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Employment

Employment

Chop of Their Game

Members of Tru by Hilton’s ‘Team Awesome’ celebrate tying for the win in the cooking competition.

Eighteen employees from four different area hotels competed last month in a friendly, Chopped-style culinary competition at the HCC MGM Culinary Arts Institute designed to enhance their professional development.

The participants, all management-level employees from the BK Investment Hotel Group, took part in a new one-day, four-hour program called “Team Building Through Culinary,” offered by Training and Workforce Options (TWO), a collaboration between Springfield Technical Community College and Holyoke Community College.

From the program’s customizable menu of options, the company chose “Sliced,” a culinary training exercise modeled after Chopped, one of the Food Network’s popular competitive-cooking shows. The training was led by chef and HCC Culinary Arts Instructor Tracy Carter, whose professional experience includes working at the Food Network, where she prepared the ingredient baskets for Chopped.

“The cooking sessions at the HCC MGM Culinary Arts Institute are designed to help employees who work closely together improve their communication, collaboration, and problem-solving skills, while enhancing team cohesiveness and highlighting individual talents.”

“The cooking sessions at the HCC MGM Culinary Arts Institute are designed to help employees who work closely together improve their communication, collaboration, and problem-solving skills, while enhancing team cohesiveness and highlighting individual talents,” said Tracye Whitfield, TWO’s director of Business Development. “TWO’s mission is to provide area companies customizable training progams for their employees’ professional growth.”

The Oct. 17 program included management teams from four of the BK group’s properties — Hampton Inn by Hilton, Residence Inn by Marriott, and Tru by Hilton, all in Chicopee, and Holiday Inn Express in Brattleboro, Vt. — who learned cooking techniques while competing against each other in one of the culinary institute’s teaching kitchens.

Under the direction of Carter, each of the four teams worked together to create a meal using a basket of pre-selected, mandatory ingredients, which in this case included chicken, brussels sprouts, mozzarella cheese, and guava paste, along with other items they could find in the kitchen’s pantries and refrigerators.

After the cooking was done, the participants sat down together to dine, sample each other’s creations, and vote for the team whose food they liked best. Two teams tied for the win: Hampton Inn by Hilton, wearing blue aprons and self-proclaimed “Team Awesome,” and Tru by Hilton, wearing yellow.

“We had a lot of fun,” said Sandra Reed Hofstetter, BK’s regional director of Operations. “Many thanks to Chef Tracy and the TWO team for the warm welcome and attention to detail.”

Employment

More Than a Job

President Tricia Canavan

President Tricia Canavan

At its core, the mission of a staffing agency is to connect employers with job seekers — a task United Personnel has tackled with success for 35 years. But creating those matches doesn’t occur in a vacuum. Rather, building a healthy workforce is a region-wide effort that makes demands of employers, colleges, training programs, K-to-12 schools, and lawmakers. United Personnel President Tricia Canavan recognizes this big picture — and her firm’s role in closing the gaps.

Tricia Canavan’s job is to help people get jobs, and to help companies find those people. It’s that simple — only, it’s not.

“Workforce development and education are things I’m really passionate about and involved in in a variety of ways,” she told BusinessWest. “We’ve heard about the skills gap and the disconnect between people who are not working or are underemployed, and employers who are saying they can’t expand because they don’t have the staff they need, and they have to turn work away because there’s not enough employees. There’s a real disconnect. So, what are the strategies we can use to be able to bridge that gap?”

As president of United Personnel, Canavan connects job seekers to regular paychecks every day. But the challenge of doing so runs far deeper than many might assume. In fact, for many, it starts well before kindergarten.

“I think we need to be really comprehensive and innovative in how we look at workforce develoment and education, even K to 12. They call it cradle to career — you want to start kids with a really good background to enter kindergarten.”

Consider, she said, that only 7% of Springfield children are considered kindergarten-ready when they enter school, and if they don’t hit reading proficiency by third grade, it sets them on a never-ending pattern of playing catchup.

“It’s said that, from kindergarten to third grade, you’re learning to read, and from third grade on, you’re reading to learn,” Canavan said. “So if your reading-comprehension skills are not where they need to be, it’s a very tough thing to make that up. The gaps start young, and they persist, and continue through high school.”

Beyond high school, in fact, contributing to what are commonly known in the employment world as skills gaps. Which brings her back to her daily role, one she tackles with a decidedly big-picture view.

“I think the disconnect and the skills gap we see is not only a challenge and a missed opportunity for local residents, but it also is an economic-development concern,” she said. “Ultimately, employers need the skilled workforce to be able to grow, and if we, over the long term, or even the medium term, are not able to produce better results at a time when Massachusetts population is pretty flat, we’re going to have a problem. It’s critical that we’re engaging as many of those residents as can work and want to work, and making sure they have the skills they need to be successful for themselves and their families, too.”

In today’s reasonably healthy economy, Canavan said, good jobs exist. She knows, because she’s got a large roster of clients that want to fill them.

“If we cannot access candidates that have the skill sets that employers need, we will not be viable as an organization. So we have some serious skin in this game,” she went on. “But I also see it as a social-justice issue. If we can do better in these fields of education and workforce development, if we can connect people with the opportunties that exist in ways they had not been connected before, that can be a game changer.”

“I think the disconnect and the skills gap we see is not only a challenge and a missed opportunity for local residents, but it also is an economic-development concern.”

For this issue’s focus on employment, BusinessWest sat down with Canavan to talk about the ways her 35-year-old firm continues to close the gaps between job creators and job seekers, and the myriad ways that task is complicated by a lifetime of factors.

Steady Growth

Jay Canavan, Tricia’s father, transitioned from a career as president of Springfield Museums to launch United Personnel in 1984; his wife, Mary Ellen Scott, joined him about six months later, eventually serving as the company’s long-time president until eight years ago, when Tricia took the reins.

Jay and Mary Ellen opened their first office in Hartford, specializing in professional, administrative, and finance services. A few years later, they opened a second office in Springfield, focusing on support to the light industrial sector. Today, the firm also boasts offices in Northampton, Pittsfield, Chelmsford, and New Haven.

Meanwhile, its roster of specialties has grown to include manufacturing, hospitality, information technology, nonprofits, medical offices, and even a dental-services division, which has proven to be a significant growth area.

“Then we continue to focus on some core competencies,” she noted. “We do a lot of vendor-on-premises account management, where we provide turnkey human-resources support for our clients.”

One example is Yankee Candle, a business whose staffing level fluctuates through the ebbs and flows of the retail seasons. “Back in the day, people would hire and lay off, hire and lay off, Now, using a vendor-on-premises model, we partner with their human resources and production teams, and we manage seasonal staffing for them in a turnkey way. We have management on site 24/7, so their human resources and production teams can focus on their core business, and we supplement those activities.”

Cavanan said she enjoys working in partnership with clients because it allows United to become a part of their business and operational strategy and provide real value.

“Because we deal with such a wide variety of clients, we’re often able to take best practices and lessons learned and apply them to new clients. It’s almost like a knowledge-sharing service that we offer. And we’ve been really pleased with the results of some of that expertise we’ve been able to implement.”

Whether it’s helping clients with continuous improvement, staff-retention strategies, or joint recruiting events, she said United does its best work when it’s able to take on that level of partnership.

“If clients are open to this, we’re able to take an advisory and consulting role where we share with them, ‘here are some things we’re seeing in the marketplace.’ Oftentimes, it’s even current employment law,” Canavan said, noting that, just last week, United showed a client that one of its incentive programs was no longer legal due to changes in the law.

“We’re really proud of being able to serve as subject-matter experts in terms of recruitment, but also often in terms of human-resources compliance,” she went on. “We’re not attorneys, but because of the nature of what we do, we frequently have a very good finger on the pulse of what’s happening in compliance and employment law.”

Those various human-resources services are often crucial to smaller clients that may not have an in-house HR team or, at best, have one person handling everything from benefits and compliance to performance management and recruitment.

“To recruit well and comprehensively in a very tight labor market is extremely time-consuming,” she said. “Not only are we doing it all day, every day, but we have the infrastructure to find not only candidates that are actively seeking employment, but also candidates who might be open to considering a new job. And being able to partner with small and medium-sized customers allows us to bring them support with services they likely don’t have time to do. We’re really proud of that aspect of our work.”

Work Your Way Up

But Canavan is also proud of the big-picture view United takes of the region’s jobs landscape, citing efforts like the Working Cities grant that aims to better align workforce-development efforts and produce positive results for both job seekers and employers. “The economy is good, so let’s use this time to focus on training those who need it.”

Many well-paying careers, she noted, are in reach without a college education for those who are willing to access training, start small, and work their way up — in advanced manufacturing, for instance. The MassHire career centers offer training programs in that realm, but the classes aren’t always full. “How do we do a better job helping people build awareness of those opportunities, connecting them to those opportunities, and supporting them through it?”

United Personnel has been headquartered in Springfield

For most of its history, United Personnel has been headquartered in Springfield — currently on Bridge Street — but its reach expands far beyond this region.

There are institutional barriers as well, such as the so-called ‘cliff effect’ that throws up financial disincentives to people on public benefits who want to work. She said a bill currently making its way through the state Legislature would address that scenario through a pilot program that would help low-income Springfield residents access jobs while reducing the need for public benefits.

On an individual level, part of United Personnel’s mission is to dismantle as many roadblocks to employment as it can, Canavan explained. For example, employers typically prefer to hire someone with at least six months of recent, steady work without gaps. But, realizing there are reasons those gaps exist, United offers myriad short-term jobs to help people build a portfolio and references and prove they can handle something more permanent.

“It’s not that hard to be successful. It’s being on time, paying attention, staying off your phone. And, if you’re successful, you’ll find lots of opportunities for career pathways.”

“We’re really proud of being able to serve as subject-matter experts in terms of recruitment, but also often in terms of human-resources compliance. We’re not attorneys, but … we frequently have a very good finger on the pulse of what’s happening in compliance and employment law.”

She understands that some job seekers, especially younger ones, often struggle with those ‘soft skills.’

“It may be a lack of awareness, or not being super engaged in the work they’re doing. Entry-level jobs can frequently be boring or repetitive — it may not be the most exciting day you’ve ever had in your life,” she went on, noting that one of her first jobs out of college was a temp role in Chicago, doing numeric data entry all day. “It was terrible. But we’ve all had those jobs.”

The idea is to use every opportunity — whether a temp job or a training program — as a chance to move up to something better. And when job seekers do just that, it’s especially gratifying.

“It’s not our success, it’s their success. We just helped them get a foot in the door,” she said. “A lot of people don’t realize the opportunities that come from working with a staffing firm. We can be your advocate. We can help you. Lots of jobs are available — start small, and you can work your way up.”

Community Focus

United Personnel has certainly worked its way up over the past 35 years, not just in helping people find jobs and helping clients run their businesses more efficiently, but through a culture of community support. Team members are encouraged to volunteer and serve on boards, while the company itself offers financial support to numerous organizations in areas like workforce development and education, women’s leadership, community vitality, and arts and culture. One program is an endowed scholarship at the Community Foundation of Western Massachusetts for first-generation college students from area gateway cities.

“We’re interested in leveraging what we do and whatever financial resources we have available to us,” Canavan told BusinessWest. “We consider it a privilege to be able to do that. We don’t just want to be here to do business; we want to be a part of the community. We are all very cognizant of the fact that we are successful because of our community.”

That said, she noted that legislative mandates from Boston continue to burden employers and make it more difficult than ever to do business in Massachusetts. Which makes it even more important for her to make clients’ lives a little easier.

“We feel honored to be able to do this work with our customers and candidates that come to us. When a client is happy with what we’ve done, or a candidate comes to us with a table-sized box of chocolates to say ‘thank you,’ that’s rewarding. It’s a privilege to help people find work and help companies find that talented staff they need to drive the success of their organization.”

Joseph Bednar can be reached at [email protected]

Employment

Understanding PFML

John Gannon says there are always hot topics within the broad realm of employment law. And sometimes — actually quite often these days — there are what he called “sizzling hot” topics.

The state’s Paid Family and Medical Leave (PFML) law certainly falls in that latter category. Provisions of the bill, specifically the contributions to be paid by employers, go into effect on July 1. The actual law itself doesn’t take effect until Jan. 1, 2021, but the time between now and then will go by quickly, said Gannon, an employment-law specialist with Springfield-based Skoler, Abbott & Presser, adding that employers should do whatever they can to be ready. And there are things they can do, which we’ll get to in a minute.

First, the law itself. Gannon used the single word ‘scary’ to describe it, and he was referring to the reaction of employers large and small who simply don’t know how this piece of legislation, which makes the acronym PFML a new and important part of the business lexicon, will affect their business but have a good right to be scared because of how generous it is.

“This is a payroll tax at its core. So I think employers are going to have questions about how and whether they’re going to be billed, what their tax contributions are going to be, and other concerns.”

Gannon is expecting the Paid Family and Medical Leave Law to be among the main focal points of conversation at the firm’s annual Labor and Employment Law Conference, set for May 21 at the Sheraton Springfield. The conference is staged each year to help local businesses stay abreast of laws and regulations relating to labor issues, said Gannon, and this year there will certainly be a number of issues to discuss. Indeed, breakout sessions are slated on a host of topics, including PFML; wage-and-hour mistakes; harassment, discrimination, and why employers get sued; a labor and employment-law update, how to handle requests for reasonable accommodations (there will be a panel discussion on that topic); and how to conduct an internal investigation.

But Gannon told BusinessWest that paid family and medical leave will likely be the focus of much of the discussion and many of the questions, primarily because the law represents a significant change in the landscape, and business owners and human resources personnel have questions about what’s coming at them.

The first of these questions concerns the contributions to start July 1.

“This is a payroll tax at its core,” he explained. “So I think employers are going to have questions about how and whether they’re going to be billed, what their tax contributions are going to be, and other concerns.”

A 30-page set of draft regulations was recently released by the Executive Office of Labor and Workforce Development’s Department of Family and Medical Leave, and that same office has issued a toolkit for employers with information on everything from remitting and paying contributions to notifying their workforce to applying for exemptions.

There’s quite a bit to keep track of, said Gannon, adding that, under the new law, Massachusetts employees will be eligible to take up to 12 weeks of paid family leave (up to 26 weeks in certain circumstances) and up to 20 weeks of paid medical leave. In most cases, leave may be taken intermittently or on a reduced-schedule basis.

Family leave can be taken to bond with a new child, for qualifying exigency related to a family member on (or called to) active duty or to care for a family member who is in the service, or to care for a family member with a “serious health condition.” Medical leave can be taken for the employee’s own “serious health condition.”

 

John S. Gannon

John S. Gannon

“Someone has a medical impairment, and they need a new chair, or someone needs to change their schedule — they can’t work mornings anymore — or whatever the change in job structure they’re requesting … these matters can get complicated. How do companies handle these requests? Do they have to grant them? How do they work with employees? These are all questions this panel will address.”

In most cases, the annual cap for family leave is 12 weeks, 20 weeks for medical leave, and 26 weeks total cap for both, if needed.

The employee must give at least 30 days notice of the need for leave or as much notice as practicable. The weekly benefit amount maximum is $850 to start; in future years, it will be capped at 64% of state average weekly wage. The weekly benefits will be funded by contributions from payroll deductions into a state trust fund. The initial rate will be 0.063% of the employee’s wages. Employers may require employees to contribute up to 40% toward medical leave and up to 100% for family leave. Employers with fewer than 25 employees are exempt from paying the employer share of the contributions.

Employers must continue employee health-insurance benefits and premium contributions during any period of family or medical leave, said Gannon, and they must restore employees who return from leave to their previous, or an equivalent, position, with the same status, pay, benefits, and seniority, barring intervening layoffs or changed operating conditions.

There are many other conditions and bits of fine print, he told BusinessWest, adding that, while Jan. 1, 2021 is a long seven business quarters away, business owners and managers can and should start to prepare themselves for that day.

They can start by asking questions and getting answers, he said, adding that small businesses with fewer than 50 employees have not had to deal with federal family medical leave regulations and thus are treading into uncharted waters.

