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Employment

Talking Pot

By Erica E. Flores, Esq.

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

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

Erica E. Flores, Esq.

Erica E. Flores, Esq.

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

Here’s what you need to know now:

Marijuana in the breakroom?

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

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

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

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

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

Drug-testing Considerations

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

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

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

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

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

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

Bottom Line

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

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

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

Employment

Language Course

 By Timothy M. Netkovick, Esq.

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

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

Timothy M. Netkovick, Esq

Timothy M. Netkovick, Esq

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

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

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

• A reasonable scope of the activities prevented;

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

• That the agreement comply with public policy.

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

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

• Interns;

• Employees terminated without cause or due to layoff; and

• Employees under 18 years old.

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

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

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

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

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

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

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

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

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

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

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

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

Employment

Shades of Gray

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

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

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

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

But is that true?

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

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

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

Tim Murphy

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

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

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

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

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

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

Power to the People

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

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

Daniel Carr

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Public or Private?

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

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

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

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

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment

Under Pressure

By Marylou Fabbo

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

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

Enforcement Action Substantially Increased

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

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

Number of H-1B Visa Petitions Down

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

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

Spouse Employment Authorizations Likely to Be Rescinded

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

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

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

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

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

Moving Forward

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

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

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

Employment Sections

Leg Up on Life

Michaela Lopez and Danielle Stewart

Michaela Lopez and Danielle Stewart examine a specimen during their internship at Mercy Medical Center’s Pathology Lab.

It’s hardly news that far fewer teenagers work during the summer than they did decades ago, for many reasons. Those who do want to work are often happy to nail down a steady paycheck, while others gain something more — a career-oriented summer job that comes with training, mentorship, and connections. That’s the goal of a state-funded program that will send 900 area teens into the workforce this summer, but its administrators say that number isn’t nearly enough.

Joe Shibley recalls when he was a teenager, washing dishes and weeding for a little extra money, and thinks the young people who come to work for him each summer have it a lot better.

“When I was a kid, I would have loved a job like this,” said Shibley, president of Pilgrim Candle in Westfield, who will participate for the fifth time this year in the regional summer-jobs program administered by the Regional Employment Board of Hampden County (REB).

Previous participants have worked on a historic-renovation project in one of the company’s buildings, a landscaping project that took up most of one summer, and various warehousing tasks, not to mention mixing, pouring, and labeling candles.

“They learn how the process goes, from raw materials to finished goods out on shelves,” he continued. “We’ve trained these young adults to weigh the wax, mix in the colors, pour the products, and wick the candles, start to finish. We’re not building computers, but it’s still a process, and you still have to put out a good product.”

The REB initiative, funded with $1.2 million from the state’s YouthWorks program, will give about 900 young people — ages 14 to 21, but mostly 16 to 18 — the opportunity to work at private-sector businesses and community organizations for six weeks this summer, earning minimum wage. Now in its 12th year, the program also provides 15 hours of workplace-readiness skills and safety training.

“We’re trying to have the youth working in the kind of jobs that could be the start of a career pathway,” said Kathryn Kirby, REB’s manager of Youth Employment and Workforce Programs. “We focus on making sure summer employment will be a quality work experience where they develop skills to lead them to self-sufficiency.”

That includes a wide range of job sites, from day-care centers and summer camps to corporate offices and nonprofits; from landscaping companies and media outlets to, well, a candle manufacturer.

“We’re looking for all kinds of employers to step up and help out a young person. It can’t be any job — it has to be position where the young person is supervised, in a safe working environment, Cruise went on, adding that the 15 hours of training delves into the soft skills employers are looking for, like communication and team-building, and that will help the participants be successful in future workplace environments.

Most of the businesses taking part — at no cost to their own bottom line, thanks to the YouthWorks funds — are in the private sector, REB Executive Director David Cruise said. “We’re not opposed to working with municipalities and nonprofits, but we’re more involved in the private-sector companies, because we think the career pathways are a little clearer.”

Kathryn Kirby says the summer jobs offered through REB and YouthWorks

Kathryn Kirby says the summer jobs offered through REB and YouthWorks are the kinds of opportunities that could be the start of a career pathway.

And make no mistake — these teens are, indeed, getting an up-close look at potential careers, not just summer jobs.

Where Are the Jobs?

For example, Mercy Medical Center took on eight teenage interns last summer who had trained as peer advocates during the school year at Martin Luther King Jr. Family Services, part of Trinity Health’s Transforming Communities Initiative (TCI).

Ten more from the MLK program will follow this summer, in addition to several coming over as part of the REB program, said Maggie Whitten, TCI program director in the hospital’s Community Health Department.

“They worked in a variety of departments based on their interests and which departments had the greatest availability for interns,” she said of last year’s crop, with the assignments ranging from the Hearing Center to Nursing Education; from the Sister Caritas Cancer Center to Marketing.

