the relationship.

Possibly, prior to beginning the relationship, an employer has the employee sign a non-competition agreement as a sort of prenuptial agreement, hoping to never have to use it. However, fast-forward a few years, the employment relationship goes sour, and the employee leaves the company. Not only does the employee leave the company, but they also begin soliciting clients, or maybe even fellow employees, to join them at their new place of employment.

As employers are aware, Massachusetts enacted the Noncompetition Agreement Act in 2018. Prior to the act, there was 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. That changed with the provisions of the act. Now, in the scenario above, if the employer sought to enforce the non-competition agreement, it would need to pay the former employee not to work during the competition period.

This is because the act mandates that, to be enforceable, a non-competition agreement must contain a ‘garden-leave clause,’ defined as 50% of the employee’s highest annualized salary within the two years preceding termination.

“While the Noncompetition Agreement Act requires employers to pay former employees not to work, there may be other options available to employers.”

Employers therefore must answer the question: what do I really want with a non-competition agreement? Is it to stop the former employee from working? Or is the goal to maintain the status of my business? If the goal is to maintain the status of the business, employers may be able to utilize non-solicitation and non-disclosure agreements, which can protect the former employer’s interests while also allowing the former employee to work.

Both such agreements are excluded from the definition of ‘non-competition agreement’ by the act, meaning they do not need to include garden-leave clauses.

A non-solicitation agreement does not prohibit a former employee from working for a competitor when the employment relationship ends. Instead, it serves to prohibit the former employee from soliciting clients and other employees of the former employer to join them at their new place of employment. A non-solicitation agreement can therefore be an effective tool in preserving the current status of the business by prohibiting a former employee from taking clients and other employees with them to their new place of employment.

A non-disclosure agreement also does not prohibit a former employee from working for a competitor when the employment relationship ends. Nor does it prohibit the former employee from soliciting clients and other employees from joining them at their new place of employment. Instead, it serves to prohibit the former employee from disclosing any confidential information from the former employer. The confidential information protected could be a trade secret or other highly sensitive material.

In short, while the Noncompetition Agreement Act requires employers to pay former employees not to work, there may be other options available to employers. It is therefore wise to consult with employment counsel to review your potential options to protect your business interests after the employment relationship has ended. u

 

Timothy M. Netkovick, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Law Special Coverage

Ringing Out the Old

By Amy B. Royal, Esq.

Most of us are happy to leave 2020 behind.

It was a year wrought with struggles both at home and in the workplace. Many companies faced closures, near-closures, reduced capacities, and reduced business all because of the impact of the COVID-19 global pandemic. Companies were also hit with several new, COVID-related laws, such as paid emergency leaves of absence, furthering the burdens they were facing during an already-difficult time.

It isn’t surprising that we are ready to ring in and embrace this new year. And, with the new year here, v is a good time to shift gears, reboot and regroup, and return to building better business practices. With that said, the new year provides an opportunity to proactively take a look at your company’s current employment-law practices to ensure compliance with the myriad evolving employment laws affecting your company.

 

Paid Family and Medical Leave and Minimum Wage

Two noteworthy laws take effect in Massachusetts this January: the Paid Family and Medical Leave (PFML) law and the revised minimum-wage law.

PFML law takes effect in the Bay State this January. While employer obligations under PFML commenced on Oct. 1, 2019, as of Jan. 1, 2021, employees can begin to apply for and receive paid leave for most medical and family leaves of absence. The remaining leave provisions will take effect on July 1, 2021. Under PFML, employees can take paid leaves for their own serious health condition, to bond with a newborn child, to bond with a child after adoption or foster-care placement, to care for a family member with a serious health condition, or to manage family affairs when a family member is on active duty in the armed forces.

All private Massachusetts employers are covered under the law regardless of their size. Leave entitlements range from 12 weeks to 26 weeks depending on the type of leave needed, and employees can take leave intermittently, if medically necessary, for medical leave for an employee’s own serious health condition or take family leave to care for a covered service member or to care for a family member with a serious health condition.

Amy B. Royal

Amy B. Royal

“With the new year here, it is a good time to shift gears, reboot and regroup, and return to building better business practice.”

Intermittent leave cannot be used to bond with a child. PFML and federal FMLA run concurrently. The same is true for the Massachusetts Parental Leave Act. Employees can choose to use but may not be required to use other forms of paid time off. PFML provides job protection and restoration rights akin to the federal FMLA. Employers are required to restore employees who take leave to their previous position, or to an equivalent position, with the same status, pay, benefits, length-of-service credit, and seniority as of the date of leave.

On Jan. 1, 2021, the Massachusetts minimum wage increased from $12.75 to $13.50 per hour. The service rate also increased from $4.95 to $5.55 per hour. Premium pay for Sunday retailer workers decreased. The next step in our minimum-wage rise is to $15 per hou, slated to take effect in 2023.

 

Proactive Employment Steps

The new year can serve as a good reminder and placeholder for reviewing and auditing your employment practices. Doing so will enable you to be strategic about that piece of your business and move toward creating a detailed and updated personnel plan going forward.

A good plan starts with an annual review of employment policies and manuals, written job descriptions, and employee-training programs to ensure that your company is compliant with state and federal laws and that your employees are properly trained in your processes and procedures.

Well-crafted employment policies are important because they communicate expectations to employees and help insulate your company from certain legal liabilities. When crafting employment policies, know that certain ones are legally required, while others are good business practice. Depending on your company’s size, required employment policies may include anti-discrimination, anti-harassment, parental leave, paid family and medical leave, and sick time. The implementation of other policies may be a good idea, such as codes of conduct, discipline and termination, workplace safety, off-duty conduct and the use of social media, drug and alcohol use and testing, use of cell phones, and use of company computer equipment and other electronic resources.

Written job descriptions are also a good practice. While not legally mandated, they can be a good tool to assess and evaluate prospective and current employees and also can reduce your company’s exposure to certain lawsuits. Accurate job descriptions that set forth the essential functions of a position can minimize liability when your company is faced with either internal requests for accommodations or external disability claims. Providing an accurate job description to an employee’s medical provider can also help determine whether an employee can perform their job with or without an accommodation or qualify for a leave of absence.

Another good business practice is employee training. Training managers and supervisors is especially important. Indeed, such trainings can help them understand company policies and their roles and responsibilities under these policies. Particularly important trainings for managers include anti-discrimination and anti-harassment, employee disabilities and recognizing requests for reasonable accommodations, and effective employee discipline and documentation.

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

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

 

Amy B. Royal, Esq. is a litigation attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Law

A Question of Mandates

By Timothy F. Murphy

 

Employers have a key role to play in ensuring the successful rollout of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

 

Can Employers Require Vaccinations?

Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

 

Can Employees Object to Vaccine Mandates?

Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.

Timothy F. Murphy

Timothy F. Murphy

“Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace.”

A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent guidance from the Equal Employment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.

 

Government Vaccine Mandates Appear Unlikely for Now

A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

 

Public-health Experts Warn Against Mandates for Now

Even if employers can legally mandate COVID-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”

 

Avoid the Backlash

A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

 

Reduce Potential Legal Liability

Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

 

Wait and See Is the Way to Go

Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.

In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; implement employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination.

 

Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor relations, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.

Law

To Contest or Not to Contest?

Benjamin Coyle, Esq.

 

None of us want to think that, after we pass away, our loved ones may someday fight over an inheritance. But as we all know, family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always gotten along well may find themselves at odds. Keeping peace in the family is often a vital consideration in estate planning.

One of the most important components of a person’s estate plan is the document that ultimately directs the final disposition of their property, both real and personal, upon their passing. In most circumstances, that document is either a last will and testament or a trust. A question that often arises during the drafting process is: “what can I do to make sure that no one fights over my estate?”

Benjamin Coyle

Benjamin Coyle

“Family relationships are complex, and can be particularly so when finances are involved. Add in the grief of losing a loved one, and suddenly, relatives who have always gotten along well may find themselves at odds. Keeping peace in the family is often a vital consideration in estate planning.”

While an attorney can never guarantee that heirs or beneficiaries will not fight, there are provisions that can be made to deter an interested person from contesting the terms of a will or trust. For wills, Massachusetts law recognizes a provision purporting to penalize an interested person for contesting the will or instituting other proceedings relating to the estate. For trusts, the courts in Massachusetts have upheld the enforceability of ‘no-contest’ (or ‘in terrorem’) clauses.

In 2012, Massachusetts adopted the Uniform Probate Code (UPC), a model code adopted by 18 states in order to standardize probate laws. However, in adopting the UPC, Massachusetts did not incorporate the model’s no-contest provision, which essentially allowed for challenges or contests where probable cause exists. Rather, Massachusetts determined that the Commonwealth would maintain its historic baseline regarding no-contest provisions, and, in doing so, the Legislature provided that such clauses are enforceable as a matter of law, subject to some limitations as determined by the court.

Generally speaking, a no-contest provision is a clause within a will or trust with specific language stating that any person who challenges the estate must then forfeit their share. One of the primary purposes of including such a provision is to deter an interested person from bringing a challenge against the estate.

Typically, if an interested person believes they are not receiving what they may consider to be their fair share of the estate, that perception can provoke a desire to fight the terms of the will or trust. Emotions tend to run particularly high if a sibling or family member may receive a larger portion, or if someone is left out of an estate altogether. These challenges are not often successful, so long as the creator of the will or trust complied with all statutory requirements, was not subject to undue influence or duress, and had the appropriate mental capacity to execute the document.

Occasionally, though, when an interested person is able to present evidence of duress or incapacity, a successful challenge to a will could result in the entire document being invalidated, which would naturally include the no-contest provision. If the no-contest provision is eliminated as a result of the challenge, the contesting party may then be eligible to receive a share of the estate or trust, depending upon the other circumstances at hand.

When administering any will or trust, whether a no-contest provision is included or not, the fiduciary in charge (that is, the trustee of a trust, or the personal representative under a will) must still comply with all the other terms of the document, and the fiduciary is still responsible to beneficiaries. They are required to account to the beneficiaries for the assets under their control, as this is a matter of public policy that the courts have determined cannot be avoided with a no-contest provision.

Typically, we might see no-contest provisions enforced within the discretion of the fiduciary, for frivolous matters involving the administration of the will or trust. Occasionally, a beneficiary may ask the court for an interpretation of the provisions of a will or trust, to make sure the fiduciary is complying with its terms. Provided they are not trying to challenge or change the provisions in the document, the court is unlikely to invoke the no-contest provision when a request for interpretation is made by an interested person.

If you are a beneficiary of a last will and testament or a trust, it is extremely important to review the document to see if it contains a no-contest provision. If it does, and if a challenger comes forward, the court is likely to uphold the no-contest clause, which could result in the forfeiture of an inheritance. One must carefully weigh the options and potential outcomes before asserting a challenge.

On the other hand, if you are preparing your own estate plan and are concerned that disagreements may erupt among beneficiaries, you may wish to consider including a no-contest provision in your documents. Keeping the family peace in the future is certainly worth spending some time and effort today.

 

Benjamin Coyle is a shareholder with Bacon Wilson, P.C. He specializes in matters of estate planning and administration and also has extensive experience with real estate, business, corporate, and municipal law; (413) 781-0560; [email protected]

Law Special Coverage

Is the Gig Up for Some Workers?

By Amy B. Royal, Esq.

Getty Stock Images

The number of gig workers has been on the rise over the past few years with the advent of many online-platform companies, such as DoorDash, Instacart, and Uber.

The notion of gig workers and a gig-worker-based economy, however, is not new. Whether one refers to such workers as gig workers, freelancers, or broadly as independent contractors, this area of employment law has been a thorn in the side of many businesses for several decades. With the significant and robust growth in the online gig-economy world, the restrictiveness of independent-contractor law on business and business growth, as well as on worker independence, has gotten a new look.

Both a recent victory in the state of California and a new proposed rule from the federal government may be signaling a change in the tide when it comes to the future of independent-contractor law.

Independent-contractor law, especially in Massachusetts, has been very restrictive when it comes to certain business models. Many industries have historically relied on the classification of workers as independent contractors to augment their operations and build capacity as well as to attract workers who want independence when delivering services for them.

For example, traditionally, the real-estate industry has classified real-estate agents as independent contractors. Similarly, tattoo parlors, hair salons, and transportation services have done the same. In these industries, oftentimes, the expectation of the worker is that he or she will be classified as an independent contractor and, thus, have the freedom and flexibility to maintain independence over their own schedule and their own craft.

Indeed, the benefit of such gig work is often mutual: the company can reduce its overhead costs in payroll, benefits, and expenses, while the workers can retain freedom and flexibility over their schedules while garnering higher compensation for the services they deliver.

Earlier this month, California voters sent a message to their lawmakers when they passed a ballot question that exempted app-based drivers working for companies like Lyft and Uber from a California law that had previously made them employees. Earlier this year, a law had taken effect in California that made it clear these drivers were to be treated as employees and, thus, were entitled to certain employment-related benefits and legal protections. The California ballot win is a significant victory for app-based companies that utilize gig workers to deliver services.

Amy Royal

“Whether one refers to such workers as gig workers, freelancers, or broadly as independent contractors, this area of employment law has been a thorn in the side of many businesses for several decades.”

The U.S. Department of Labor (DOL), our federal agency that enforces federal wage-and-hour laws, appears to be trending toward loosening its stance on independent-contractor law as well. This September, the DOL proposed a new rule that establishes two core factors as determinative ones in an overall five-part independent-contractor test. The two core factors are the nature and degree of the worker’s control over the work and the worker’s opportunity for profit or loss based on initiative and/or investment.

Remember, this rule is pending approval and, therefore, is not the current federal law on this matter. Our current federal rule in effect for establishing independent-contractor status is based upon a multi-factor test, which can be confusing in its application, thus prompting the proposed change. The purpose behind the newly proposed rule is to bring clarity to the confusion in the application of the test itself.

Prior to the proposed rule, there was no definitive guidance on how to go about weighing and balancing the various factors and whether there was a prioritization among them. Now, the two core factors proposed should make it easier to assess a worker’s status and, arguably, pave the way for more workers to be classified as independent contractors. The proposed rule seems to recognize the prerogative of workers who want to work independently and maintain freedom from an employer’s day-to-day control over them.

For now, whether a worker is an independent contractor or an employee is a clear question in the Bay State. Massachusetts law utilizes a clear three-part test that is otherwise very restrictive on both businesses and the workers who do not want to be considered employees. In Massachusetts, when analyzing a worker’s status, there is always a presumption of employment. This means the burden is on the company to prove why a worker is not an employee.

To establish that fact, Massachusetts companies must satisfy all three parts of a three-part test: companies must show that the work is performed without the direction and control of the company, outside the usual course of the company’s business, and by someone who has their own independent business or trade in that type of work. Again, all three parts of this test must be met for the Massachusetts worker to be deemed an independent contractor.

Where most companies fail the test is with respect to the second part — that the worker must perform work outside the usual course of the company’s business. For example, with respect to a driver for Uber, arguably, under Massachusetts independent-contractor law, the driver would be deemed an employee; the company is in the business of ride sharing, and the driver is performing that work by driving customers to and from certain locations.

The problem with the misclassification of workers as independent contractors is that it carries with it very stiff penalties and triggers several potential violations of laws. Indeed, misclassification of an independent contractor can create issues with respect to wage-and-hour law, such as minimum wage and overtime compensation, unemployment benefits, workers’ compensation coverage, and certain payroll-tax withholdings.

Furthermore, situations involving the misclassification of workers can give rise to class-action lawsuits. Companies that violate Massachusetts wage-and-hour laws alone are subject to mandatory treble damages for any unpaid wages. In addition, a prevailing employee will be awarded attorneys’ fees and costs of the litigation.

What is the takeaway on all of this for your company? While the law may be changing in other parts of the country, nothing has changed in Massachusetts (so far). Massachusetts law remains very strict and extremely restrictive when it comes to proving independent contractor status. As noted, misclassifying a worker can carry steep penalties and trigger a violation of various laws, as well as class-action claims.

But stay tuned. This area of the law seems to be evolving with the newly proposed federal rule and the California state-law change. It is estimated that, collectively, Uber, Lyft, Instacart, Postmates, and DoorDash spent approximately $200 million to lobby California voters to change their state law on independent-contractor status. That may spark more challenges to independent-contractor laws in other states, including Massachusetts.

 

Amy B. Royal, Esq. is a litigation attorney who specializes in labor and employment-law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

Law

An Employment-law Forecast

By Andrew J. Adams, Esq.

On the heels of a fiercely contested election, President-elect Joe Biden has started his transition work, and has laid out plans that have the potential to affect business owners nationwide.

As expected, many these changes lean in favor of the employee as opposed to the employer. However, some plans should assist small businesses. While it’s difficult to predict the future, we can make some solid projections about what employers can expect from the Biden administration.

 

Workplace Safety and OSHA

Andrew J. Adams

Andrew J. Adams

The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic. Under the current administration, the Occupational Safety and Health Administration (OSHA) performed the lowest number of inspections in the history of the agency and reduced the number of inspectors on staff to the lowest level in the past 40 years.

Biden will immediately address these policies, leading to increased inspections and enforcement, as was the case under the Obama administration. This means employers will likely face harsher penalties for non-compliance and more substantial fines than they have over the past four years.

Employers are also likely to encounter the return of the Obama administration’s workplace-safety reporting rule. This would require certain employers to report illness and injury information to OSHA, which will then be maintained online as publicly available information.

 

Wage-and-hour Law

President-elect Biden’s campaign has stated he will seek to address wage inequalities between black and white workers, make it easier for workers to pursue claims of discrimination, and push for a higher minimum wage. The administration would increase the funding allotted to the Equal Employment Opportunity Commission, the federal agency tasked with enforcing employment-discrimination laws.

“The most immediate effect upon employers is likely to be a push by the Biden administration to enact emergency standards requiring employers to develop workplace-safety plans in reaction to the COVID-19 pandemic.”

In what is likely to be an immediate change, Biden is expected to rescind President Trump’s executive order banning training for federal agencies and contractors that contained “offensive and anti-American race and sex stereotyping and scapegoating.” The executive order banned training on several topics and recommended keyword searches for terms such as “white privilege,” “systemic racism,” and “unconscious bias” to identify if trainings were inappropriate under the order.