“They’re going to have to start thinking about how they’re going to manage this from a staffing perspective,” he said, adding that he is expecting a number of queries along these lines at the May 21 conference and the months to follow.

“Employers have to start thinking about this and getting ready for this now because of how generous the leave portion of this is,” he explained. “This is going to be a real challenge for employers.”

But overall, it’s just one of many challenges facing employers in the wake of the #metoo movement and other forces within employment law, all of which can have a significant impact on a business and its relative health and well-being.

Handling requests for reasonable accommodations is another area of concern, he noted, and that’s why the conference will feature a panel of experts addressing what has become a somewhat tricky subject for many business owners and managers.

“Someone has a medical impairment, and they need a new chair, or someone needs to change their schedule — they can’t work mornings anymore — or whatever the change in job structure they’re requesting … these matters can get complicated,” he explained. “How do companies handle these requests? Do they have to grant them? How do they work with employees? These are all questions this panel will address.”

For more information on the conference, visit skoler-abbott.com/training-programs.

— George O’Brien

Employment

Playing the Numbers

While there is some general optimism to be found in the results of the latest Employer Associations of America National Business Trends Survey, especially when it comes to projected revenues and plans for additional hiring, the twin challenges of attaining and then retaining top talent loom large in today’s business climate.

Mark Adams said he was somewhat surprised by some of the responses in the recently released Employer Associations of America National Business Trends Survey.

For example, he thought more businesses would list paying heightened benefits costs as a serious challenge given recent additions such as paid family and medical leave, part of the state’s so-called grand bargain; 28% listed it as a considerable challenge in the short term and 44% in the long term, and Adams, director of HR Services at the Employers Assoc. of the NorthEast (EANE), thought both numbers would be higher.

The same with employers’ ability to pay competitive wages at a time when the minimum wage is going up, pay equity is now the law, and employers in several fields, especially manufacturing, are waging a pitched battle for top talent. Only 34% listed it as short-term challenge, and 43% a long-term challenge.

“With the rise in the pay-equity legislation, I thought there was going to be concern about how businesses could stay on that trajectory,” he explained, “especially when to get into compliance with some of that requires making some unilateral adjustments in pay ranges and scales.”

Mark Adams

In this challenging environment, Mark Adams says, employers trying to attract and retain talent must look beyond traditional benefits.

But what stands out in the recent report, which involved 1,200 business executives in all 50 states, isn’t what’s mildly surprising — it’s what’s not at all surprising.

Specifically, it’s that talent acquisition and talent retention top the list of serious challenges, again. Or ‘still,’ to be more precise.

It has been a challenge for some time as unemployment rates have fallen and Baby Boomers have begun retiring in significant numbers, said Adams, adding that, even as signs of the economy cooling off grow in number, finding qualified workers remains problem number one for businesses across virtually all sectors.

“Increasingly, when it comes to what it takes to be attractive to a potential candidate today, it’s not just going to be wages and benefits.”

And what employers are realizing is that, to address the challenge properly, they need to focus on more than the many facets of compensation — although those are certainly important factors — especially when it comes to the Millennial generation.

“Increasingly, when it comes to what it takes to be attractive to a potential candidate today, it’s not just going to be wages and benefits,” said Adams. “It’s going to be how a company looks culturally and how a company looks in terms of its reputation, and all this starts at the top.

“To many, especially Millennials, culture is as important as what they make,” he went on, adding that it is incumbent upon top management to put a company in the best position possible, not only when it comes to recruiting talent, but within the community.

Employer Associations of America National Business Trends Survey

As for exactly what Millennials are looking for (if not demanding), which has become the $64,000 question in business today, Adams said it varies with the individual, obviously, but what most want is a “personalized experience” in the workplace.

“They want to have more control over their career development and their career paths — they want paths that are personalized to them,” he went on. “And this gets into everything from how work is structured to how teams are formed … you’re not necessarily doing the same job day in and day out, and you might be working with different people on different projects at different times.”

For this issue and its focus on employment, BusinessWest goes beyond the numbers in the latest National Business Trends Survey for a deeper dive into the ongoing challenges of talent acquisition and retention, and what employers must do to address them.

Hire Power

But first, the survey results.

They show a decent amount of optimism, said Adams, adding that the amount expressed is likely a function of the timing of the survey — last fall, before the stock market began a significant tailspin that culminated in its worst Christmas Eve in 90 years (it has obviously bounced back since) and far greater use of the dreaded ‘R’ word (recession) among economists.

Indeed, 60% of those surveyed expect the overall outlook for 2019 to be roughly the same as 2018, and nearly a third (28%) expect things to be better. Meanwhile, 73% of those polled project slight to significant increases in sales and or revenues, and 57% of the executives surveyed plan to increase staff in 2019, while another 36% plan to maintain 2018 staff levels during 2019.

Overall, 92% of the respondents said they will be replacing staff due to voluntary turnover, and 77% said their hiring will be to fill newly created jobs.

“Timing is everything when it comes to these surveys,” said Adams, referring to how the numbers might be different if the polling was done a few months later. “But at the roundtables that I chair, when I put those specific issues as agenda items and say, ‘has anything given you pause to take a step back and reassess what your projections were for 2019?’ most said the answer is ‘no.’”

Meanwhile, when it comes to hiring, most employers are still looking to hire into their own payrolls, rather than using temporary help, due to rising benefits costs and other factors, said Adams, which is still another positive indicator when it comes to the overall confidence level among area employers.

But while those numbers — and those answers at EANE’s roundtables — are encouraging, the harsh reality is that many employers will face a steep challenge as they go about filling these positions, said Adams — and for many reasons.

Part of the problem is simply a lack of talent, an issue in many fields, especially manufacturing, a sector with a proud history in this region but one that has struggled mightily to attract young people in recent decades.

But another component of the challenge is attracting those who do have the talent to your company, he went on, swinging the discussion back to that concept of culture, Millennials, and how employers have to be focused on much more than salary and benefits.

But when they do focus on benefits, they should do so with an eye on being innovative, said Adams.

“It’s not enough anymore to offer health and retirement, and, yes, paid time off is always an issue, and they’re looking for more of that than ever before,” he noted. “It’s about being innovative and perhaps helping them with their student-loan challenges and things of that nature.

“They want to be well-compensated, but they’re really looking for benefits in a working arrangement that allows them to achieve more flexibility and more of a personal allocation of their time in the workplace that meets their needs,” he went on, adding that many companies are not responding quickly or profoundly enough to these relatively new wants and needs, and this goes a long way toward explaining why they are struggling to not only attract but also retain talent.

But he acknowledged that responding isn’t easy, and it involves looking beyond the traditional when it comes to everything from benefits to schedules to the overall culture of the company.

“It comes down to how much companies are willing to change how they do business to meet those needs,” he told BusinessWest. “Companies have these traditional schedules and shifts, and are today’s young people going to want to work on those timetables?” he asked rhetorically. “Or do we need to adapt to what they’re looking for?”

“It means looking at your business model down to the core,” he continued, “and not just say, ‘OK, we’ll add a couple of extra personal days or change our health plan design or change the matching on our 401(k).’ If you’re talking about changing culture and providing innovative benefits, and changing scheduling to make things more flexible, it means going much deeper than that, and that’s a challenge for some companies.”

Raising the Stakes

Indeed it is, but as the latest National Business Trends Survey reveals, finding and retaining talent is the most pressing issue confronting employers today, and will be for the foreseeable future.

Behind those numbers, Adams explained, lies a need for businesses to dig deep, be innovative, and look not at what’s worked in the past, but at what is likely to work today and in the future.

That’s the only way those numbers are going to change.

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

Employment

Ready or Not…

By Timothy M. Netkovick, Esq. and Daniel C. Carr, Esq.

Paid Family and Medical Leave is on the way in Massachusetts.

In order to implement the new program, the newly created Department of Family and Medical Leave has released drafts of the regulations that will govern this new type of leave. Public listening sessions are now being held to allow members of the public to provide input on the draft regulations.

Timothy M. Netkovick

Timothy M. Netkovick

Daniel C. Carr

Daniel C. Carr

Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.

All employers will be covered by the new Massachusetts law. Although there are some similarities between the federal Family and Medical Leave Act (FMLA) and the new Massachusetts law, some provisions of the new Paid Family and Medical Leave will require all employers to modify elements of their current practices. For example, if your company already qualifies for federal FMLA, it will also qualify for Massachusetts Paid Family and Medical Leave.

However, you should not assume that your company will automatically be in compliance with the new law just because you already have policies and practices in place to comply with the federal FMLA. You will need to review your policies now because employers required to make contributions must begin doing so on July 1, 2019.

On Jan. 1, 2021, all employees in the Commonwealth will be eligible for Paid Family and Medical Leave. Paid leave will be funded by employee payroll contributions and required contributions from companies with an average of 25 or more employees.

If you are a seasonal business with a fluctuating workforce, how do you know if your company has an average of 25 employees for purposes of this law? The current draft regulations make it clear that the average number of employees is determined by counting the number of full-time, part-time, seasonal, and temporary employees on the payroll during each pay period and then dividing by the number of pay periods. If the resulting average is 25 or greater, your company will need to pay into the Family and Employment Security Trust.

“Although there will undoubtedly be changes to the current draft before they are officially adopted, Massachusetts employers should be aware of the draft regulations so they can start planning for the implementation of Paid Family and Medical Leave now.”

In one major variation from federal FMLA, Massachusetts Paid Family and Medical Leave will be administered by the state, unless an employer applies for an exemption to use a ‘private plan’ to administer the leave themselves or through a third-party vendor. If an employer wants to utilize a private plan, the employer will need to apply, and be granted the exemption, annually.

At this point, the only requirement for a private plan is that it must provide for the same or greater benefits than the employee would have if the program was being administered by the state. The required logistics of implementing a private plan are unclear. The logistics of implementing a private plan will likely be addressed in the final regulations and advisory opinions as the 2021 start date draws closer.

In addition to paid leave, there are also several other major variations from federal FMLA law. One major variation is the amount of leave available to employees. While federal FMLA allows for a total of 12 total weeks of job-protected leave during a 12-month period regardless of the qualifying reason, the Massachusetts law differentiates between types of leave.

For instance, under the Massachusetts law, employees are allowed up to 20 weeks for an employee’s own serious health condition; up to 12 weeks to care for a family member’s serious health condition; up to 12 weeks for the birth, adoption, or foster-care placement of a child; and up to 26 weeks in order to care for a family member who is a covered service member. While an employee is out on leave, the amount of their benefit is based upon the employee’s individual rate of pay, but with a cap of 64% of the state average weekly wage. This cap will initially be $850 per week.

Employers will need to begin assessing their responsibilities under this program as well as the steps necessary to comply with these requirements. Employers that are required to make contributions to the Family and Employment Security Trust will want to start the process of deciding whether they intend to utilize a private plan, and if so, they should consult with employment counsel as they prepare their plan to insure compliance with the unique provisions of the new Massachusetts law.

Paid Family and Medical Leave will continue to be a hot-button topic for the foreseeable future. It is important for employers to continually monitor the progress of the law as it is being implemented to ensure they will be ready to continue business with minimal disruption on Jan. 1, 2021.

Timothy M. Netkovick, an attorney at Royal, P.C., has more than 15 years of litigation experience, and 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. 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; [email protected]

Daniel C. Carr specializes exclusively in management-side labor and employment law at Royal P.C. He has experience handling a number of labor and employment matters in a variety of courts and administrative agencies. He is also a frequent speaker on a number of legal areas such as discrimination law, employee handbook review, investigation strategies, and various employment-law topics; (413) 586-2288; [email protected]

Employment

Checking the Rearview

By Erica E. Flores, Esq. and John S. Gannon, Esq.

Erica E. Flores

Erica E. Flores

John S. Gannon

John S. Gannon

The world of labor and employment law is constantly in flux. As attorneys who practice in this area, our business is to learn and help our clients solve problems in this increasingly complex environment.

So when we reflect on the past year, we ask ourselves how the law has changed for our clients, what new challenges were introduced, and what new guidance we can offer to help businesses navigate these ever-changing waters.

With that in mind, we bring you a summary of last year’s most significant employment-law changes for Massachusetts employers.

Paid Family and Medical Leave Insurance Program

If there is one takeaway from 2018, it is that Paid Family and Medical Leave (PFML) will be a game changer for businesses across the Commonwealth. The new program, which will require tax contributions from employers starting in July 2019, will allow employees to take considerable paid time off — up to 26 weeks per year in the aggregate — in connection with their own medical condition or to care for family members who are suffering from a serious health condition.

Paid family leave is also available to bond with an employee’s newborn or newly adopted child. Employees can begin claiming PFML benefits in January 2021. Employees will be able to collect weekly wage replacement benefits that will vary depending on their average weekly wage. The maximum weekly benefit amount is currently capped at $850 per week, but will be adjusted annually.

“A lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.”

Businesses will face substantial new burdens under the new law. In addition to planning for more frequent employee absences, businesses are required to fund the program through a new payroll tax. Employers will have the option to pass a portion of this tax contribution to employees, and smaller employers (fewer than 25 employees) are not responsible for contributing the employer’s share of the tax. A visual breakdown of how the tax will work can be found at www.mass.gov/info-details/family-and-medical-leave-contribution-rates-for-employers. We suspect that this program will be most burdensome for small businesses, which are not well-equipped for extended employee absences.

For those wondering where this significant new legislation came from, the genesis was a bill known as the grand bargain that was passed by the Massachusetts Legislature in June 2018. The bill not only creates the Paid Family and Medical Leave program, but also increases the minimum wage every year for the next five years, gradually eliminates mandatory overtime for retail employees who work on Sundays, and establishes an annual sales-tax holiday weekend.

Non-compete Reform

Also this year, the Massachusetts Legislature passed comprehensive non-compete reform. The law substantially narrows the circumstances under which employers can enter into non-competition agreements with employees, limits all such agreements to a maximum term of one year, and requires that non-competition agreements entered into with existing employees be supported by consideration beyond continued employment. The law also mandates that courts apply certain presumptions that have the effect of narrowing the scope of services and geographic territories employers can seek to protect with a non-compete.

Pay Equity Becomes Law

The amended Massachusetts Pay Equity Law took effect this past July, imposing significant responsibilities on businesses to ensure equal pay to employees of different genders for “comparable” work. And the first lawsuit alleging violations of the amended law was filed just a few days later.

Most importantly, the amended statute provides a broader definition of “comparable work” and limits the acceptable reasons for paying people of different genders differently to just six — bona fide seniority, merit and productivity systems, geographic location, job-related education, training and experience, and required travel. It also prohibits employers from seeking information regarding the salary history of job applicants. Employers hoping to reduce their risk of liability under the pay-equity law can earn the protection of a statutory affirmative defense if they complete a “good faith” self-evaluation of their pay practices, but they must demonstrate “reasonable progress” toward eliminating any wage differentials in order to avoid liability completely, and the defense is only good for three years.

Pregnancy and Related Conditions Are Now Protected Classes

In April 2018, the Pregnant Workers Fairness Act became law in Massachusetts. In addition to adding pregnancy and conditions related to pregnancy (including lactation) as protected classes under the state’s anti-discrimination law, the statute also requires employers to provide reasonable accommodations for an employee’s pregnancy or conditions related to pregnancy unless doing so would pose an undue hardship to the business; prohibits employers from taking adverse action against or refusing to hire someone because she needs, requests, or uses such an accommodation; and prohibits employers from requesting documentation to support certain types of accommodations — specifically, more frequent breaks, seating, lifting restrictions, and a private, non-bathroom space to express breast milk.

As you can see, a lot has changed for employers over the past year. Business should be reviewing their practices, policies, and employment-related documents now to be sure they are in compliance with these new laws and regulations.

John S. Gannon and Erica E. Flores are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Flores devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance.

Employment

One Year Later

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

The #MeToo movement began making national headlines just over a year ago.

