Conducting Workplace Investigations

It’s Monday morning and you are starting your busy week as a human resources (HR) director. An employee comes into your office, closes the door, and tells you she feels she is being sexually harassed by her supervisor, who is also the head of the entire department. What do you do next to appropriately investigate 

Understanding the Revocable Trust

Sheehan Phinney attorney Michael Panebianco explains that how having a thoughtful estate plan in place ensures that your assets are managed and distributed according to your wishes and can reduce, or even eliminate, federal or state estate taxes. While a revocable trust can be the centerpiece of an overall estate plan, it is unlikely to accomplish 

Posted on Tuesday, October 16th, 2018 in Estate Planning and Family Law

Are LLC Operating Agreements Executory Contracts?

Are LLC Operating Agreements Executory Contracts? Attorney Chris Candon discusses this question and the potential impact of the determination in a bankruptcy case. Are LLC Operating Agreements Executory Contracts?

Are Employer Drug-Testing Programs Obsolete?

Attorney Jim Reidy discusses how drug-testing policies, especially for marijuana use, are no longer in step with the realities of today’s workforce. Are Employer Drug-Testing Programs Obsolete?  

CLIENT ALERT: New Hampshire Workplace Legal Developments

Good news for employers from NH Legislature and Breaking News from Supreme Court regarding Public Sector Employment Recent Updates to New Hampshire Workplace Laws By Karen A. Whitley On June 25, 2018, New Hampshire Governor Sununu signed a bill (“June 2018 amendments”) which modifies workplace laws about Department of Labor inspections, poster and notice requirements, 

CLIENT ALERT: How CA’s New Data Privacy Law Will Affect You

CLIENT ALERT by J.P. Harris In May 2018, the European Union’s sweeping data privacy regulation, the General Data Protection Regulation (“GDPR”), went into effect. Ever since, companies in the United States have been trying to figure out whether they are subject to the GDPR and if so, how to implement its requirements – neither of 

10 Non-Tax Reasons You Should Have an Estate Plan

Sheehan Phinney attorney Michael Panebianco explains that contrary to popular thought, estate planning is not just for those who may have to pay a federal or state estate tax. There are many reasons to be considered. He lists 10 non-tax reasons you should have an estate plan. Read the full article below. 10 Non-Tax Reasons You Should 

CLIENT ALERT: Supreme Judicial Court Advises Legislature Should Clarify Independent Contractor Test

CLIENT ALERT by Mark J. Ventola and Paul S. Lopez In Massachusetts, there are four distinct methods that are used to determine whether a worker should be considered an employee or an independent contractor, depending upon the reason for the inquiry: a three-prong test under the Massachusetts Wage Act, an alternative three-prong test under the 

CLIENT ALERT: Unused Sick Time Not “Wages” Under Massachusetts Law

CLIENT ALERT by Mark J. Ventola and Paul S. Lopez On January 29, 2018, the Massachusetts Supreme Judicial Court (“SJC”) ruled that accrued but unused sick time does not constitute “wages” under the Massachusetts Wage Act (the “Wage Act”). With this broad ruling, employers may safely conclude that they are not required to pay employees 

CLIENT ALERT: MCAD Issues Guidance on the Pregnant Workers Fairness Act

CLIENT ALERT by Mark J. Ventola and Paul S. Lopez Last year, Governor Baker signed the Massachusetts Pregnant Workers Fairness Act (the “Act”) into law. The Act, which goes into effect on April 1, 2018, makes it unlawful for an employer in Massachusetts to discriminate against an employee because of her pregnancy or a pregnancy-related 

Howard Delivery Services: Looking Back at the Future

The Affordable Care Act (ACA) has been a political lightning rod since its enactment in 2010. It has been the focus of numerous legal challenges in the courts and endless dispute in Congress. One of the more controversial components of the ACA is the employer mandate, which requires employers with an average of 50 or 

Superfund site development

EPA task force seeks to encourage, promote development of contaminated sites In May, the Environmental Protection Agency set up a task force to review the Superfund program and make recommendations to expedite the cleanup and remediation process of contaminated sites, reduce the financial burden on parties involved in the cleanup process, encourage private investment, promote 

CLIENT ALERT – New Massachusetts Law for Private Company Owners

CLIENT ALERT The Supreme Judicial Court of Massachusetts issued a precedent-setting decision (Koshy v. Sachdev, SJC-12222 (September 14, 2017)) in favor of Sheehan Phinney’s client, an equal owner and director of a Massachusetts software company. The decision made new law in the area of private company shareholder disputes. The SJC interpreted for the first time 

CLIENT ALERT – New Massachusetts Case Law on Private Company Deadlock

CLIENT ALERT The Supreme Judicial Court of Massachusetts issued a precedent-setting decision (Koshy v. Sachdev, SJC-12222 (September 14, 2017)) in favor of Sheehan Phinney’s client, an equal owner and director of a Massachusetts software company. The decision made new law in the area of private company shareholder disputes. The SJC interpreted for the first time 

Brave New World or One Step Closer to Robots Taking Over the World?