Employers can also expect a push at the federal level for a $15 minimum wage; during his campaign, Biden called for an increase to a $15 minimum wage by 2026. Another likely outcome is an increase in enforcement and compliance actions against employers for wage-and-hour violations, alongside enhanced penalties.

In a follow-up to the first piece of legislation enacted by the Obama-Biden administration (the Lilly Ledbetter Fair Pay Act), Biden will also prioritize ending paycheck discrimination, evidenced by his strong support of the Paycheck Fairness Act, which would amend federal equal-pay laws to require “a bona fide factor other than sex, such as education, training, or experience” in awarding different pay to men or women doing the same or similar work; protect workers from retaliation for discussing wages; and ban the use of salary history in the hiring process.

As an aside, Biden also supports federal legislation that would provide 12 weeks of paid leave for employees for their own or a family member’s serious health condition.

 

Small Businesses

Biden plans to restructure the existing Paycheck Protection Program by adding oversight and an approval guarantee for eligible businesses with 50 or fewer employees. The plan also calls for measures to increase small-business access to capital through an initiative called the Small Business Opportunity Fund.

 

Immigration

The president-elect has proposed a 180-degree turn from the current administration’s policies when it comes to immigration. The Biden plan would call for easing legal immigration into the U.S., including a pathway to citizenship for the large number of immigrants in the U.S. who lack legal permanent status, as well as some of those currently working illegally. Biden also proposes eliminating country-based caps on immigration and increasing the number of employment-based visas awarded each year, such as the H-1B, although those may come with stricter regulation.

 

Workplace Discrimination and Harassment

Biden supports the federal Pregnant Workers Fairness Act (PWFA), which was passed by the House in September, but has yet to be approved by the Senate. Under the PWFA, employers would be required to reasonably accommodate pregnant workers and employees with pregnancy-related conditions and would prohibit them from (1) requiring a qualified employee to accept an accommodation other than any reasonable accommodation arrived at through the interactive process; (2) denying employment opportunities to a qualified employee for the known limitations related to the pregnancy, childbirth, or related medical conditions of a qualified employee; (3) requiring a qualified employee to take paid or unpaid leave if another reasonable accommodation can be provided; and (4) taking adverse action in terms, conditions, or privileges of employment against a qualified employee on account of the employee requesting or using a reasonable accommodation.

The Biden-Harris agenda also includes support of the BE HEARD (Bringing an End to Harassment by Enhancing Accountability and Rejecting Discrimination in the Workplace) Act, which would establish a national harassment-prevention task force and includes several mandates for covered employers, including mandatory non-discrimination training and limitations on the use of non-disclosure and non-disparagement clauses in settlement agreements.

 

Federal Agencies

Employers will likely see a return to the pro-labor days of the Obama administration’s National Labor Relations Board, which is the agency that enforces U.S. labor law in relation to collective bargaining and suspected unfair labor practices. President-elect Biden will take office and have the ability to shift the board to Democratic control within the first year of his taking office.

In addition, the administration has affirmed a strong support for the Protecting the Right to Organize (PRO) Act, a substantial piece of legislation that would provide sweeping reforms, including the imposition of substantial financial penalties on companies that violate labor laws. The Biden-Harris campaign page also promises to “go beyond the PRO Act by enacting legislation to impose even stiffer penalties on corporations and to hold company executives personally liable when they interfere with organizing efforts, including criminally liable when their interference is intentional.”

All in all, employers should be ready for much more employee-friendly changes over the course of the next four (or eight) years.

 

Andrew Adams is an attorney at the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

Law

Winter Weather Advisory

By Ryan K. O’Hara, Esq.

The start of a New England winter is one of nature’s cruelest jokes — one weekend, it’s 60 degrees and cloudless, stunning foliage glinting in brilliant sun (until it sets, and at a reasonable hour, mind you); the next, it’s pitch black before 5 o’clock, and the outside world morphs into a barren, inhospitable tundra. The chill November breeze whispers: “gotcha!”

Ryan K. O’Hara

Ryan K. O’Hara

Each year, this sudden shift catches me by surprise. If you’re an eternal pessimist like me, talk of winter likely conjures unpleasant visions of storms, salting, shoveling, ice scraping, and (gulp) car cleaning. Apart from the brightness and lightness of the winter holidays, the picture for the next several months is a bit grim.

As we steel ourselves for the winter ahead, it’s a good opportunity to give a moment’s thought to another cheerful seasonal topic — the legal aspects of snow and ice accumulation and removal. Whether you love the winter weather or just love to complain about it, snow, ice, and sleet are facts of life here in Western Mass. for more than a quarter of the year. And, as with any environmental condition, they cause accidents.

When winter weather plays a role in an accident causing property damage or injury, who is responsible? As usual, the old (perhaps roasted?) chestnut of a lawyerly answer applies: it depends. Generally, most liabilities relating to snow or ice arise from claims of negligence. Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.

“Negligence occurs when someone who owes a duty of care fails to act reasonably, causing harm to someone else. Everyone owes a general duty of reasonable care in their actions to all people those actions may affect.”

In practice, this means that, when any of us have snow-cleaning responsibilities, if we are negligent in carrying them out, we may be liable to others — a scary premise. However, simple steps can go a long way in avoiding accidents in the first place. An increased mindfulness of winter weather and its impact on safety will make sure you stay off your insurer’s naughty list. Below are summaries of liability concerns arising from winter weather in some common contexts, with recommendations for how you can appropriately protect yourself and others.

 

Businesses

The Massachusetts Supreme Judicial Court has established a rule that property owners must address all snow and ice on their properties, and act reasonably in removing snow and ice to make the property safe for use (see Papdopolous v. Target Corp., 457 Mass. 368 [2010]). So, for example, when a patron slips on a walkway controlled by the business and breaks their wrist, the business may be legally responsible under Massachusetts law.

In deciding whether a business was negligent as to any harm caused by snow and ice, a jury will be directed to consider the reasonableness of safety measures taken. This analysis takes into account all relevant circumstances, including the severity of the storm, the amount of snow, the amount of time the condition existed, and the cost efficiency of safety measures.

The best way for businesses to protect themselves in these circumstances is to develop a protocol for preventing accumulation of snow and ice where possible, and for prompt post-storm cleanup. A reasonable business is one that anticipates risks posed by snow and ice and takes tangible steps to mitigate those risks.

Therefore, responsible businesses should be aware of impending weather events and take pre-storm steps (such as salting) to prevent accumulation in the first place. Removal of any snow necessary to enable patrons’ access to the business should be the first post-storm step, making sure that all walkways, stairs, and ramps are cleared and fully safe for use as soon as practical. At least one method of legally compliant access should be established before opening for business.

Winter-weather safety doesn’t stop at the front door, either. The business should also be cognizant of secondary weather impacts, such as the accumulation of water from snow melt tracked in by customers. To the extent there is any dangerous condition the business can’t fix, inside or outside, it should put up signs warning patrons of the danger (especially as a court would also evaluate an injured party’s own responsibility for their harm in any claim).

The business should also monitor changing conditions throughout the post-storm period, such as snow that melts and then refreezes. Finally, the business should keep an eye out for season-long hazards, like large icicles accumulating along gutters and eaves.

Often, businesses choose to contract with an outside vendor for snow removal. Although it’s never a bad idea to put a professional in charge, be wary of relying too heavily on contractors: if the contractor is failing, the business must take appropriate steps to ensure its premises are safe.

 

Landlords and Homeowners

In general terms, landlords and homeowners owe the same duty to their tenants and guests as do businesses to their patrons: reasonable care in removing snow and ice in any area controlled by them. Many of the same considerations apply. However, unlike a business, a landlord cannot simply stay closed to the public until snow is cleared; rather, their tenants are often at the property throughout the duration of a storm.

Accordingly, responsible landlords should be especially vigilant in monitoring for storms, and especially prompt in clearing any and all common areas and accesses into the building or units.

 

Drivers

Finally, drivers should be attentive to all weather conditions. Should you be involved in any accident, the reasonableness of your driving (including your speed) will be evaluated in light of the weather and road conditions. Preventive measures such as snow tires, and using additional caution when driving during a storm, will aid you in avoiding accidents (and liability, should an accident occur).

Drivers should be sure to thoroughly clean their vehicles before hitting the road. Accumulation of snow and ice on hoods, windshields, roofs, and trunks is a hazard — who hasn’t seen a practical glacier fly off the roof of a semi on the Pike? State law makes clear that drivers are obligated to clear their vehicles before they begin driving. Scofflaws ignore this rule at their own peril: not only might you earn a fat ticket from a state trooper, but if snow and ice flies off your roof and causes an accident, your violation of state law will be evidence of your negligence (and, therefore, liability for the accident).

 

Conclusion

The law is clear: Massachusetts citizens who take a lackadaisical approach to snow removal are walking on thin ice. If you are unfortunate enough to be involved in an accident involving winter weather, you want to be sure you have taken reasonable, appropriate measures to ensure the safety of yourself and others. Fortunately, such steps are typically simple, inexpensive, and within your control.

No one likes shoveling (no one I know, anyway); however, a little shoveling beats a lot of medical bills and legal fees. Plus, you’ll even get a little exercise. Who couldn’t use that in the middle of the darkest, coldest days of the year?

 

Ryan K. O’Hara is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. His legal practice is focused on contract and business matters, landlord-tenant issues, land-use and real-estate litigation, and accidents and injuries; (413) 781-0560; [email protected]

Daily News

SPRINGFIELD — Western New England University announced that attorney Ariel Clemmer has been selected by Massachusetts Lawyers Weekly as an “Excellence in the Law” pro bono lawyer. Clemmer is the director of the Center for Social Justice at Western New England University School of Law and an adjunct faculty member.

“The Western New England University School of Law community was delighted to learn of Ariel Clemmer being recognized by Massachusetts Lawyers Weekly for her path breaking work and unwavering commitment to access to justice,” said School of Law Dean Sudha Setty. “We appreciate these attributes as central to her work as director of the Center for Social Justice, where she is engaging students, faculty, and the greater community in essential social and economic justice work.”

Each year, at the Excellence in the Law event, Massachusetts Lawyers Weekly celebrates up and coming lawyers and honorees for excellence in pro bono, legal journalism, ADR, marketing, firm administration and paralegal work. This year’s honorees were recognized at the “Excellence in the Law” reception last month, which was held virtually to comply with current social distancing requirements.

Dedicating her career to making a difference in the lives of others, Clemmer said she was “very touched by the receipt of this honor and grateful to be able to continue working with students, faculty, and others toward access to justice for all” in her new role as director of the Center for Social Justice at WNE School of Law, where she started this past March.

Clemmer obtained her B.A. summa cum laude and Phi Beta Kappa from the University of Richmond in 2005, after which she worked as an elementary school teacher with Teach for America in New York City’s Spanish Harlem neighborhood. Clemmer received her J.D. cum laude from Harvard Law School in 2010, where she was a member of the Civil Rights-Civil Liberties Law Review and the Harvard Defenders.

After graduation, Clemmer started her career as a public defender at the Bronx Defenders, representing low-income clients charged with misdemeanor and felony crimes. She then worked for the firm Weil, Gotshal & Manges, LLP, defending clients against security class actions and other complex financial matters, while continuing to develop her pro bono practice litigating matrimonial, civil, and criminal cases. In 2014, Clemmer was selected by the partners at Weil, Gotshal & Manges to participate in a pro bono externship at Legal Services of New York City (LSNYC). Her excellent work there resulted in her being named one of the “Top 30 Pro Bono Attorneys of 2014” by LSNYC.

Most recently, Clemmer was the pro bono director at the Hampden County Bar Association where she managed all aspects of the organization’s pro bono activity, including directing the award-winning, nationally recognized Hampden County Legal Clinic. While there, Clemmer added new pro bono opportunities based on gaps in access to justice that she found in Hampden County, and greatly increased volunteer participation, which served more than 2,000 clients last year, an unprecedented increase under her leadership. She continues to serve as the lead attorney in charge of the Lawyer for the Day Consumer Debt Initiative, a pro bono project serving self-represented litigants who are defending credit card collection actions filed by debt buyers in the Springfield District Court Small Claims session. The project uses volunteer attorneys, non-attorneys, and students to provide brief legal advice, negotiate with opposing counsel, draft settlement arrangements, and appearances on behalf of consumers at hearings and trials.

“The program has been tremendously successful,” said Clemmer. “We have had a positive outcome of 95% of our cased to date, and saved consumers almost $200,000 in the last year while also informing them of their rights and empowering them to navigate other financial situations in the future.”

“I knew I wanted to be a public interest lawyer from day one,” said Clemmer to Massachusetts Lawyers Weekly. “I care deeply about justice for all and wanted have dedicate my career to empowering the most underserved and vulnerable members of our society.”

Law Special Coverage

Red Ink

Steve Weiss

Steve Weiss says he’s getting a steady volume of calls from business owners with questions about bankruptcy or liquidation.

Steve Weiss says the wave of bankruptcies that he and others in his line of work are expecting certainly hasn’t reached shore yet, to use a phrase appropriate for this time of year.

“But you can definitely see it building out there — it’s coming; you can see it rolling in,” said Weiss, who specializes in bankruptcies and workouts for the Springfield-based law firm Shatz, Schwartz & Fentin.

This wave is comprised of both corporate and consumer (personal) bankruptcies, and it will be large and hit with considerable force, he went on, adding that a number of factors are colliding that will make it so.

On the corporate side, while many companies have been able to hang on and survive the pandemic to date, they have done so thanks largely to government stimulus initiatives that are due to be exhausted soon, leaving business owners and managers wondering how they will pay people and all their bills. And on the consumer side … it’s a very similar story.

Indeed, unemployment benefits and stimulus checks have helped many make ends meet, but those checks are projected to end soon for large numbers of people, if they haven’t ended already.

“My phone is starting to ring more with business owners who are either unsure how they’re going to make it, or are sure they can’t — the virus has just clobbered their business,” said Weiss, who said his next phone call after the one with BusinessWest was with a business owner looking to talk about bankruptcy or perhaps liquidation.

“My phone is starting to ring more with business owners who are either unsure how they’re going to make it, or are sure they can’t.”

Such calls are starting to come in with increasing frequency, said Mike Katz, a partner with the Springfield-based firm Bacon Wilson and one of the region’s pre-eminent bankruptcy specialists. He used a different, though similar, metaphor to describe what’s coming.

“I think the dam is about to break — we’re on the cusp of a tsunami of bankruptcies,” he said. “It hasn’t happened yet, but it’s going to happen.”

There have already been many, especially on the corporate side, he went on, noting that many large and famous names, many from the retail sector, have filed for Chapter 11 protection. That list, which continues to grow, includes Lord & Taylor, J. Crew, Brooks Brothers, Gold’s Gym, Neiman Marcus, JCPenney, Hertz, 24-Hour Fitness, Chuck E. Cheese, California Pizza Kitchen, and Men’s Wearhouse.

Those names reveal the types of businesses that are most in jeopardy, Katz continued, adding that, locally, many small businesses in the hospitality, retail, and fitness realms — but many other sectors as well — face severe challenges as they try to survive the pandemic.

For some in this category, an emerging option is what’s being called the ‘fast-pass’ small-business bankruptcy process, otherwise known as Subchapter V of Chapter 11 of the Bankruptcy Code. This new subsection, which became effective in February, is not a response to COVID-19, but certainly seems to be tailor-made for the economic crisis the pandemic has created.

Mike Katz

Mike Katz is expecting a “tsunami” of bankruptcy filings. What he doesn’t know is when this wave will hit.

That’s because, as the name suggests, it is a faster, less expensive Chapter 11 reorganization path, designed specifically for much smaller businesses than those that seek the Chapter 11 route. To be eligible for Subchapter V, an entity or an individual must be engaged in commercial activity, and its total debts — secured and unsecured — must be less than $7.5 million, a new number (the old one was $2.725 million) resulting from provisions of the COVID-inspired CARES Act. At least half of those debts must come from business activity.

Katz and others we spoke with said the fast-pass option holds potential for some businesses, but there are challenges within its many provisions, including the need to come up with a reorganization plan within 90 days of the filing. Such plans may be difficult to develop given how difficult it is to see even a few weeks down the road, let alone several months, because of the pandemic.

“The one downside is you file your bankruptcy papers, and you’re required, within 90 days, to put a plan in place,” said Mark Cress, a bankruptcy specialist with the Springfield-based firm Bulkley Richardson. “That’s a short window, and a lot of small businesses are barely holding their own.”

For this issue and its focus on law, BusinessWest talked with these bankruptcy lawyers about what they can already see coming. They can’t predict when this particular surge will begin, but they say it’s almost unavoidable.

Chapter and Verse

While Katz and Weiss were crafting analogies to waves and tsunamis, Cress wanted to draw parallels to the Great Depression.

Indeed, he told BusinessWest that the current conditions rival, and in some cases (such as the quarterly decline in GPD) actually exceed those of the Great Depression that started roughly 90 years ago.

“This is worse than the Great Depression in a lot of ways,” he said. “The dip in the economy — it dropped by a third — was something we’ve never seen before. And but for the way the Fed has handled this, it would be devastating; those multi-trillion-dollar programs … they’re the only thing that’s sustaining us. Without that, the whole house of cards would collapse.”

To further state his case — that’s an industry term — Cress pointed to numbers contained in an analysis authored by Morning Consult economist John Leer, who noted that, without additional funding, millions of unemployed Americans are at risk of financial insolvency by the end of this month.

“The personal finances of workers who have been laid off or placed on temporary leave since the onset of the pandemic deteriorated in July,” Leer wrote. “The July survey found that 29% of unemployed and furloughed workers lacked adequate savings to pay for their basic living expenses for the month, up 16% in June. This monthly change contrasts with June, when the finances of laid-off and furloughed workers improved. At that point in time, many renters and homeowners took advantage of the rent-deferral and mortgage-forbearance options included in the CARES Act, thereby driving down their monthly expenses.”

Mark Cress

Mark Cress says the new ‘fast-pass’ bankruptcy process may be a viable option for some, but the process doesn’t leave business owners much time to create a reorganization plan.

