Author: abbyt

abbyt

In news

ANNIVERSARY STATEMENT

by abbyt
January 1, 2019 marks the Tenth Anniversary of the founding of our law firm.  We chose to mark this date with an anniversary celebration to express our appreciation to the many clients, colleagues, fellow Berkshire County lawyers, friends and family who have contributed to a much greater level of success than we would have dared to dream about in the summer of 2008 when this all began.

We decided to organize a new firm because of our continuing commitment to all of our clients.  The ideals on which the firm was founded include: (1) working within our individual areas of specialty at the highest level available anywhere, (2) establishing great working relationships with members of the Berkshire Bar and lawyers outside the Berkshires, and (3) embracing our passion and spirit for this work.

On January 1, 2009, we started the firm with six lawyers and six staff members. Many have remained and the Firm has doubled in size so that, on our Tenth Anniversary, we have 12 lawyers, and an amazing group of other experienced and capable professionals – all of whom subscribe to the firm’s Service Commitment (and work hard every day for our firm to be the best that it can be):

We know that our clients’ most exciting opportunities and most troubling challenges do not arise just on Monday through Friday between the hours of 8 AM to 5:30 PM; and whenever those opportunities or challenges arise, we are determined to immediately respond to our clients’ needs on a 24-7 basis.

We are pleased that we have upheld our Service Commitment throughout the first ten years of our existence.  We are also very pleased that over the ten years we have made three new partners, Christopher M. Hennessey, Dennis G. Egan Jr. and Jesse Cook-Dubin, each of whom has been recognized as among the very best lawyers in Western Massachusetts in his practice specialty.  And we are very proud of our very strong and growing relationships with other Berkshire County lawyers who have regularly turned to us to collaborate on the most difficult matters for their clients.

To our clients, colleagues, fellow Berkshire County lawyers, friends and family: we express our deep appreciation for the good fortune of our success to which all of you have contributed.

In news

American with Disabilities Act: Tardiness, Reasonable Accommodation and the Interactive Process

by abbyt

A Massachusetts federal court judge recently dismissed a claim by an individual against his former employer alleging a violation the Americans with Disabilities Act (ADA). The basis for the employee’s lawsuit was that the employer denied him a “reasonable accommodation” when the employer denied the former employee’s request to start work a half-hour to one-hour later than his scheduled shift. The case is Zavaglia v. Boston University School of Medicine.

The purpose of the ADA is to eliminate discrimination against qualified disabled persons. The ADA defines a disabled individual as (a) having a physical or mental impairment that substantially limits one or more of the major life activities of such individuals, (b) having a record of such an impairment, and (c) being regarded as having such an impairment. Under Title 1 of the ADA, all employers are required to evaluate accommodations requested by employees who claim to be disabled and engage in an interactive process with the employee to determine what accommodations the employee is requesting. Each employer must then determine whether the requested accommodation is reasonable without placing an undue hardship on the employer.

In this recent Massachusetts federal court case, the accommodation that the employee requested was to adjust his daily start time by 30 to 60 minutes. The employer determined that the request was not linked to the employee’s disability and was therefore not reasonable. Even though the employee presented a doctor’s note in connection with the requested accommodation, the doctor’s note stated that it was the employee’s opinion, not the doctor’s, that the employee required the accommodation. The accommodation request and the physician’s note also do not explain why (a) the disability required a later start time, and (b) the former employee was unable to address his medical needs prior to the start of his scheduled shift. On those bases, the employer denied the request.

The employee was frequently late to work following the employer’s denial of his request for a later starting time. The employer warned the employee that his frequent lateness was not acceptable, and ultimately terminated the employee’s employment due to tardiness.

The court ruled that the employer’s reasons for not granting the requested accommodation were valid. The former employee did not establish that his request was based on his medical condition and he failed to show that his request was reasonable for the employer. In determining that the request was not reasonable, the court also refused to consider disabilities that the employee claimed to have but did not disclose to the employer prior to termination of his employment. The court declined to find that the termination of the employee’s employment was wrongful, and instead found that the termination was rightfully based on the employee’s frequent tardiness.

Employer takeaways:

An employee who presents a doctor’s note stating the need for a later starting time based on a medical condition is not automatically entitled to start work later under the ADA. The employee still must show that his/her medical condition is a disability and that the demand to create a new shift is reasonable. An employer must engage in an interactive process with any employee requesting an accommodation for a disability. In the course of the interactive process, the employer and employee can evaluate both the basis for the request and the effect of the request on the employer. The ADA does not require that the employer approve all accommodation requests, but that the employer evaluate and make reasonable accommodations to assist disabled individuals in performing the same job functions as non-disabled employees. If the accommodation would impose an “undue hardship” on the employer, the employer is not required to approve it. The term “undue hardship” is defined by the ADA but interpretation varies based on the functions and structure of the employer.