Since then, more than 200 prominent individuals have been accused of harassment. From Harvey Weinstein to Matt Lauer to newly appointed Supreme Court Justice Brett Cavanaugh, new allegations of sexual harassment have been appearing in the news almost weekly, and sometimes daily, over the last year.

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

It should not come as any surprise that employers are feeling the impact of the #MeToo movement. The number of sexual-harassment lawsuits filed increased drastically from 2017 to 2018. In October 2018, the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency responsible for enforcing federal discrimination and harassment laws, released preliminary data for fiscal year 2018 showing that, for the first time since at least 2010, the number of sexual-harassment charges filed with the EEOC increased.

Additionally, the EEOC reported that it had filed 41 lawsuits alleging sexual harassment, more than a 50% increase over the previous year, and that it had collected close to $70 million on behalf of sexual-harassment victims in fiscal year 2018. The number of lawsuits is not the only thing on the rise; juries seem more willing to issue large damage awards to plaintiffs alleging sexual harassment. Just a few months ago, a jury in Massachusetts awarded a plaintiff more than $3 million in damages in a sexual harassment lawsuit.

Best Practices for Employers

Businesses that want to avoid being another #MeToo statistic need to take a hard look at their culture and ask: What are we doing to provide a workplace free from harassment? With allegations of harassment and lawsuits on the rise, now is an important time for employers to revisit best practices and take proactive steps aimed at protecting employees and reducing legal risk.

First, employers must have an anti-harassment policy, which should clearly outline the internal complaint and investigation procedure. State law requires employers of six or more employees to have a written sexual-harassment policy that is distributed at time of hire and annually to all employees. Among other things, the policy must include a notice that sexual harassment is unlawful and that it is unlawful to retaliate against someone who reports sexual harassment or participates in an investigation. 

The policy should also outline where and how employees can bring internal complaints of harassment and what the investigation procedure is. If either of these processes are unclear at your workplace, now is the time to revisit them and develop a complaint process and investigation procedure.

Second, employers should be doing annual sexual-harassment training. Although Massachusetts law only encourages training, implementing effective harassment training into your workplace culture demonstrates that you care about the issue. It also can protect you against a costly lawsuit.

Under the law, if a supervisor harasses a subordinate or knows about harassment but fails to take prompt steps to report, investigate, and stop the conduct, the supervisor has created significant legal risk for the employer. As a result, it is important that supervisors receive periodic training on what constitutes sexual harassment and what to do if they receive a sexual-harassment complaint or observe potential harassment in the workplace. A few hours of training per year could save an employer from a costly lawsuit. Further, annual training for all employees can be beneficial because it highlights what is not acceptable and outlines the serious repercussions, including termination, for harassing behavior.

Preventing Costly Litigation

As noted at the outset, juries are issuing multi-million-dollar awards in harassment cases. At the same time, employment-discrimination cases are also seeing record-setting jury verdicts. Earlier this year, a jury in Massachusetts awarded a plaintiff $28 million in a discrimination and retaliation case. Read that sentence again.

Having solid policies and engaging in regular training can get employers only so far. In order to avoid the risk of a runaway jury, employers may want to consider requiring employees to enter into agreements calling for private arbitration of employment disputes. Commonly referred to as arbitration agreements, these employment agreements require that employee and employer submit all disputes to a neutral arbitrator, as opposed to filing a lawsuit in court and having the case decided by a jury.

The arbitration process is typically less costly and time-consuming than court actions. Plus, the arbitration decision is usually final, as there are only limited opportunities for either side to appeal.

Bottom Line

The #MeToo movement is undoubtedly bringing positive changes to the workplace. Still, businesses need to be proactive and take steps to create a culture free from harassment. This starts with an effective workplace policy against harassment and regular training for employees.

If a culture change is necessary, it has to start at the top. Leaders lead by example, and these folks must be more committed than anyone to creating an environment free from harassing behavior.

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

Employment

(And Also Be at Least Reasonably Happy Doing It)

By John Graham

Most everyone has figured out that performance expectations keep going up. To put it bluntly, we face the challenge of doing more in less time. And it’s not about to change anytime soon.

In the past, those with lots of experience fared well. But not today. Experience can hold us back, like running against a strong wind. Experience is about what we’ve done in the past, and it has value in an ever-changing environment. On the other hand, expertise prepares us for what we must do next so we can face the future with confidence.

The question, then, is how to transition from experience to expertise, from looking backward for answers to looking forward with solutions. Here are 17 ways to do it.

1. Have the right mindset. Experience short-circuits the thinking process. We go from zero to 60 in a split second. We tear into tasks because we’ve been there before and know what to do. It takes an analytical mindset when entering uncharted territory.

2. Figure out what you need to know. More often than not, problems, misunderstandings, and confusion occur because we didn’t ask enough questions — or, more likely, any questions. We get off on the wrong foot by not knowing what we need to know.

3. Give yourself time. Some say they do their best work in a crisis or at the last minute. It’s also easy to deceive ourselves. Where does that leave us when we run out of time? The answer: in trouble and making excuses. And feeling overwhelmed.

4. Work on it and let it sit. The best solutions rarely, if ever, occur on the first attempt, whether it’s writing a report or working on a project. The human mind needs ‘noodling’ time to work in the background without pressure. Remember, everything can be improved.

5. Avoid confrontations. It isn’t easy, particularly since we seem to possess an urge to be right, a gyroscope of the mind. When coming into contact with an opposing view, the mind pushes back to regain its balance. It helps to view it as a signal to take a closer look before having a confrontation.

6. Never assume things will go smoothly. Why do we never get over being surprised when things go wrong? It’s as if someone is playing cruel jokes on us or deliberately throwing us curveballs to cause us grief. It’s best to be prepared by anticipating what might go wrong.

7. Second-guess yourself. To avoid getting blindsided, ask yourself ‘what if’ questions to foresee possible outcomes. Then, when asked about alternatives, you can say you considered various options and why you chose this one.

8. Learn something new. If you can do your job without thinking about it, you’re probably bored and underproductive. The human mind gets moving and stays active by coming up with new ideas, making improvements, and solving problems.

9. Go beyond what’s expected of you. It’s easy to put up a ‘I’ve reached my limit’ or a ‘I’m not paid to do that’ sign. Everyone feels that way at times. If we do, we can count on dismal days ahead.

10. Be present. It’s easy to be at work and not be present. The average employee spends just under eight hours a week on personal stuff, most of it on e-mail and social media. For those ages 18 to 34, add two hours a week, according to a staffing firm Office Team survey. That’s a day each week of not being present.

11. Ask questions. Have you started on a task and get into it only to discover you’re on the wrong track? Most of us have — too many times. It occurs when we’re too sure of ourselves or reluctant (or embarrassed) to ask questions. Asking the right questions is a sign that you’re thinking about what you’re doing.

12. Look for possibilities. Instead of just doing your work each day, take it to another level and interact with it so you get feedback from what you’re doing. Ask yourself: is it clear? Is it complete? Will the recipient understand it? Is it necessary? Will it make the right impression? What have I missed? Should I start over? Is it time for another set of eyes?

13.Take a chance. It’s invigorating to try something new. You may have been thinking about it for a long time, and it doesn’t really make any difference what it is. By taking your mind off all the annoying daily irritations, it can help invigorate your outlook and improve your productivity.

14. Have clear goals. Tedium sets in on any job. One day you realize that what was interesting and challenging is now tiring and unpleasant — perhaps even intolerable. If so, it’s ‘goal think’ time. Start by asking what you want to accomplish today, then add another goal for the coming month, and so on. When you know where you’re going, the tedium fades away.

15. Eliminate confusion. We may not be in a position to control the confusion around us, but we can avoid adding to it. We can make sure our messages are accurate and complete so there’s no misunderstanding, our address book and other files are current so we don’t need to bother others, we meet deadlines so we don’t leave others waiting, and so on.

16. Raise your standards. Others respond to us based on how they view us. How do they see you? Someone who get things done, who takes quality seriously, and who demands a lot from yourself? Make a conscious decision as to how you want to be perceived.

17. Take on a challenge. Nose around to see what you can find, drop a few hints, and even raise your hand. But be sure it’s something you want to sink your teeth into. If it is, you’ll have a great time doing it.

Follow this advice, and not only will you get your work done, but it will be more than you thought possible, and you’ll be happier at the same time. Better yet, your employer and your customers will be happier, too.
As it turns out, happiness doesn’t depend on what others do for us, but what we do for ourselves.

John Graham of GrahamComm is a marketing and sales strategy consultant and business writer. He is the creator of “Magnet Marketing,” and publishes a free monthly e-bulletin, “No Nonsense Marketing & Sales Ideas”; [email protected]

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]

Employment Sections

Labor Pains

Angst.

You won’t see that colorful noun written anywhere in the National Business Trends Survey conducted by the Employers Associations of America (EAA), said Mark Adams, but there is quite a bit of that commodity lurking behind the words and especially the numbers that are contained in that document.

There is angst — or concern, or anguish, or anxiety (all quality synonyms) — when it comes to the labor market and what is becoming increasingly a labor shortage. There is more of it when it comes to wages — employers want to raise them, but there are hindrances to doing so, especially rising healthcare costs.

And there is more angst when it comes to the juxtaposition of wages and the labor market, said Adams, director of HR Services for the Employers Assoc. of the NorthEast (EANE). Indeed, he said that, as wages remain fairly stagnant (3% increases are the norm, as they have been for several years) and the increases amount to less amid the rising cost of living, many employees are exercising their right to pursue greener pastures. And they’re finding them, leaving employers to replace them in a job market where good help is increasingly hard to find.

“It’s definitely a buyer’s market,” said Adams, noting that employees are the buyers. “With unemployment being so low, and people looking to add bodies to their organization, either through new jobs being created or replacing existing workers that are going to leave, employees realize that now is the time to explore all their options if they haven’t been fully satisfied with what they’re been earning in their organization.

“The 2.8% to 3% increases they’ve been getting are being cannibalized by rising health costs and the cost of living in general,” he went on. “So they’re not advancing financially within the organization they’re in, and a lot of them are sitting there saying, ‘I’m going to start exploring other options.’ For companies, there are a lot of openings, and they’re not finding adequate replacement workers, which puts a whole premium on ‘are we paying people enough? Are we providing a workplace that’s engaging enough?’”

Like we said, angst. There’s enough of it to temper the considerable optimism reflected in the report, said Adams, adding that nearly two-thirds of respondents (62%, to be exact) expect their 2017 revenues to exceed those of 2016, and 73% project that 2018 will be better than 2017.

Meanwhile, more employers expect to be hiring in the year ahead than in 2017. In the Northeast region, 51% of the executives surveyed plan to increase staff in 2018, a sizable increase from a year ago, when 41% responded in such fashion.

But these positive numbers are couched in the reality that, for many employers across virtually every business sector, hiring is becoming a real challenge. Indeed, 42.3% of regional respondents (those in the Northeast and Mid-Atlantic states) identified the skilled labor shortage as a ‘serious’ challenge in the short term (up from 37.8%), while 52% identified it as a serious challenge long-term, up from 47% last year.

Adams noted that these numbers clearly reflect what he’s heard anecdotally and seen directly through EANE’s efforts to assist members with finding and hiring talent.

“We’re experiencing all that with the members we’re serving,” he explained, adding that many of the recruitment-and-hiring projects EANE has undertaken with members have taken much longer than anticipated, and some have been relaunched, simply because employers have not been satisfied with the response they’ve seen in terms of the quality of the job aspirants.

Elaborating, Adams said EANE will assist members with searches for managers or professional staff, providing services including ad placement, sourcing of candidates, prescreening, help with interview questions, actual interviewing, and more.

And, as he noted, many of these searches are taking much longer than they did even a year or two ago, and a growing number of them are not ending successfully, and for a host of reasons, ranging from lack of satisfaction with (or consensus on) finalists to disparity between what the candidate is seeking compensation-wise and what the company is willing to pay.

As the challenges to hiring and retaining good help grow, employers are responding, said Adams, adding that many are making investments in technology, equipment, benefits, training, recruitment, and other areas in an effort to navigate a job market increasingly defined by full employment or something close to it.

Indeed, the survey showed that 60% of respondents plan to invest in technology in 2018, up from 45% in 2017; 54% plan to invest in equipment, up from 45% a year ago; 41% intend to increase the training budget, up from 26% in 2017; 38% plan to heighten their emphasis on recruiting, up from 30% a year ago, and 35% intend to shift more healthcare costs to the employer, a huge increase from the 15% who responded in that fashion a year ago.

“Companies are realizing that, if they can’t go dollar for dollar to keep people in the organization or attract people, they’d better bring other things to the table to make them a company that’s going to be worthwhile to someone,” said Adams, adding that these numbers speak loudly about the extent of the problem and growing awareness of the need to do something about it.

And while it is still too early to gauge the full impact of MGM Springfield’s ongoing efforts to create its workforce of roughly 3,000 people on all of this, it’s to assume that it will only exacerbate the problem, Adams said, adding that employers are certainly expressing concerns about this development at EANE HR Roundtables.

As for wages, many companies are in a bind because, as much as they feel compelled to raise them and want to, strong forces, especially double-digit increases in healthcare insurance, act as considerable roadblocks.

“The rising benefit cost is a countermeasure that’s creating a barrier toward putting more on the table financially to induce people,” Adams explained. “And it’s becoming a paradox for companies; they want to pay people more to attract and retain them, but they have these rising benefits costs, and there’s only so much in the budget to cover both of those things.”

Meanwhile, the pay-equity act set to take effect July 1 becomes what Adams called a “wild card” when it comes to wages in 2018.

“The question becomes whether there will be additional needs to invest money into compensation budgets because of concerns employers may have about questionable difference in pay structures,” he noted.

— George O’Brien

Cover Story Employment Sections

Paws for Effect

Lauren Mendoza

Lauren Mendoza gets plenty of work done at Inspired Marketing, at least after Finn gives her mouse back.

To some employers, the very idea of having employees’ dogs roaming about the office every day seems absurd. How would anyone get any work done? Would they pester clients and other visitors? But many area businesses that welcome pets into the company culture say the benefits — reduced stress and a sense of lightness and fun leading to more productivity, not less — definitely outweigh any drawbacks.

Maxwell Vondogenburgen (Max for short) came into Jill Monson-Bishop’s life around the time she launched her company, Inspired Marketing, in 2009.

Right from the start, neglecting one for the other was out of the question.

“Since I got Max, we’ve had a dog culture here,” Monson-Bishop said, while Max came sniffing around to check out the reporter visiting the company’s Maple Street office in Springfield. “It was almost necessary because some of the staff have dogs, and I want them to give me their all; I want them to be present and be here, and it helps from a logistical standpoint for the dog parents not to worry about running home at lunch or getting home before 5 to let them out.”

When you’re stressed, there’s nothing like being able to sit on the floor and have this unfiltered love of a dog. He doesn’t judge your deadline or your creative work. A dog just licks you, and everything else just melts away.”

But the benefits extend far beyond that, she added.

“It grew into what the dogs did for us. When you’re stressed, there’s nothing like being able to sit on the floor and have this unfiltered love of a dog. He doesn’t judge your deadline or your creative work. A dog just licks you, and everything else just melts away. Everyone thinks creatives are super fun, and obviously, we have fun, but there are elements of stress to our jobs, too. And dogs are great for that.”

Max’s title on the Inspired Marketing website is ‘employee satisfaction manager,’ which implies a broad set of responsibilities for someone getting paid in food, treats, and ear scratches. He’s joined in the office by two other mixed breeds: Monson-Bishop’s second dog, Vinnie — the ‘customer experience associate’ — and Finn, the firm’s ‘siesta manager,’ who belongs to Operations Manager Lauren Mendoza. Other dogs have come and gone over the years as well.

Deb O’Brien

Deb O’Brien has been bringing Fidelco dogs to work for well over a decade, providing educational opportunities for both the dogs and her fellow TD Bank employees.