Cress backed up that commentary with some other, very sobering numbers regarding renters.

“One-third of all renters weren’t able to make their July rent,” he noted. “And more than 60% were concerned they won’t make August. So you can imagine the ripple effects this will have … many small-time landlords, with one or two tenants, may not be able to pay their mortgage.

“And you if get enough defaulted mortgages … then banks start to pull in their horns, and all of a sudden the credit markets freeze up, and you have a real disaster,” he went on, drawing analogies, again, to what happened nine decades ago.

Looking at these statistics and possible scenarios, it’s easy to see why bankruptcy lawyers are expecting a wave, or tsunami, of personal bankruptcies to hit this area — and the nation as a whole — soon, with ‘soon’ being a relative term.

“Some people are getting unemployment benefits, but it looks like that’s ending,” said Weiss. “There’s a foreclosure and eviction moratorium that’s ending in October, and there are already people living on credit cards and exhausting their savings just trying to get through this — and it’s going to be a while before jobs come back.

“So it’s a matter of sooner than later,” he went on. “And bankruptcy is something of a trailing indicator; it takes people a while to get the point where they need to file for bankruptcy — the credit-card bills don’t become unmanageable until several months go by.”

By the Numbers

But the wave will almost certainly involve corporate bankruptcies as well, said those we spoke with, noting that many businesses have struggled to merely survive the past five months. And with the state already pumping the brakes on its reopening plan as reported cases increase, and ever more uncertainty about the future, survival is becoming more of a question mark for many businesses.

That’s especially true within the restaurant sector, said those we spoke with, noting that, while many have been able to reopen, their revenues are still a fraction of what they were pre-COVID. And with fall and then winter coming — meaning far fewer opportunities to serve outdoors — some in this sector are wondering if, and for how long, they can hang on.

“I think the dam is about to break — we’re on the cusp of a tsunami of bankruptcies. It hasn’t happened yet, but it’s going to happen.”

“I’ve been contacted by a number of restaurants, in particular, over the past few months,” said Katz, adding that there have been inquiries from those in other sectors as well. “Some of these have managed to hold on, some have closed some locations while keeping others open … but the number of people I’ve talked to just today tells me that the dam is just teetering, and I think there’s going to be unprecedented times in the bankruptcy field.”

This speculation leads him back to the new fast-pass small-business bankruptcy process, and questions about just how many businesses may try to take advantage of this emerging option, and whether they can be successful with such bids.

“I think a lot of businesses will try doing this because you have a 90-day maximum to get in and get out — that’s how fast this Chapter 11 is going to go,” he explained. “And the whole thing is predicated upon the fact that you only have to propose a plan that provides more to the creditors than they would receive in a liquidation, with no voting.

“Under the current Chapter 11 process, there’s a whole voting process, where you have to get two-thirds of the dollar amount and a majority of the number of creditors to vote in favor of it,” he went on. “But with this process, there’s no voting — it’s a much more streamlined process, and it’s far less expensive.”

With the new ceiling of $7.5 million, many more businesses are now eligible to take this route. But that same 90-day in-and-out period, while attractive in one respect, is daunting when it comes to actually putting a reorganization plan in place.

“I’ve talked with a number of people about it because people are still trying to figure how it works — there isn’t a lot of legal guidance or precedence,” said Cress. “But having to put a plan together in 90 days is going to be very difficult for many small businesses. If you don’t have any profits or any cash and you’re living hand to mouth, it really places an undue burden on you to figure it all out and get creditor sign-off in 90 days.”

Katz agreed. “Most traditional Chapter 11 cases are multi-year, and reorganization is based in projections,” he told BusinessWest. “How do you project when this COVID situation is going to change? If you’re a restaurant, how can you project when people are going to come back to your restaurant and you can go back to something approaching capacity?”

The Bottom Line Is the Bottom Line

Those lawyers we spoke with all expressed a desire not to sound like an alarmist.

But as they talked about what they’re seeing, reading, and hearing on the phone calls they’ve already taken, they admit it’s difficult not to take that tone.

“For many businesses, it’s a matter of survival at this point,” said Cress, noting that survival is becoming more difficult in some sectors with each passing month. “It’s becoming apparent that the recovery is not going to happen as quickly as some had originally hoped, and the effect is going to be much deeper and longer-lasting than people are even letting on.”

And one seemingly unavoidable consequence of all this is bankruptcies, on both the corporate and consumer sides of the ledger.

As Weiss said, the wave hasn’t crashed ashore yet, but if you look — and you don’t have to look hard — you can see it building.

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

Coronavirus Law

A Stern Test

By Marylou Fabbo

With schools reopening, parents and employers will be in a difficult boat together as they attempt to juggle parenting with personal and professional responsibilities.

Parents are understandably anxious about how they will meet their obligations to both their children and their employers. Several school districts have announced hybrid returns with students alternating between attending school and remote learning. Some jobs just can’t be done from home, and some parents who would otherwise be able to work at home will be needed to help their children with remote learning (or breaking up arguments).

To make matters worse, schools that are already back in session have shown us that, despite precautions that are being taken, school-based COVID-19 outbreaks are a real concern.

Employment-law Compliance

There is no question that many parents will be working from home in some capacity once the school year starts. Businesses should keep in mind that laws that are applicable in the workplace don’t go out the door simply because the workplace has moved to an employee’s home.

Marylou Fabbo

Marylou Fabbo

“Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle?”

For instance, Massachusetts employers must continue to make sure their employees take their 30-minute meal break and keep records of all hours worked, which may not look like the normal 9-to-5 workday. State and federal laws that require employers to provide a reasonable accommodation to disabled employees in the workplace apply to remote employees as well.

To meet these requirements, employers may need to do things such as make adjustments to equipment or the manner in which work is completed. Notices that must be posted in the workplace should be electronically distributed or mailed to an employee.

Still, there are many unanswered questions, and businesses are advised to consult with legal counsel before taking any risky actions. For example, employers are required to reimburse employees for required business-related expenses, but what does that mean when employees use their own laptops and internet for at-home work?

Does workers’ compensation insurance apply when an employee trips over a toy during the workday and fractures her ankle? How does an employer prevent and address sexual harassment in the remote workplace? Is it discriminatory to distribute extra or different tasks that can’t be done at home to older employees who no longer have kids at home? All these issues should be discussed with your employment-law advisors.

Job-protected, Paid Time Off

Not all employees will be able to work when their children are taking classes from home. Employers should be prepared to work with a reduced staff for the foreseeable future. Federal laws will provide many parents with job-protected time off when school is closed, which includes situations where some or all instruction is being provided through distance learning.

The Families First Coronavirus Response Act (FFCRA) generally requires employers to provide paid time off to employees who cannot work (or telework) because their child’s school is closed. However, it’s not enough that a child is attending class remotely. The parent must be needed to care for the child, and the child must be under 14 absent special circumstances.

Still, the FFCRA does not cover all employees or all employers. Employers with 500 or more employees are not covered by the law, while small employers and healthcare providers may be exempt from certain requirements. Also, employees who have been employed for less than a month are only eligible for a maximum of two weeks of ‘emergency sick’ leave, while employees who have been employed for at least 30 days may be able to take up to an additional 12 weeks of expanded family and medical leave (EFML), including on an intermittent basis, assuming that the leave hasn’t already been taken for other permissible purposes.

Eligible employees can earn up to $200 per day when taking childcare EFML, subject to certain maximum dollar amounts. Lawmakers in several states, including Massachusetts, are considering legislation that would fill the gaps in the FFCRA’s paid-leave provisions, and several states have already extended virus-specific paid leave. Employers whose employees aren’t eligible for protected leave will have to decide whether to allow job-protected leave or lay off or otherwise separate with the employee.

School-related Exposure

Unpredictable, illness-related absences can pose another challenge for employers and employees. Children may be exposed at school and bring the virus home.

Employees may be needed to care for their children who are ill and may even test positive themselves. The FFCRA provides up to two weeks paid time off for COVID-related illnesses. The Massachusetts paid-sick-leave statute and the FMLA may also provide employees with paid time off. Employees may also be able to take protected time off (or time at home) as a reasonable accommodation for the employee’s own disability that makes it risky for the employee to go into the office.

Plan Ahead

There’s never been a return to school quite like 2020. The only certainty is that employers could not possibly plan for all potential scenarios. Businesses should make sure they have effective remote-work policies, practices, and procedures in place, be prepared to operate with fewer employees on an intermittent and possibly long-term basis, and designate one or more people within the organization to whom management and employees can direct their questions.

Marylou Fabbo is a partner with Springfield-based Skoler, Abbott & Presser, P.C., a law firm that exclusively practices labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. She devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753 ; [email protected]

Law

A Landmark Ruling

By Amelia J. Holstrom, Esq. and Erica E. Flores, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Erica E. Flores

Erica E. Flores

Businesses in Massachusetts have to comply with both state and federal anti-discrimination laws that prohibit discrimination in employment based on what are referred to as protected characteristics. Some examples that people commonly think of are sex, age, and religion, but there are many more.

Massachusetts’ anti-discrimination laws have prohibited employment discrimination on the basis of sexual orientation since 1990 and gender identity and expression since 2012. However, many other states either don’t have employment-discrimination laws at all or don’t include sexual orientation or gender identity as protected characteristics under the laws they do have. So what about the federal law?

Title VII of the Civil Rights Acts of 1964 prohibits discrimination in employment based on specified protected classes. That statute, however, does not list sexual orientation or gender identity in its list of protected characteristics. Although Title VII prohibits discrimination on the basis of ‘sex,’ because it did not expressly list sexual orientation and gender identity as protected classes, federal courts had been left to grapple with whether discrimination on the basis of either of those characteristics is prohibited as a form of sex discrimination under Title VII. That is, until the Supreme Court of the U.S. issued its ruling in Bostock v. Clayton County, Georgia on June 15, 2020.

In a landmark ruling, the Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation and gender identity. The court’s decision resolved three separate but similar cases pending before the Supreme Court: Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda; and R.G. & G.R. Harris Funeral Homes Inc. v. EEOC.

Each of the three cases began the same way: Gerald Bostock worked for Clayton County, Ga. and was terminated for conduct “unbecoming” of a county employee when he began to participate in a gay softball league. Donald Zarda worked as a skydiving instructor at Altitude Express in New York. After mentioning that he was gay, he was terminated just days later after several years of successful employment. Aimee Stephens worked at R.G. & G.R. Harris Funeral Homes in Garden City, Mich. When hired, Stephens presented as a male. After five years of employment, she informed her employer that, after she returned from an upcoming vacation, she planned to “live and work full-time as a woman.” She was fired before she even left.

Bostock, Zarda, and Stephens each filed a lawsuit against their employer alleging that they were discriminated against on the basis of their sex in violation of Title VII. Bostock’s case was dismissed by the Eleventh Circuit Court of Appeals, which held that sexual-orientation discrimination is not a form of sex discrimination under Title VII. Zarda and Stephens’ cases had a different outcome. The Second and Sixth Circuit Courts of Appeals found that discrimination based on sexual orientation and gender identity, respectively, are prohibited under Title VII as forms of discrimination based on sex.

“An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

The Supreme Court of the U.S. agreed to review all three decisions to resolve the issue that had divided the lower courts: whether discrimination on the basis of sexual orientation and/or gender identity is prohibited under Title VII as a form of discrimination based on sex. The Supreme Court answered in the affirmative.

In the 6-3 majority opinion, which was authored by Justice Neil Gorsuch, the court focused on the ordinary meaning of the language used by Congress in Title VII at the time the law was passed back in 1964. Specifically, Title VII states that it is “unlawful … for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s … sex.” The court noted that, in 1964, ‘sex’ was defined as one’s “status as either male or female [as] determined by reproductive biology; that the statute uses the term ‘because of’ that status to define when an action is discriminatory; and that it focuses on discrimination against an individual, not a group.

Based on this language, the court found that, under the plain meaning of Title VII, “an individual’s homosexuality or transgender status is not relevant to employment decisions … because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The court went on to explain its reasoning using two examples:

• An employer has two employees — one female and one male — both of whom are attracted to men. If the employer fires the male employee because he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague. Accordingly, he was singled out based on his sex, and his sex is the reason for the discharge.

• An employer employs a transgender employee who was identified as a male at birth but who now identifies as a female. If the employer continued to employ someone who identified as female at birth but terminated the individual who identified as male at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.

The court agreed that sexual orientation and gender identity are, in fact, distinct concepts from sex. However, the court determined that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

With this landmark decision, every employer that is covered by Title VII anywhere in the country will now be subject to the same prohibitions that have protected LGBTQ+ employees in Massachusetts for the last eight years, and will be subject to civil penalties and civil liability under Title VII for discriminating against employees on the basis of their sexual orientation or gender identity. This includes every private employer and every state or local government agency that has 15 or more employees.

Amelia J. Holstrom and Erica E. Flores are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Law

That Is the Question, and Here Are Some Answers

By Valerie Vignaux, Esq.

Valerie Vignaux

Please allow me to interrupt your quarantine gratitude journaling and victory gardening to demystify a topic apt for these unfortunate times: probate.

I have found in my legal practice that most consider probate to be a dirty word. I have also found widespread misunderstanding of what that dirty word really means. What better time than during a pandemic to learn about the legal process surrounding death?

What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes. You ask, one eyebrow raised, “what are probate assets?” Excellent question — I can tell that you are a close listener.

Probate assets are property (such as real estate, bank accounts, cars, investment accounts, and retirement funds) that you own in your name alone at your death. These assets do not have a joint owner (like a joint bank account you might have with a spouse). These assets do not have a designated beneficiary (like on an IRA or a life-insurance policy that lists a child as beneficiary). In order for anyone to be able to access these assets after your death — to pay bills, to make distributions to loved ones — the assets must go through the probate process.

“I have a will!” you proclaim with confidence, “so there won’t be any probate.” But you are wrong, my friend. It is not the existence of a will that prevents probate; it is the absence of probate assets that prevents probate. It is how you own something that dictates whether that process must be undertaken, not whether you have a will.

“Then I shall tear up my will!” you cry out. Please, no. Your will makes this process easier, in part, by telling the court whom you want to be in charge of those assets. In the old days, when we shook hands with gusto and gathered at bars to buy overpriced cocktails, we called this person the executor or executrix. Today — really, since 2012 — the personal representative fills this role. Same job, different name.

“What, then, is probate? It is a process to appoint someone to be in charge of your probate assets after you die, and to distribute those assets according to your wishes.”

Your will also informs the Probate Court who will get your probate assets. Additionally, if appropriate, your will names your desired guardian of your children, in the event you die leaving minors behind. (Please wash your hands and stop touching your face.)

“Probate is the fourth circle of hell,” you sigh with resignation, “and I will take great pains to avoid it.” Here’s the dirty word bit, and what so many believe: probate is complicated, takes forever, and costs tons of money. This is not, however, necessarily true, and it is often not true at all. Of course, it depends upon the nature of your assets — perhaps you own many properties in different states, or a family business. Probate’s difficulty depends, too, upon your family circumstances — maybe you don’t have highly valued assets, but your children do not get along and there is a high likelihood of challenge over your collection of red hawk tail feathers.

For most people, probate is simply a process with clearly defined steps and a timeline. Getting help from an attorney can make the process even easier.

You now know, because you’re a quick study, two ways to avoid probate (add a joint owner, designate a beneficiary). But here’s something radical to consider: you might not want to avoid it. There are situations in which it makes good sense to force your assets (some or all) through the probate process. Your will can serve as a master plan for what happens to all you leave behind. That document allows you to spread your wealth (whether millions in cash or a trunkful of hand-sewn face masks) among all of your loved ones equally, or unequally. Your will can even create a trust that can hold assets for minors, those with poor spending habits, or a disabled family member.

If you name your children as beneficiaries of your life-insurance policy and die while they are still minors, a conservator will need to be appointed to receive, hold, and manage those funds for the benefit of your children — kids can’t just inherit money. The conservatorship process, another Probate Court endeavor, also takes time and money — often more than probate itself.

If you instead name your estate as beneficiary of your life insurance (“such madness!” you gasp, but bear with me), those funds will be handled according to the master plan — your will. You can avoid the necessity of a conservatorship by directing those funds into a custodial account at a bank, or by including a trust in your will that will hold the money for the benefit of your children. This is just one example of many.

I work with clients regularly to avoid probate and still achieve their desired goals. But sometimes I recommend that they embrace the process because it makes the most sense for their situation. Probate doesn’t have to be a dirty word. Working with an estate-planning attorney, and perhaps a financial advisor, you may find this is true for you. It’s important that everyone have a plan in place, but let’s all try to stay alive for a good, long while.

Valerie Vignaux is an attorney with Bacon Wilson, P.C., and a member of the firm’s estate-planning and elder-law team. She assists clients with all manner of estate planning and administration, including probate, and provides representation for guardianship and conservatorship matters. She received the Partner in Care award from Linda Manor in 2017, and served on the board of directors for Highland Valley Elder Services; (413) 584-1287; [email protected]

Law

What to Expect When…

By John Gannon, Esq.

My wife and I recently welcomed our first child into the world. We are over the moon in love with our daughter and excited to see where this amazing journey will take us.

John S. Gannon

John S. Gannon

As an employment attorney, this process got me thinking about the topic of parental leave. That’s the legal term for providing job-protected time off from work to employees so they can bond with a newborn or newly adopted child.

Massachusetts state law requires almost all businesses to provide some job-protected leave for the birth or adoption of their child, and the federal Family and Medical Leave Act (FMLA) obligates employers with 50 or more employees to provide additional time off and protections to new parents. Although at first glance these laws may seem easy to administer, there are plenty of traps for those who do not have a deep understanding of how parental leave needs to be administered. Here are a few things employers should be aware of when an employee requests and takes parental leave.

What Does Your Policy Say?

Hopefully, you have a policy that addresses parental leave. If not, it’s time to get one on the books. Even if you have a policy, it’s never a bad idea to be make sure the language is up to date and consistent with state and federal laws governing time off to bond with a child. For example, the Massachusetts Parental Leave Act (MPLA) requires employers with six or more employees to provide eight weeks of unpaid leave to full-time employees for the purpose of giving birth or for the placement of a child for adoption.