Do you have questions about reasonable accommodations, the interactive process, or what “undue hardship” may mean for your company? Please feel free to contact us info@cohenkinne.com.

In CKVC Works

Massachusetts Supreme Judicial Court Protects Medicinal Marijuana Users in the Workplace

by abbyt

On July 17, 2017, the Massachusetts Supreme Judicial Court issued its opinion in Barbuto v. Advantage Sales and Marketing LLC. In it, the Court recognized that employers may not terminate employees because they utilize medical marijuana simply because that use is unlawful under Federal law. Instead, these employers must engage in an interactive process with these employees to determine whether it is reasonable to provide requested accommodations, including an exception to the employer’s policy prohibiting use of marijuana.

Case Summary

Cristina Barbuto accepted a job offer from Advantage Sales in late summer of 2014. After accepting the offer, Barbuto was subjected to a mandatory drug test. Barbuto told her employer that she would test positive for marijuana as she utilizes it to treat her Crohn’s disease. This made her a qualifying patient under the Medical Marijuana Act. Barbuto noted that she did not use marijuana daily and would not consume it before work or at work. Barbuto used marijuana in small quantities at her home, usually in the evening, two to three times per week. Barbuto found that marijuana was the only medicine that allowed her to maintain a healthy weight. Barbuto’s supervisor told her that her use of medical marijuana “should not be a problem,” later telling her via telephone that her use of marijuana would not be an issue.

On September 5, 2014, Barbuto submitted a urine sample for the mandatory drug test. On September 11, she went to a training program where she was given a uniform and work schedule. She completed her first day of work on September 12. That evening, Barbuto’s HR representative terminated Barbuto for testing positive for marijuana, stating that she did not care if Barbuto used marijuana to treat her medical condition because “we follow federal law, not state law.” Shortly thereafter, Barbuto brought claims alleging (1) disability discrimination, (2) invasion of privacy, (3) violation of Massachusetts public policy, and (4) violation of the Medical Marijuana Act. The Superior Court judge dismissed all claims except for the invasion of privacy claim. Plaintiff appealed. SJC’s Opinion According to the SJC, Barbuto had adequately alleged that she was entitled to protections of state disability law because she was capable of performing her essential job functions with an accommodation from her employer.

According to the SJC, it was at least facially reasonable for Barbuto’s employer to waive its rule prohibiting the use of medical marijuana relative to Barbuto’s employment, especially in light of Barbuto’s specific circumstances in which medical marijuana was the most effective medication for her debilitating condition and where other available medications would be less effective. Further, even if accommodating medical marijuana was unreasonable, employers still may violate disability discrimination laws if they terminate effected employees before engaged in an interactive process to determine if alternative medications exist.

The SJC dispensed with the employer’s argument that such an accommodation was never reasonable because marijuana use was illegal of Federal law, noting that this exposes the employee, not the employer, to criminal penalties.

For these reasons, the SJC held that the trial court should not have dismissed Barbuto’s disability discrimination claim, and sent that claim back for the parties to conduct discovery. The SJC’s opinion provides that an employer may still defeat this type of claim by establishing that deviating from its policy banning marijuana use would create an undue hardship. For instance, an employer could defeat this claim if continued use of medical marijuana would impair the employee’s performance, pose a safety risk, violate the employer’s contractual or statutory obligations, or jeopardize its ability to perform its business.

Employer Takeaways

Employers face considerable risk if they terminate employees who use medical marijuana simply because that use is illegal under Federal law. Instead, employers must engage in an interactive process with these employees to identify the nature of their limitation, the nature of the requested accommodation, and the impact the accommodation would have on their business operations. Employers should remind their supervisory employees not to react to accommodation requests with comments like “that should not be a problem.” Doing that makes it incredibly difficult for employers to later claim that the requested accommodation presents an undue hardship. Please let us know if you have any questions about this or any other employment-related issue.

In CKVC Works

State House Passes Pregnant Workers Fairness Act

by abbyt

Last week, the Massachusetts House of Representatives passed the “Pregnant Workers Fairness Act,” a law designed to extend certain protections to employees who are pregnant or are new mothers. This Act provides protections similar to those provided by the Americans with Disabilities Act, and requires employers to provide reasonable accommodations to pregnant employees / new mothers, including allowing them to take more frequent bathroom breaks, drink water while at work, be provided a stool to sit on, and be provided a time and place to nurse. The Act also makes it illegal for employers to take an adverse employment action against a pregnant woman because she asks for a reasonable accommodation. The Act also prohibits employers from requiring a woman to take a leave of absence if another accommodation can be provided.