The jobs weren’t trivial; in the Pathology Lab, Danielle Stewart and Michaela Lopez attended medical lectures, processed samples, and were given homework each night. The experience was so impactful that one of them decided not to pursue a culinary degree in college and instead is looking into nursing school.

“They all had these interests to begin with, so they were good matches, but their mentors helped them identify what they needed to know to pursue it further,” Whitten said, adding that the summer-jobs program also gave these teens the kind of foot-in-the-door internship often reserved for relatives of employees.

“It also exposes them to careers they may not even know about,” she went on. “When most young people think about a hospital, they think of nurses and doctors, and they don’t realize there are hundreds of jobs here.”

Giving kids exposure to career pathways is one of the REB program’s strong suits, but, in reality, far fewer teenagers are working paid jobs during the summer. According to Census data, the percentage of 16- to 19- year-olds who were employed each July remained relatively stable, around 55% throughout the ’70s, ’80s, and ’90s. By the mid-2010s, fewer than 35% were.

Part of the change is a shift in demographics in some jobs. Again, according to Census data, in 1992 the median age of a food-service worker was 26, and only 21.5% were older than 40. Currently, the median age is 28, and about 27% are over 40.

According to a report in the Atlantic, the rise of low-skill immigration in the last few decades has created more competition for the sort of jobs that teenagers used to do, like grocery-store cashiers, restaurant servers, and retail salespeople. At the same time, older Americans are staying in the workforce longer than ever, and many of them wind down their careers in the kind of jobs teenagers used to grab during the summer.

Another factor, however, speaks to teenagers getting serious about their future career, just in a different way. The percentage of 16- to-19-year-olds enrolled in summer school — not remedial work, but extra, often college-preparatory work — has tripled in the last 20 years, according to the Bureau of Labor Statistics.

Whatever the reasons for the decline in youth employment, teenagers who do want to work over the summer often struggle to find jobs; even rarer are the kind of jobs that make them think about their future, rather than just doing busywork between paychecks.

“It has always been our feeling that college kids need this experience as well,” Cruise said, “but for a high-school student, this exposure may be the thing that inspires them to continue their education. Maybe they wouldn’t sense that as clearly if they didn’t have this opportunity.”

In some cases, Kirby said, the teenagers make such a strong impression over the six weeks that the employer wants to bring them back the following summer, or even part-time during the school year.

“That’s why we say to these young people, ‘when you get this opportunity, you really have to seize it. If you do a good job, the employer may hire you, and you’ll have permanent employment and a job to go to after school.”

Just as valuable is the mentoring that the employers in the REB program are asked to provide, Cruise added.

“They might talk about a potential career path with that company, or encourage them to go on to school if that’s what’s required in order to be hired on a full-time basis,” he explained. “This summer job might potentially be that job that triggers where their educational pathway goes. It can have an impact on far beyond the six weeks they’ll be working with them.”

Two-way Street

Conversely, the participating employers say they gain, something, too, in the energy, perspective, and skills (often technological) that young people bring to the table.

Plus, Cruise said, “it really does add value because they can do things that may have fallen to another employee — like filing and basic computer work — so that other employee can make better use of his or her time.”

He admitted, as Whitten noted, that summer openings for young people at various companies are often filled by employees’ sons, daughters, nieces and nephews. But there’s value in that, too, because if the experience opens employers’ eyes to the value of hiring young people, maybe they’ll be willing to look outside for more such help.

In Shibley’s case, he’s interested in what his yearly cohort thinks about potential new products, knowing their age group will eventually be his customers. “Their tastes help us in developing some of the fragrances — what trendy things they would like instead of the traditional country fragrances. Tastes are constantly changing.”

Managing teenagers — both through YouthWorks and another program through which young people with Down syndrome and other special needs work at Pilgrim Candle — has also spurred changes in operations.

Jerry Moore III, another of Mercy Medical Center’s summer interns, leads U.S. Sen. Ed Markey on a tour of the hospital.

Jerry Moore III, another of Mercy Medical Center’s summer interns, leads U.S. Sen. Ed Markey on a tour of the hospital.

“It’s kind of opened up our eyes about how we could streamline some of our processes and make it simpler for some of the workers,” he said. “And it’s been really gratifying to see these kids develop and learn some skills, especially kids with special needs. It’s been a good experience, and I would definitely recommend it to other companies.”

Kirby hopes testimonies like that persuade more employers to get involved in the summer-jobs program, or, better yet, consider hiring young people on their own.

“We definitely need more support,” he said. “We have thousands of applicants, and 900 kids will be the lucky ones to secure work through this program. The rest are left to fend for themselves and find a job on their own.”

Cruise said teenagers who work during the summer reap benefits beyond pay, job skills, and career readiness. “I think the program plays a significant role in increasing young people’s self-confidence and self-esteem. That’s a critical part of the outcome they get from this experience. Over time, it’s good for kids, good for families, and hopefully good for the communities they live in.”