As a result, when a client visits, they might be greeted by barking, but the dogs are behind a locked door, so no one gets jumped. Visitors are also asked if they have a problem with dogs before meeting any. “Almost everyone says no,” Monson-Bishop said. “Sometimes, during a meeting, a dog will try to get up on somebody, and we get them down, and most times the person is like, ‘oh no, it’s fine.’ It’s nice — sometimes meetings can be intense, and when we introduce a dog, it lightens the mood and can help us be more creative.”

Meghan Lynch didn’t have a dog when her advertising agency, Six-Point Creative, was getting off the ground, and one of the key considerations when adopting one was not having to leave the pet at home. “To me, there was no point in having a dog and bonding with him and then leaving him home alone for eight to 10 hours a day.”

So she talked to her partners about accommodating a dog at work, and everyone was willing to give it a shot. Five and a half years later, Dexter is a fixture in the office on Hampden Street in downtown Springfield. Meanwhile, he’s joined some of the time by Quincy and Goose, the fur babies of Senior Director Scott Whitney and Senior Designer Meghan Mason.

“It’s worked out really well, and it’s good for socialization because he’s coming into contact with different people all day long,” Lynch said. “Getting used to all the people coming in and out, and me going in and out, has made him a calmer, happier dog.”

And the feeling is reciprocal.

“From our standpoint, it means a lot having him around, especially if I’m having a tough day,” she said. “And for new employees, it’s a signal that we value work-life balance. We understand that you only have one life — you don’t have a work life and a home life; you have a life.”

When Blair Winans launched Rhyme Digital in 2011, he searched for a workspace that allows dogs, before finding one at Eastworks in Easthampton. When the digital-marketing company needed more space, he moved to an available building on Route 10 and brought the canine crew — four were in the office the day BusinessWest visited — with him.

“For me, it was the convenience of not leaving my dog at home, having to check on him, going back and forth. I had never worked in an environment that would have dogs at the office, but as employees came on here, I said, ‘my dogs are here; feel free to bring your dogs.’”

That’s why Winans’ lab, Butters, and pug, Flora, get to hang out with Design Master Ian Reed’s husky mix, Maggie, and Marketing Analyst Dan Taylor’s Aussie puppy, Ellie, instead of sitting quietly at home.

“I feel they supply so much comic relief,” Winans said. “When we’re in a meeting and Butters is trying to be the center of attention and barking at something going on outside the door, it’s just part of the environment here.

“And our clients get it,” he went on. “When I’m on a conference call and a dog is barking in the background, they ask, ‘which one is that?’ No matter how stressful things are, when these guys are begging for attention and trying to make you laugh, that’s an extension of what we want as a company culture. Our employees are part of a business, but they’re also part of a family.”

Tails to Tell

Businesses that are opening their arms to that concept of family and dog culture are a growing breed (pun intended). The Society for Human Resource Management’s Employee Benefits survey in 2015 found that 8% of respondents reported that their workplaces permitted pets, an increase from 5% in 2013.

A report published this year in the International Journal of Environmental Research and Public Health cited a recent study on the effects of dogs in the workplace on stress and well-being. In the study, employees who did and did not bring dogs to work completed a perceived stress survey several times throughout the workday. Employees who did not bring dogs to work had significantly higher perceived stress than employees who did. To assess differences in stress, employees who brought their dogs to work were instructed to leave them at home two days a week during the one-week study period. On days when employees in the dog group did not bring their dogs to work, their stress levels increased throughout the day, matching the pattern of employees who never brought dogs to work.

Lynch is a believer in that effect, but conceded that the dogs themselves need to get along — which, in her office’s case, they do. “There’s never been a problem. They all have beds with their person, so they interact for a while, then go back and lie down in their people’s offices, then they might come back again and play a little later in the day.”

Meghan Lynch

Meghan Lynch wasn’t going to adopt a dog if she couldn’t bring him to work with her.

She noted, however, that not every dog has the temperament for an office environment, and Whitney leaves his second dog home for that reason.

“You have to know your dogs, and which one would thrive in the office and which wouldn’t. It has to be the right dog fit. We’re not running a kennel here,” she told BusinessWest. “At the same time, they learn very quickly and pick up on each other’s behavior.”

For some dogs in the workplace, learning is the whole idea. Deb O’Brien trains German shepherds to be Fidelco service dogs for the blind; the puppies stay with her for 18 months, then it’s back to Fidelco in Connecticut for “college work,” learning seeing-eye and guide-dog skills.

“While we have them, our job is to raise them with basic obedience, manners, and tons of exposure to everything, so when they go into training and learning job skills, they’re already well-adjusted, well-behaved, and socialized in every social situation,” she explained.

That’s why O’Brien can be seen bringing a pup named Ray to work at TD Bank in downtown Springfield, where she is the commercial regional operations director, to get him used to the office environment, a wide variety of people, traveling on elevators, and all the outdoor distractions of a downtown city setting.

The main goal is socialization, but when she puts his Fidelco vest on, that’s behavioral-training time, and the dog quickly learns the difference, she noted. “Most of my challenge is telling people they can’t pet him right then.”

That said, fellow employees and others who work in the TD Bank building on Main Street have gotten a good education about Fidelco dogs, and about general etiquette on how to approach an animal in a public situation (always ask before petting, for starters).

“We’re not just training dogs; we’re training people,” she said. “There’s a difference between having a dog in the office for love, attention, and therapy, and being here to learn. But while you’re educating people, it’s also an opportunity to train your dog. They’re both learning.”

City life brings plenty of opportunities for training service dogs, from learning to relieve themselves on a hard surface where grassy areas aren’t plentiful to developing a comfort level around noisy buses, foot traffic, and other stimuli they might run into someday during their service career. But the socialization is critical, too.

“We all get something out of it,” she said. “I’ve seen people having a bad day, and they come into my office, and the minute we take the vest off, you see them de-stress.”

O’Brien began training Fidelco dogs after hearing an ad on the radio, and has now trained eight such animals, counting her latest companion. The hardest part, she said, is letting go.

“When it came time to return the first one, my heart got ripped out,” she recalled. “Seven dogs in, I’m better. But I see them with clients, and I see them working and doing what they’re intended to do. It becomes easier if I tell myself, ‘now they’ve got to go to college and get a job.’”

Pet Projects

As for humans that are supposed to be working, Monson-Bishop said some employers might feel welcoming dogs will just lead to staffers sitting around playing with their furry friends. But Inspired Marketing hasn’t seen that kind of loss in productivity. On the plus side, someone may walk their dog during lunch, which gets them out of the building, which is a healthy thing. “I’d like to see more dogs interacting in downtown Springfield.”

Of course, a building’s owner has to be OK with dogs as well, and Monson-Bishop said her landlord has been more than accommodating. “Other office buildings might not permit dogs, but we’re lucky.”

Rhyme Digital’s official ambassadors

From left, Butters, Maggie, Flora, and Ellie — on a break from their duties as Rhyme Digital’s official ambassadors — wait for a treat from Dan Taylor.

So are Max, Vinnie, and Finn, she added. “Statistics say socialization helps dogs live longer, and if we can give that to them here, it’s better for their well-being — with the caveat that this is not for all dogs. Not everyone should bring their dog to work. A very rambunctious dog could be very disruptive. They all have their individual personalities, and some wouldn’t thrive at work, and you wouldn’t put a child in a situation where they wouldn’t thrive.”

Lynch agreed that introducing canines into the office has not been a distraction or a drain on productivity.

“They all get into the routine of the day, and it’s a huge help not to run home to let them out, or pay for a dog sitter. And it’s a benefit for the people who don’t have dogs, because they get to be around a dog without having to feed or walk it.”

Winans reiterated that there’s a lightness, even a silliness, that dogs introduce to often-intense work, and that’s a healthy thing.

“We’re serious about everything we do, no question about that,” he said. “It’s more like, how can you feel stressed when you turn around and there’s Butters lying upside down, or having a meeting and these guys are having a wrestling match under the table? What we’re trying to do here is build an environment where people are able to get their work done and have some fun, and feel like they can bring their dogs, part of their family, into the office.”

In short, the benefits outweigh the distractions. “I feel like they’re happier, and the employees are happier,” he told BusinessWest. “That’s not to say they’re not annoying sometimes when you’re on a conference call and something interesting is happening by the front door and they can’t stop barking. But, at the same time, that’s just who we are.”

Like the others we spoke with, the team at Rhyme makes sure everyone who comes in — for client meetings or job interviews — is comfortable being around dogs. “There are some people who aren’t, so we corral the dogs and keep them away.”

But most people expect to be welcomed, and look forward to it, said Winans, who called his furry friends “official ambassadors” for the company. “I can’t imagine them not being here. The times when there are no dogs in the office, it is rare, and it feels like something’s missing.”

Lynch takes the same approach to office visitors. “Our dogs are part of the family and the culture here, and it’s something we tell people about in advance. Some clients may have a dog phobia or may be allergic, in which case I schedule meetings elsewhere.

“Overall, it’s a really positive experience,” she went on. “Some people specifically schedule meetings in order to see Dexter or see Quincy. Some of them bring treats and presents; they love them as much as we do.”

Monson-Bishop goes even further, claiming that dogs in the office are doing their small part to make the world a better place.

“It’s a family-based culture here,” she said, “and dogs unify us. At a time when the world is a little more tumultuous than usual, dogs bring humans together, and that feels good.”

Joseph Bednar can be reached at [email protected]

Employment Sections

An Engaging  Topic

Janice Mazzallo

Janice Mazzallo

Danielle St. Jean

Danielle St. Jean

Elba Houser

Elba Houser

PeoplesBank was in news again recently, bringing more ‘top employer’ honors, this time from both the Boston Globe, again, and the Employers Assoc. of the NorthEast, also again. While the awards are newsworthy, the real story is what’s behind them, a culture of employee engagement. In a roundtable discussion, some bank leaders talk about this culture and how other businesses can create one of their own.

They might have to start thinking about securing a bigger display case for the front lobby at PeoplesBank’s headquarters at 330 Whitney Ave. in Holyoke.

It was already crowded with various awards and commendations — many of them in the broad realm we’ll call ‘top employers’ — and now, it is even more so, with some recent additions. Indeed, for the sixth year in a row, the bank has been named a ‘top place to work’ by the Boston Globe, and for the second time, the institution has been named an ‘employer of choice’ by the Employers Assoc. of the NorthEast.

But while what’s in the trophy case is significant, it’s what’s behind all that ‘best employer’ hardware (and we don’t mean the wall) that is actually more important to the company.

When asked to talk about all that in the form of advice to other business and owners and managers, Janice Mazzallo, executive vice president and chief Human Resources officer at the bank, paused for a moment.

It was a poignant pause to be sure, and it essentially said what she was about to say before she even said it — that becoming worthy of these ‘best employers’ awards takes time, patience, energy, imagination, and much more than a flex-time policy and allowing people to wear jeans on Friday, although that helps.

It’s about creating an environment where people feel good to come to work every day; it’s not just a place to make a living, but it’s more of a family environment.”

“It’s sounds cliché, but it’s about walking the walk and talking the talk, and it all starts in the C-suite,” she said. “It’s about creating an environment where people feel good to come to work every day; it’s not just a place to make a living, but it’s more of a family environment.

“It’s a place where people don’t just come to do a job, but get involved in the community, get involved with each other,” she went on. “We have a lot of people here who do more work outside, in the community, than they do in their 9-to-5 work.”

It is impossible to sum all this up with one word, she said, but ‘engagement’ does the job as effectively as any other (see sidebar, page 16). There are many types of engagement, she went on — with others at the company, within the community, with mentors, with new team members, and more — and the bank works hard to ensure that employees have experience with all of them.

And this hard work goes a long way toward explaining not only all those plaques in the display case, said Mazzallo, but the bank’s continued growth and success in the local market.

tptw_logo-smallIn an effort to dive deeper into this discussion of culture and employee engagement, Mazzallo was joined in a broad roundtable discussion on this subject by Danielle St. Jean, Human Resources coordinator and training specialist at the bank, and Elba Houser, commercial banking credit analyst, both fairly recent additions to the team.

The stories about how and why they came to the bank and what they’ve experienced since help drive home the importance of culture to a company’s success — not in winning awards, but in building teams, promoting innovation, attracting and retaining talent, and, yes, gaining market share.

The three stressed that a culture of engagement starts at the top — in this case bank President Tom Senecal — and filters down to all levels, and all locations (the institution has 17 branches scattered across Hampden and Hampshire counties), within the company. And it also encompasses a number of other words and phrases, including communication, listening, connecting, mentoring, empowerment, volunteerism, even fun.

“It’s really a personal experience,” said St. Jean as she sliced through all those words and what they mean collectively. “When people feel supported from day one, they perform better and are more likely to be engaged in what they do.”

Houser agreed. “From day one, there have always been people I could reach out to who have guided me through the ropes,” she explained. “It’s a community here, and it’s a family; these are not only people you work with, but people you can depend on.”

Listen Up

To effectively get many of those talking points and bullet points across, Mazzallo recounted Senecal’s recent decision to visit many of the branches personally with the stated desire to meet with employers and listen to them about their work and any issues or concerns they may have.

She said some of the employees were initially intimidated by the notion of the boss coming for a visit, but soon, most fears evaporated.

Manager-employee Engagement Tips

Engagement Is a Word; Being Engaging Is Your Responsibility
Too often managers can develop the bad habit of saying what they want versus doing what they want. Nowhere is this more systemic than with employee engagement.

Managers can have ideals, but they also have to practice them. Here are some suggested strategies to create a true culture of employee engagement.

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“At first, people were scared and shocked, saying, ‘here’s the CEO coming out to my branch and my department,” she recalled. “But when he came in and genuinely wanted to learn more about what they did, with a mindset of ‘how can I understand your role to make this a better place to work and walk a mile in your shoes?’ the word spread very quickly that not only did he want to understand, he really wanted to hear their ideas.”

Better still, he responded to what he heard.

“He brought some of the ideas to management meetings, and we talked about them,” Mazzallo went on. “And changes were made as a result.”

Senecal’s road trips represent just one of many ways in which the bank’s operating mindset, or culture, has generated benefits in the form of improved communication, idea generation, and continuous improvement.

Others, as noted, include a greater ability to attract and retain talent, which is significant at a time when many in banking can relate their careers through a large stack of business cards they’ve disseminated over the years, and also when individual lenders — and sometimes whole teams of them — are moving from one institution to another with great regularity.

And it’s significant also because, from a big-picture perspective, PeoplesBank is still a relatively small institution (about $2.3 billion in assets) based in Holyoke.

“Were competing with larger banks, and at the end of the day, there are other organizations that can offer more money and probably big bonuses,” said Mazzallo. “And so, I have to be able to answer the question, ‘why should someone be excited work with us? And once they’re here, why should anyone be excited to stay with us?’”

Why indeed? The answer, she said, lies in that fact that, for most people, contentment goes well beyond money and to things that “pull at the heartstrings,” as she put it.

For St. Jean, who was working in Boston before she came to the bank, it was the culture she said was in clear evidence starting with her first interview with the company roughly six months ago.

She and her boyfriend, who is from this area, had made the decision to leave the Hub and relocate to the 413.St. Jean needed a job, but more than that, she needed the “right employer and the right community.” And she found both at the bank.

“The strength of the culture here really does begin before day one; it all begins with the recruitment and onboarding process,” she explained. “For me, personally, leaving behind the city life, I had a lot to do to get ready. When I first started here and accepted the offer, I had to find a car, move all my belongings, and get established. And the team here really helped me with all of that.”

And she said she’s seen that scenario — meaning several layers with assistance with the process of relocating and starting the next chapter in a career — repeat itself several times since she arrived, re-emphasizing that this is the culture at the institution.

“This is a place that can help individuals with that type of transition in their life,” she said, “which speaks greatly to the culture and to what keeps associates engaged.”

Houser tells a somewhat similar story. Her transition involved returning to work after taking some time off to start a family, and, like St. Jean’s, it wasn’t an easy journey, and one for which support was appreciated.

“I started as a management-development trainee, and when I came in, I had a network of colleagues who were management-development trainees prior,” she explained. “That first day, they took me out to lunch, and they discussed what was to be expected of me in that role, and that helped a lot, especially after not being in the workforce for two years and having to build a career again. That help is the reason I succeeded as I did.”