U.S. employer now experimenting with microchips implanted in employees By Jim Reidy This is an update to an article originally published by Business NH Magazine on June 23, 2017. Read the original story here. On average every adult has at least 27 discrete passwords or access codes they need to log on to their computer, 

Dealing with a Data Breach – Steps commonly undertaken when employee or customer information is stolen

Most people loathe the annual ritual of filing a tax return. Compounding that unpleasantness, a number of filers attempting to file a tax return only are notified by the Internal Revenue Service that someone else has already filed a return on their behalf and collected the tax refund. We have fielded several calls from employers 

HIPAA Training

The Health Insurance Portability and Accountability Act (HIPAA) and the Health Information Technology for Economic and Clinical Health Act (HITECH) (collectively, HIPAA) obligate nearly all healthcare providers to protect the confidentiality of patient health information. The HIPAA Privacy Rules require so-called “covered entities” to train staff on HIPAA compliance at the start of employment and 

Non-compete, Non-solicit and Related Agreements in New Hampshire – Understanding the Basics and Avoiding Common Traps

Employees and employers frequently wonder if non-compete agreements are enforceable in New Hampshire. You won’t like this, but the answer is, “It depends.” One of the key reasons for seemingly conflicting messages about the enforceability of these agreements is that people often confuse the different types of post-employment contractual restrictions contained in the agreements. These 

NH Legal Perspective: Basic estate plans and why every millennial needs one

Millenials get a lot of attention. Media and companies analyze what we like and how we think to engage us in causes, attract us as consumers, and secure us as employees. This attention comes with stereotypes and criticisms of who we are, collectively, as millennials. Millennials can be perceived as lazy and narcissistic with misguided 

Elder, Estate Planning & Probate Law: Advising Clients on Guardianships of Minors in Light of Opiate Epidemic

The number of cases filed in pursuit of guardianship over minors in the Probate and Family divisions of the NH Circuit Court increased by 23 percent from 2011 to 2015, according to state court records. The New Hampshire Department of Health and Human Services reports that the number of people in New Hampshire who died 

NH Legal Perspective: When run-off comes onto your property

About a year ago, I wrote an article about the unintended consequences of making changes to your property without planning for water run-off and potential adverse impacts to neighboring property. Not only do such actions come with potential liability for damage claims, failing to plan for drainage issues can prevent or delay regulatory approvals and 

Questions linger over accessory dwelling unit law: Are condominium and homeowner associations covered?

Even if you only pick up the newspaper once in a while, there are two issues in New Hampshire that regularly make headlines: the so-called “Silver Tsunami” approaching the state and the staggering amount of student debt facing New Hampshire college graduates. These issues impact many facets of daily life and often come up in 

Opinion: New Class of Legal Professionals Could Help Close Justice Gap

By: Karen Morin In his article “Help for the Unrepresented: A Look at a New Approach”, published in the Sept. 21, 2016, issue of Bar News,  attorney Chuck Douglas advocates for the use of non-lawyer legal professionals to close the justice gap in New Hampshire. In contemplating how to provide low-income, unrepresented litigants with the legal 

Client Alert: Update on Stalled Federal Overtime Exemption Rule Changes

CLIENT ALERT by  James P. Reidy and Mark J. Ventola In a ruling issued on November 22, 2016, a Federal District Court Judge in Texas blocked implementation of the U.S. Department of Labor’s amendments to the overtime exemption rules under federal wage law. Before that injunction was issued, covered employers were scrambling to make changes 

The ghost of Christmas yet-to-come?