Kirby agreed. “Some are so shy when they come in, but they just blossom under the program. That happens a lot,” she said. “It’s an opportunity to learn about themselves, to be mentored and build skills, and to network in the community and build relationships.”

Relationships that, in many cases, will become the first step toward a career that lasts well beyond the summer.

Joseph Bednar can be reached at [email protected]

Employment Sections

Character-building Exercises

By Henry DeVries

A tough challenge for many executives is convincing top talent to join their company. A second challenge is training newcomers to understand the company’s core values.

To become better at hiring and training, it pays to know how humans are hardwired for stories. If you want prospective employees to think it over, give them lots of facts and figures. If you want them to decide to join your company for the right reasons, then tell them the right story.

Now, any executive can easily use proven techniques of telling a great story employed by Hollywood, Madison Avenue, and Wall Street by employing six simple steps to storytelling to attract the right candidates and properly train them in your company culture.

These stories must be true case studies, but told in a certain way. The process starts with understanding your core values.

Core Values Are Key

Top candidates don’t want to work just anywhere. They want an organization where they align with the core values.

Every business has core values, although some have not formally stated what they are. Basically, core values are the guiding principles that drive and organization’s conduct both internally with employees and externally with customers. Here are a few examples of core values of small to medium-sized businesses:

• We go the extra mile for customers;

• We do whatever it takes to get the job done;

• We value integrity, which means doing what we say we are going to do;

• We are honest and transparent with employees and customers; and

• We value quality as job number one.

The list of possibilities is mighty long. Core values are a decision that company leaders make. But just naming a core value is not enough.

The Core-value Storytelling Formula

For every core value, the company should capture a true story of that core value in action. Here is a quick overview of the core-value storytelling formula:

One: Start with a main character. Every story starts with the name of a character who wants something. This is your client. Make your main characters likable so the listeners will root for them. To make them likable, describe some of their good qualities or attributes. Generally, three attributes work best: “Marie was smart, tough, and fair” or “John was hardworking, caring, and passionate.” For privacy reasons, you do not need to use their real names (“this is a true story, but the names have been changed to protect confidentiality.”)

Two: Have a nemesis character. Stories need conflict to be interesting. What person, institution, or condition stands in the character’s way? The villain in the story might be a challenge in the business environment, such as the recession of 2008 or the Affordable Care Act (the government is always a classic nemesis character).

Three: Bring in a mentor character. Heroes need help on their journey. They need to work with a wise person. This is where you come in. Be the voice of wisdom and experience. The hero does not succeed alone; they succeed because of the help you provided.

Four: Know what story you are telling. Human brains are programmed to relate to one of eight great meta-stories. These are: monster, underdog, comedy, tragedy, mystery, quest, rebirth, and escape. If the story is about overcoming a huge problem, that is a monster-problem story. If the company was like a David that overcame an industry Goliath, that is an underdog story.

Five: Have the hero succeed. Typically, the main character needs to succeed, with one exception: tragedy. The tragic story is told as a cautionary tale — great for teaching lessons, but not great for attracting clients. Have the hero go from mess to success (it was a struggle, and they couldn’t have done it without you).

Six: Give the listeners the moral of the story, which is the core value. Take a cue from Aesop, the man who gave us fables like “The Tortoise and the Hare” (the moral: slow and steady wins the race). Don’t count on the listeners to get the message. The storyteller’s final job is to tell them what the story means.

Six Ways to Put Stories into Action

After you build an inventory of stories that demonstrate your core values in action, you are then ready to deploy the stories. In storytelling, context is everything. You should never randomly tell stories, but instead use stories at the right strategic times.

Here are six perfect opportunities to persuade with a story:

• During a job interview. No, don’t start the interview telling stories. However, once the candidate has shared about themselves, then the interviewer can share stories about the core values of the organization.

• During a training class. Core values should be taught during training. First, state the core value and then explain what that means. For them to really get the point, tell a story about that core value in action.

• At weekly staff meetings. One executive boasted that his organization had 22 core values, and they were on posters throughout the office. Asked if he had any stories to illustrate, a little red-faced, he said “no.” Now, every week at staff meeting, they tell a story to illustrate one of the 22 core values.

• At company-wide meetings. Is it time to assemble all the troops? Maybe for a change in direction or for recognition? This is a perfect time for core-value selling.

• On the company website. Promote core-value stories on your website to detail for clients and potential clients the power of story.

• In company brochures and collateral material. Since stories connect on an emotional level, doesn’t it make sense to put them down in writing?

Storytelling helps persuade on an emotional level. Maybe that is why so many Fortune 500 companies are honing in on storytelling techniques and imparting that wisdom on their sales and business-development professionals to tell relatable stories that will convince prospects.