If you have more than six employees, you need to have a policy and practice that addresses parental leave. Notably, up until a few years ago, this law was commonly referred to as the Massachusetts Maternity Leave Law, because the language of the statute provided leave protections for female employees only. The law was amended a few years ago to expand parental-leave protections to employees in Massachusetts of all genders.

If your policy refers to maternity leave instead of parental leave, it’s time to update your handbook as several employment laws have probably been added or changed since your last review.

Intersection of the FMLA

Employers covered by the FMLA have additional obligations that go beyond the requirements of state-mandated parental leave. For starters, under the FMLA, eligible employees are entitled to take up to 12 work weeks of FMLA leave in a 12-month period for a number of different reasons, including the birth of a child and to bond with a newborn or newly adopted child.

Both mothers and fathers have the right to take FMLA leave to bond with a child. Importantly, when an employee takes time under the FMLA to bond with a child, the eight weeks of state-mandated MPLA runs concurrently. This means that an employee with 12 weeks of available FMLA is entitled to 12 total weeks of parental leave, as the MPLA is used at the same time as the FMLA is used. However, questions arise when employees use FMLA for a reason unrelated to the birth or adoption of their child.

For instance, suppose an employee used 12 weeks of FMLA earlier this year to care for a sick parent. This month, the employee approaches you requesting leave to care for a child who is expected next month. That employee would no longer be entitled to 12 weeks of FMLA to care for the newborn, but would still be entitled to the eight weeks of MPLA under state law.

Leave Employees on Leave Alone

They call it leave from work for a reason. Employers need to resist the urge to contact employees on leave with work-related questions, especially if the leave is unpaid.

A call or two about something basic, such as the location of a file or document on the system, is probably fine. However, requesting attendance at meetings or on phone conferences will cross the line, as will the assignment of projects or other tasks. Not only are you taking parents away from a special and important time in their lives, but you are also potentially creating a situation where you are unlawfully interfering with an employee’s right to take time off under the FMLA or MPLA.

Plus, if the employee is taking unpaid parental leave, which is typically the case, you will need to be sure that the employee is compensated for any work performed during parental leave, including answering calls or responding to e-mails. This can be tough to account for, so the best practice is to let employees on parental leave enjoy their time off without work-related distractions.

Final Thoughts

I learned firsthand that parental leave was a special time for me and my newborn. Employers need to openly encourage employees to take all available parental leave, and should consider offering benefits that go beyond those required by state and federal law.

The U.S. Department of Labor reported in a policy brief on parental leave that longer leaves promote better child bonding, improve outcomes for children, and even increase gender equity at home and at the workplace.

A generous parental-leave policy is also a fantastic recruiting and retention tool, as it sends a message that the business values its workforce and is committed to bettering employee work-life balance.

John Gannon is a partner with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]

Law

Paid Family and Medical Leave

By John S. Gannon, Esq. and Amelia J. Holstrom, Esq.

John S. Gannon

John S. Gannon

Amelia J. Holstrom, Esq.

Amelia J. Holstrom

Businesses have had almost a year to prepare for the implementation of Paid Family and Medical Leave (PFML) in Massachusetts. Still, many questions remain, and the first critical date — July 1 — is right around the corner.

Here are five things that should be at the top of your to-do list as employers in the Commonwealth prepare for PFML.

Decide How to Handle Tax Contributions

PFML is funded through mandatory payroll contributions that begin on July 1. Currently, the contribution is set at 0.63% of an employee’s eligible wages. Because PFML covers two types of leave — medical leave and family leave — the state Department of Family and Medical Leave (DFML) has attributed a portion of the contribution (82.5%) to medical leave and the remainder (17.5%) to family leave. As if that wasn’t confusing enough, employers are permitted to deduct up to 100% of the family-leave contribution and up to 40% of the medical-leave contribution from an employee’s pay. Employers with 25 or more employees are required to pay the rest.

Although employers can pass on a lot of the contribution to the employee, businesses should consider whether to pay a portion, or even all, of the employee’s portion. When doing so, employers should consider the impact on morale, whether an employee is more or less likely to use the leave if they are paying for it, and whether the employer can afford to do more.

Provide the Required Notices

Employers are required to provide notice to employees about PFML on or before June 30. Two separate notices are required — a workplace poster and a written notice distributed to each employee and, in some cases, independent contractors. The mandatory workplace poster must be posted in English and each language that is the primary language of at least five individuals in your workforce if the DFML has published a translation of the notice in that language. Posters are available on the DFML website.

“It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work.”

The written notice must be distributed to each employee in the primary language of the employee and must provide, among other things, employee and employer contribution amounts and obligations and instructions on how to file a claim for benefits. Employees must be given the opportunity, even if provided electronically, to acknowledge or decline receipt of the notice. The DFML has issued a model notice for employers to use.

Employers must get these notices out by June 30, but also within 30 days of an employee’s hire. Failure to do so subjects an employer to penalties.

Consider Private-plan Options

Employers who provide paid leave plans that are greater than or equal to the benefits required by the PFML law may apply for an exemption from making contributions by applying to the DFML. Employers can apply for an exemption to family-leave or medical-leave contributions, or both. Private-plan approvals are good for one year, and, generally, will be effective the first full quarter after the approval.

However, the DFML has made a one-time exception for the first quarter — July 1 through Sept. 30. Employers have until Sept. 20 to apply for an exemption, and any approval will be retroactive to July 1. Employers should consider whether this is a viable option for them before employees can begin taking leave on January 1, 2021.

There are benefits to doing so, but employers should consider the potential cost. If an employer chooses to self-insure its private plan, it must post a surety bond with a value of $51,000 for medical leave and $19,000 for family leave for every 25 employees. Employers may also have the option to purchase a private insurance plan that meets the requirements of the law through a Massachusetts-licensed insurance company.

Review Current Time-off and Attendance Policies

The principal regulator of frequent leaves of absence is the fact that employees are not getting paid for this time away from work, absent company provided paid time off like sick or vacation time. Once those company-provided benefits are used up, the employee is not getting a paycheck.

Naturally, this gives employees motivation to get back to work and on the payroll. Unfortunately, when Jan. 1, 2021 comes around, businesses will lose this regulator as PFML will be paid time off, up to a cap of $850 per week (and up to a whopping 26 weeks of paid time off per year).

It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work. Therefore, businesses should be reviewing their current time-off and attendance policies to determine whether changes should be made in light of this forthcoming law. Are you providing too much paid time off already? Should you develop stricter requirements surrounding absenteeism and employee call-out procedures?

The time is now for discussing these changes as modifications to leave and attendance policies take time to think through and implement.

Plan for Increased Staffing Challenges

Many businesses and organizations throughout the region are currently dealing with significant staffing difficulties due to historically low unemployment rates. This challenge is only going to increase when the leave protections of PFML kick in on Jan. 1, 2021.

We recommend that employers try to get out in front of this by having meetings and possibly forming committees tasked with planning for expected workforce shortages. Consider increasing per-diem staff as regular staffers are likely to have more time off and call-outs from work. Consult with staffing agencies to explore whether temporary staffing will be an option if (and when) employees take extended PFML. Whatever you do, don’t wait until late next year to address potential staffing problems.

Bottom Line

PFML is certainly going to be a challenge for employers to deal with, particularly smaller employers who are not already familiar with leave laws like the federal Family and Medical Leave Act. Although it may seem as though the sky is falling on employers, with proper and careful planning and guidance from experts, transitioning into the world of PFML should be reasonably manageable.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively representing management in labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Holstrom devotes much of her practice to defending employers in state and federal courts and before administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, compliance, and union-related matters; (413) 737-4753; [email protected]; [email protected]

Law

Navigating Short-term Rentals

By Ryan K. O’Hara, Esq.

Ryan K. O’Hara

Ryan K. O’Hara

Maybe you’ve spent a lazy July week with your family in a cottage overlooking Cape Cod Bay.

Maybe you’re letting Janice from work use Grandma’s cabin in Otis for a long fall weekend – you weren’t going to use it then anyway, and who would say no to an extra $200?

Maybe you’ve temporarily filled your empty nest with an Angolan physicist and a Chilean biologist attending a two-week academic conference put on by the Five Colleges.

Whatever the specifics, without actively realizing it, many Massachusetts residents have been party to a short-term rental (that is, a temporary rental of a living space that isn’t in a hotel, motel, lodging house, or bed and breakfast).

While short-term rentals are nothing new, they have become much more prevalent with the rise of entities like Airbnb. Short-term rentals can be an exciting source of income, and powerful online tools have made participation in the market easier than ever. Together with that increased participation, however, comes increased regulation.

Airbnb, Vrbo, and other companies like them act as third-party platforms where property owners can list premises for rent, and prospective renters can find a place that meets their needs. Both renters and property owners can now enter the market and operate with relative ease and informality. The market has also expanded to include a wide range of rental offerings — not only traditional houses and apartments, but also cottages, cabins, “micro” homes, campers, and even letting out vacant rooms in owner-occupied homes.

“While the notion of creating an online account and letting the rental income flow is very appealing, property owners should be aware that there is much more responsibility involved than a first glance at a website might suggest.”

While the notion of creating an online account and letting the rental income flow is very appealing, property owners should be aware that there is much more responsibility involved than a first glance at a website might suggest. Particularly in areas where the rental property is in close proximity to non-renting neighbors, conflicts and complications can arise.

Neighbors worry about vetting the renters, frequent turnover, and increased noise, traffic, and litter from transient visitors who don’t have the same investment in the neighborhood as those who live there. State and local governments are concerned with the number and density of rentals, the loss of tax revenue through unreported rental income, and the movement of customers away from traditional lodging options like hotels (and the excise-tax revenue that comes with them).

In response to these concerns, in December 2018, Massachusetts enacted “An Act Regulating and Insuring Short-Term Rentals” (Mass. Acts 2018, c. 337). This law defines short-term rentals, establishes and imposes obligations on both owners and renters, and empowers local governments to regulate short-term rentals on a town-by-town basis. The act goes into effect on July 1, making it critical that anyone interested in the short-term rental industry familiarize themselves with this new law.

The first thing to understand is whether your property is covered by the act. The act applies to any property that is not a hotel, motel, lodging house, or bed-and-breakfast establishment, and where at least one room or unit is rented, and all rentals are reserved in advance. The next question is whether a specific rental is in fact a short-term rental. Owners beware: if the space is rented for more than 31 calendar days to a given renter, it is no longer a short-term rental, but a residential tenancy, which carries vastly different obligations and duties.

If your property constitutes a short-term rental within the act’s definitions, you are considered an ‘operator,’ and are obligated to register with the Department of Revenue, file special tax returns showing rental income, and pay a 5% state excise tax on rents received. Cities and towns can also choose to impose an additional excise tax of up to 6% (or 6.5% for Boston properties). For Cape and island towns and cities, an additional 2.75% excise tax may be added.

The act also authorizes cities and towns to pass ordinances or bylaws regulating operators. These regulations may, among other things, limit the existence, location, and/or number of operators and the duration of rentals; require local licensing and registration; require health and safety inspections; or even prohibit future rentals where violations are found. Operators must consult with town authorities before operating any short-term rental, to ensure compliance with local regulations.

Per the act, operators must maintain liability insurance of $1 million or greater to cover bodily injury and property damage relative to each short-term rental, unless the rental is offered through a platform such as Airbnb or Vrbo that has equal or greater coverage. Operators must also notify their own property insurer that they will be operating a short-term rental at their premises.

Finally, the act makes clear that Massachusetts’ anti-discrimination statute applies to short-term rental operators. Any unlawful discrimination could expose operators to significant liability. For this reason, it may be advisable for operators to obtain training and legal advice on housing and rental discrimination.

Operating a short-term rental business can be a profitable endeavor that carries less expense and exposure than operating traditional, long-term residential rentals. However, it is vital that any operator understand and abide by the laws and regulations that govern this growing industry. Those who arm themselves with knowledge — whether by reviewing the law on their own or consulting legal counsel familiar with the industry — give themselves a fantastic chance at profitability and success with minimal complications.

Ryan K. O’Hara is an associate with Bacon Wilson, P.C. and a member of the firm’s litigation team. His legal practice is focused on contract and business matters, landlord-tenant issues, land-use and real-estate litigation, and accidents and injuries; (413) 781-0560; [email protected]

Law

Firm Resolve

Managing Partner Kenneth Albano

Managing Partner Kenneth Albano

As Bacon Wilson approaches its 125th anniversary next year, it can look back on plenty of history and change — with perhaps the past couple of decades representing the most dramatic evolutions in law. Through it all, the practice has remained remarkably steady, boasting numerous long-time attorneys and a measured growth strategy that has led Bacon Wilson to its position as the region’s largest law firm — one with its focus squarely on the future.

Just before he sat down with BusinessWest, Kenneth Albano was looking through an old file at Bacon Wilson, dating from 1993. Two things struck him about the letterhead.

One was the number of lawyers — just 16, compared to 42 today. The other striking thing was how many of those 16 are still practicing at Bacon Wilson today.

“Every lawyer except a few is still here,” said the firm’s managing partner, noting that he’s been at Bacon Wilson for 31 years, while the other two partners who spoke with BusinessWest for this story, Hyman Darling (38 years) and Donna Wexler (a relatively brief 17 years), have also built quite a bit of history with the firm.

“It says a lot about the fabric of the firm, that people stay here as long as they do.”

It says a lot about the fabric of the firm, that people stay here as long as they do,” Albano went on. “We have lawyers like Mike Katz and Paul Rothschild, who have been here 40-plus years and are still working hard every day.

“When we interview for associates, they always bring that to the top of the discussion, because it’s important for people to feel stability,” he noted. “With Millennials these days, it’s tough to get a straight answer as far as commitment, but we try to impress upon them that this can be your work family and your home for years to come. That’s what we bring to the table, and it’s been successful over the years.”

That stability has no doubt contributed to the firm’s growth, but so have a series of strategic mergers, which have led to Bacon Wilson establishing offices over the years in Northampton, Amherst, Westfield, and Hadley in addition to Springfield, where it has maintained a State Street address for almost 125 years.

“These are not offices where you call a phone number get a receptionist covering all the shared space,” Albano said. “These are standalone facilities with partners, associates, paralegals, and receptionists.”

At a time when it’s more difficult to find young talent (more on that later), the key has been smart expansion — not hiring just to hire or merging just to merge, he added. And those mergers have essentially been achieved through relationship building.

“We don’t buy practices,” he said. “So if you were looking to retire, you wouldn’t come to me and say, ‘I want X amount of dollars for my practice,’ because it’s a lose-lose situation for us. The win-win is, ‘sure, let’s talk, come be part of the Bacon Wilson family for three or four years, allow your clients to meld into our practice groups, and allow our lawyers to get to know your clients, and have a slow exit strategy.’ That’s how it’s worked in the past.”

Last year, Massachusetts Lawyers Weekly ranked Bacon Wilson as the 42nd-largest law firm in Massachusetts, but it’s the largest in Western Mass. — and well-positioned, Albano said, to continue to tackle what has become an increasingly complex and demanding legal landscape.

Time to Change

Long-timers like Albano, Darling, and Wexler have seen their share of changes in the legal world, too.

“When I first came here, if somebody came in for an estate plan, it was a will,” said Darling, who has built a reputation as a premier authority in the region on estate planning. “Now, it’s a will, health proxy, power of attorney, homestead declaration, maybe a trust … we talk about things like end-of-life decisions and organ donors and cremation and anatomical gifts. Pet trusts, gun trusts. It’s evolved into things that none of us ever learned in law school.”

Donna Wexler and Hyman Darling

Donna Wexler and Hyman Darling have seen plenty of changes in their fields of real estate and elder care/estate planning, respectively.

That’s why he has gone from working with one shared secretary to leading a team of six estate-planning attorneys and 20 total staff, with responsibilities ranging from asset-protection planning and pet trusts to having his picture taken with a big check for the Massachusetts Lottery wall in Braintree when a winner decides to establish an anonymous trust.

“There’s special-needs planning that we didn’t do before,” he went on. “There was nothing called elder law when I came to the practice. And 10,000 people turn 60 every day — and we have a lot of them in Massachusetts.”

Technology has changed the way lawyers work as well, said Wexler, who specializes in real estate.

“When I started practicing, I would fill out forms in pen and the secretary would type them, then there were years when I typed them, then it evolved into the banks actually preparing them and e-mailing them. Now we’ve got cloud-based things,” she said, adding that increased government regulation, especially since the financial crisis in 2008, has led to new complexities to her work. “There’s more we need to know about what the regulations are and what we’re required to do.”

Then there’s the culture of constant communication — and the resulting rise in client expectations — that has shrunk timelines on projects in industries like construction, printing, and, yes, law. Albano recalled the days when he’d come back from lunch and hope to see a phone message on one those classic pink slips of paper waiting for him. Now, he returns to a couple dozen e-mails.

“There’s an expectation of immediate response, and it’s changed the pace of the practice tremendously,” Wexler said, to which Darling noted he’s had clients call asking to set up a will before they flew off on vacation. Tomorrow.

They all recognize, however, that those constant e-mails and calls represent something important: individuals who need help, and often at a difficult time in their life.

“I always tell people, if I get a call from someone I haven’t heard from in a while, they’re not calling to say, ‘how are you doing? Have a great day.’ They have a problem.”

“There’s an expectation of immediate response, and it’s changed the pace of the practice tremendously.”

As all three mentioned, those problems continue to evolve. Cannabis law in Massachusetts, for example, has unfurled an entire new world of issues that cross several practice areas. For instance, Albano represents a few municipalities seeking guidance on what kinds of restrictions they can place on marijuana businesses. Wexler has handled transactions for clients looking to purchase land for growing, while some of Darling’s clients have sought to invest in these facilities.

In fact, the sheer scope of Bacon Wilson’s expertise is a plus for clients, Albano said. “We don’t do high-end criminal work or security work. Everything else, we do. And we cross-sell each other to clients. The clients appreciate that.”

Wexler added that the attorneys tend to collaborate for the sake of clients, whether it’s seeking advice from a different department on a case or hearing a potential client’s request for services and recommending colleague with more specialized knowledge.