The Not-so-secret Sauce

Returning to the subject of retention, a key ingredient in any company’s success, Mazzallo said one of the main reasons why people leave an organization is a feeling that they’re not being heard, or that their input isn’t entirely welcome or appreciated.

“People get wooed by other companies because they’re getting attention, and often, they don’t feel they’re getting attention from their current employee,” she explained. “So it’s very important, especially with your higher performers, that you’re paying attention, and sometimes it’s just as simple as making time to listen to them and listen to their ideas.”

If that sounds like advice to other business owners and managers, it is. And those we spoke with at the bank had lots of it as they addressed the question of how other companies can become more engaging and, in the process of doing so, become better competition for ‘top employer’ awards.

For starters, they said, repeatedly, that a culture of engagement starts with those at the top setting the tone, walking the walk, and giving employees at all levels a voice.

“Ideas can come from anywhere, and they should be encouraged,” said Mazzallo. “And companies should look to not only implement them when it’s appropriate, but communicate that they’ve been implemented. We do that here, and it takes on a life of its own; people hear about these ideas, they get inspired, and that creates more innovation and involvement.”

But while listening and encouraging ideas and innovation, a company must also take the proper attitude when things don’t go as well as everyone would like. In other words, a company can’t be afraid of — or in any way punish — failure.

“Failure comes with the territory, and you have to be careful with it,”Mazzallo explained. “You don’t want to have too much, obviously, but here, when we work on a project and it runs off course, we take the opportunity to bring the team together, to course-correct, to find out what’s happened, and learn from those experiences.

“You embrace the problem and find out what out what’s happened,” she went on. “That way, people aren’t hesitant or afraid of making a mistake in the future. If you’re in an environment where you’re afraid to make mistakes, that’s where innovation gets squashed.”

Still another big part of the equation, she went on, goes back to that notion of a workplace being more than a place where people go to work.

“Just show people that you care,” Mazzallo said simply. “Show people that they’re more than just there from 9 to 5. Show people you value them as more than just a worker.”

As an example, she said the bank’s leaders, recognizing how stressful the holiday season can be and usually is, scheduled a lunch-and-learn (a healthy lunch) that addressed the many stress-inducing aspects of the holidays and how to deal with them head on.

There’s also that fun factor, which all those we spoke with said cannot be overlooked.

Which brings us to something the bank calls Employee Fest, which is a week, not a day, of what amounts to employee recognition and celebration.

Staged in September to coincide with the United Way’s Day of Caring, Employee Fest involves volunteerism, a luncheon, team games, visits to the branches, and more.

This year, there was a carnival theme, said Houser, adding that activities were designed, many with some assistance from the Internet, to bring the branches and the main office together.

This year’s festival was St. Jean’s first, and she was struck by its ability to connect people, even if they were working in branches separated by miles of asphalt.

“It really strengthens the community,” she told BusinessWest. “It connects different groups within the organization with friendly competition and provides insight into what different people are doing for the institution; it helps keep them productive and engaged.”

Bottom Line

There’s that word again. Engaged.

It’s a simple term, but it covers a lot of ground, said Mazzallo, reiterating that, ideally, employees should be engaged in everything from the community to innovation; from the well-being of their co-workers to the art and science of listening.

Creating such a culture doesn’t happen overnight, and there are absolutely no quick fixes.

But all the hard work that goes into creating and maintaining such a culture and making it part of the company’s DNA pays off in all kinds of ways.

And we’re not even talking about the those plaques in the display case.

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

Employment Sections

Engagement Is a Word; Being Engaging Is Your Responsibility

By Janice Mazzallo

Too often managers can develop the bad habit of saying what they want versus doing what they want. Nowhere is this more systemic than with employee engagement.

Managers can have ideals, but they also have to practice them. Here are some suggested strategies to create a true culture of employee engagement.

Start at the Top

Company-wide engagement is an important objective, and achieving it starts at the top. It’s critical for senior leadership to communicate and act on employee-engagement values. That means associates at every level need to understand that top management values their input and wants to understand their needs.

Bet on Promise; Double Down in Hard Times

Never hire a person unless you are willing to support them through thick and thin. Being there for an associate during the rough patches is a way of earning trust. Mentoring new associates and helping them overcome obstacles similar to what you faced as a new employee is a way to encourage loyalty and foster the tenacity to stick with a project or task through tough times.

Talk Less, Observe More, Ask Impactful Questions

Effective managers realize that not every assignment will meet with immediate success. And they know that the difference between success and failure might not be making suggestions, but instead asking the right questions. We all want to do the best we can, but we might not have the experience or resources we need to figure out the best solution. A manager who prompts you with the right questions, rather than telling you what to do, is going to help you grow.

Part of an effective employee-engagement commitment is to listen for ideas rather than focus on providing solutions. When you wait to hear from your employees, the idea you didn’t think of can surface. It’s easier to throw out suggestions on a given problem, but assessing a situation and reframing it with impactful questions is going to help your direct reports grow and succeed.

Praise and Forgive

If you’re not making mistakes, you’re not trying hard enough. We were taught that if you focus on blame for mistakes, you’re only encouraging more conservative thinking. There are clear differences between acceptable mistakes and needing to accomplish tasks.

Work will always be challenging, but if your team feels empowered to swing for the fences, yet knows when it’s time to rein it in, you have the best of both worlds.

Give Time

While this could be counterintuitive in some respects, time off is one of the best ways to create employee engagement. When you challenge people to go out and experience the world, they come back refreshed, with new energy and new ideas.

If there is anything that says ‘we value you, not just your contributions,’ it’s a commitment to work-life balance and watching employees grow as people.

Successful employee engagement is not easy. It boils down to commitment — a commitment to people and making sure those at the top are leading the charge. Given that most people seek inspiration, direction, and motivation from their leaders, it is always best to start improving engagement at the top.


Janice Mazzallo is executive vice president and chief Human Resources officer at PeoplesBank.

Employment Sections

Hire Degree of Difficulty

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The region’s staffing industry has always been a solid barometer of the overall economy, and that is certainly true in this economy. Firms report that demand for qualified workers is high, and the pool of talent is small and in some respects shrinking. Meeting the demands of various sectors, firm owners and managers say, requires a mix of persistence, imagination, and, well, hard work.

Andrea Hill-Cataldo calls it the ‘Perm Division.’

That’s ‘perm,’ as in permanent-hire, or direct-hire, work. The venture she founded nearly 20 years ago, Johnson & Hill Staffing Services, has always provided such services. But they didn’t comprise a division of the company, and there weren’t staff members dedicated directly to them.

Until recently.

Indeed, the Perm Division is now staffed, and it is quite busy, said Hill-Cataldo, helping companies secure everything from administrative assistants to CFOs and CEOs. And it’s busy for several reasons.

They include the fact that many businesses, bolstered by a prolonged recovery that shows few if any signs of slowing down and challenged by everything from retiring Baby Boomers to on-the-move Millennials, are hiring. And also the fact that many of them need some help with that hiring.

“When businesses aren’t sure what they want to do, they might go temp or temp-to-hire, or they might just wait and see,” Hill-Cataldo explained, noting that the third option involves trying to get by without filling a vacancy. “But when they’re hiring on a permanent basis right off the bat, they’re pretty confident, and they know they need that position filled.”

The creation and consistent growth of Johnson & Hill’s Perm Division — and the reasons for both — are clear examples of how the staffing industry, as it’s called, is an effective economic indicator in its own right, and also how its operations essentially reflect, as a mirror would, what is happening with the local economy.

Andrea Hill-Cataldo

Andrea Hill-Cataldo says her company is meeting client clients and creating effective matches — but it is has never had to work harder to do so.

Discussions with Hill-Cataldo and others in this sector reveal that they are busy virtually across the board, meaning nearly all sectors of the economy; that they are handling increasing volumes of work in temp-to-hire and permanent hiring scenarios; and that they are becoming increasingly challenged when it comes to meeting the needs of their clients for qualified, motivated workers.

“Our work becomes more difficult as the pool of candidates gets smaller,” said Jennifer Brown, a certified staffing professional and vice president of Business Development at Springfield-based United Personnel, noting that, despite these challenges, the firm is meeting growing client needs across two main divisions — manufacturing and ‘professional’ positions.

All these developments reflect what is happening regionally, where companies are reasonably confident, need qualified help, and are having trouble finding it. And also where workers are equally confident, not shy about moving on to different challenges seemingly every few years, and are doing so in huge numbers, leaving their employers with the task of somehow replacing them, a situation that will certainly be exacerbated as MGM Springfield goes about filling roughly 3,000 positions over the next 10 months or so.

They also reflect the unemployment numbers and what’s behind them. This area’s jobless rate is higher than the state’s and the nation’s, which might sound beneficial for staffing agencies. But observers say it’s higher for a reason — most of those out of work lack many of the skills (technical and ‘people’ skills alike) to attain work.

The mirror-like quality of the staffing industry even extends to the broad realm of technology.

Jackie Fallon, president of Springfield-based FIT Staffing, which specializes in finding IT personnel for clients large and small, said a growing number of clients want and often desperately need individuals to collect and mine data, keep their systems safe from hackers, and enable computers (and therefore people) to continue working.

But in addition to now knowing how to find and evaluate good candidates (one big reason FIT is extremely busy these days), they are often surprised by and put off by the sticker price of such qualified individuals. They often want help at lower wages than what the market is often dictating, thereby adding a degree of difficulty to the search process.

“Think about a small manufacturer,” said Fallon while offering an example of what she’s running into. “Someone running a plant doesn’t want to pay an IT guy more than he or she is paying the plant manager. But that’s what the market is like out there; that’s what people are getting, and it’s creating challenges for companies.”

For this issue and its focus on employment, BusinessWest talked at length with several staffing-agency executives about what they’re seeing, hearing, and doing, and how all of that reflects the bigger picture that is the region’s economy.

Getting the Job Done

Hill-Cataldo was asked about how challenging it is to meet the needs of various clients and whether she was, in fact, able to keep up with demand. And with her answer, she probably spoke for not only everyone in her specific sector, but almost every business owner in Western Mass.

“It’s much more challenging to find qualified candidates than it probably ever has been, and I’ve been doing it for 25 years,” she explained. “We’ve never had to work this hard to get the right people; we’re getting them, but we’re just putting tremendous amounts of resources into doing that, and more hours. We have to work very hard.”

Jackie Fallon

Jackie Fallon says the need for data and security specialists continues to soar, making her company extremely busy.

Brown and Fallon used similar language, by and large, and collectively, their words speak volumes about the employment situation and this particular cycle that the region and its staffing agencies find themselves in.

And like all businesses, staffing firms see life change considerably with those cycles.

When times are worse, or much worse, as they were during and just after the Great Recession a decade ago, there are large numbers of skilled people looking for work. The problem is, there isn’t much of it to be had as companies, out of necessity, make do with fewer bodies.

During such cycles, more hiring is done on both a temporary and temp-to-hire basis (providing some work for agencies) because companies generally lack the confidence to bring people on permanently.

When times are better, of course, the situation is reversed. There are more positions to fill as companies staff back up, but fewer qualified individuals to fill them. There are still large amounts of temp-to-hire work because companies generally want to try before they buy (and with good reason), but also considerably more permanent hiring, hence Johnson & Hill’s Perm Division.

If it sounds like there are no easy times for staffing agencies, that’s about how it is, although these would obviously be considered better times, or even, for some, the best of times.

“Technology is always in high demand because everyone needs it,” said Fallon. “We’re really busy; we had our best year ever last year, and this year, we’re continuing that trend.”

Both United and Johnson & Hill are also having a very solid year, continuing a recent run of them, and for a variety of reasons that have to do with the economy and a changing environment when it comes to the process of hiring.

Elaborating, Hill said busy managers often lack the time to recruit and interview candidates. Meanwhile, others aren’t fully up on the methods required to reach younger audiences and assemble a strong pool of candidates. Thus, they’re leaving it to the experts.

“The way companies recruit now has become so complex that, if you don’t need to hire on a large scale, you don’t have the time to invest in social-media campaigns and all the things you need to do to build that pipeline of people coming into your organization,” she explained. “That’s what we do all day; we’re building a pipeline of people for the positions we need to fill. That makes it cost-effective for us, and far less so for small companies that can just offload the whole process.”

Brown agreed, and said this helps explain why United’s Professional Division, as it’s called, is quite busy. But there are other factors, and they include the fact that, in most all respects, the market has shifted in favor of the employees and job seekers, who, like employers, have large amounts of confidence.

“With this economy, there are opportunities,” she explained. “People aren’t fearful about moving from one company to another, whether they want to enhance their skill set to get ready for the next step or relocate, or just earn more money.”

Meanwhile, larger numbers of Baby Boomers are making the decision to retire, leaving companies with the often-challenging task of replacing long-time, valued employees.

Pipeline Projects

In this environment, where agencies have to commit more time, energy, and financial resources to the task of creating solid matches (that’s the operative word in this industry), staffing work requires persistence, resourcefulness, imagination, and often working with partners to help individuals gain the skills needed to enter the workplace and succeed there.

“Before, it might take a few days to find someone; now, it might take a few weeks,” said Hill-Cataldo, as she addressed that persistence part of the equation. “Searches are more difficult and time-consuming.”

Jennifer Brown

Jennifer Brown says the key to making successful matches is to fully understand a company’s culture, and finding individuals who can thrive in that environment.

Brown agreed, but stressed that, while the work is harder and it takes longer, there can be no shortcuts, because a firm can only succeed in this business if client needs are met — that is, if successful matches can be made.

And one key to accomplishing this is understanding not only a firm’s needs, but its culture, and then essentially working in partnership with the client to create what all parties concerned would consider a proverbial good hire.

“We need to make sure that the candidate we’re seeking aligns with what the client is looking to fulfill with the position,” Brown told BusinessWest, adding that this often goes beyond expected technical skill sets and into the realms of teamwork and company culture.

And with both sides of that equation, United is devoting time and resources to many forms of workforce development to help provide candidates with needed skills, she said.

As an example, she said the firm works with Goodwill Industries to present a training program to assist individuals with acquiring the essential skills to succeed in the workplace today.

“We need to make sure that the candidate’s character aligns with what the company is looking for, but also their competency as well,” she explained, adding that this is both an art and a science.

All of these traits are also needed within the broad spectrum of technology, said Fallon, adding that this has proven to be a lucrative, yet still challenging niche for the agency because, as she noted, technology is a critical component in every company’s success quotient, and also because the needs within this realm continue to grow.

This is especially true on the data side of the equation, as evidenced by growing use of the acronym DBA, which still stands for ‘doing business as,’ but increasingly, it also stands for ‘database administrator.’

“These are individuals in high demand,” said Fallon. “Data is a company’s goldmine; they need to protect it, and they need to make sure it’s running smoothly.”

Likewise, system security specialists are in equally high demand, said Fallon, adding that such professionals can and usually do demand a six-figure salary, a number that causes sticker shock in this region, which further complicates that aforementioned process of creating solid matches for both temp-to-hire and, increasingly, permanent-hire scenarios.

Matters are even further complicated by the fact that, increasingly, IT specialists can work remotely, which makes competition for them regional if not national or even international in scope.

“Someone can live here, work for a company in Boston, and maybe go into Boston once a week or maybe even less,” she explained, adding that firms in urban areas not only understand this, but they are generally less intimidated by the salaries such individuals are commanding.

The lesson companies can take from this is to be flexible and, when possible, allow people to work remotely, said Fallon, adding that, for various reasons, including an unwillingness, or inability, to meet those six-figure salaries, FIT has to cast an extremely wide net in its efforts to make matches.

“It’s easier for us to find someone from the Midwest to come here than it is someone from Boston — unless they were originally from this area,” she explained. “There’s more opportunity in Boston and places like it; if something doesn’t work out, they can walk down the street and find something else.”

Body of Work

While there are opportunities for staffing agencies during virtually all economic cycles, it is times like these when firms are particularly busy and when, like FIT, they are likely to record that proverbial ‘best year ever.’