Henry DeVries, CEO of Indie Books International, works with consultants to attract high-paying clients by marketing with a book and speech. As a professional speaker, he teaches sales and business-development professionals how to build an inventory of persuasive stories. He is the author of “Marketing with a Book” and “Persuade with a Story!”; www.indiebooksintl.com

Cover Story Employment Sections

Team-building Exercise

From left, Courtney Wenleder, CFO; Alex Dixon, general manager; and Mike Mathis, president and COO. Photo by MGM/Springfield Mark Murray

From left, Courtney Wenleder, CFO; Alex Dixon, general manager; and Mike Mathis, president and COO.
Photo by MGM/Springfield Mark Murray

Mike Mathis said he doesn’t use any of those ‘gotcha’ questions, as he calls them, when he’s interviewing job candidates.

He said he’s been on the other end of a few of these, like ‘describe your greatest weakness’ or ‘how well do you get along with your current boss?’ He didn’t particularly enjoy those experiences and, more to the point, doesn’t believe they were particularly effective in providing real insight to those asking those questions.

But Mathis, president and COO of MGM Springfield, said he does have some favorite — and effective — go-to questions (he wasn’t too revealing) that he likes to ask in an effort to get beyond the words printed on a résumé and determine if the candidate across the table would make a good fit.

And he’s had plenty of opportunities to put them to use in recent months as he’s interviewed finalists for the positions that make up the executive team that will open and then operate the $950 million resort casino complex taking shape in Springfield’s South End.

“The résumé gives me good insight into what their technical experience is,” he explained. “But I’m looking for personality and cultural fit, and you can usually get to that through them talking about their experiences.”

As he talked about his team members, or department heads, or ‘number ones,’ as he also called them, collectively, Mathis made early and frequent use of the word ‘diverse,’ and said it takes on the quality in many different respects. These include gender, age, race, geography (where they’re from), casino experience, and MGM experience.

As for those last two, some have it, and others, like Mathis himself when he was named to lead MGM Springfield, don’t.

“We have some who are internal MGM and others who are external to our company but in the industry,” Mathis explained. “We have a combination of young and those not as young, as I like to say, those with a little more experience. And we have a few from outside the industry; the company took a chance on me, and we’ve continued to take some of those chances on others.”

Anthony Caratozzolo: Vice President, Food & Beverage

Anthony Caratozzolo: Vice President, Food & Beverage

Anika Gaskins: Vice President, National Marketing

Anika Gaskins: Vice President, National Marketing

Brian Jordan: Director, Surveillance

Brian Jordan: Director, Surveillance

Monique Messier: Executive Director, Sales

Monique Messier: Executive Director, Sales

It is this team, featuring individuals with titles ranging from CFO to vice president, Table Games, to executive director, Arena Operations, that will lead the ambitious casino project through the most critical stage in this six-year process — the completion of construction, finalization of specific components such as dining options and other facilities, the assemblage of a team of roughly 3,000 people, and, finally, opening the doors (early September is the projected ‘go’ date).

At present, that team-building assignment is priority 1, said Mathis, adding that the members of the executive team will soon be, and in many cases already are, adding members to their own specific leadership teams, and soon these individuals will begin to assemble the larger teams they will lead.

“The number ones hire number twos, and the number twos hire number threes,” he explained. “And then, from there, you start building out your business plan and prepare for mass hiring.”

For this issue and its focus on employment, BusinessWest looks at the team Mathis has assembled and how it came together. Also, we’ll look at the daunting challenge this “dream team,” as Mathis called it, will face over the next six months and how it will go about making MGM Springfield ready for prime time.

A Strong Hand

Mathis told BusinessWest that he’s been a part of a few casino executive teams during his career “around but not in on a day-to-day basis” the casino industry, as he chose to phrase it.

Indeed, he was legal counsel for the Venetian Las Vegas, which opened in 1999, and also for a start-up operation, Echelon Place, also in Las Vegas.

Being the one on the other side of this equation, the one putting the team together, the one able to joke during meetings (and he’s already done this a few times) that ‘none of you would be here without me’ — well, that’s a completely different and quite rewarding experience.

“I have a great sense of pride when it comes to the group we’ve pulled together,” he said, emphasizing that this was a team effort. “What’s really nice is how, organically, this team reflects the personality of the community and our original vision. For me, as a day-one employee, I feel I’m a steward of the original vision of our president, Bill Hornbuckle, and of the mayor and the different community-group stakeholders I originally met with. And I want to reflect all that in the team we put together.”

Sarah Moore: Vice President, Marketing, Advertising & Brand

Sarah Moore: Vice President, Marketing, Advertising & Brand

Marikate Murren: Vice President, Human Resources

Marikate Murren: Vice President, Human Resources

Jason Rosewell: Vice President, Facilities

Jason Rosewell: Vice President, Facilities

Jason Rucker: Executive Director, Security

Jason Rucker: Executive Director, Security

Elaborating, he said this team is non-traditional in some respects, and, as noted, diverse in every sense of that word.