If passed, this Act will extend reasonable accommodation requirements to employees who do not meet the statutory definition of ‘disabled’ under the Americans with Disabilities Act. Under the proposed Act, employers must engage in an interactive process with their pregnant / new-mother employees to determine if a reasonable accommodation can be provided that would allow them to perform the essential functions of their job. As drafted, this new Act would be enforced by the Massachusetts Commission Against Discrimination and would carry penalties similar to those found under chapter 151B, including emotional distress damages, punitive damages, backpay, frontpay, attorneys’ fees, and costs.

Please click here to contact a CKVC attorney if you have questions or concerns about this act.

In news

Pittsfield & Berkshires No. 1 for arts

by abbyt

The National Center for Arts Research has names Pittsfield and Berkshire County the No. 1 medium sized community in the nation for the arts.  This decision means that Berkshire County is recognized in the top 1% of all communities in the Nation for the arts.  It is wonderful to see our community’s efforts for cultural creativity and our value of the arts, rewarded.

Please see the below article for more information.

http://www.berkshireeagle.com/stories/pittsfield-berkshires-1-for-arts,506448

In CKVC Works

U.S. House Passes Bill Authorizing Comp Time — Practice Currently Unlawful under State and Federal Law

by abbyt

Under both state and federal law, employers must pay non-exempt employees overtime, at a rate of 1.5 times their regular rate of pay, for all hours worked over 40 in a workweek.  Many employers try to avoid this payment obligation by giving employees additional time off – known as “comp time” – in lieu of paying them overtime.  This practice may not violate state and federal wage laws if the time off is provided to non-exempt employees in the same week in which the excess hours are worked.  This practice most likely does violate state and federal wage laws if the time off is provided to non-exempt employees in the week following the week in which the excess hours are worked.

On May 2, 2017, the U.S. House passed the Working Families Flexibility Act which, if signed into law, would allow for the use of comp time.  According to the Act, an employer could elect not to pay a non-exempt employee overtime for hours worked over 40 in a workweek and, instead, provide that employee with time off in a following week, paid at their regular rate of pay.  As a result, employees receiving comp time would end up with less compensation but more time off.

Massachusetts tends to follow federal law on many – but not all – employment issues.  If this Act become law, it is possible that Massachusetts would elect to adopt the practice of allowing employers to provide this type of comp time.  It is also possible that Massachusetts would reject the Act and keep the current prohibition on the use of comp time outside of the workweek.

Employers should not provide comp time to their employees until the practice of doing so has been explained to an attorney and approved.  The Massachusetts Wage Act provides for triple damages for wage violations, making the improper use of comp time very costly and risky.

If you’d like to discuss comp time, please let us know.

 

In news

Cohen Kinne Valicenti & Cook is looking for a Corporate/Business Lawyer

by abbyt

Cohen Kinne Valicenti & Cook LLP is seeking an associate attorney with 3-5 years of experience in organization of business entities and business transactions.  For this partnership track position, a candidate must possess excellent communication skills, a good sense of humor and the ability to manage a variety of projects.  Experience in general corporate and partnership law, mergers and acquisitions, and high-level transactional work is strongly preferred. Interested candidates should submit their resumes and writing samples to:

C. Jeffrey Cook
Cohen Kinne Valicenti & Cook LLP
28 North St, 3rd Floor
Pittsfield, MA 01201

Email: jcook@cohenkinne.com

In news

Cohen Kinne Valicenti & Cook Names Two New Partners

by abbyt

Cohen Kinne Valicenti & Cook, one of Berkshire County’s largest law firms, has announced that Dennis G. Egan and Jesse Cook-Dubin have been named as partners.

Both Egan and Cook-Dubin are corporate attorneys who focus their practices in business, banking and financing law.

Egan joined Cohen Kinne in 2012 after practicing at the largest law firm in the Pioneer Valley. In addition to being a very skilled transactions lawyer, who is very active in health law, Egan leads the firm’s Real Estate Division and has been involved in many of the most complex real estate transactions and bank financings in and around the Berkshires. Egan is the Immediate Past Chair of the Berkshire Leadership Program and one of the leaders of the organization of 1Berkshire Strategic Alliance Inc. He volunteers with a number of other organizations in the area.

Cook-Dubin worked for several years as an insolvency specialist at a large Midwestern law firm before moving back to the Berkshires in 2011. He has distinguished himself in complex business transactions, including those involving physician practices. He is also the volunteer President of Downtown Pittsfield, Inc.