But, as Hill-Cataldo noted, the rewards don’t come easy, and firms like hers must work harder than ever to not only meet the needs of clients, but exceed them.

In this respect, and many others, the staffing industry is reflecting the bigger picture and the economy of this region.

In other words, it’s a work in progress — in all kinds of ways.

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

Employment Sections

Outside the Silos

Anne Kandilis

Anne Kandilis says collaboration between employers, educators, and economic-development leaders will be the key to the new job portal’s success.

Anne Kandilis spends a lot of time talking with area employers, so she knows there are jobs to be had. How to connect those jobs to people who can perform them — well, that’s an issue that has plagued Western Mass. for a generation.

“One local employer told me, ‘I’m about half the size I could be, but I can’t find enough skilled workers,” said Kandilis, Working Cities Challenge director at the Economic Development Council (EDC) of Western Massachusetts.

Furthermore, she noted, many of these jobs are blue-collar positions that don’t require a college degree, but the disconnect remains due to a perception among job seekers that it’s too difficult to retrain for a new career.

“For Springfield and the whole region, how do we break down those barriers that make it difficult for job seekers to find jobs, and for employers to find quality workers?” she asked. “That’s really the premise of Springfield WORKS.”

Springfield WORKS, a collaboration by city, community, education, and employer leaders to develop strategies to transform the region’s workforce ecosystem, was funded with a three-year grant from the Boston Federal Reserve Bank’s Working Cities Challenge grant. One concrete application of those strategies, an innovative job portal, was launched with fanfare last week during an event at Tower Square.

The event, titled “Innovations in Developing and Delivering a Workforce,” offered the first public presentation of the portal, which aims to connect job seekers and current workers with a roadmap to available positions. Importantly — because this has too often been the missing piece, Kandilis said — the portal will also serve as a resource on where to acquire needed skills with available training.

Statistics bear out why the effort is important. Specifically, the region’s low unemployment rate does not reflect the total number of people not participating in the labor force. Approximately 42 out of 100 Springfield residents aged 16 to 64 are not working, Kandilis said, and the initiative is a response to employers needing more qualified candidates to support operations and growth.

The 14 original partners in Springfield WORKS — the organization boasts more than three times that today — “all came together and said, ‘we have a workforce … not a crisis, but a mismatch between jobs and skilled workforce,” she told BusinessWest.

The problem isn’t isolated to the Pioneer Valley. At a recent meeting of Knowledge Corridor representatives, she noted, a speaker addressed this very skills gap, and CNBC recently called it one of the greatest threats to economic growth.

“The partners are really the key to making this happen,” she said, noting that an employer advisory group meets every month to discuss what’s working, what’s not, and where opportunities might exist to connect employers with job seekers. That’s where the new portal comes in.

Come Together

Springfield WORKS sprang out of a spirit of collaboration, as it explains on its website.

“By bringing together diverse stakeholder groups — including employers, secondary and post-secondary education providers, economic- and workforce-development professionals, workforce-training providers, community-based organizations, municipal government, and residents — the Springfield WORKS initiative holds all of us accountable for making sure the city of Springfield develops a bold and innovative strategy for our residents that have significant barriers towards full participation in the labor force,” the description reads. “This bold goal will be achieved by utilizing technology, collaboration, impact-driven coaching techniques, and data in order to empower residents to understand the opportunities that exist, the skills required to pursue those opportunities, and the training opportunities and support services that will enable them to be successful.”

Jobs are the goal, but check out some of the other words repeated in that mission statement of sorts. Skills. Education. Training. Of all the connections the job portal aims to make, those may be the most important.

When a user logs in, he or she can search for jobs among participating employers (about 20 to date — from major players like MassMutual, Baystate Health, and MGM Springfield to smaller companies — with more expected to join the effort) or by category (there are 17 listed, from sales to food service; from technology to healthcare).

Each job opportunity lists a series of ‘top skills,’ many of them soft skills like effective communication and customer service, and ‘prerequisites,’ including degrees or certifications necessary. Those listings then link to programs at Holyoke Community College, Springfield Technical Community College, and FutureWorks (again, more training partners are expected to sign on in the coming months) where specific programs can help a job seeker achieve those goals. In many cases, Kandilis said, employers are looking for someone with the right soft skills, and can train them for the rest.

“I think this is a game changer. It creates a conversation,” she told BusinessWest. “We don’t always have opportunities like this because of the way we operate in silos. This creates a huge opportunity for connections and strategies that are community-driven, and employers are a huge part of the conversation — because we start with the skills they need.”

Not often, she stressed, have employers, workforce-development agencies, colleges, and job-training entities come together to connect with job seekers at the same time.

“When the partners came together, they had to figure out what the problem was and what to do about it. The goal was to figure out how to collaborate and align our systems so job seekers can find them, and so employers who want quality employees can hire them,” she explained. “We have a skills and education gap, and we have supports, but they have not been aligned.”

The portal, however, is just one prong of a multi-faceted strategy to not only identify needs, but to put a big dent in the region’s unemployment figure, with Springfield WORKS as the backbone organization.

“By driving this through skills that are in demand, we’re able to align training and education in a way that has not been done before,” Kandilis said. “Every job is connected to a skill, and every skill is linked to a training if it’s available. So we’ll see which skills are aligning and matching up with training.”

From there, training programs can be broadened with a specific focus on where the greatest needs are. “We want to expand access to quality training, coaching, and mentoring, and make sure it aligns with the jobs that are in demand,” she went on. “And I’ve asked [employers] about not only the jobs open today, but the ones they hire for all the time.”

In short, she added, “our portal shows what jobs are available, but we also want to be the first step in a career ladder.”

Bridging the Gap

Kandilis did some quick math to show how the availability of quality jobs affects families, noting that a sustainable wage for Western Mass. is around $43,000 for a family of four. An $11-per-hour job comes out to $22,000 a year.

“That’s a big gap,” she said. “But we have a lot of jobs, and we have a lot of jobs that are not just entry-level jobs, but really pay well. Some start at $14 an hour, but you can make $18 within a year. Achieving economic stability, for someone who has been living in poverty, is a life-changing experience for the whole family.”

Springfield WORKS is tackling a number of related issues, from legislation that aims to make it easier to move from public assistance to the workforce to grappling with the need many individuals have for child care and public transportation at odd hours. Again, the partners will seek collaboration, hoping to connect job seekers with not only career opportunities, but the training and education necessary to land them.

“We want to change that number from 42% who aren’t working to 25%, and lower if we can get there,” Kandilis said. “We are excited. Everything is ready. We’ve worked really hard. Employers have been phenomenal in their participation. At the end of the day, we want to be the region that companies want to move to because of our workforce.”

Joseph Bednar can be reached at [email protected]

Employment Sections

Hire Power

Wanda Gispert, regional vice president of Talent & Workforce Development for MGM Resorts International.

Wanda Gispert, regional vice president of Talent & Workforce Development for MGM Resorts International.

The final countdown has begun at MGM Springfield; the $950 million casino will be open for business in just over a year. That means roughly 3,000 people must be hired between now and then, a massive task that falls to a team that has already been hard at work for months.

126,000.

That’s the number of applications that Wanda Gispert is expecting for the 3,000 or so positions that MGM Springfield must fill between now and opening night roughly a year from now — actually, well before opening night.

Doing the quick math, Gispert, who takes the title of regional vice president of Talent and Workforce Development for MGM Resorts International, acknowledges that this number equates to just over 40 applicants per job.

That might be the average, but the number of applicants will vary wildly with the position, she told BusinessWest, adding that, for top-level positions, like vice president of table games, there might be hundreds of candidates.

And then, for some positions, 40 applicants for each posting would be a blessing, but certainly not a reality.

“Being a butcher is a lost art — a lot of people don’t have that specific skill,” she said, adding that the casino will need a handful of such individuals. The same is true of pastry chefs and security personnel specifically trained to work with canines.

Filling the hundreds of different kinds of positions needed to operate MGM’s $959 million casino in Springfield’s South End is now Gispert’s responsibility. Actually, she leads a team of people that will handle this assignment, one she is still building.

As she goes about her work, she will draw on years of experience with meeting the considerable workforce challenges of major corporations within the broad hospitality sector.

Her specialty is opening new properties, and her résumé includes considerable work within the hotel industry, specifically with Marriott Hilton, opening more than 200 properties within the U.S., Canada, Mexico, and the Caribbean, while serving on what is known as the ‘new-opening team.’

She later went to work for MGM Resorts International, and took the lead role in assembling the team of roughly 4,000 for the company’s National Harbor casino, which opened earlier this year.

She will also draw on a host of resources, everything from the area’s community colleges and workforce-related agencies to websites that can tell her which companies are downsizing across the country and, therefore, what types of talented individuals might be looking for work.

Overall, she said assembling a workforce for MGM Springfield will pose some challenges, but nothing out of the ordinary for such assignments.

The region boasts a large, qualified workforce, she noted, and it has the resources in place to train those who will need specific training, such as dealers. Meanwhile, MGM’s name and reputation within the gaming industry will bring a number of experienced workers into this market, giving the new casino ample talent to draw from as its fills out its team.

“With every market that we service, we see challenges in certain areas,” she explained, noting that this region would certainly not boast many experienced casino workers because legalized gaming only came to this state a year ago. “What’s encouraging about this area is that there are professions that easily transfer over to what we need; the banking industry is huge here, for example. From a cage-operations standpoint and how you run a casino behind the scenes — meaning accounting, finance, human resources, and other areas — we have a lot of positions there, but we know skills will transfer over.”

For this issue and its focus on employment, BusinessWest talked at length with Gispert about the hiring process for MGM Springfield and how things will unfold over the next year.

Surveying the Situation

As she assessed the challenge of staffing up at MGM Springfield, Gispert made a number of observations.

Among them is the fact this is a good time to be in a culinary-arts program, and for fairly obvious reasons made clear by her reference to pastry chefs and how hard it will be to find them. It’s also a good time to be a math teacher or a retired math teacher, for less-obvious reasons she would explain. And it’s a good time to be a bank teller, especially one who might be downsized in this time when there is need for fewer of those professionals.

As for math teachers and those who have retired from that profession, Gispert said they are the perfect sorts for the behind-the-scenes positions in surveillance.

“Those jobs are very different from security positions,” she explained. “Everyone in surveillance is given a math test; they have to understand all the games — poker, blackjack, craps, everything that we offer — and they need to be able to do math in their head very well, because if I’m watching a play, how do I know if an odd is being paid out properly?

“They catch mistakes; they catch possible cheating,” she went on. “They’re the eyes and ears of the casino. They must be really sharp, and their facial-recognition skills must be really strong.”

Loss-prevention specialists for major retailers would obviously be good candidates for such positions, she continued, but those math teachers and former math teachers are also ideal.

And teachers, in general, are good candidates for jobs through the casino, and for many reasons.

“They’re off every night, they’re off every weekend, they’re off for Christmas,” she said while listing some. “We love school teachers; many of our employers teach school because they have the perfect schedule.”

As noted, Gispert can talk about filling such positions from experience — lots of it.

A graduate of Georgia State’s respected hospitality program (the school is located in Atlanta, a popular site for conventions), she said she started her career on the front desk of a Holiday Inn at age 18 and has worked in a host of different positions within the hotel sector.

“I think that’s what’s given me my edge,” she told BusinessWest. “I’ve worked all of those jobs — I’ve washed dishes, I’ve made beds, I’ve worked in sales. You’re a jack of all trades at that point, and when you’re recruiting for those positions or training for them, you know what to look for, and you know how to train better because you’ve been in that position.”

Jason Randall

Jason Randall says the process of onboarding MGM employees is well underway.

As noted, she’s taken all that experience in hotels and added casino staffing to her résumé, assignments that are similar to hotels but have some additional wrinkles, such as host-community agreements, which stipulate commitments that the casino will make to hiring people from the specific host community and region surrounding it.

With MGM Springfield, that commitment is to have more than one-third (35%) of the workforce be comprised of people living in Springfield or from Springfield.

That last consideration is a very important one, said Gispert, adding that one of the things Springfield officials hoped to do by luring a casino here was to bring back some of those young people (with ‘young’ being a relative term) who decided they needed to go elsewhere to find fulfillment of their career aspirations.

That commitment to designate a third of the jobs to those with Springfield roots, as well as other commitments (to hire veterans, for example) is essentially a starting point for this assignment, said Gispert.

“That’s how I start crafting how I will approach my workforce-development game plan for the area,” she explained, adding that 90% of the workforce must come from this region, which is defined loosely as Greater Springfield.

Counting Down

Running down some of the numbers involved with her assignment (there are always lots of numbers to consider when talking about a casino), Gispert said the largest specific team, or department, will be dealers; roughly 600 of them will be needed for blackjack, poker, and other games. A large security force will also be needed, she went on, noting that roughly 200 individuals will be required for such work.

There will be a number of restaurants and catering operations, so about 150 culinary artists will be required, she said, adding that there are subsets within that broad realm (pastry chef, for example), and there will be about 80 cashier, or ‘cage,’ positions, as they’re called; these are people who will be handling money.

There are also a number of positions for which the casino will need just a few talented individuals, or perhaps even one. Butcher falls in that category, as does locksmith, security people that can work with dogs, and ‘master tailor’ (there will likely be just one of those).

When asked about the schedule moving forward when it comes to the process of putting a team in place, Gispert said the hiring has already begun in many areas, especially within the higher levels of management, meaning those who will lead the teams that will be assembled.

The matter of when specific positions will be filled will be determined by several factors, she went on, but especially how much training is involved and, obviously, when the employees in question will be needed.

As an example, she noted security personnel. This will be a large force, as noted, and one that will need extensive training. Also, in many cases, individuals will be needed long before the doors to the casino actually open.

“January is the month when a lot of positions will come on board,” she explained. “Because security and surveillance come in first; they take the longest to train, and you need them on the premises earlier than anyone else.

“Once equipment starts to be delivered, surveillance has to be there from that point on,” she went on. “Once slot machines and other equipment start to arrive, it cannot be left unsupervised; it’s 24 hours a day once they’re on the premises.”

And bringing someone onboard, if you will, is a lengthy process, said Jason Randall, who just went through it himself while being hired as director of Talent Acquisition & Development.

A veteran of the tourism industry in the human resources realm — he was a member of BusinessWest’s 40 Under 40 Class of 2014 as director of Human Resources for Peter Pan Bus Lines — he joined MGM in May. He said one of his primary responsibilities is taking new hires “from A to Z,” as he put it.

“Soon, we’ll start building out our human-resources team to start managing that on a volume scale,” he explained. “We’ll have a team that will take over halfway through the process to help initiate drug and background checks, complete offer letters, assisting with gaming-license processing, and eventually queueing everyone up for the big orientation dates.”

Those will be coming after some large hiring events late next spring and into the summer, he went on, leaving ample time for training before the casino opens.

As jobs need to be filled, the positions are posted on LinkedIn and job boards, said Gispert, adding that the response has thus far been solid, and it points toward overall numbers similar to what was experienced with National Harbor — thus that projection for 126,000 applications.

People can apply for as many as three jobs, and many do, she explained, which will be a factor in how many applications MGM receives, but overall, she’s expecting a very strong response, and from people of all ages.

“We reach out to AARP,” Gispert explained, “because a lot of people thought they wanted to be retired, then they retired and they decided, ‘no, I really want something back in the workforce.’”

Odds Are

As she talked about the process of creating a workforce for MGM Springfield, Gispert noted one challenge that might not be apparent to all.

“Not everyone will want to work for us,” she said with laugh, “because if you work for us, you can’t gamble here. Some people would rather be a customer than an employee.”

Perhaps, but she’s quite confident that this obstacle can be overcome as she goes about hiring dealers, security personnel, and even butchers and pastry chefs.

A year from now, roughly 3,000 people will be wearing ‘MGM Springfield’ nametags as part of the work attire. Getting to that point will be a challenge, but the casino and its workforce will be ready, she said.

You can bet on it.