‘Non-traditional’ in that, in many cases within this industry, executive units travel as a team, Mathis explained. That was not the case here.

“Someone would come to my role already thinking about who their number two and number three would be,” he explained. “Some of those executive teams travel in groups. There’s nothing wrong with that … these people are used to working with one another, and there’s something to be said for that.

“But because I was new to the role, I came at it without some of those preconceived notions about who the team members should be,” he went on, adding that he actually worked with very few members of this executive team before MGM Springfield. “The group is really eclectic, and we make each other better.”

In total, there were hundreds of applicants for the 16 positions, Mathis went on, adding that, because the pools of candidates were strong and diverse, it was that much easier to create a very diverse team.

“One of things we believe in at MGM is that, if you have a diverse applicant pool, you’ll get great employees, and the diversity will be reflected in the hires,” he said. “So our focus has always been on making sure we’re getting great people in front of us before we make decisions.”

Elaborating, he explained that, for each of the positions, the company tried to have, as finalists, an internal (MGM) candidate, an external candidate, and a diverse candidate, and in most cases met that goal.

Overall, nine of the 16 members of the executive team are diverse or female, which, he said, makes it one of the most diverse teams not only within the MGM company, but within the industry.

Why is diversity important? “Within the hospitality industry and particularly with MGM Resorts, we’re a host to a wider range of customers than any industry I can think of,” said Mathis as he answered that question. “We’re the Disneyland for adults. We have international guests, local visitors, those who are interested in gaming, those who are interested in food and beverage, families … with that range of customers that we invite to our resort, we need our employees to reflect that diversity of customers. That’s a big part of our success, and diversity is one of our pillars — not only ethnically, but diversity in all respects.”

Great Odds ‘Relaxed.’

That’s the adjective Mathis summoned to describe not only how he wants those taking his interview questions to be, but also the kind of corporate environment, for lack of a better term, that he’s been trying to create at MGM Springfield.

Lynn Segars: Vice President, Slot Operations

Lynn Segars: Vice President, Slot Operations

Gregg Skowronski: Executive Director, Hotel Operations

Gregg Skowronski: Executive Director, Hotel Operations

Talia Spera: Executive Director, Arena Operations

Talia Spera: Executive Director, Arena Operations

That certainly sounds illogical given the nature of the casino industry in general and, more specifically, the ultra-challenging six months ahead for the team at MGM Springfield. But hear him out.

“I mean relaxed in terms of the collegiality between the team members,” he explained. “We’re all working hard, but time is going by quickly, and the work is hard enough without the environment being overly formal or not having that collegiality.

“People perform best when they’re happy; we believe in our business in the service-profit-chain model,” he went on, referring to the theory in business management that links employee satisfaction to customer loyalty and, therefore, profitability.

It was an unofficial goal, or milestone, to have this team in place, in this relaxed environment, at the start of 2018, and it has been met, said Mathis, adding that, while some team members still have some logistics to work out, such as finding homes and moving families, they are all at work now at MGM’s nerve center in at a renovated 95 State St.

They will meet collectively twice a week, said Mathis, adding that one of these sessions is an executive-team meeting at which specific information will be communicated about project status, timelines, and other matters, and decisions will be made that involve multiple departments. The second session is a weekly staff meeting, a 90-minute to two-hour roundtable with no set agenda.

Seth Stratton: Vice President and General Counsel

Seth Stratton: Vice President and General Counsel

Courtney Wenleder: Vice President and Chief Financial Officer

Courtney Wenleder: Vice President and Chief Financial Officer

Robert Westerfield: Vice President, Table Games

Robert Westerfield: Vice President, Table Games

“What we’ve learned is that meeting [the roundtable] is as productive as any other meeting we have,” he explained, adding that there are a host of smaller meetings involving some but not all of the executive staff members.

And as you might expect, there is quite a bit to meet about with the countdown now at or just under 200 days.

The biggest priority is building the individual departments, Mathis went on, adding that, while the casino is taking shape in a highly visible way on and around Main Street, the task of interviewing, hiring, and training 3,000 employees is already going on behind the scenes.

The top levels of each team will be filled out over the next few months, he continued, and mass hiring will commence in the early summer and hit high gear in the weeks just prior to opening.

Meanwhile, there are literally thousands of other tasks to be carried out, he said, listing everything from building the reservation system to creating training manuals; from interviewing vendors to detailing what will be needed in the warehouse.

“It’s a pretty incredible undertaking, and we’ve got a great team in place to carry it out,” noted Mathis, adding that this team will has borrowed heavily from the playbook created by another MGM casino that opened just over a year ago, National Harbor in Maryland.