“When you hire Ken, you’re not just hiring him, you’re hiring 40 lawyers,” Darling said. “The firm is your lawyer. They’re all available.”

Well Suited

Albano said the three-legged stool holding up Bacon Wilson has always been litigation, real estate, and estate planning. “That’s always been with us. But when this firm was founded back in 1895, it was a commercial law firm, and we’ve maintained that commercial group from day one, representing so many Western Mass. banks. We survived all the mergers and all the new banks coming in. The key to our success is maintaining relationships. Relationships are so big in this market.”

So is staying educated and up to date on quickly evolving trends in a practice area.

For instance, even before the #metoo movement — but certainly in the wake of it — employment lawyers have seen a steep rise in harassment and discrimination cases, as well as thorny handbook issues to help clients sort out.

“We’ve had specialists come in here and give seminars on preventing those types of harassment claims,” he noted. “You have to stay up on it.”

In turn, Bacon Wilson’s attorneys are active in the community, writing articles (for publications such as BusinessWest) and conducting workshops on hot issues. That’s in addition to the many ways the firm’s lawyers support their favorite charities and volunteer on their boards.

“Everybody gives back,” Darling said. “We don’t have to ask them; they just realize it’s important.”

Wexler agreed. “When we bring new associates in, the ones I work with seem very excited. And most of them come in with a passion for one organization or another, and we encourage them to take the time to give to that organization. It’s catchy. And it’s exciting to be a part of that.”

That said, it can be a challenge to attract young talent to the firm in a competitive marketplace in an era when law-school enrollment is significantly down from where it was 20 years ago. But Bacon Wilson has developed a relationship with Western New England University School of Law, interviewing students for clerk positions and often hiring them full-time later on, while building similar pipelines with institutions like Bay Path University to find paralegals.

“The tough part is getting young lawyers to stay in Springfield, as opposed to Boston or New York,” Darling said. “But we’ve done a good job. The quality of life here is pretty good. They can make a living and have a house they can afford and be able to pay their school debt.”

Not to mention working at a firm that continues to rack up accolades each year — including “Best Law Firm” in the Valley Advocate Readers’ Poll every year since 2012, “Best Law Firm” in the Daily Hampshire Gazette Readers’ Choice poll every year since 2014, plenty of attorney citations in Best Lawyers in America, the 2018 Firm Impact Award from the Hampden County Bar Assoc. for pro bono work, and a raft of others — and, as Albano noted, a stable, venerable firm to call home for many years to come.

“We’ve grown in bits and pieces over the years,” said Albano, who would like to see the firm grow to more than 50 attorneys during his tenure. “It’s been a great run so far. We’ve had some hiccups along the way, as with any business, especially when the economy was bad. But the reason we’ve grown as well as we have is because the people who work here really enjoy coming to work.”

Joe Bednar can be reached at [email protected]

Law

Knowledge Is Power

By John S. Gannon, Esq.

John S. Gannon, Esq

John S. Gannon, Esq

As an employment attorney, my job is to help businesses comply with the myriad laws that govern the workplace. No business is immune from workplace problems, and for those who violate employment laws, hefty penalties and damages await.

In order to help businesses avoid these problems, I’ve put together a list five costly employment-practice mistakes we frequently come across, with tips for correction and prevention.

Misclassifying Employees as Exempt from Overtime

Employers are sometimes shocked when they learn that salaried employees might be entitled to overtime when they work more than 40 hours in a week. The shock quickly goes to panic when they are told the salaried non-exempt employee is due several years’ worth of unpaid overtime, and that this unpaid wage amount can be doubled and potentially tripled under state and federal wage laws.

Misclassifying employees as exempt is a common mistake. This is because many employers associate paying a salary basis with no overtime obligation. True, paying employees a salary is typically one part of the test, but there are several other factors to consider during your exemption analysis.

We recommend you work with legal counsel to audit your exempt employee classifications. While you’re at it, consider doing a pay-equity audit to help protect against equal-pay discrimination claims.

Leave-law Headaches

When an employee is out for a medical condition, there are a series of complex and challenging employment laws that need to be navigated. This includes the Americans with Disabilities Act (ADA), the federal Family Medical Leave Act (FMLA), workers’ compensation laws, the Massachusetts Earned Sick Time law, and, coming soon, the Massachusetts Paid Family and Medical Leave law.

These laws have a plethora of traps for the unwary. What do you do when an employee continually calls out in connection with a medical condition? Do your supervisors know what to do if an employee requests several weeks off for surgery? The answers are not always easy, so make sure you know how these laws interact with one another.

Outdated Handbooks and Employment Agreements

Recently, I was reviewing whether a non-compete agreement would be enforceable in court. It turned out the agreement was signed roughly 10 years ago. To make things worse, the last update to the document was pre-Y2K.

The point here is that employment agreements and handbooks should not grow cobwebs. Changes in the law require changes to these documents. For example, Massachusetts enacted significant legislation in October 2018 changing the entire landscape of non-compete law in the Commonwealth. The state also saw the Pregnant Workers Fairness Act take shape in April last year. This new law included a notice requirement that meant an update to the employee handbook was in order.

Having your employment agreements and handbook regularly reviewed by counsel is a good way to stay on top of the constant changes in the employment law world. Remember, if you have not updated these employment documents in a few years, they are probably doing more harm than good.

Failure to Eradicate Harassment at Work

Last year was dominated by headlines spotlighting sexual-harassment scandals and cover-ups. But was the #metoo movement just another fad? The answer unequivocally is ‘no.’

To prove it, late last year the Equal Employment Opportunity Commission (EEOC) published data on workplace harassment claims that revealed a 50% increase in sexual-harassment lawsuits filed by the EEOC when compared to 2017 numbers. The EEOC also recovered nearly $70 million for the victims of sexual harassment in 2018, up from $47.5 million in 2017.

You’ve heard it before, but it bears repeating: businesses need to take proactive steps to create a workplace free from harassment. This involves updating anti-harassment policies and practices, adequately training your workforce, and promptly investigating all harassment complaints.

Lack of Supervisor Training

Most of the mistakes listed above are fertile ground for supervisor slip-ups. Whether they fail to report harassment (or, worse yet, engage in harassing behavior themselves) or discipline an employee who has taken too much sick time, supervisors who don’t know any better are in a position to do considerable damage to your business.

Proper training can alleviate this risk. Plus, a supervisor who spots an issue before it spirals out of control could prevent a costly lawsuit from being filed.

John S. Gannon is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]

Law

Prepare for the Unexpected

Jack Ferriter says it’s never too early to talk to an attorney

Jack Ferriter says it’s never too early to talk to an attorney about a healthcare proxy and living will.

Medical decisions aren’t always cut and dry. The way Jack Ferriter sees it, why entrust them to just anyone?

“A healthcare proxy is someone who stands in your shoes to make medical decisions for you, but only if you’re unable to make those decisions,” said Ferriter, who practices business and estate law at Ferriter Law in Holyoke.

The term ‘healthcare proxy’ also refers to the document that specifies who will make those critical decisions for an individual if they can’t make them on their own — for instance, in a medical emergency that has them unconscious or otherwise incapacitated.

For instance, Ferriter explained, “if a surgeon says, ‘do you want this operation?’ and you can shake your head to say ‘yes’ or ‘no,’ the doctor will go with your answer. But if you’re unable to make that decision — or even if you’re unwilling, if you say, ‘I don’t know; please ask my wife, who’s my healthcare proxy’ — then the surgeon would ask your healthcare proxy whether you should have the operation.”

A 2017 study in the journal Health Affairs revealed that one-third of Americans have a healthcare proxy, which is far too low, say estate-planning attorneys and doctors.

“When somebody comes in here and they’re asking for an estate plan, we will always include a will, a power of attorney, and a healthcare proxy and a living will,” Ferriter told BusinessWest. “Everyone should have them. It’s not just for people 65 and older. Anybody could get hit by the proverbial bus and need somebody else to make medical decisions with a healthcare proxy, or financial decisions with power of attorney.”

In a recent blog post, Springfield-based law firm Bulkley Richardson noted that it examined whom its own clients had named as their healthcare proxies, and found that, not surprisingly, a spouse was most common, followed by an adult child.

“Where a child was named, gender, birth order, and whether the child was the parent’s ‘unofficial favorite’ often did not seem to matter,” the firm noted. “Geographic proximity to the parent signing the document, emotional maturity, and perceived alignment with the parent’s preferences seemed to determine who was named.  If a child was in a medicine-related profession, that was often a major factor in the selection.”

“Anybody could get hit by the proverbial bus and need somebody else to make medical decisions with a healthcare proxy, or financial decisions with power of attorney.”

Ferriter recommends that clients name two people — a primary and secondary healthcare proxy — because the designation comes into play at urgent and unexpected times.

“If it’s 2 in the morning and the surgeon is trying to reach your healthcare proxy and doesn’t have the right number, or has a home number that’s going into a machine and needs an answer, or if somebody’s out of the country, it’s always good to have a secondary healthcare proxy so the surgeon can call the secondary one and say, ‘should we do this operation or not?’”

He recommends that cell-phone numbers are used, not landlines, but even then, ringers are sometimes turned off, or phones lose their charge, and no one wants the wrong person to make life-and-death decisions because of a dead battery.

Wishes Granted

In addition to the healthcare proxy, Ferriter recommends clients prepare a living will as well.

“You go down the list and check off or initial each line — you do not wish to be resuscitated, you do not wish to be artificially fed, you do not wish to be artificially kept alive,” he noted.

However, the living will in itself is not a binding legal document in Massachusetts (however, it is in Connecticut and some other states). So why prepare one? Perhaps its greatest value comes in the guidance it gives one’s doctors and healthcare proxy.

“I find it’s a good guide for your conversation with your healthcare proxy and with your family. You go down the list and say, ‘here’s what I want, here’s what I don’t want, and even though this is not legally binding in Massachusetts, I just want you to know so that, if you are making the decisions for me, you’ll have my answers ahead of time.’”

And for those who worry about the finality of the living will, Ferriter pointed out that language on the form states that the living will is to be followed only if there’s no reasonable chance of recovery.

“I know these questions are kind of scary. If you’re 55 years old and it says ‘do not resuscitate,’ you’re afraid that if you walk out my front door and have a heart attack, they’re not going to resuscitate you. But they would, because it says ‘only if there’s no reasonable chance of recovery.’ So if you’re 105 years old in a nursing home and your heart stops, they’re probably not going to paddle you. But if you’re 55 years old and you have a heart attack outside a lawyer’s office, I’m sure they would absolutely paddle you, and wouldn’t even ask anybody.”

A third document related to critical-care decisions that has emerged in recent years is the MOLST document, which stands for medical orders for life-sustaining treatment. And, unlike a living will, MOLST is absolutely a binding document.

“MOLST differs from the most common type of palliative-care planning — advanced directive orders, which usually include a living will or other expression of wishes. Those orders generally designate a surrogate decision maker, or healthcare proxy, to act on behalf of an incapacitated patient,” the Massachusetts Medical Society (MMS) notes.

“Living-will instructions — when presented by a healthcare proxy — are generally recognized as evidence of patient preferences, but are not recognized by Massachusetts law. In contrast, a completed MOLST form travels with the patient at all times, may be faxed or reproduced, and is an official part of a patient’s medical record.”

Ferriter noted that the MOLST isn’t technically a legal document, but a medical one.

“We don’t do them here in the office because the medical orders are done with a physician or a medical professional. Those are your orders, and those are binding in Massachusetts because you’ve had advice from a physician.”

But MOLST is not typically a document prepared absent an impending, planned event, like, say, open-heart surgery.

“Typically, they happen if you are going into the hospital for some kind of serious procedure. My experience is that physicians don’t offer to do medical orders with their patients, but if you ask for them, they’ll do them, and if you’re going in for a serious operation, they may bring it up at that point,” Ferriter said. “You can’t sit at home and fill out medical orders by yourself because you’re not making an informed decision. And it’s usually your primary-care doctor who does it — someone who knows you well — even though the surgeon is doing the surgery.”

MOLST covers resuscitation efforts, breathing tubes and ventilation, artificial nutrition and hydration, and dialysis, the MMS notes.

“MOLST has priority over the healthcare proxy, because it’s your actual wish, as if you had shaken your head ‘yes’ or ‘no’ at the time of the actual procedure,” Ferriter said.

Don’t Put It Off

While many people will never have need of a MOLST, he went on, it’s hard to argue that they won’t need the other documents at some point — and the sooner, the better.

“We tell clients that as soon as you get married or buy a house, have a child, or even graduate from college, it’s not that expensive to do a will, power of attorney, healthcare proxy, and living will,” he noted. “For a single person, it’s less than $300, and for a couple, it’s less than $500.

“A lot of times, older couples will come in upon retirement,” he went on. “Most of the time, they had a previous version of these documents, but things have changed. They had it done in their 30s and 40s, now they’re in their 60s, so we update those.”

Individuals or couples with children will also want to include guardianship documents and perhaps establish a trust in case neither is around to care for them.

“When I have people in their 30s and 40s come in, it’s usually because one of the parents has passed away, or maybe a grandparent has passed away. There’s usually something that pushes them to come in,” Ferriter said, adding that, in truth, it shouldn’t take a big life change to start thinking about who will make important decisions in case crisis strikes.

When folks come in to get their estate plan done, I tell them, ‘you should sit around a dining room table with your family and have a frank coversation about what you want. It can be a difficult conversation, but it’s always better to have it at the dining-room table than around a hospital bed.’”

Joseph Bednar can be reached at [email protected]

Law

Hazy Picture

Just as the business and legal communities in Massachusetts were learning to deal with medical marijuana, voters kicked the door wide open in 2016 by legalizing the drug for recreational use, too. That created a tangle of issues to work out, from how to handle employees that use the drug outside work to launching a cannabis business in the face of federal law that calls the practice illegal. Some of those issues have been sorted out, but others still hang in the air, like so much smoke.

When it comes to the relationship between employers and medical marijuana, few names are as important as Cristina Barbuto.

She’s the woman who filed suit against her employer, Advantage Sales and Marketing, three years ago after being fired — after her first day on the job — for using marijuana outside of work. She was required to take a drug test, and told the employer before the test that she would fail, because she used marijuana at home to help manage her Crohn’s disease.

A supervisor said that wouldn’t be a problem, but Barbuto was dismissed from the job the next day when the drug test came back positive for marijuana. The reason? While medical marijuana was legal in Massachusetts at the time, it was still illegal under federal law.

Her complaint eventually made its way to the state Supreme Judicial Court, which affirmed her right to use medical marijuana outside work on the grounds that forbidding her — as long as she wasn’t impaired on the job — constituted disability discrimination.

“If somebody qualifies as a disabled person and they’re seeking an accommodation, the employer has an obligation to engage in a process with that person and provide a reasonable accommodation that allows them to do their job, unless they can show the accommodation would cause them an undue hardship,” said Pat Rapinchuk, a partner with Robinson Donovan in Springfield. She noted that a subsequent suit by a man denied access to a homeless shelter for his medical-marijuana use came down on the plaintiff’s side as well, on the same grounds as the Barbuto suit.

“But then comes the recreational piece,” she said. “And that’s completely different.”

Indeed, with recreational use of marijuana having been legal in Massachusetts for a much shorter time, case law has not established similar rights for such users, she noted.

“Right now, I would say the recreational marijuana user does not have the protections a medical user does,” Rapinchuk said. “You start with just the basic premise of no substances in the workplace — no alcohol, no drugs. That part’s easy. But what if I used it last week on my own time and my employer drug tests for whatever reason, and I test positive, and I don’t have a medical reason for it? Can the employer either decline to hire me or even terminate me? And I think the short answer right now is ‘yes.’”

In one case that has garnered some media attention, Bernadette Coughlin, a food service supervisor for Sodexo, was fired after being injured in a fall at work. The company required a drug test following an injury, and she tested positive for marijuana, which she admitted she used recreationally at home a few days before. She was fired, and is fighting the termination in court — but might have an uphill battle, Rapinchuk said, because she doesn’t have the disability claim that Barbuto did.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

From left, Bulkley Richardson attorneys Scott Foster, Sarah Willey, Mary Jo Kennedy, Ryan Barry, and Kathy Bernardo take part in a recent cannabis panel.

“You’d have to find another route to challenge that,” she added, noting that one possibility is challenging the drug test itself as an invasion of privacy. “Some courts have found such a test to be invasive, and a violation of an employee’s privacy. If they found out otherwise, like through social media, that might pass muster.”

If all this sounds amorphous, it is, Rapinchuk said, and is a field of employment law that is definitely evolving. Drug tests can detect THC, the psychoactive agent in marijuana, for days, even weeks after someone smokes or ingests it, and no tests exist to gauge whether the user is currently impaired. That leaves employers with plenty of hard questions about how they want to handle this new frontier.

Growing Concerns

But that’s not the only area of the law currently evolving in the face of legalized marijuana.

Perhaps the most significant wrinkle in marijuana law, Scott Foster says, is that it’s legal in the state but illegal federally. That drives many of the odd situations people find themselves in when they start a marijuana business, and it’s why Bulkley Richardson, where Foster works as a partner, recently launched a dedicated cannabis practice.

As one example, a marijuana business cannot use most banks.

“It’s considered to be money laundering on a federal level to run marijuana money through the banking system,” he explained. “You can’t use an ATM, you can’t use a credit card, and you can’t take the proceeds from the sale of marijuana and deposit it at a bank if they know it’s marijuana funds.”

There are two exceptions: Centurion Bank and Gardner Federal Credit Union. “We literally have marijuana clients driving $50,000 to $100,000 in cash to Boston in armored cars to deposit it at [Centurion],” Foster said, adding that the bank’s fees for the service are astronomical. “The bank is basically taking a business risk. I don’t know if it’s a good risk or bad risk, but no other big banks are taking the chance because the penalties would be devastating to them. Centurion is willing to take the chance.”

Meanwhile, people buying real estate as part of a new business typically finance 60% to 80% of the cost, he noted, but banks can’t lend for this purpose any more than they can take deposits.