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

Employment Sections

The Process Begins with an Important Shift in Focus

By Brian Braudis

Senior leadership at the corporate headquarters of a large retail chain was entertaining succession planning. What started out as an exercise turned into a sweeping new protocol for transitioning managers into leaders.

For the organization, it’s vitally important to get this right. Managers sometimes trip on their way up. Senior leaders can mitigate stumbling with an aggressive strategy.

Managers are typically promoted into leadership roles with the thought that their effectiveness will continue, but rather than assume, senior leaders are wise to put into place a two-pronged approach. The first prong is to place the right candidate. The old cliché applies: “hire for attitude and train for ability.”

The second prong is to cultivate the well-selected candidate. This involves extensive training opportunities and environments that promote growth.

Transitioning managers into leaders should ideally start long before the switch is flipped. Early on, candidates should be ‘groomed’ through extensive training, cross-program experiences, and leadership development. Preferably the training, experience, and development will culminate by equipping the candidate-leader with a view and an understanding of the ‘leadership landscape.’

Placing an incumbent leader in a productive environment is less precise.

The context of leadership can be polarizing, ambiguous, volatile, and complex, so, out of necessity, strong support systems must be in place. A network of colleagues to model the way and offer reassurance along with mentors, coaches, and careful monitoring will serve as the classic challenge/support system to promote a productive transition while cultivating new leaders.

The biggest difference to grasp for new leaders is the change in role that entails a focused shift in five broad areas:

1. Production to Outcomes

The immediate challenge for managers is to shift their thinking and operating from a ‘making widgets’ mindset to an ‘influencing outcomes’ mindset. It is inherent in the leadership process that the leader influences the outcome. As the new leader begins working with department heads and stakeholders, they need to be operating from a new perspective, a long-term view with idea of short-term, stepping-stone implementation. The role of the leader is to influence the long term with organizational strategy in mind.

Rather than making and counting widgets, a new leader must have both eyes toward efficiencies now and necessary adaptations toward the future.

2. Specialist to Visionary

Managers thrive as specialists. They know their department, their people, and their function. That’s not enough for a leader. Leaders must know the language of all departments. They must be able to translate information, patterns, and trends from departments into the language of efficiencies, profit, and direction. The vision of the organization is up to the leadership. No one else will take the reins here. Leaders must harness what is known now with the trends they see in the telescope and provide direction.  Vision can be complex and multi-faceted, but nothing can beat everyone pulling in the same direction. This is one big advantage that is difficult for competitors to duplicate.

3. One to All

Managers have the responsibility to manage the day-to-day on the floor. They are embedded with the staff. Leaders don’t manage things as much as they lead direction. Whereas a manager focuses on employee engagement, a leader has a focus of workforce engagement.

A new leader may have lingering departmental biases that show up as baggage that slows meetings and other processes down. The classic mistake is for new leaders to over-manage and under-lead, especially their previous function. Colleagues need to give the new leader their patience while he or she cultivates an open-minded shift from managing one department to serving all departments in the organization.

4. Solving Problems to Predicting Problems

Strictly speaking, managers and leaders are keen problem solvers. But one of the finer points of leadership — and where leaders earn their keep — is seeing problems before they happen. If a leader can identify slowed growth or a decline in earnings early on and proactively put things in place to avoid the dreaded ‘workforce planning,’ this ‘seeing’ can save everyone.

5. Worker to Learner

Leadership is not about knowing — it’s about learning. New leaders typify the shift from a working manager to a learning leader. As they work to cultivate an open mind and flexibility, they must also demonstrate a commitment to relentless self-improvement — that means applying continuous learning toward competency, excellence, and greatness.

Bottom Line

When new, developing leaders are hand-selected, cultivated, and afforded the organizational backing necessary for success, it’s more than an exercise in succession. It’s a testament to a leadership strategy and the state-of-the-art demonstration of a leadership culture. Over time, the effort builds into the ultimate competitive advantage.

Brian Braudis is a human-potential expert, certified coach, speaker, and author of High Impact Leadership: 10 Action Strategies for Your Ascent. He has also authored several audio programs from executive leadership development to stress management; www.thebraudisgroup.com   

Employment Sections

Accommodating Attitude

pregnantatworkdpMassachusetts lawmakers are attempting a novel approach to pregnant workers, by requiring employers to offer them accommodations similar to those given to disabled workers. The bill is a popular one and seems assured of becoming law, but some questions about implementation — and what companies will have to do to comply — remain.

Pregnancy is not a disability, and the Pregnant Workers Fairness Act doesn’t classify it as one.

But if the bill, passed unanimously by the Massachusetts House of Representatives in March and expected to sail through the Senate, becomes law — Gov. Charlie Baker has said he will sign it — employers will be required to offer the same types of accommodations disabled workers are promised under the Americans with Disabilities Act (ADA).

“While this bill doesn’t technically classify pregnancy as a disability, per se, it does create the requirement that employers treat pregnancy the same way they treat employees with a disability, providing reasonable accommodation and undertaking a dialogue about what those accommodations should be,” said Daniel Carr, an attorney with Royal P.C. in Northampton.

If the bill becomes law, an employer would not be able to fire, demote, or deny a job to a worker due to pregnancy. The employer could not force the worker to accept certain conditions or take a leave from the workplace as long as she were able to perform the essential functions of her job.

While charges of discrimination based on pregnancy or maternity are currently considered an aspect of gender discrimination, the new bill changes the playing field in potentially significant ways, Carr noted.

Daniel Carr says the bill currently leaves several questions unanswered

Daniel Carr says the bill currently leaves several questions unanswered, which he hopes will be addressed by the state Senate before heading to the governor’s desk.

Specifically, employers will be required to engage in an interactive process with pregnant employees to provide reasonable accommodations, such as more frequent and/or longer breaks, modified equipment or seating, job and responsibility restructuring, modified schedules, and private, non-bathroom space to express breast milk — accommodations that, in the abstract, seem like a logical recognition of the need to provide equitable conditions for pregnant women in the workplace.

While this bill doesn’t technically classify pregnancy as a disability, per se, it does create the requirement that employers treat pregnancy the same way they treat employees with a disability, providing reasonable accommodation and undertaking a dialogue about what those accommodations should be.”

“Generally speaking, everyone is in agreement,” Carr said, “but for this bill to become law, there are some issues that need to be ironed out, hopefully before it gets to the governor for his signature.”

Meghan Sullivan, managing partner at Sullivan, Hayes & Quinn, LLC in Springfield, noted that the ADA provides no basis for equating a normal pregnancy with a disability, but Massachusetts lawmakers have, for several years, been discussing the idea that some of the same accommodations available to disabled workers, particularly related to changes in their duties and working conditions, could also benefit pregnant workers.

One of the reasons the bill has found little legislative resistance so far is that it was crafted with significant input from both women’s rights groups and the employer lobby, notably Associated Industries of Massachusetts (AIM).

“I sit on the steering committee for AIM, and they took the position that this was not a bill they were going to oppose on behalf of employers,” Sullivan said. “But how do we approach the idea of reasonable accommodation while avoiding issues that are typically problematic for employers?”

Working out many of those issues was key to moving the bill forward, but, as Carr noted, plenty of unanswered questions remain.

Taking Aim

AIM opposed early versions of the bill during the 2015-16 legislative session because employers worried it gave employees unlimited power to reject multiple and reasonable offers of accommodation by an employer. The compromise bill addresses that concern and others, the organization noted. Specifically, it accomplishes the following:

• Provides clarity regarding definitions and terms related to current employees in need of accommodations related to pregnancy;

• Aligns state and federal laws regarding reasonable accommodation as it relates to the essential functions of the job;

• Provides flexibility rather than mandating specific types of accommodations for employers and employees;

• Provides a reasonable mechanism for employees and the employer to achieve a reasonable accommodation by engaging in a defined process, eliminating a concern by businesses that an employee could reject multiple reasonable offers of accommodation;

• Adds language allowing the employer to evaluate undue hardship of an accommodation and the ability of employee to perform the essential functions of the job as it relates to an employer’s program, enterprise or business;

• Provides opportunity for an employer to request documentation for certain cases to ensure that accommodations are reasonable for both employees and employers;

• Limits provisions to current employees instead of employees and job applicants;

• Reduces unnecessary burdens and allows for electronic or other means other than a “poster” for notifying employees; and

• Allows for certain accommodations to be either paid or unpaid.

Employers worry, Sullivan told BusinessWest, about any new legal protections for workers that are different, and sometimes conflicting, with existing laws — conflicts that are typically hashed out through litigation, which companies certainly want to avoid.

Meghan Sullivan

Meghan Sullivan says the bill was crafted after much negotiation and compromise between women’s rights advocates and employer organizations.

“There was an incredibly cooperative approach to drafting the bill passed by the House, an effort to use very similar language and concepts related to the disability laws as we know them,” she noted.

She recalled a summer job she had during her college years, as a bank teller. She was required to stand at her workstation for eight hours, but under the Pregnant Workers Fairness Act, an employee would have a strong argument that allowing her to sit while serving customers would not hinder her from getting her work done.

Pretty straightforward, right? Not so fast, Carr said.

“The problem with any legislation is that sometimes the most popular laws are the worst-drafted,” he noted. “I think every reasonable person agrees with the principles of this law, that pregnant employees shouldn’t be discriminated against. No legislator wants to be seen as against it, so no one’s really changing it — but there are issues with this law that come into play.”

Take the coffee shop across the street from Carr’s office, which employs a handful of workers in one open space, with a bathroom. Where, exactly, can that business designate a private, non-restroom space for expressing breast milk? If an employee brought litigation, he argued, the shop would have a strong argument that such a private space doesn’t exist, and it would be an undue hardship to somehow construct one.

“Another issue is job restructuring. If an employee walks into my business and says, ‘we have to restructure my job because the law says so,’ how can I prove that’s an undue burden or financial hardship to do so?” he said. “That’s my concern. It’s not the wisdom of the law in general; it’s the drafting and details that have to be addressed.”

In a recent blog post, Carr went so far as to say the bill, if passed as is, will cause chaos for employers, for a couple of reasons. One is that it has no specified effective date, and would therefore, by default, become law only 90 days after Baker signs it.

Another question is the duration of accommodations. “The lactation provisions imply that the accommodations can continue after an employee has given birth,” he noted. “However, the bill does not address for how long after giving birth an employee is entitled to reasonable accommodations. As drafted, employers have no way of knowing if they must provide modified schedules and/or job restructuring to new mothers for four weeks, four months, or four years. It would be in every employer’s best interest to undertake a self-assessment of their readiness to implement these policies sooner rather than later.”

Working It Out

Carr also noted that the Affordable Care Act — which, despite GOP attempts to kill it, is still the law — already provides for private, non-bathroom space to breastfeed in certain situations, and other protections exist for breastfeeding employees. However, the new bill will apply to more employers in the state, and may be interpreted more broadly.

“The term ‘job restructuring’ worries me the most,” he said. “So if the breastfeeding provisions of this law are interpreted to be consistent with the breastfeeding protections of the ACA, does that mean that job restructuring would continue for a full year? Or, if [the new bill] is interpreted to provide greater duration, how long would that last?”

Sullivan agreed that the vague concept of accommodation could become more significant than employers expect, especially if the worker experiences complications with the pregnancy.

“It’s potentially a new lawsuit, and it’s something employers will have to take note of, but the two sides, as well as legislative officials, worked very cooperatively and diligently to make sure it would be a manageable and workable process,” she noted. “A lot of employers are concerned about any new law being introduced: ‘how do we manage another accommodation on top of all the other ones that already exist, and how do these new legal provisions interact with all of the existing laws?’ Without a doubt, it’s another instance where HR and managers and supervisors are going to need education and training so there isn’t an inadvertent violation.”

If employers will have only a few months to get up to speed with compliance, as appears to be the case, Sullivan said, every employer will have to examine the company’s workplace rules, break-time rules, and other details so they can anticipate what policies might need to be modified if an employee becomes pregnant.

She stressed, however, that employer groups understand the bill’s appeal.

“It is easy to confuse opposition to a draft of a bill with opposition to the issue itself,” AIM President Richard Lord said just before the House passed the bill. “AIM is always willing to work with those seeking honest and effective compromise. That is exactly what happened with this legislation.”

That doesn’t mean it’s easy to add another layer of employee protections, of course.

“A common concern is that Massachusetts will not be competitive enough with other states that aren’t as accommodating to employees,” Sullivan told BusinessWest. “At what point will Massachusetts create an incentive for businesses to leave? That’s always a concern among employers, the cost of doing business.”

Still, she said, “despite the rhetoric of ‘us vs. them’ that’s so common in the political landscape, so many employers are motivated to do the right thing and do it in the right way.”

Even if they’re still hazy on the details.

Joseph Bednar can be reached at [email protected]

Employment Sections

Women Only

By Daniel C. Carr, Esq.

Daniel C. Carr, Esq.

Daniel C. Carr, Esq.

In recent weeks, a Texas movie theatre sparked controversy by holding several women-only screenings of the new Wonder Woman movie, including a promise that only female employees would be scheduled to work during these screenings. The theatre was the target of a great deal of criticism, and many alleged that the theatre was discriminating against men.

Much of the rage came from the usual suspects — men’s rights activists, misogynists, and other groups prone to Internet trolling.  Also among the aggrieved was a less-expected party: University of Albany Law Professor Stephen Clark. According to his statement, Clark wasn’t offended that a screening was held specifically for women, but, rather, that the theatre advertised “No Guys Allowed.”

Particularly maddening was the fact that the theatre actively barred male patrons and promised that only female staff would be allowed to work during the screening. “It’s the principle of the thing,” Clark said. “I’m a gay man, and I’ve studied and taught gay rights for years. Our gay bars have long said that you do not exclude people because they’re gay or straight or transgender — you just can’t do that for any reason … It’s discrimination.”

For many, the special screening made sense. Wonder Woman is not only the first female-led superhero film since 2005’s critically-panned Elektra, but also the first female-led superhero film directed by a female. This, combined with its strong critical and financial performance in the wake of its underwhelming male-led predecessors, has given advocates of equitable representation of women in the film industry cause for celebration. The women-only screenings sold out quickly.

This conflict illustrates an important point: the law still permits single-gender organizations and services in certain contexts, but when do gender-exclusive organizations or services cross the line into actual, illegal discrimination?

The law still permits single-gender organizations and services in certain contexts, but when do gender-exclusive organizations or services cross the line into actual, illegal discrimination?”

The law generally weighs an individual’s First Amendment right to expressive association against the state’s compelling interest in eliminating discrimination. In genuinely private settings, the individual’s First Amendment rights will almost always prevail. Alamo Drafthouse’s women-only screenings would not have been a big deal if the theater had been rented out by a private entity. In fact, in response to one Facebook question concerning whether there would be men-only screenings, Alamo Drafthouse responded with a link to its ‘private events’ booking page.

However, in public-accommodation cases like the one above, Massachusetts and federal law generally find that the state’s interest in eliminating discrimination outweighs an individual’s First Amendment right to expressive association. Massachusetts state law specifically prohibits making any distinction, discrimination, or restriction in admission to or treatment in a place of public accommodation, based on race, color, religious creed, national origin, sex, gender identity, sexual orientation, physical or mental disability, or ancestry. No distinction is made between historically dominant groups and historically disadvantaged ones. Discrimination is discrimination.

But what is a place of public accommodation? According to the law, a place of public accommodation is an entity which is open to and accepts or solicits the patronage of the general public. Common examples include theaters, hotels, restaurants, stores, banks, hospitals, transportation services, parks, childcare centers, and the like. This is not a complete list. There are no complete lists because there are simply too many unique contexts to draw a clear line.

In contrast to places of public accommodation, genuinely private entities’ right to expressive association is considered to outweigh the public interest in eliminating discrimination, and, therefore, private entities are not bound by the same anti-discrimination laws. An organization’s status as a private entity, and therefore the legality of maintaining a gender-exclusive policy, depends primarily on whether the organization exercises “genuine selectivity” with respect to applicants or members.