“I don’t envy anyone that’s doing one of these as a one-off,” he told BusinessWest. “National Harbor is one of the most successful operations in the country, and we’ve taken their best practices, as well as lessons learned, and incorporated them into this project.”

Teaming with Excitement

Meanwhile, MGM Springfield will provide the playbook for the next MGM project, whenever it moves off the drawing board, said Mathis.

“Each time, the process gets better,” he noted. “One day, there will be a perfect opening; unfortunately, I don’t think we’ll be it. But with each one of these, you get a little closer to that standard.”

A perfect opening might be beyond the reach of Mathis’ executive team, but it will likely move the bar higher. In the meantime, by most accounts, it is already setting a higher standard for diversity.

It’s been an intriguing team-building exercise in every sense of that phrase.

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

Employment Sections

Sidebar

Courtney Wenleder says she can see a number of parallels between the MGM Springfield development and the work to rebuild in Biloxi, Miss. after Hurricane Katrina.

Courtney Wenleder says she can see a number of parallels between the MGM Springfield development and the work to rebuild in Biloxi, Miss. after Hurricane Katrina.

Courtney Wenleder was working in Las Vegas, as financial controller for the Bellagio Hotel and Casino, in the summer of 2005 when she was asked to step in and assist another property in the MGM portfolio, the Beau Rivage Hotel and Casino in Biloxi, Miss.

She happened to be back in Vegas for some meetings when Hurricane Katrina slammed into the region several weeks after her arrival, but she’ll never forget the flight back to the area five days later on one of the company’s corporate jets that received special clearance to fly into the devastated area.

“Flying over Biloxi, you could see the blue tarps everywhere,” she said, adding that the casino complex itself was closed for exactly a year and had to rebuild just as the region around it did.

“The community saw us as a kind of beacon of hope,” she recalled. “We committed to rebuild right away; people lost their homes and their jobs, and we played a big role in the recovery.”

Wenleder related that story as she started to explain what brought her to Springfield late last summer and, more specifically, to the role of vice president and chief financial officer for MGM Springfield.

While Hurricane Katrina was an exponentially larger natural disaster than the tornado that carved a path through Springfield almost seven years ago now, Wenleder can see a number of parallels between the two calamities and the two regions, especially when it comes to the role a casino complex can play in a devastated region.

And also in how rewarding it can be to be a part of such efforts.

“That experience in Biloxi was more than a job, more than just being a CFO in a casino,” she told BusinessWest. “It was helping the community, giving them hope, rebuilding, working as a team.

“The team that we had down there was incredible,” she went on. “When you go through something like that, you bond instantly; there’s no time for niceties, and ‘let’s just develop this relationship’; you become connected quickly.”

While different from the experience in Biloxi in many ways — the disaster is years in the rear-view mirror, not days — Wenleder says she can find many parallels to her current role with another team, the one that will open the $950 million MGM Springfield in roughly six months.

That’s why, when Mike Mathis, president and COO of MGM Springfield, first approached Wenleder, then the VP of Finance and CFO at the New York New York Hotel and Casino in Las Vegas, about coming to the City of Homes three years ago, she almost immediately started giving it some serious thought.

There were several reasons why she eventually said ‘yes.’ There was that opportunity to be part of another community comeback story, if you will, but also a desire to get back to the East Coast (she was born and raised in Virginia), and the chance to open a new facility.

“Springfield was a pretty easy sell,” she explained. “I was looking for change — I had been at New York New York for nine years and wanted a new challenge — and the opportunity to have a job that meant more than building a property and running the financials.”

Although those are, obviously, big parts of her job description, as we’ll see.

For this issue and its focus on employment, BusinessWest talked at length with Wenleder about her role at top level of the leadership team at MGM Springfield, and also about why, as she said, this particular job involves much more than running financials.

On-the-money Analysis

Wenleder, one of the first members of the executive team hired last year (see story, page 15), said those letters CFO usually come complete with a lengthy and varied job description.

That’s especially true in the casino industry, where operations such as MGM Springfield have a number of components, myriad expenses, and (eventually, in the case of MGM Springfield) several revenue streams.

But at the end of the day, the job here, as it does everywhere, comes down to making sure the expense side doesn’t exceed the revenue side. (Although, when it comes to the Springfield casino, we’re going to need that word ‘eventually’ again because, at the moment, there are no revenues).

There’s no end to the expenses, though, said Wenleder, who said she’s trying to manage them the best she can.

“It’s quite stressful when you only have one side of the ledger,” she said with a laugh. “Managing the budget is difficult, especially when things come up that you didn’t anticipate, and there are plenty of those.”

One of the most pressing items on Wenleder’s to-do list is putting her own team together. For several months she was a one-person show, but over the past several weeks there have been a number of additions to the finance team.

But most of the hiring is still to come, obviously, she said, adding that, by the time MGM Springfield is ready to open, that finance team will number between 150 and 200 people.