Now that the dust from the November election has settled, human resources professionals, business owners and executives are anxious about what could come next. While we’ve all given up predicting, with any certainty, what the Trump team will do, here are things likely to be addressed by the new administration (shamelessly borrowing quotes from popular 

NH Legal Perspective: Disclosing bad-performance information about ex-employees

The health-care industry is facing a shortage of qualified workers. Health-care providers faced with a job opening often spend months trying to recruit a qualified-candidate. … When licensure searches come up clean, or the prospective employee is not subject to state licensure, these employers are forced to take a leap of faith and hire someone 

Client Alert: Stop the Presses! Federal Judge Stays Implementation of the Overtime Exemption Rule Changes

CLIENT ALERT by  James P. Reidy and Mark J. Ventola In a ruling issued late yesterday, a Federal District Court Judge in Texas has blocked implementation of the Department of Labor’s amendments to the overtime exemption rules. For all who have worked hard in preparation to implement the changes that were scheduled to go into 

NH Legal Perspective: Things to consider if you’re thinking about selling your business

With improvements in the economic climate and continuing low interest rates, many private business owners have recently seen opportunities to sell their business at an attractive price. Even in good times, however, the sale of a business can be a difficult and complex process requiring considerable planning and advice. While there is no single right 

Client Alert – Massachusetts Changes Public Bid Laws

CLIENT ALERT By Janet B. Fierman On November 7, 2016, Chapter 218 of the Act of 2016, “An Act modernizing Municipal Finance and Government”, became effective. Among other things, Sections 2 through 12 of Chapter 218 change the public bid laws for government construction, procurement and repair projects by amending Chapter 30, Section 39M and 

NH Legal Perspective: Word of caution on employer-employee arbitration clauses

Whether you’re an employer or employee, it is possible that your employment relationship is governed by an arbitration agreement that requires any disputes between the employer and employee to be resolved not via litigation, but via binding arbitration. This may be a non-issue to you – something that you only think about when a dispute 

White Paper – New Hampshire Board of Medicine Adopts Final Opioid Prescription Rules

by Jason D. Gregoire New Hampshire, like many states, is facing an opioid addiction crisis. In 2015, there were over 400 deaths in New Hampshire caused by powerful opioids like Heroin and Fentanyl. Federal, state, and local governments have struggled to find workable solutions to this extremely complicated problem that can be implemented quickly and 

The evolution of workplace laws according to Jagger

Mick Jagger, lead singer for the iconic rock band The Rolling Stones turned 73 in July. In addition to celebrating that milestone, Jagger is going to be a father. He already has seven other children, ranging in age from 16 to 45. He also has five grandchildren and one great-grandchild. Some commentators are shocked by 

NH Legal Perspective: Federal government tells NH what it can do with runoff

SOME MONTHS AGO, my colleague Attorney Robert Lucic, described the state and federal environmental process for how New Hampshire’s waterways effectively become listed as impaired for purposes of the Clean Water Act. That article, published in October 2015, also highlighted the far-reaching impacts these impairment listings have on our local cities, towns, industry and development 

Court Reaffirms that Securities Laws are There to Protect Consumers

CLIENT ALERTS By: John Perten In a case of first impression, the United States Court of Appeals for the First Circuit determined that a misrepresentation in a business plan provided to potential investors violated state securities laws even without proof that the investor actually relied upon the false representation. In In re: Access Cardiosystems, Inc., 

EEOC’s Proposed Rule Upholds Wellness Plan Incentives

CLIENT ALERT By Karen A. Whitley The Equal Employment Opportunity Commission (“EEOC”) is updating its regulations under the Americans with Disabilities Act (“ADA”) to provide guidance to employers who offer corporate wellness programs. The EEOC has estimated that nearly 600,000 employers offer some form of wellness program, and that approximately one-third to one-half of those 

Executive Action on Immigration Reform

CLIENT ALERT By Jim Reidy & Nate Warecki On Thursday evening November 20th President Barrack Obama, as promised, announced a string of executive actions concerning the United States immigration system.  This announcement was made in advance of a forthcoming Executive Order, which will involve numerous changes to the way the Obama administration interprets and enforces United 

Client Alert: Attorney General Issues Proposed Regulations Under Massachusetts Earned Sick Time Law

CLIENT ALERT By Mark J. Ventola Attorney General Maura Healey has issued the proposed regulations (the “Regulations”) further defining the provisions of the new Massachusetts Earned Sick Time Law (the “Law”). As reported in our previous Client Alert, the Law requires that all employers provide employees with a minimum of 40 hours of sick time 

Massachusetts’ Mandatory Sick Time Law

CLIENT ALERT By Mark Ventola Voters in Massachusetts recently approved the ballot measure requiring employers to provide sick time for all employees. In doing so, Massachusetts joined a small group of states with mandatory sick time laws. What this means for employers is that they must provide sick leave for all employees beginning on July 