“So what you end up with is a lot of very wealthy people playing in this space because you can’t finance it. You’ve got millions and millions of dollars being poured into these ventures that are growing, and nobody hears about it because it’s all private financing. That’s another area where it looks like a normal business until you ask, ‘where’s the money coming from?’”

Then there’s intellectual-property law. Most new businesses federally register their trademarks, but that’s not available for any branding involving marijuana products. “You can come up with this great brand name, this great logo, and you can’t protect it federally,” Foster said. “So now we’re going back to the state system, which does exist in Massachusetts. There is a way to protect trademarks at the state level that, until the marijuana business, nobody had done for 100 years.”

As he and Kathy Bernardo, another Bulkley partner on the cannabis team, spoke with BusinessWest, it became clear why the new practice group includes lawyers that specialize in myriad disciplines.

The disconnect between state and federal law shows up in taxation as well. Foster brought up a quirky section of the tax code that came about after the IRS went after a cocaine dealer in the Midwest for tax evasion, so the dealer filed a tax return that wrote off expenses like security and armored cars. The IRS balked, but a tax court sided with the man.

Pat Rapinchuk says some employers might avoid drug testing for marijuana

Pat Rapinchuk says some employers might avoid drug testing for marijuana as not to rule out some strong potential employees.

“Congress later added section 280E to the tax code, which essentially says if your business is in the growing, manufacture, or distribution of a federally controlled substance, you’re not allowed to take normal business deductions,” Foster explained, and then broke down an example of how that may affect a cannabis-related enterprise.

Say a business makes $100,000 and, after spending $40,000 on product, $20,000 on employees, and $10,000 on rent, claims a profit of $30,000. The owner then pays taxes on that figure; if he owes, say, 40%, he makes a profit of $18,000. But if he’s not allowed to write off expenses, suddenly he’s paying 40% on a much larger chunk of that $100,000 — and taking home much less in profit.

“The effective tax rate is two to three times the size of a normal business. And even though it’s against the law federally, you still have to pay taxes,” Foster noted. “It’s another trap for the unwary.”

Joint Enterprises

From a real-estate point a view, issues like zoning laws, special permitting laws, and host-agreement laws also come into play, Bernardo said.

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

That depends largely on how the vote went in that particular community when the ballot question legalizing recreational pot in Massachusetts passed last November. In many Western Mass. communities where the vote was in favor, town officials have been busy putting together zoning bylaws for a marijuana district.

Kathy Bernardo

Kathy Bernardo

“Municipalities have held the cards because they have to either accept a marijuana zoning district, or they have the ability to shelve it until we actually get the regulations out for recreational use, but that’s coming to an end, so now they have to decide whether or not they’re going to allow this in town or not.”

“The people of town agreed that’s going to be there, and they’ve discussed how and where,” she explained. “A lot of towns put a moratorium on it — which was fine, they were allowed to do that, but they were only allowed to do it for a year, and now they have to come to a determination whether or not they’re actually going to have that zoning district in their municipality. But that is all steered by what the vote was in their town.”

If the town’s voters favored legalizing recreational marijuana, Foster added, it puts them in a different approval process locally than if voters were against it as a group.

“If they were against it, the city council or select board has no authority unless and until they do another ballot initiative, another referendum at the town level, to approve it,” he explained. “I don’t think anybody’s really looking, from a business point of view, to go into those towns. It’s just too much of a hurdle.”

Once permitting and zoning procedures are established, business owners have to work with the town on compliance issues, Bernardo said, “and there are a lot of intricacies that you don’t usually have with a lot of other businesses. With this, it’s completely different.”

Bulkley Richardson’s cannabis group has represented outfits ranging from farmers looking to cultivate the plant to people looking to profit on the retail end, she noted, and the cultivation aspect is one that has flown under the radar, yet is important to this region.

“A lot of the things you see in the news are about the pot shops,” Foster said. “What’s not getting picked up as much is the fact that, in order to sell something, you have to first grow it, and it’s a lot cheaper to grow things in Western Mass. than it is in Eastern Mass., in terms of the cost of the land.”

The next step is the extraction and production process, he went on, and that’s an entirely different type of business with its own nuances. “It’s not just selling the leaves, it’s extracting the THC and then putting it in something — oil, an edible, a cream, or something else. Then those products are sold. So you’ve got farming, you’ve got manufacturing, and you’ve got retail. And the farming and the manufacturing are actually happening more around here.”

Foster said his firm launched the cannabis practice because the attorneys were already working with clients in the area on these various enterprises.

“We tell people, ‘here are the ways that a marijuana business is 90% exactly like any other business, and here is the 10% where it’s just wacky different, and these are the things you have to think about.’ But it’s still real estate. It’s raising money. It’s hiring people. It’s all the regular laws which you otherwise have to comply with.”

What is certain, Bernardo added, is that marijuana is now a fast-growing (no pun intended) part of the Massachusetts landscape, and that’s not going to change any time soon.

“It’s here,” she said, “and we have to learn how to deal with it rationally, because people are getting into these businesses, and there are so many balls up in the air when they get a business running.”

Smoke Signals

But while those cannabis-related businesses continue to pop up, employers at … well, pretty much every other type of company must grapple with their employees’ use of the drug outside the workplace.

“There are no tests to determine if someone is impaired by marijuana. There’s no sanctioned way to measure the amount of THC in someone’s system,” Foster said, adding that one reason is that federal grants — here’s that separation of state and federal law again — are not available to research these tests.

“You have a whole system that works on the alcohol side that makes sense — the tests are developed, and the laws are passed that go to those tests,” he said. “None of that exists yet on the marijuana side. The research is happening, but it’s happening with private money, which means it’s subject to more influence and bias.”

Bernardo said a lot of companies that used to test for marijuana are deciding not to do so going forward, due to the uncertainty. “They’ve just eliminated it completely, unless you’re a driver or it’s a safety issue. They don’t even want to deal with it.”

That makes sense in a job market with historically low unemployment, Rapinchuk said, when aggressively testing for THC might make it tougher to compete for talent.

“Employers are trying to hire a good workforce, and they’re going to be ruling out an awful lot of potential employees if they’re going to take that position, so it is possible some employers will decide not to test for that,” she told BusinessWest.

No matter what their stance, she added, it’s probably wise for employers to review their drug-testing policy to make sure it’s clear and consistent, and doesn’t need to be modified in light of the change in the law.

Medical marijuana remains an easier field to navigate than recreational use, she stressed, citing as a recent example a young man who had a medical marijuana card and applied for a position at a local company.

“They told him, ‘we drug test everybody, not just health or safety positions,’ and he disclosed his use to the employer through the testing agency and brought his card. Sure enough, he tested positive, and there was questioning — how often he used it, who’s his doctor, what’s the prescription — but once all those questions were answered, they hired him. So they followed the advice of the Barbuto court in that case.”

Whether dealing with marijuana use by employees or actually launching a cannabis business, Foster said, this is definitely new territory for lawyers, thanks to that gaping disconnect between state and federal law.

“As a licensed group, one of our rules is that can’t help your clients commit a crime,” he said. While the Massachusetts Ethics Commission passed a ruling that allows lawyers in the Bay State to engage in such activity because it’s permitted on a state level, he added, “you still have to tell clients they’re engaging in something that is illegal at a federal level. The nuances are deep and subtle.”

“And can cause a lot of trouble,” Bernardo quickly added.

Joseph Bednar can be reached at [email protected]

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.

Law

A Grand Bargain for Business?

By John S. Gannon, Esq. & Amelia J. Holstrom, Esq.

Last month, the Massachusetts Legislature passed the so-called ‘grand bargain’ bill. The new law, which was signed by Gov. Charlie Baker on June 28, will require all private employers — regardless of size — to provide paid family and medical leave to employees. The law also gradually raises the state’s minimum wage to $15 per hour.

Here is what businesses need to know about this important legislation.

Paid Family and Medical Leave

 

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Beginning on Jan. 1, 2021, Massachusetts employees will be eligible for what we believe to be the most generous paid family and medical leave (PFML) program in the nation. Employees will be able take up to 20 weeks of PFML per year for their own medical condition. They will also be entitled to 12 weeks of PFML to care for a family member suffering from a health condition. The definition of a ‘family member’ is very broad and includes not only a child, spouse, or parent, but also in-laws, domestic partners, grandchildren, grandparents, and siblings.

The new law also allows employees to take up to 12 weeks of paid leave to bond with a newborn or newly adopted child. Employees will receive a percentage of their existing pay, up to a maximum of $850 per week, while out on leave. Businesses are required to continue to provide for and contribute to the employee’s health-insurance benefits while employees are out. PFML may be taken, in most cases, intermittently or on a reduced-schedule basis, as well as in a continuous block.

Returning from Leave

Employees who take PFML are entitled to their same job back when they are ready to return to work, or an equivalent position with the same status, pay, benefits, and seniority. Further, employers may not retaliate against employees for taking PFML. Significantly, any negative change in the terms or conditions of employment that occurs during a leave, or within six months after an employee returns from leave, is presumed to be unlawful retaliation. 

Stated another way, if an employee is let go while out on PFML, or within six months of returning from leave, the employer is presumed to have retaliated against the employee. Employers can rebut the presumption only by clear and convincing evidence of an independent justification for the change. This is a high standard that requires the employer to show that its business-based justification for the negative change is substantially supported by the evidence.

Employers found liable may be ordered to reinstate the employee and to pay three times the employee’s lost wages and benefits, plus reasonable attorneys’ fees and costs.

Who Will Administer and Pay for the Program?

A new state agency, the Department of Family and Medical Leave, will be created to administer the program. PFML will be funded by mandatory employer contributions, at a rate of 0.63% of the employee’s wages. That rate is subject to increase annually.

Employers may require employees to pay a percentage of the contribution, and employers with fewer than 25 employees are exempt from paying the employer share of the contributions. Those contributions will begin on July 1, 2019. Employers will be able to opt out of the program by meeting their obligations under a private plan, such as through an approved insurer or self-insured policy. The private plan must provide the same rights, protection, and benefits as required by the state law.

Minimum-wage Increase

The law also increases the minimum wage for tipped employees from $3.75 per hour to $6.75 per hour over a five-year period and from $11 per hour to $15 hour for all other employees over the same period.

Next Steps for Businesses

Employers paying employees less than $12 per hour ($4.35 for tipped workers) will need to plan now for increased wages in a few months. As for PFML, although the leave benefits are a few years away, employers need to think about how they will handle what we expect to be a sharp increase in employee absenteeism.

Typically, the greatest deterrent against missed work is lack of pay. This will not be the case come January 2021. Employees working for businesses large and small will be able to take PFML for almost one-quarter of the year, and in some cases more than that. Businesses need to start thinking now about how they will plan for those extended absences. They also need to put effective policies in place to curb abuse of state-mandated paid leave.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected] Holstrom specializes in employment litigation, including defending employers against claims of discrimination, retaliation harassment, and wrongful termination, as well as wage and hour lawsuits. She also frequently provides counsel to management on taking proactive steps to reduce the risk of legal liability; (413) 737-4753; [email protected]

Law

Be Careful with Your ‘Wake Word’

By Andrew Levchuk and Lauren Ostberg

Andrew Levchuk

Andrew Levchuk

Lauren Ostberg

Lauren Ostberg

Everyone is now familiar with Alexa, Siri, or Google Assistant, virtual personal assistants (VPAs) marketed by Amazon, Apple, and Google, respectively.

VPAs contain voice-activated applications that promise users a chipper, responsive intelligence for dealing with everyday tasks like phone calls, calendar reminders, coffee orders, streaming entertainment, and list making. In the courtroom, however, law enforcement, digital privacy activists, technology companies — and, yes, Alexa herself — have been exploring the First and Fourth Amendment implications of VPAs’ eclectic résumé.

While VPAs are working for their users, they are also working for Google, Amazon, Apple, and other companies interested in consumers’ habits, interests, and data. Alexa, for example, is regularly ‘listening’ and scanning for her ‘wake word.’ When she hears it, she records the vocal input and her response, then uploads that data to a server in the cloud, effectively reporting it up the chain to her digital overlords at Amazon.

According to the Alexa terms of use, Amazon retains these ‘Alexa interactions,’ which include music playlists and shopping lists, in addition to ‘vocal input,’ for an unspecified amount of time. This is allegedly to provide, personalize, and improve those services, but it is also undoubtedly to provide those technology companies with a valuable, veritable harvest of data.

Looking to access that data, law enforcement is now attempting to identify or eliminate suspects in its investigations with information created by VPAs.

First Amendment

These competing interests came to a head in State v. Bates, a murder case filed in the Arkansas Circuit Court. One witness interviewed during the investigation mentioned hearing music playing during the night in question. Police pursued warrants for multiple digital devices, including the suspect’s Amazon Echo, which played music through a voice command to Alexa.

Amazon moved to quash the subpoena — it did not want Alexa’s recordings, and, with them, its proprietary data — on the public record, nor would it have been good for Alexa’s public image if she disclosed information her user believed to be private.

Amazon invoked the First Amendment, which prohibits laws “abridging the freedom of speech,” in its defense. First, Amazon argued that users’ requests to Alexa were protected speech because they were exercises of a right to anonymously browse and purchase expressive materials — in this case, audio books, music, and podcasts — without fear of government discovery.

Amazon also argued that Alexa’s response “constitutes Amazon’s First Amendment-protected speech” and goes on to say that “Alexa’s decision about what information to include in its response, like the ranking of search results, is ‘constitutionally protected opinion.’” It bears repeating that Amazon argued that “Alexa’s decision” — i.e. the decision of a VPA — was “constitutionally protected opinion.”

Alexa was not only being asked to testify against her user; now, she was being imbued with her own perspective. The extent to which the result of proprietary algorithms is ‘speech,’ and the extent to which such speech may be protected, is uncharted legal ground.

The court did not need to address these open questions about the First Amendment’s relationship to a VPA’s speech, because Bates eventually consented to have the recordings released, and the prosecutor dismissed the case (“Alexa, share my alibi”).

Fourth Amendment

Also not addressed by the court, but relevant when considering your VPA’s loyalty, is the ‘third-party doctrine,’ which essentially holds that a person has no reasonable expectation of privacy for Fourth Amendment purposes in information voluntarily shared with a third party, such as an Internet service provider or cell-phone provider. Anything communicated to your VPA is arguably not covered by the Fourth Amendment, because by communicating with your VPA, you have voluntarily shared information with the VPA’s digital overlord (e.g., Amazon in the case of Alexa).

Given the breadth of the third-party doctrine in the digital age, it is now under assault in the courts. The Supreme Court recently held in United States v. Carpenter that access to a person’s historical cell-site records — geographic records of the particular cell towers a person’s phone has been near — is a Fourth Amendment search because it violates the person’s “legitimate expectation of privacy in the record of his physical movements.” We should expect the attacks on the third-party doctrine to continue.

More generally, electronic evidence of the sort generated by VPAs and other devices is becoming a focus of law-enforcement investigations. For example, a warrant issued in 2017 in Minnesota sought personal details of anyone searching for a victim’s name in Google. Internet searches can be conducted on VPAs, so VPA users will likely be subject to similar warrants in the future.

Whether you are slipping Siri secrets about your business practices, asking Alexa to order cleaning supplies, or using any other various VPAs to verify an address, be aware that your assistant — that chipper, algorithm-driven intelligence — serves multiple masters.

Perhaps when we use the wake word “Alexa,” Alexa should respond with, “you have a right to remain silent.”

Andrew Levchuk is counsel and Lauren Ostberg is an associate at the Springfield-based law firm Bulkley Richardson. Levchuk is a 24-year veteran of the U.S. Department of Justice and now focuses on litigation and leading the cybersecurity practice. Ostberg’s practice consists of cybersecurity, commercial litigation, and intellectual-property matters.

Court Dockets

The following is a compilation of recent lawsuits involving area businesses and organizations. These are strictly allegations that have yet to be proven in a court of law. Readers are advised to contact the parties listed, or the court, for more information concerning the individual claims.

CHICOPEE DISTRICT COURT
Kurt Champagne II v. Chicopee Electronics Inc.; Chicopee Electronics, LLC; Chicopee Electronics Co.; David B. Averill; and Sandy F. Averill
Allegation: Unpaid wages and unpaid overtime: $25,000
Filed: 7/13/18

FRANKLIN SUPERIOR COURT
Lucille Arnold v. The Yankee Candle Co. Inc.
Allegation: Negligence; slip and fall causing personal injury: $57,035.63
Filed: 6/18/18

Mary Emily Kane v. Engelberth Construction Inc. and Champagne Drywall Inc.
Allegation: Negligence; plaintiff struck by improperly stacked drywall, causing personal injury: $500,000
Filed: 6/27/18

Wheelbrator North Andover Inc. v. Whitney Trucking Inc.
Allegation: Breach of settlement agreement: $160,239.96
Filed: 7/17/18

HAMPSHIRE DISTRICT COURT
Anna Paskausky v. Northampton Nautilus Inc.
Allegation: Negligence causing personal injury: $22,785.11
Filed: 6/28/18

6 Woods Restoration Inc. d/b/a Rainbow International Restoration v. World War II Veterans’ Assoc. of Hampshire County Inc. d/b/a World War II Club
Allegation: Breach of contract, unjust enrichment: $20,595.06
Filed: 7/10/18

Elizabeth Ouimette v. Atlantic Coast Enterprises, LLC d/b/a Jiffy Lube Service Center #1164
Allegation: Breach of contract, breach of express warranty, negligence, negligent misrepresentation: $8,885.96
Filed: 7/11/18

Kacper Kisala, through his father, Czeslaw Kisala v. Greenwood Music Camp Inc.
Allegation: Negligence causing personal injury: $17,098.02
Filed: 7/16/18

Guy Juravich and McKenzie Armstrong v. The Kind Grind Inc. d/b/a Share Coffee and Kenneth W. Majka individually
Allegation: Non-payment of tips, failure to pay proper wages, violation of Massachusetts Minimum Wage Act: $5,000+
Filed: 7/19/18

HAMPSHIRE SUPERIOR COURT
Douglas Drysdale and Renee Drysdale v. J.P. Builders Inc., John Pirog, and John Amidio d/b/a Barre Artesian Well
Allegation: Breach of contract, negligent action regarding artesian well servicing new construction residence, resulting in non-potable water: $31,819.45
Filed: 6/28/18

Town of Ware v. ECS Hold Co., LLC; Environmental Compliance Services Inc.; and ATC Group Services, LLC
Allegation: Breach of contract, negligence: $25,000+
Filed: 7/18/18

Edward J. Matz v. University of Massachusetts Amherst
Allegation: Employment discrimination based on age
Filed: 7/18/18

PALMER DISTRICT COURT
Enfield Transit Mix Inc. v. Spartan Concrete Services Inc. and Matthew T. Thouin
Allegation: Money owed for goods sold and delivered: $13,676.57
Filed: 7/12/18

Law Sections

Not an Arbitrary Decision

John Greaney, who was forced to retire from the state Supreme Judicial Court as he turned 70, is definitely not the retiring type.