They will be spread out across a number of departments, she noted, including purchasing; warehouse and receiving; inventory control; financial planning and analysis; those working in ‘the cage,’ meaning those handling money; the ‘counts team,’ individuals who pull money out of the slot machines and table games; casino finance (a compliance role); and a small accounting team. (Payroll, accounts receivable, and other functions are handled out of corporate offices in Las Vegas.)

It’s a big job, with big numbers, such as a projected $90 million in annual payroll alone for the Springfield facility, said Wenleder, adding that she does not yet have a budget or updated revenue projections for either the short year ahead (2018) or the first full year of operation to follow.

But she’s working on it — just as she’s working on a whole host of other aspects of the casino operation.

Such as staffing. That is the focus of much of the activity at 95 State St., and the goal is to come up with the right numbers across each of the various departments. Talks are ongoing as to just how many will be needed within each department, she said, adding that the goal, quite obviously, is not to overstaff or understaff. “There’s a balance there, and it’s important to get the right numbers.”

Other day-to-day work includes everything from financial analysis on potential partners, such as retail tenants, the movie theaters, and bowling alley, to setting of internal control drafting procedures related to the minimum standards set by the Gaming Commission.

While handling all that, Wenleder is thinking about that ‘beacon of hope’ aspect to this casino operation, the element that links it many ways to Biloxi, those blue tarps she saw while flying overhead, and the rewarding work of helping a community bounce back from adversity.

“That’s the element to this I really enjoy — engaging the community, helping people find jobs and improve their lives, training them on new skills, and, hopefully, bringing more vibrancy to the area, because other businesses will come because we’re here. There is that ripple effect.”

Watching the Bottom Line

She’s seen that ripple effect first-hand, in Biloxi and in Las Vegas, of course.

And she’s quite confident that there will be one here as well, and being one of the key drivers of that ripple effect is just part of what made Springfield the easy sell she described.

There won’t be anything easy about getting the doors open come September, but Wenleder is, by all accounts (that’s an industry phrase) well on top of things, thanks to a wealth of experience with these balancing acts.

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

Employment Sections

The New Pay-equity Law

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

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq

Amelia J. Holstrom, Esq

This summer, Massachusetts will enact what many believe to be the most stringent pay-equity legislation in the country.

Back in August 2016, Gov. Charlie Baker signed “An Act to Establish Pay Equity,” which amends the state’s existing equal-pay law and goes into effect on July 1, 2018. The intent of the legislation is laudable; it is aimed at strengthening pay equity between men and women in the Commonwealth.

Studies show that, despite more than 50 years of pay-equity laws being on the books, a significant wage gap between men and women still exists. In order to try and narrow that gap, the new Massachusetts pay-equity law imposes rigorous equal-pay obligations on employers. The new law also prohibits certain pay-related conduct by employers, including asking applicants about past compensation.

With July 1 just around the corner, employers need to take a careful look at the law, its requirements, and what they should be doing right now to limit their legal liability.

What Is Comparable Work?

Employers have been prohibited from discriminating in the payment of wages between men and women who perform comparable work for decades. The current version of the law, however, does not define what ‘comparable’ means. As a result, the Massachusetts courts defined ‘comparable’ in a way that made it very difficult for employees to succeed on a pay-discrimination claim.

Specifically, the employee had to establish that the jobs “did not differ in content” and entailed “comparable skill, effort, responsibility, and working conditions.” Many employers were successful defending pay-equity claims by showing that jobs “did not differ in content.”

The new pay-equity law defines ‘comparable work’ in a way that eliminates this “differ in content” requirement. This means that jobs may now be comparable for pay-equity purposes even though the job duties are different. The new law defines comparable jobs as those that involve “substantially similar skill, effort, and responsibility” and are performed under “similar working conditions.”

This language is broader than the test previously set forth by the courts, so it will likely lead to more favorable results for employees who file lawsuits under the amended act.

What If Employees in Comparable Jobs Are Paid Different Wages?

Some pay differences are permitted under the amended act, but they are very limited. Pay differences between persons performing comparable work are only acceptable if based upon: (1) a seniority system; (2) a merit system; (3) a per-unit or sales-compensation scheme; (4) geographic location of the job; (5) education, training, and experience, or; (6) the amount of travel required.

However, because the statute does not define these terms, employers have little guidance on how they might be interpreted and applied.

Employers who need to correct pay disparities may not reduce the salary of an employee in order to comply with the new law. Employers who have unexcused pay differentials will need to ‘level up’ and bring the pay of the lower earners up to the pay of the highest earner doing ‘comparable work.’

From Pay Equity to Pay Transparency

The amended act also prohibits employers from engaging in a common pay-related practice. Starting July 1, employers may not ask job applicants about their salary or wage history. Employers similarly cannot seek an applicant’s pay-history information from a current or prior employer.

