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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