The New Massachusetts Retainage Statute: Time to Review Your Standard Contract

CLIENT ALERT By John Perten Effective November 6, 2014, there is a new statute governing retainage on private construction projects. The new law caps retainage at 5% and establishes a rigid procedure for the release of retainage instead of permitting the parties to negotiate triggers, time periods and standards (as was the prior practice). Anyone 

Contractor Private Arbitration Clause in a Home Improvement Contract Does Not Trump Homeowner Statutory Dispute Resolution Procedure

CLIENT ALERT By John Perten In an unpublished appeals court decision, Mamaril v. Keller, the Massachusetts appeals court ruled that a homeowner was not bound by an arbitration clause contained in a home improvement contract. The Home Improvement Contractor (“HIC”) law, M.G.L. c. 142A, gives a homeowner the choice of HIC arbitration or litigation in 

Confusion over Fiduciary Duties to Former LLC Members

CLIENT ALERT – A recent amendment to the New Hampshire Limited Liability Company Act, that went into effect on August 9, 2016, increases the uncertainty surrounding the duties that an LLC and its members owe to a former LLC member under the statute.

NH Legal Perspective: Supreme Court with Justic Scalia was Pro Business

ANTONIN SCALIA’S decades-long service as a justice of the United States Supreme Court ended upon his death in mid-February 2016. Because he was a conservative justice friendly to business interests, scholars and executives alike must take heed of both his legacy and the shifts in the highest court’s business rulings engendered by his passing. Read 

Massachusetts’ Pay Equity Law

CLIENT ALERT By Mark J. Ventola Joining a growing number of states that have recently enacted pay equity legislation, on August 1, 2016, The Massachusetts Legislature approved a new pay equity law (the “PEL”). While it will not take effect until July 1, 2018, the PEL will require employers to pay men and women equally 

NH Legal Perspective: Steps an Employer Can Take to Reduce Risk When Firing an Employee

FIRING AN EMPLOYEE is often an unfortunate but necessary act. Because of the obvious economic consequences for the employee, tensions understandably rise when the news is delivered. The legal landscape continues to change, creating new risks for employers. While most employees are still considered “at-will,” meaning they can be fired at any time with or without 

HR Power Hour – New Mandatory MA Sick Leave Law

Mark Ventola is a member of the Firm’s employment and labor law, business consulting, and litigation practice groups. Mark’s focus is on employment and labor law, advising clients about the many aspects of the relationship between employer and employee. Read the full story here.            

Blood from a Stone? Making Sure Your Judgment Is Worth More Than the Paper It Is Printed On

The decisions to commence and remain in a lawsuit trigger a number of legal and practical considerations including: the merits of your claims; the potential counterclaims that may eat into your recovery; and the unintended consequences that a lawsuit could have on a business relationship. These are only a few factors that a potential plaintiff 

Practitioner Tax Alert

Recently passed changes in IRS partnership audit rules could have unintended economic consequences for partners and may require revisions to partnership agreements and LLC operating agreements. Acting now to revise partnership and LLC agreements could allow partnerships to immediately take advantage of some of the new procedures.

NH Businesses Face Legal Challenges That ‘Hit From All Sides’

James Reidy featured in a Union Leader article. WINDHAM – Jim Reidy began a presentation Thursday on human resources and employment law by noting the conference’s theme of untangling knots, and then playing a mellow acoustic clip from “Stomach Tied in Knots” by Sleeping with Sirens. Read the full story here.        

Overtime Rules Promise Challenges for Some NH Firms

Mark Ventola featured in a Union Leader article.  WINDHAM – A new proposed overtime rule from the Department of Labor could have a major impact on New Hampshire businesses, some of which may be forced to hand out raises, reclassify workers or fire people. Read the full story here.      

New Rules Extend Visas for STEM Graduates

Regulations often make businesses cringe, but not this one. A new rule will allow international students in STEM (Science, Technology, Engineering, Math) fields to be employed in the United States for a longer period of time once they graduate, a boon to employers in a field with fewer graduates and shortages of talent. Read the 

The Department of Labor Announces Final Rule on White Collar Exemptions

CLIENT ALERT By Mark J. Ventola and  James. P Reidy On May 17, 2016 the United States Department of Labor, after much anticipation, issued its Final Rule updating the Fair Labor Standards Act regulations governing the “white collar exemptions” for executive, administrative, and professional employees. What follows is a summary of the Final Rule along