John Greaney, who was forced to retire from the state Supreme Judicial Court as he turned 70, is definitely not the retiring type.

John Greaney spent more than four decades behind various benches — everything from this region’s first Housing Court to the state Supreme Judicial Court. Desiring to take advantage of all that judicial experience, the Springfield-based firm Bulkley Richardson, which Greaney joined in 2016, has created an alternative dispute resolution (ADR) group, which he will lead. As arbitration and mediation become ever-more popular methods for resolving disputes, the firm sees this group as a solid business venture.

Peter Barry says it’s a rare opportunity when a small (at least in comparison to outfits in Boston, New York, and Philadelphia) Western Mass. law firm can add a former Massachusetts Supreme Court justice to its team.

Rarer still is an opportunity to add a jurist with the breadth and experience brought to the table by John Greaney, who retired from the SJC in 2008, capping nearly 35 years on various benches, starting with the Hampden County Housing Court (which he started) and time on the Superior Court and then the Appeals Court (more on that remarkable career later).

So it’s incumbent on a firm granted that opportunity to take full advantage of it, said Barry, managing partner with Springfield-based Bulkley Richardson, adding that the firm is doing just that by launching an alternative dispute resolution (ADR) group.

This is a move that not only capitalizes on Greaney’s deep reservoir of experience, but serves as a logical — and, yes, opportunistic — response to an ongoing trend within the law to settle matters not in the courtroom, but outside it, through mediation and arbitration.

These are routes that are generally quicker and less expensive than litigation, said Greaney, adding that ADR, as it’s known, has become increasingly popular in realms ranging from healthcare to construction; education to sports. Yes, some of Major League Baseball’s biggest rising stars have their salaries determined by arbitrators (after negotiation fails).

Greaney and Barry believe the firm could well become an attractive alternative (there’s that word again) amid a growing number of options for businesses, institutions, and sports leagues desiring to resolve matters through ADR, and for several reasons.

Chief among them is the expertise it offers — from not only Greaney, but also Barry, who has been involved in the mediation and arbitration of several complex matters, and the other lawyers at the firm.

But that expertise also comes at a sticker price well below what Boston and Harford firms would charge, an important consideration, said Barry.

“We’re looking to be selective and get appropriate cases from Northern Connecticut, Central Massachusetts, and the Boston area,” he said, noting that the firm already serves several clients in those markets, in part because of lower hourly rates.

Greaney, who will be teaming with Barry to handle many of the ADR matters that come to the firm, agreed, and said the timing and a host of factors were right for the launch of this venture.

“It’s a natural progression for this law firm to begin an ADR group,” he noted, adding that, apart from the Hampden County Bar Assoc., which has a panel of mediators and arbitrators, the only other mediators and arbitrators in this region are single-practice lawyers; Boston and Hartford have ADR groups, but this woud be the first in this region.

“There appears to be a need here for the right type of mediator and arbitrator,” he said, adding that the firm intends to fill that void.

Barry agreed.

“There are a lot of mediators and arbitrators out there,” he acknowledged. “But what we bring to the field is an expertise — primarily Judge Greaney — that is not available generally and is suitable for certain types of cases in particular.”

Peter Barry says ADR is an area of the law that is growing and will continue to grow as businesses and individuals seek alternatives to litigation.

Peter Barry says ADR is an area of the law that is growing and will continue to grow as businesses and individuals seek alternatives to litigation.

For this issue and its focus on law, BusinessWest talked with Greaney and Barry about Bulkey Richardson’s new ADR group, and also about how arbitration and mediation are becoming increasingly popular — and effective — methods for solving complex legal disputes.

Making Their Case

For those not familiar with Greaney’s background (and many are), it takes more than a few column inches, as they say in the print media, to capture all he’s done during his career.

So we’ll hit the highlights. But even that will take a while.

The Westfield native began his law career with the Springfield-based firm Ely and King in 1964, and was appointed to the Hampden County Housing Court in 1974. That housing court was the second in the state, with the first being in Boston, and was unique in that it served an entire county.

“We decided to innovate considerably,” he recalled. “We designed our own court forms, we changed them to get rid of all the legal language — which cluttered all the forms in the other courts — so people could understand them, and we made them bilingual because we had a large Spanish-speaking population. And, to the dismay of a lot of other courts and judges, we set up a citizen’s advisory council — all to make the court more user-friendly.”

In 1976, Gov. Michael Dukakis appointed Greaney to the Superior Court. This was followed by an appointment to the Appeals Court as an associate justice in 1978. In 1984, he became chief justice of the Appeals Court.

Greaney was appointed to the Supreme Judicial Court in 1989 and participated in several landmark cases while serving on the SJC. That list includes Goodridge v. Department of Public Health, in which he wrote the concurrence to the opinion establishing Massachusetts as the first state in the nation to legalize same-sex marriage.

“We share a common humanity and participate together in a social contract that is the foundation of our Commonwealth,” he wrote, creating language that has been used often by gay couples at their wedding ceremonies. “Simple principles of decency dictate that we extend … full acceptance, tolerance, and respect. We should do so because it is the right thing to do.”

Other significant cases include a 1993 decision upholding the adoption of a child by same-sex cohabitants; a 1997 decision in the Benefit v. City of Cambridge case, affirming the unconstitutionality of a statute prohibiting panhandling; a 2003 decision in the First Justice case addressing, on separation of powers principles, the constitutionality of statutes governing court clerks and probation officers; and a 2007 decision in the Murphy v. Boston Herald case, affirming a judgment based on defamation.

Greaney, famous for taking a Peter Pan bus to and from Boston most days and using that time to get more work done, reached mandatory retirement age (70) in 2008, but he wasn’t, and still isn’t, the retiring type. He joined the faculty of Suffolk University Law School, served as director of the Macaronis Institute for Trial and Appellate Advocacy, and taught constitutional law, criminal law, and appellate practice.

But he became a victim of the financial pressures facing many law schools today, and as Suffolk Law downsized and Greaney’s position was essentially eliminated, the judge looked for something else to do in ‘retirement.’ And as he looked, he remembered that Francis ‘Sandy’ Dibble, a partner at Bulkley Richardson, had long ago told him that, when he was done teaching, he should consider joining the firm.

He did so, in 2016, and thus went back to where he started (well, sort of) — practicing law in downtown Springfield.

But the legal landscape has certainly changed since Greaney first started out as a lawyer more than a half-century ago. Indeed, ADR has become an increasingly popular alternative to the courtroom, one that resolves matters in months, or even weeks, rather than years.

A Strong Case for ADR

There are two basic forms of ADR, mediation and arbitration, and while they are similar in that they are alternatives to traditional litigation, there are important differences.

Mediation is generally conducted with a single mediator who does not judge the case but instead simply helps the parties facilitate discussion and, hopefully, a resolution to a problem. Arbitration, on the other hand, is more judicial in nature (that’s why Greaney said it appeals to him) and involves one or more arbitrators who take on the role of a judge, making decisions about evidence and giving written opinions, which can be binding or non-binding, with the results being final.

“The shift from actual courtroom litigation and the resolution of disputes prior to courtroom litigation has become a fairly active enterprise over the past 12 years or so,” Greaney explained. “When I was a trial judge, no such thing existed.

“But the phenomenon was created by business people and others,” he went on. “And the courts wanted to see a simpler, more efficiently way to deal with the problems they had.”Also, many contracts — for everything from construction projects to employment agreements to the one signed by Stormy Daniels when she received $130,000 from Presisdent Trump’s personal lawyer, Michael Choen — have provisions noting that there if problems arise, they will be resolved by private arbitration and not litigation, Greaney told BusinessWest, adding that the Supreme Court, with a few exceptions, has consistently upheld the validity of these arbitration clauses.”

And as a result, and many law firms and individuals, including many retired judges, now specialize in mediation and/or arbitration (mostly the former), creating a somewhat competitive market for those services.

Bulkley Richardson looks to stand out within that playing field and capitalize on the experience of both Greaney and Barry as well as a host of other attorneys within the firm, including Dibble, Daniel Finnegan, Kevin Maynard, David Parke, Melinda Phelps, Jeffrey Poindexter, and John Pucci.

Barry said the firm is not interested in taking on cases that could easily be handled by one of the other mediators in the region, and is instead interested in more complex matters. And, again, they could come from within the 413, or well outside it given the expertise the firm can now bring to bear.

And because of how the pendulum has swung toward ADR, there should be ample opportunity to grow the practice.

“ADR is an area that’s growing and will continue to grow, and there will be a need for the types of services we’ll provide,” he explained. “A lof of big companies have decided, almost across the board as a policy, that they’re not going to litigate — they’re going to do everything possible to settle a case because of the expense and time and misdirection of resources involved in litigation.”

Final Arguments

Getting back to Major League Baseball and those high-profile salary disagreements going to arbitration … and Greaney, an ardent Red Sox fan, noted with a laugh that he would love to get such a matter sent to Bulkley Richardson.

“I love sports; that would be a delight to get something that,” he told BusinessWest. “I understand the statistics and all that goes into those decisions.”

While landing such a case might be a long shot (that’s might), it seems a much safer bet that Bulkley Richardson’s launch of an ADR group will be a winning proposition — for the firm and the region as well.

That’s because of the uniquely high level experience that can brought to the table, especially from a judge that that has made his mark in settings ranging from Hampden County Housing Court to the SJC.

The jury is in — ADR is now the preferred method of resolving a dispute — and Bulkley Richardson appears well-positioned to capitalize on that movement.

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

Agenda Departments

Future Tense Lecture

May 17: The second installment of the BusinessWest lecture series Future Tense, titled “What Got You Here Might Not Get You There: Mistakes Business Owners Make Before and After Retirement,” will take place from 8 to 9:30 a.m. at Tech Foundry, 1391 Main St., ninth floor, Springfield. The lecture, open exclusively to CEOs and business owners, will be delivered by Amy Jamrog, wealth management advisor with the Jamrog Group. The cost is a $25 donation to Tech Foundry. Event sponsors include Paragus IT, the Jamrog Group, and Meyers Brothers Kalicka, P.C. Metered street parking is available near the venue, and there are several parking-garage options nearby as well. To register, visit businesswest.com/lecture-series.

Bereavement Support Event

May 19: Bereaved children and their caregivers are welcome to attend a free art-based support event from 1 to 4 p.m. at the Baystate Health Education Center at 361 Whitney Ave. in Holyoke. Titled “Healing Wounded Hearts with Art: A Retreat for Grieving Families,” the event is open to bereaved children ages 5 to 18. It is sponsored by Batstate Hospice and the Pediatric Palliative Care team. As part of the program, children and teens who are grieving the death of a close family member will have an opportunity to meet others and connect through the power of art making. “Healing Wounded Hearts with Art” aims to help grieving children and their families to commemorate those in their lives who have died. Space is limited and those wishing to attend must register by Friday, May 11 by contacting Betsy Flores, bereavement coordinator, Baystate Hospice, at (413) 794-6559 or [email protected].

Pets Rock!

May 19: The Foundation for TJO Animals will present its second annual Pets Rock! — a concert to benefit local, homeless animals in need at the Thomas J. O’Connor Animal Control & Adoption Center — from 1 to 6 p.m. at Springfield Lodge of Elks #61, 440 Tiffany St., Springfield. The event is sponsored by Planet Fitness and the Arbors Camp, and hosted by special guest Pat Kelly of Lazer 99.3 and 98.5. The festivities will feature entertainment by local bands Tough Customer and Good Acoustics. There will plenty of games and activities for kids hosted by Arbors Camp, crafters will be on hand with their unique items, and raffle prizes will be given away. Lunch will be provided, and and both White Lion Brewing Co. and Harpoon Brewery will be on hand. Tickets are $20 per person, including lunch. Children under 12 are free. Buy tickets at www.tjofoundation.org or at the show gate on event day. A free, refillable event beer mug will be given to the first 200 guests through the gates. Attendees are welcome to bring their lawn chairs and blankets. Well-behaved dogs on leashes are welcome, but no flexi-leads are allowed. No coolers are permitted. All proceeds from this event will provide much-needed medical care and training to the many animals that call TJO their temporary home.

NAMI Walkathon

May 20: The National Alliance on Mental Illness of Western Massachusetts will be holding its 18th annual walkathon, “A Journey of Hope and Recovery,” at Stanley Park’s Beveridge Pavilion Annex in Westfield from 11 a.m. to 3 p.m. The walk is suitable for all ages and will directly benefit the continuing efforts of NAMI – Western Mass. to help improve the lives of individuals living with mental illness and their families. Among the festivities will be guest speakers, entertainment, refreshments, and raffles. For further information, call (413) 786-9139 or visit www.namiwm.org/events for entry and sponsorship forms. Volunteers are needed.

‘Women Lead Change’

June 4: The Women’s Fund of Western Massachusetts (WFWM) will host its annual “Women Lead Change: A Celebration of the Leadership Institute for Political and Public Impact (LIPPI) Class of 2018” event at the Log Cabin in Holyoke. The event will feature a keynote address by Northampton Police Chief Jody Kasper. The Women’s Fund will present Kasper with the She Changes the World Award, honoring her contributions for not only leading her local department, but also leading on a national level with regard to transparent data, hiring practices, and other local initiatives that have shaped community policing for the better. More than 300 guests are expected at the annual celebration of graduates of the Women’s Fund LIPPI program, the only leadership program of its kind in the Commonwealth. The event recognizes the accomplishments of the 31 graduates of the LIPPI class of 2018, who have participated in 11 educational sessions over nine months designed to address the shortage of women stepping into public leadership. LIPPI gives women tools and confidence to become more involved civic leaders and to impact policy on the local, state, and national levels. Proceeds for this annual event empower the Women’s Fund’s mission.

‘Thrive After 55’ Wellness Fair

June 15: State Sen. Eric Lesser and Health New England announced that they will host the second annual “Thrive After 55” Wellness Fair from 10 a.m. to 2 p.m. at Springfield College’s Blake Athletic Complex, located at 263 Alden St., Springfield. The fair is free and open to the public. With more than 40 local organizations ranging from health and fitness to nutrition to elder law, the event will connect residents of the First Hampden & Hampshire District with information and resources to help them thrive. The free program includes a boxed lunch, educational seminars, hundreds of raffle prizes, and access to information and experts to talk to. To RSVP for the event, call Lesser’s office at (413) 526-6501 or visit www.senatorlesser.com/thrive.

40 Under Forty Gala

June 21: BusinessWest’s 12th annual 40 Under Forty Gala is a celebration of 40 young business and civic leaders in Western Mass. The lavish cocktail party, to be held starting at 5:30 p.m. at the Log Cabin in Holyoke, will feature butlered hors d’oeuvres, food stations, and entertainment — and, of course, the presentation of the class of 2018, profiled in the April 30 issue of businesswest and also available at businesswest.com. Also, the fourth Continued Excellence Award honoree will be announced. The 40 Under Forty sponsors include PeoplesBank (presenting sponsor), Northwestern Mutual (presenting sponsor), Isenberg School of Management, the MP Group, Mercedes-Benz of Springfield, Health New England, Renew.Calm, Development Associates, and YPS of Greater Springfield (partner). Tickets cost $75 per person (tables of 10 available). For more information, call (413) 781-8600, ext. 100, or e-mail [email protected].

Court Dockets Departments

The following is a compilation of recent lawsuits involving area businesses and organizations. These are strictly allegations that have yet to be proven in a court of law. Readers are advised to contact the parties listed, or the court, for more information concerning the individual claims.

CHICOPEE DISTRICT COURT

Ronald J. Grandbois v. Bailey J. Jones and Alert Ambulance Service Inc.

Allegation: Negligence; vehicle owned by Alert Ambulance Service collided with plaintiff’s vehicle, causing injury: $8,694.57

Filed: 4/20/18

HAMPDEN DISTRICT COURT

American Builders & Construction Supply Co. Inc. d/b/a ABC Supply Co. Inc. v. David Kimball a/k/a David L. Kimball d/b/a Coastal Custom Remodeling

Allegation: Money owed for goods sold and delivered: $13,396.48

Filed: 4/6/18

Brandon Prior, a minor, by his father and next friend, Dennis Prior, v. Shawn McEwen, a minor, by his father and next friend, Brandon McEwen, and New England Fitness & Wellness, LLC

Allegation: Negligence; plaintiff struck by yoga ball at Healthtrax facility during hockey camp, causing injury: $4,120.95

Filed: 4/12/18

HAMPDEN SUPERIOR COURT

Carol Burns v. Medcare Emergency Health

Allegation: Negligence causing injury: $2 million

Filed: 3/23/18

US LBM Holdings, LLC d/b/a East Haven Builders Supply v. Whitman Restoration Inc. and Claude Whitman

Allegation: Breach of contract; money owed for construction materials sold and delivered: $22,914.23

Filed: 3/29/18

Gregory Heffernan v. Automatic Equipment Manufacturing Co. d/b/a Blue Ox, Diamond RV Centre Inc., and Keller Marine Service Inc.