As a result, employers must remove all questions regarding previous salary and wage-history information from their applications and train hiring managers not to ask prohibited questions.

Defense for Those Who Evaluate Pay Practices

There is one silver lining for employers. The new law provides an affirmative defense to employers who complete a “good-faith” self-evaluation of their pay practices and demonstrate “reasonable progress” toward eliminating any wage differentials.

This means employers who adequately audit their pay practices may avoid liability under the new law, but only if the employer’s self-evaluation is “reasonable in detail and scope in light of the size of the employer.”

Businesses should take advantage of this defense by formally auditing their pay practices before July 1, 2018, to ensure compliance with the new law. Employers who conduct an audit with an attorney can assert the attorney-client privilege with regard to all or some of the audit, which would protect it from disclosure during a lawsuit if the employer so desires.

With July 1 roughly four months away, employers need to begin making necessary changes to comply with the statute and strongly consider performing an audit to identify and address any already existing pay disparities. Attorneys may be eager to assert these claims due to the relaxed definition of comparable work and the potential for liquidated damages, attorney’s fees, and costs. So businesses need to be ready.

John S. Gannon is an attorney with Skoler, Abbott & Presser, LLC, 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] Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. Her practice is focused in labor law and employment litigation; (413) 737-4753; [email protected]

Employment Sections

There Are Many, for Employers and Employees Alike

By Erica E. Flores

Erica E. Flores

Erica E. Flores

As 2017 winds to a close, society continues to be rocked by the Harvey Weinstein scandal, the #MeToo movement, and the unending torrent of allegations against prominent and powerful men. We find ourselves wondering what happened.

Or, more importantly, how this has been going on for so long, seemingly undetected. But sexual harassment isn’t a new problem. And it’s not a problem that went away and is just now returning. No, sexual harassment has always existed, in one form or another.

After the Mad Men era, perhaps it became a bit more taboo, and less an accepted norm, but it did not go away. So why now? And more importantly, what can we — the concerned bystanders, responsible business owners, and innocent professionals — take away from all of this?

It is clear that the first allegations against Weinstein struck a chord in the collective consciousness of the American woman, but we may never fully understand how or why the dam broke as and when it did. After Bill Cosby, maybe we had simply had enough, and when those first cracks appeared, the levee was inevitably doomed. Ultimately, the why is not so important.

Because, just as sexual harassment is not a new problem, it is also not a problem that will ever be solved completely. People behave badly, especially when emboldened by an imbalance of power. And the workplace provides both the temptation and the authority for bad people to do bad things.

Which brings me to the second question — the takeaways. As a management-side employment attorney and a woman, I see in this avalanche of public shaming both lessons and warnings. The lessons are caution and vigilance. Whether you are a man, woman, or gender-fluid; straight, gay, or bisexual; supervisor, subordinate, or human-resources professional, you must exercise caution as you go about your affairs at work. No matter what side of the power equation you are on, you should always be aware of the effect your words may have on others, the messages and signals you are communicating, and the risks you run when the lines between friend and colleague start to blur.

While being cautious about your own behaviors, however, you must also be vigilant when it comes to what is going on around you, and you cannot be afraid to speak up, no matter how high or low on the totem pole you are. We all share a responsibility to protect our co-workers, at every level; to make sure that we all can enjoy a safe and comfortable workplace where we can and will perform at our best. We also share a responsibility to protect our company’s brand, the reputation each of us has worked so hard to earn and maintain, for the benefit of every one of us and our families.

Which brings me to the warnings. The law is not forgiving when it comes to sexual harassment. Employers are strictly liable for sexual harassment committed by managers, and anybody — yes, anybody — can be held legally responsible for aiding and abetting sexual harassment. What does that mean? It means whatever a judge or jury decides it means, and in this moment in time, I suspect it means much more than you might think.

Make no mistake — society is desperate for consequences, and this public purging will not stop at the top. Small businesses in small communities are just as vulnerable, and there will be lots of blame to go around for the behavior of those who are eventually outed.

So before you or your business become the story, take steps to protect yourself. Employees cannot be afraid to speak up, and employers should encourage them to come forward. Businesses should also consider reviewing and revising their sexual-harassment policies, reiterating that employees who come forward will not face retaliation, and perhaps even provide additional training to supervisors and human resources personnel.

Most importantly, employers must make sure they are addressing complaints promptly and properly. That means being thorough but objective, and fair but strict. It means talking to the right people, asking the right questions, looking in the right places, and preparing the right forms of documentation. None of this is obvious or easy, so when in doubt, get your employment attorneys involved.

After all, while the tide will eventually ebb, sexual harassment will never go away completely.

Erica E. Flores is an attorney at Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She has successfully defended employers before state and federal courts and administrative agencies. In addition to her litigation practice, she regularly advises clients with respect to day-to-day employment issues, including decisions regarding adverse employment actions and litigation avoidance;(413) 737-4753; [email protected]