“It did not take our clients long to realize the value that Dennis and Jesse bring to the table,” said Cohen Kinne partner C. Jeffrey Cook. “Not only are they terrific attorneys and recognized community leaders, but they have quickly become trusted counselors to our clients who operate businesses, financial and cultural institutions, and medical practices throughout western New England and eastern New York. In all my years of practice in the Berkshires, Dennis and Jesse are the two best associates I have ever had and they have come together as a very effective team. I am sure they will continue to be practice leaders who will assure that our firm will continue to enjoy the rapid growth we have experienced because of the talent of our younger lawyers.”

Cohen Kinne Valicenti & Cook is a firm of 10 lawyers with offices in Pittsfield, Great Barrington and Lenox, Massachusetts. The firm’s primary practice areas include civil litigation, criminal defense, business and banking law, intellectual property, employment law, commercial real estate, education law, and health law.

In CKVC Works

New York’s New Overtime Rules Expected to Have Big Impact

by abbyt

The most common exemptions to state and federal overtime laws are known as the “white collar exemptions,” and include the executive, administrative, learned professional, and creative professional exemptions.  In order to qualify for one of these exemptions, an employee must pass the “salary test” and the “duties test.”  Click here for more information on the “duties test” and also for examples of the types of employees that typically fall into one of the “white collar exemptions.”  Employees who pass these two tests are not entitled to overtime.    

As we explained here, the United States Department of Labor had approved regulations increasing the “salary test” threshold from $455/week to $913/week.  As explained here, on November 22, 2016, a judge in Texas, in response to a suit brought by 21 states, blocked the implementation of the DOL’s regulations.  As a result, currently an employee can pass the salary test under federal law, and most state laws, if he or she is paid a salary of at least $455/week.    

That is not the case for New York employees.  Effective January 1, 2017, New York employees will satisfy the executive or administrative exemptions only if they are paid amounts ranging from $727.50/week to $825/week, depending on their location and the employer size.  Those amounts increase every year.  As a result of these changes, a New York employee paid a salary of $455/week may be considered exempt from overtime under the federal Fair Labor Standards Act but entitled to overtime under New York law.  The New York changes do not apply to the creative professional or learned professional exemptions. 

Please contact us if you would like more information on how to determine if someone is or is not entitled to overtime. 

In CKVC Works

What Are the White Collar Exemptions?

by abbyt

The most common exemptions to state and federal overtime laws are known as the “white collar exemptions,” and include the executive, administrative, learned professional, and creative professional exemptions.  In order to qualify for one of these exemptions, an employee must pass the “salary test” and the “duties test.”  Click here for more information on the “salary test.”  The “duties test” is explained below. 

To qualify for the executive employee exemption, the employee must (1) have a primary duty of managing the enterprise, or managing a customarily recognized department or subdivision of the enterprise; and (2) customarily and regularly direct the work of at least two or more other full-time employees or their equivalent; and (3) must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion or any other change of status of other employees must be given particular weight.  Executive employees tend to be the organization’s leadership team, including managers, supervisors, directors, and executive officers.

To qualify for the administrative employee exemption, the employee must (1) primarily perform office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and (2) primarily perform duties that include the exercise of discretion and independent judgment with respect to matters of significance.  Employees who satisfy this exemption tend to work in areas such as tax, finance, accounting, budgeting, auditing, insurance, quality control, purchasing, procurement, advertising, marketing, research, safety and health, personnel management, human resources, labor relations, public relations, government relations, computer networks, internet and database administration, or legal and regulatory compliance. 

To qualify for the learned professional employee exemption, the employee must (1) primarily perform work requiring advanced knowledge, defined as work which is predominantly intellectual in character and which includes work requiring the consistent exercise of discretion and judgment; and (2) the advanced knowledge must be in a field of science or learning; and (3) the advanced knowledge must be customarily acquired by a prolonged course of specialized intellectual instruction. Employees who satisfy this exemption tend to work in law, medicine, theology, accounting, actuarial computation, engineering, teaching, or pharmacy.  Learned professionals include registered medical technologists, registered nurses, dental hygienists, physician assistants, certified public accountants, executive chefs, athletic trainers, funeral directors, teachers, lawyers, scientists, and doctors. 

To qualify for the creative professional employee exemption, the employee must (1) primarily perform work requiring invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.  Examples of employees who satisfy this exemption tend to work as actors, musicians, composers, conductors, soloists, certain painters, writers, cartoonists, essayists, or novelists. 

Employees who satisfy one of these “duties tests” and who pass the “salary test” are not entitled to overtime.  Please contact us if you would like more information on how to determine if someone is or is not entitled to overtime.