Allegation: Product liability; plaintiff injured while unhooking trailer hitch from RV: $1 million

Filed: 3/30/18

Herman P. Cumby v. 110 Island Pond Road, LLC d/b/a Nathan Bill’s EFP Bar and Restaurant, et al

Allegation: Negligence causing injury: $1.1 million

Filed: 4/6/18

Jackie Ligon v. Nathan Bill’s Bar & Restaurant and John Robert Sullivan

Allegation: Negligence causing injury: $101,000

Filed: 4/6/18

Jozelle Ligon v. Nathan Bill’s Bar & Restaurant and John Robert Sullivan

Allegation: Negligence causing injury: $101,650

Filed: 4/6/18

Michael Cintron v. Nathan Bill’s Bar & Restaurant and John Robert Sullivan

Allegation: Negligence causing injury: $101,000

Filed: 4/6/18

Ryan P. McConnell p/p/a Paul R. McConnell v. Town of Wilbraham and Hampden-Wilbraham County Regional School District

Allegation: Negligence; loose concrete capstone on brick support at Mile Tree Elementary School fell and struck plaintiff, causing injury: $150,000

Filed: 4/6/18

Paula Click v. Walmart

Allegation: Negligence; slip and fall causing injury: $32,945

Filed: 4/6/18

HAMPSHIRE DISTRICT COURT

W.B. Mason Co. Inc. v. Veracruz Foods Inc. d/b/a La Veracruzana

Allegation: Money owed for goods sold and delivered: $11,552.13

Filed: 4/16/18

HAMPSHIRE SUPERIOR COURT

DAS Property Group, LLC v. The Antiquarian, LLC

Allegation: Breach of lease: $73,965

Filed: 4/10/18

Country Bank for Savings v. Big Y Foods Inc.

Allegation: Breach of implied covenant of good faith and fair dealing, breach of contract: $25,000+

Filed: 4/19/18

WESTFIELD DISTRICT COURT

John Nadolski v. Michael J. Bisgrove d/b/a Bisgrove Construction

Allegation: Defendant damaged equipment rented from plaintiff and failed to pay for damage: $7,967

Filed: 3/14/18

Daily News

HADLEY — Bacon Wilson, P.C. announced that Jocelyn Roby has joined the firm’s Hadley office as an associate attorney. Rob is a member of Bacon Wilson’s real estate department, where her practice is focused largely on residential real estate, including closings and title work. She is a graduate of the Western New England University School of Law, and received her bachelor’s degree from Plymouth State College.

Bacon Wilson boasts 44 lawyers and approximately 60 paralegals, administrative assistants, and support staff in offices located in Springfield, Amherst, Hadley, Northampton, and Westfield.

Daily News

SPRINGFIELD — The Springfield Regional Chamber has named Ellen Freyman, an attorney with Shatz, Schwartz and Fentin, P.C. in Springfield, its 2018 Richard J. Moriarty Citizen of the Year. The award is given annually to honor the memory of Moriarty, a long-time active participant in the chamber who gave of his time, talent, and personal and professional resources to the local community.

Since 2007, said chamber President Nancy Creed, “the award has been given to someone in the business community who — like Ellen — selflessly gives of their time, talent, and personal and professional resources to the community and encourages those who work with them and for them to do the same.”

Freyman concentrates her practice in all aspects of commercial real estate: acquisitions and sales, development, leasing, and financing. She has an extensive land-use practice that includes zoning, subdivision, project permitting, and environmental matters.

A graduate of the Western New England University School of Law and Pennsylvania State University, Freyman has been recognized or awarded by the National Conference for Community and Justice for Excellence in Law, the Professional Women’s Chamber as Woman of the Year, the Ad Club of Western Massachusetts as a recipient of its annual Pynchon Award, the Springfield Leadership Institute with its Community Service Award, Massachusetts Lawyers Weekly as a recipient of its Top Women in Law Award, and Reminder Publications with its Hometown Hero Award. She was also chosen as one of BusinessWest’s Difference Makers in 2010.

Freyman is active on many nonprofit boards and currently serves as a member on the Springfield Regional Chamber of Commerce board of directors, which she has also chaired; the boards of the Community Music School of Springfield, the Center for Human Development, New England Public Radio, the Springfield Museum Assoc., the World Affairs Council, the YMCA of Greater Springfield, the Springfield Technical Community College Foundation, and the Springfield Technical Community College Acceptance Corp., and on the Elms College board of trustees. She is also an active member of the Longmeadow Zoning Board of Appeals, the Jewish Family Service board of directors, and the National Conference for Community and Justice board of directors. She is the founder and president of On Board Inc., a past president of the Springfield Rotary Club, and has been honored as a Paul Harris Fellow.

The breakfast honoring Freyman will be held on Wednesday, June 6 from 7:15 to 9 a.m. at the Flynn Campus Union at Springfield College, 263 Alden St., Springfield, and is sponsored by presenting sponsor MGM Springfield and breakfast series sponsor United Personnel.

In addition to honoring Freyman, the breakfast will feature, as keynote speaker, entrepreneur and author Nataly Kogan, CEO of Happier Inc. and author of the recently released Happier Now: How to Stop Striving for Perfection and Embrace Everyday Moments (Even the Difficult Ones).

Reservations for the breakfast cost $25 for members in advance ($30 at the door), and $35 for general admission ($40 at the door). Reservations may be made online at www.springfieldregionalchamber.com or by e-mailing Jessica Hill at [email protected].

Daily News

CHICOPEE — To meet a growing demand for legal studies education in Western Mass., Elms College announced the launch of two fully online certificate programs in legal studies to begin in the fall 2018 semester: the advanced paralegal certificate and the paralegal studies certificate in legal nurse consulting.

Students in these certificate tracks will learn about the legal profession and their ethical obligations within it; develop relevant critical thinking skills, including how to form sound and well-based judgments; and build effective oral, written, and interpersonal communication skills.

“Elms College is committed to educating paralegals and providing them with a foundational skill set that lets them enter the profession with a quality, foundational skill set for their profession,” said Kurt Ward, director of Criminal Justice and Legal Studies at Elms College. “Each certificate program offers courses that apply to a variety of paralegal positions and is tailored for specific areas by including specialized coursework.”

Students in the advanced paralegal certificate track will acquire knowledge in law-specific subjects and develop skills that will help them advance in the legal profession, including technological proficiency with law-office-specific software and online research. They also will gain a skill set suitable for legal work, including interviewing clients and witnesses; completing various legal forms, legal research, legal writing, and case and statutory analysis; and providing litigation preparation and support.

A legal nurse consultant (LNC) is a registered nurse who possesses both medical and legal knowledge, and works with legal professionals on cases involving medical issues, such as medical malpractice, personal injury, product liability, or workers’ compensation. LNCs function in two main roles: as consulting experts or as testifying experts.

Whether as an in-house employee or independent consultant, the LNC offers a wide range of professional services, including interviewing clients; screening cases for merit; analyzing and summarizing medical records and other evidence; researching and evaluating medical literature; assisting in preparation for and evaluation of depositions; identifying, locating, screening, and consulting medical experts; and preparing exhibits for settlement hearings or trials.

“The best candidates for the legal nurse consulting track are licensed nurses who are looking to move into consulting with attorneys who practice medical malpractice, personal injury, or insurance law,” Ward said.

These two certificate tracks can be completed in less than one year, 100% percent online, by completing three eight-week sessions.

For the advanced paralegal certificate track, each applicant should have an associate’s degree or a bachelor’s degree. No specific major area of study is required. The paralegal studies certificate in legal nurse consulting requires that each applicant hold an associate’s degree or a bachelor’s degree as well as a current license to practice as a registered nurse; they also must have completed 2,000 hours of clinical practice as a registered nurse.

Daily News

NORTHAMPTON — The Solidago Foundation recently introduced Rebecca Greenberg as the newest member of its program team. As program officer, Greenberg will draw on her 15 years of frontline advocacy to support the organization’s democracy and independent power-building work. Greenberg will work with the veteran Solidago Program team of strategic funders and national organizers to recommend program strategies.

“Rebecca brings to Solidago extensive expertise and a deep commitment and passion for affecting systemic change for historically marginalized communities,” said Elizabeth Barajas-Román, the foundation’s CEO. “We couldn’t be more thrilled to add her expertise to our team.”

Greenberg is a leader in the New York City housing-justice movement, serving most recently as deputy director of the Tenant Rights Coalition, the largest civil legal-services program in the country. In this role, she has worked with diverse stakeholders including tenants, judges, attorneys, clients, and policymakers, and supervised a legal team, working in partnership with local organizations and elected officials, to support communities facing significant housing needs in light of rapid and disruptive neighborhood changes and gentrification.

“I am thrilled and honored to be joining Solidago. This is an incredible opportunity for me to pivot out of my work as a social-justice attorney into the philanthropic space with an organization dedicated to promoting justice, equity, and sustainability for all,” Greenberg said. “Having worked with several Solidago partners in New York City since 2001, I am eager to forge relationships with progressive change makers and justice-seeking, community-based organizations across the country. The organization is so welcoming, and I am grateful for the opportunity to learn, grow, and promote the mission of Solidago alongside this inspiring team.”

Prior to law school, Greenberg worked at the Urban Justice Center and for a local nonprofit in Yucatan, Mexico, engaging in grassroots education and conservation programs. She is a graduate of the City University of New York School of Law and McGill University.

“Rebecca has spent her career amplifying the voices of the communities she has served,” said Linda Stout, Solidago board chair. “We are so lucky to have someone with her leadership and organizational skills work with our team to support the great work at the Solidago Foundation.”

40 Under 40 Class of 2018 Cover Story

Announcing the 12th Annual Cohort of 40 Under Forty Honorees

40under40-logo2017aWhen BusinessWest launched a program in 2007 to honor young professionals in Western Mass. — not only for their career achievements, but for their service to the community — there was little concern that the initial flow of nominations might slow to a trickle years later.

We were right. In fact, 40 Under Forty has become such a coveted honor in the region’s business community that the flow has turned into a flood, with more than 180 unique nominations arriving this year, making the job of five independent judges tougher than ever.

They did their job well, however, as you’ll find while reading through the profiles on the coming pages. The format is a bit different this year — instead of being interviewed, the winners were free to craft and write out their own thoughts — but, collectively, they speak of a wave of young talent that is only getting larger during what can only be described as an economic renaissance in Western Mass.

As usual, they hail from a host of different industries, from law to banking; from education to healthcare; from media to retail, just to name a few. Many are advancing the work of long-established businesses, while others, with an entrepreneurial bent, created their own opportunities instead of waiting for them to emerge.


40 Under Forty Class of 2018

Amanda Abramson
Yahaira Antonmarchi
Lindsay Barron
Nathan Bazinet
Andrew Bresciano
Saul Caban
Jamie Campbell
Crystal Childs
Nathan Costa
Jamie Daniels

 

But there are, as always, some common denominators, including excellence within one’s profession, a commitment to giving back to the community, dedication to family and work/life balance, and a focus on what else they do in each of those realms.

The class of 2018 will be celebrated at the annual 40 Under Forty Gala on Thursday, June 21 at the Log Cabin Banquet & Meeting House in Holyoke. A limited number of tables are available, and a number of individual seats and standing-room-only tickets are available as well — but they will sell out quickly.

The gala will also feature the announcement of the winner of the fourth annual Continued Excellence Award, a recognition program that salutes the 40 Under Forty honoree who has most impressively added to their résumé of accomplishments in the workplace and within the community, as chosen by a panel of judges. Nominations are still being accepted through Monday, May 14 at businesswest.com/40-under-forty-continued-excellence-award.

Speaking of judges, we thank those who scored the more than 180 nominations for this year’s 40 Under Forty competition (their story HERE). They are:

Ken Carter, member of the UMass Amherst Polymer Science and Engineering Department;
Mark Fulco, president of Mercy Medical Center;
Jim Hickson, senior vice president and commercial regional president for the Pioneer Valley and Connecticut for Berkshire Bank;
Angela Lussier, CEO and founder of the Speaker Sisterhood; and
Kristi Reale, partner at Meyers Brothers Kalicka, P.C..

Presenting Sponsors

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Sponsors

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Partner

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Photography for this special section by Leah Martin Photography

40 Under 40 Class of 2018

Family Lawyer, Law Offices of Alison Silber; Age 34; Education: BA, University of Pennsylvania; JD, University of Maryland

Alison Silber

Alison Silber

Silber is a family lawyer and mediator who owns and runs her own family-law practice in Longmeadow. After clerking on the Superior Court of the District of Columbia for a family-law judge, Silber opened her own practice in 2011. She mediates and litigates all types of divorce and custody matters, including but not limited to complex jurisdictional issues and complicated domestic-violence matters. In addition to her private practice, she also takes on mediations through the Mediation and Training Collaborative in Greenfield and the Family Resolutions Specialty Court in the Hampshire Probate and Family Court.

What did you want to be when you grew up? A Supreme Court Justice. Ruth Bader Ginsburg was appointed when I was in fifth grade, and I still remember feeling like she and Sandra Day O’Connor made space for my friends, me, and all other little girls to attain that height of success in the legal profession.

How do you define success? Success is balance between work, family, and community.

What do you like most about Western Massachusetts? I love the pace of life, which provides the space to be introspective and purposeful about how we all spend our time.

What are you passionate about? As a divorce lawyer, I have the privilege of working closely with my clients to help make their finances work post-divorce, and I have observed that good employment opportunities for my clients seem to be disappearing. On a micro level, I am passionate about helping my clients restructure their lives post-divorce so that they have a living wage, financial security, and the ability to meet their needs. On a macro, nationwide level, I am passionate about ensuring that opportunity for good employment exists for all Americans, not just those who live in certain pockets of the country.

What fictional character do you relate to most, and why? Jo March, from Louisa May Alcott’s Little Women, is my favorite. She has a great Massachusetts sensibility, devotion to her family, and a fiery, independent spirit.

What will work colleagues say at your funeral? Hopefully they will give me the best compliment a divorce lawyer can receive — that I have been substantively aggressive while being professional and personally kind.


Photography by Leah Martin Photography

40 Under 40 Class of 2018

Vice President, Relationship Manager, Berkshire Bank; Age 36; Education: BS, University of Phoenix

Jason Niles

Jason Niles

Niles was born and raised in Central New York. After high school, he entered the U.S. Air Force and served six years on active duty and a couple on reserve duty after that. He and his wife, Amy, have three children: Ariana, 13, Ethan, 11, and Owen, 6 months, as well as a 3-year-old dog named Opie. After his discharge from the military, Niles bounced around a bit and finally decided to call Western Mass. his home, primarily due to the people and opportunities. He has worked at Berkshire Bank for the past nine years and says he loves the opportunities the institution provides.

What did you want to be when you grew up? I grew up wanting to be in law enforcement. This ambition was a large reason I joined the military, where I was a Security Forces member for six years.

How do you define success? John Wooden said it best. “Success is peace of mind, which is a direct result of self-satisfaction in knowing you did your best to become the best you are capable of becoming.”

What three words best describe you? Outgoing, easygoing, trustworthy.

What do you like most about Western Massachusetts? What I like most is everything going on in the market. The changes have caused a renaissance of sorts — new ideas, new businesses, and lots of opportunity. What’s not to love?

What goal do you set for yourself at the start of each day? To make a change in somebody’s life.

What are you passionate about? Helping people attain their goals and dreams.

What goals have you set for yourself? To give the best effort I can in whatever I choose to do at that moment.

 


Photography by Leah Martin Photography

40 Under 40 Class of 2018

Co-owner, Chief Strategy Officer, Universal Plastics Group; Age 37; Education: BA, Northwestern University; MBA, University of Chicago Booth Graduate School of Business

Pia Sareen Kumar

Pia Sareen Kumar

Before her time at Universal Plastics Group, Kumar worked at JPMorgan Chase and American Express. She serves on the boards of the Women’s Fund of Western Massachusetts and the Springfield Technical Community College Foundation, is a member of the Women President’s Organization, and a is reader and school sponsor with Link to Libraries.

What three words best describe you? Committed, optimistic, perceptive.

What do you like most about Western Massachusetts? There is a strong culture of ownership and grass-roots change to improve the local community. We take it upon ourselves to change things.

Who has been your best mentor, and why? As a working mom who is engaged in her community, the mothers I have — my mother and mother-in-law — have shaped my values and priorities tremendously. Both support me unconditionally and encourage me to ignore the constraints and barrel ahead. They also give me the ultimate gift of honest but kind feedback.

What are you passionate about? I am passionate about empowerment, through education, literacy, and leadership training. Also, as a business owner, my greatest moments of actualization and delight come from hearing that, because of working at Universal, someone can do more for themselves or for their family, like buy a house, go back to school, or give their child an opportunity they themselves didn’t have.

Whom do you look up to, and why? I look up to Sue Kaplan, the founder of Link to Libraries, who has brought the community together to provide access and instill in our children a love for the written word, and also Joe Peters, vice chairman of Universal Plastics, for his tremendous contributions to local workforce development and training.

What goal do you set for yourself at the start of each day? To be productive, planful, and effective enough all day so that I am fully present with my three children in the evening.

What will work colleagues say at your funeral? I would like my colleagues to spend only 20% of the time talking about my professional achievements.

What person, past or present, would you like to have lunch with, and why? My father. He lives very far away, and I miss him.


Photography by Leah Martin Photography

40 Under 40 Class of 2018
Erica Flores

Erica Flores

Attorney, Skoler, Abbott & Presser, P.C.; Age 38; Education: BS, University of Colorado, Boulder; JD, University of Pennsylvania Law School

Flores has spent the past 10 years counseling and defending employers in all manner of employment-related disputes. She also serves on the board of directors of the Food Bank of Western Massachusetts. Before joining Skoler Abbott in 2013, she spent seven years working for prominent law firms in Manhattan and Philadelphia and served as a judicial clerk to Justice Russell Nigro of the Supreme Court of Pennsylvania. Flores lives in Westfield with her wife, Elizabeth, and their son, Jackson.

How do you define success? I had a tough childhood, so first and foremost, success for me means being a great mom to my little boy, a dependable partner to my wife, and a good sister to my three siblings. Everything else is secondary.

What do you like most about Western Massachusetts? After more than a decade living and working in big cities, moving to Western Mass. was, literally, a breath of fresh air. I love the hills, the trees, the farms, and the beautiful spring and fall colors. It never gets old to me.

What are you passionate about? I remind myself each day that I do not live to work, but work to live, so the little things mean the most to me — home-cooked meals, gardening, watching football, campfires with friends, good local beer, and spending as much time as possible with my family.