For example, in 1997 the Mass. Commission Against Discrimination (MCAD) ruled that a female divorce attorney was liable for gender discrimination for refusing to represent male clients in divorce proceedings. In determining that her law practice qualified as a place of public accommodation, the MCAD noted that she advertised her services to the public, did not have any particular criteria for selecting her clients, and admitted that she refused to represent the complainant solely because of his gender.  In short, there was a lack of “genuine selectivity.”

By way of comparison, in 2014, the MCAD applied the same standard to reach a different result in a case brought by a male victim of domestic violence against a nonprofit organization for female victims of domestic violence. The MCAD ruled that the charity had not violated anti-discrimination law by refusing to provide male victims of domestic violence the low-cost facial reconstructive surgery offered to female victims of domestic violence. The MCAD ruled that the charity had adhered to a policy of “genuine selectivity” because it was not open to the public and it applied an array of eligibility criteria, including economic status, type of injury, anticipated period of recovery, and residency restrictions.

Additionally, under Massachusetts law, certain entities may be places of public accommodations at certain times and not others. For example, in 2002, the Supreme Judicial Court of Massachusetts ruled that a publicly owned building, when booked for an event sponsored by a religious group for the purpose of religious meetings, does not qualify as place of public accommodation during that time; therefore, the group was allowed to ban women from attending the meeting.

Conversely, Massachusetts has recently announced that the reciprocal is true: religious institutions, such as churches, temples, or mosques, are considered places of public accommodations when being used for secular purposes, such as a spaghetti dinner open to the public.

If your business or organization intends to maintain a gender-exclusive policy, it is important that you analyze these factors to ensure the policy’s legality. The law can be tricky, and lawsuits are costly. u

Daniel C. Carr, Esq. specializes exclusively in management-side labor and employment law at Royal P.C., a woman-owned, NAMWOLF-certified, boutique, management-side labor and employment law firm; (413) 586-2288; [email protected]

Employment Sections

A Legislative Update

By Peter Vickery

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A number of business-related pieces of legislation are in various stages of review on Beacon Hill, covering matters ranging from non-competes to earned sick time to credit reports. The common denominator is that they all deserve the attention of area business owners.

There are a number of bills currently under consideration within the Massachusetts Legislature that impact business owners and managers and how they run their operations. What follows is a quick look at several measures that bear watching.

Non-competes

Among the bills filed in the Massachusetts Legislature at the start of its current two-year session was one already familiar to employers, namely the Act to Protect Trade Secrets and Eliminate Non-Compete Agreements. As its title suggests, this refiled measure (originally championed by former Gov. Deval Patrick) would render null and void non-compete agreements between employers and employees.

In Massachusetts, non-competes are already unenforceable in a range of professions and occupations. In 1977, the Legislature made non-competes unenforceable against physicians; in 1983, it added nurses; in 1998, the broadcast industry; in 2004, psychologists; and most recently, in 2008, social workers.


SEE: Chart of Largest Employers


Lawyers are barred from entering into non-competition agreements under the Rules of Professional Conduct. Similarly, internal rules and regulations prohibit them in the financial-services industry. This bill would ban them across the board.

Pregnant Workers Fairness Act

Another re-filed bill of interest to employers is the Pregnant Workers Fairness Act, and this one seems to be garnering widespread support. After the end of the last session, advocates reached agreement with some employers’ organizations, which suggests that, this time around, the bill will make it over the finish line.

If enacted, the measure would require employers to accommodate pregnancy and baby-related requests for longer breaks, private non-bathroom space to express milk, modified schedules, and time off to recover from childbirth. It is important to note that the time off would be in addition to leave already available under other applicable laws.

Earned Sick Time

On the subject of time off, H. 3155 would re-write significant pieces of the Earned Sick Time Law, which the voters approved in 2014. As well as providing that overtime should not count toward sick-time accumulation and clarifying those workers who should not be included in calculating the total number of employees (e.g. the CEO, CFO, COO, independent contractors, and employees working fewer than 20 hours per week), the bill includes a novel fact-finding provision.

Many employers use credit reports to help gauge a job applicant’s reliability and trustworthiness … But Massachusetts might be poised to join the 11 or so states that ban the practice of looking at credit reports, which advocates refer to as ‘credit discrimination’ because of its alleged disparate impact on people of color.”

Because of the effect of sick time on the bottom line, the bill would require the secretary of Labor and Workforce Development to conduct an annual survey asking employers whether the law has led them to change staffing levels, or to move their operations out of state. The bill does not say what the secretary should do with the survey results. But knowledge is power, as the saying goes.

Credit-report Ban

Some knowledge gives too much power, apparently, so efforts are under way to put it behind a statutory veil. Many employers use credit reports to help gauge a job applicant’s reliability and trustworthiness. This is perfectly legal under the federal Fair Credit Reporting Act (for now, at least), so long as the employer obtains the applicant’s permission.

But Massachusetts might be poised to join the 11 or so states that ban the practice of looking at credit reports, which advocates refer to as ‘credit discrimination’ because of its alleged disparate impact on people of color. U.S. Sens. Elizabeth Warren and Ed Markey are pushing for a nationwide ban via their bill called the Equal Employment for All Act. In the meantime, a state-level measure sponsored by State Rep. Elizabeth Malia would prohibit Massachusetts employers from using credit reports in their hiring decisions and even from asking applicants for permission to do so.

Although it would exempt certain categories of jobs from the ban (e.g. law enforcement, executive/managerial positions in financial institutions, and positions requiring national-security clearance) the proposal would strip most employers of the ability to lawfully review a would-be employee’s credit report. Violating the statute would constitute an unfair practice under Chapter 93A, the Consumer Protection Act, which generally does not apply to employment disputes, and thereby allow plaintiffs to seek multiple damages and attorney’s fees.

EEOC Transgender Enforcement

At the federal level, the Equal Employment Opportunity Commission (EEOC) has issued guidelines stating that sex-based harassment includes harassment based on “transgender status” and the “intent to transition.” Examples of such harassment include “using a name or pronoun inconsistent with the individual’s gender identity in a persistent and offensive manner.”

The new guidelines purport to apply Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination in employment and contains this definition:

“The terms ‘because of sex’ or ‘on the basis of sex’ include, but are not limited to, because of or on the basis of pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work, and nothing in section 2000e-2(h) of this title shall be interpreted to permit otherwise.”

This definition does not, on the face of it, include transgender status, and the equivalent provision in Title IX (regarding education) is the subject of ongoing litigation. Nevertheless, the EEOC has made gender-identity enforcement a priority in its Strategic Enforcement Plan for 2017-21.

The federal guidelines and enforcement plans will not change customs and practices for employers in Massachusetts, where — long before Gov. Baker signed the 2016 Act Relative to Transgender Discrimination — the MCAD had treated discrimination on the basis of transgender status as a violation of Chapter 151B, the Commonwealth’s anti-discrimination statute.

For example, in 2016, the MCAD issued its decision in Tinker v. Securitas Security Services USA and Najeeb Hussain. In October 2009, the complainant, at that point Rebecca (Becky) Tinker, started work as a part-time security officer reporting to Najeeb Hussain. About two years later, during Tinker’s gender transition, Tinker informed Hussain that he wished to be known as Alyx and that Hussain should refer to him with male pronouns. Hussain seems to have not complied.

The MCAD found that Hussain continued to refer to Tinker as Becky and with female pronouns, and to include Tinker in statements that he directed to female employees, e.g. “you girls.” Hussain also informed Tinker of the Koran’s pronouncements regarding homosexuality. Including annual statutory interest of 12% interest, the total award for emotional distress came to approximately $86,000.

Peter Vickery is an employment-law attorney with offices in Amherst; (413) 230-3323.

Employment Sections

Understanding EPLI

By Timothy M. Netkovick, Esq.

Timothy Netkovick

Timothy Netkovick

A primary reason people (and businesses) buy insurance is peace of mind — to have protection from financial loss due to something bad.  Most businesses buy insurance to protect themselves from a variety of potential disputes. Employment practices liability insurance (EPLI) covers certain types of disputes arising out of employment.

How do you know if an EPLI policy is right for your business?  While the answer is “it depends,” there are several factors to consider when deciding to purchase EPLI or not.

What Does EPLI Cover?

EPLI provides insurance coverage for discrimination, wrongful termination, and other workplace issues. EPLI is different than traditional liability insurance, and is being purchased by more and more companies due to an increasing amount of discrimination claims filed by job applicants and employees.

EPLI typically covers discrimination claims based upon sex, race, national origin, age, and all other characteristics prohibited by law. This includes claims made under the Americans with Disabilities Act and Family Medical Leave Act, among other federal laws, as well as associated state discrimination statutes. EPLI policies usually provide coverage to the company, management, supervisors, and employees from claims that arise under the policy.

EPLI typically does not cover wage-and-hour law violations, unemployment issues, or ERISA and COBRA matters. In fact, some claims that you think are covered may not be covered by your EPLI insurance. For instance, in Cracker Barrel Old Country Store Inc. v. Cincinnati Insurance Company, the U.S. District Court for the Middle District of Tennessee agreed with the insurance company’s position when it declined to cover a claim against Cracker Barrel because it was filed by the Equal Employment Opportunity Commission (EEOC). The terms of Cracker Barrel’s EPLI policy said that claims by “employees” were covered.  The insurance carrier argued that the EEOC was not an employee, and therefore declined to provide coverage under the policy.

Cracker Barrel appealed the decision, and the decision was overturned on appeal.  While coverage was ultimately provided to Cracker Barrel under the policy, the case demonstrates that not all scenarios will qualify as a claim under an EPLI policy.

What Time Period Is Covered?

EPLI can be either a ‘claims-made’ or an ‘occurrence’ policy.  It is important to understand the difference between the two types of policies so that you do not have an unintended lapse in coverage. In a claims-made policy, the policy must be in effect when the allegation took place and when the claim was filed. In an occurrence policy, claims that are made during the policy period are covered, regardless of when they arose.

Costs and Benefits of EPLI

The costs and benefits of an EPLI policy will vary from business to business. The first obvious cost is the cost of purchasing the policy. In addition, businesses will also need to factor in the cost of retention, which is similar to a deductible in other insurance policies, and is the amount of expenses the business is responsible for before the insurer will begin paying for the cost of defense.

Insurers use retention as a way to avoid incurring the expense of defending against nominal or frivolous claims by passing on that expense to the business. Conversely, the business will also want to evaluate the amount of their retention prior to obtaining EPLI. A business will need to evaluate its options if it is faced with high retention and a small amount of discrimination claims that are usually resolved at the administrative level.

Has your business had EPLI for several years and never exhausted its retention? Or does your business have a high volume of discrimination cases at the administrative level and also never exhausted your retention? If so, your business could also evaluate the option of self-insuring.

What Is Your Approach to Employment Lawsuits?

Businesses will need to have a consistent strategy when it comes to employment lawsuits. The business should have a clear plan ahead of time as to whether it will report all claims to its EPLI carrier, no matter how nominal they may appear on their face. The more claims are reported, the more the business’ retention amount will increase.

The increased retention will have an impact on the business’ budget for the next policy period. If a business is going to vigorously defend against apparent small claims on its own, it will need to budget for legal fees and possible settlement amounts. A business will therefore need to make a strategic decision when faced with a seemingly small claim as to how it will proceed.

Who Controls the Claim?

EPLI policies typically require the insured’s consent to settle a claim.  EPLI policies also typically include a ‘hammer clause.’ This serves to transfer the burden of paying legal fees and any potential judgment from the insurer to the employer in the event the employer does not agree with the insurer’s decision to settle the matter.

For instance, let’s assume an employer believes that a claim is meritless, and the employer does not want to settle the matter. The insurer has assigned a settlement value to the claim, which is calculated based upon its legal fees and expenses that will be incurred in continuing the defense of the matter. If the employer refuses to settle, the insurer can invoke the hammer clause, and the employer would be responsible for legal fees associated with continuing the defense of the matter.

The employer would also be responsible for any judgment that may be entered against it over and above the insurer’s approved settlement figure. The hammer clause gives an insurer significant leverage in negotiating settlement with its insured.

If the employer agrees to settle a claim against an EPLI policy, the settlement would bring an end to that particular claim. However, any settlement can have long-lasting repercussions for the employer. Similar to auto insurance, any amount the insurer pays out under an EPLI policy will impact your rates for the next policy. Even if an employer switches insurance carriers, a new insurance carrier could view the employer as an increased risk and increase the employer’s rates and the cost of the premium of their next EPLI policy.

Another common feature of EPLI is that it is a ‘wasting policy,’ meaning that, in the event a claim is filed and legal fees are incurred in defending the claim, the amount of the available insurance coverage is decreased by the amount of legal fees incurred by the insurer.

The longer a claim goes on, and the more legal fees are incurred, the less insurance coverage you will have available to settle the claim. This situation becomes even more complicated in the event there are multiple discrimination claims filed against the same policy. The employer will need to be aware of the legal fees incurred in each case, and the amount of settlement, as the policy limits will decrease.

Can I Have My Own Counsel?

Oftentimes, insurance companies want to use their attorneys to defend against a claim. The insurance-company attorneys usually have no familiarity with the business and no knowledge of its business practices. However, the business may have been represented by its own counsel for a prolonged period of time and prefers to use its own counsel due to ease of communication and familiarity with its business practices.

A proactive employer may be able to have their choice of counsel entered as an endorsement to the EPLI policy at the time the policy is purchased. This preventive measure would alleviate the employer’s potential future headache over choice of counsel.

EPLI is not a panacea; as an employer, it is important to understand what you are purchasing when you purchase insurance coverage. Failing to understand the coverage you are purchasing could leave your company out in the cold when you need coverage the most. Irrespective of EPLI, prevention is your best defense against a lawsuit.

There are several steps you can take to insulate yourself from liability, including ensuring that your employee handbook is current, having written policies that are consistently enforced, imposing consistent discipline, and making sure your managers and supervisors have periodic training to ensure they are aware of all employment laws. These are all ways to minimize your exposure if you face a lawsuit.

Timothy M. Netkovick, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a Women’s Business Enterprise with the Massachusetts Supplier Diversity Office and the National Assoc. of Minority and Women Owned Law Firms; (413) 586-2288; [email protected]

Employment Sections

Questions of Substance

By John Gannon, Esq.

 

John Gannon

John Gannon

Can a job applicant be rejected because of medical-marijuana use? Can employees be let go for lawfully using narcotic pain medications, such as prescription opioids? These are questions without easy answers.

Medical-marijuana dispensaries are opening throughout the Commonwealth. Meanwhile, prescription opioids are wreaking havoc across the country. With medical marijuana use on the rise, and prescription-medication dependence becoming increasingly common, employers are left in the precarious position of trying to help their employees while ensuring workplace safety and employee productivity. Now more than ever, employers need to be aware of the legal pitfalls associated with disciplining or firing employees who rely on these substances for palliative care.

Medical-marijuana Use

In November 2012, Massachusetts residents voted to legalize marijuana for medicinal purposes. Despite marijuana being classified as an illegal Schedule I drug by the federal government, state law does not punish marijuana use by qualifying patients.

Approved patients can obtain a medical-marijuana identification card and purchase marijuana at various licensed dispensaries. There are approximately 10 dispensaries currently approved to sell marijuana in Massachusetts, but that number could soon increase because nearly 100 additional dispensaries are close to final approval.

Use by Employees

The Massachusetts medical-marijuana statute explains that employers do not have to allow on-site medical marijuana usage, but does not address off-site use. So can employers take action against employees for their off-site medical-marijuana use? This has been litigated in Massachusetts and other states. Most courts, including a Massachusetts Superior Court, have confirmed that employers can reject applicants and terminate employees who fail drug tests due to medical-marijuana usage.

The common rationale is that marijuana remains illegal under federal law, so employers can refuse to accommodate illegal activity. However, that rationale should be taken with a grain of salt.

Last month, the Massachusetts Supreme Judicial Court heard oral arguments in a case about the rights of employees who use medical marijuana off-site. The plaintiff in that case was disabled and using medical marijuana for her condition. She was rejected for employment after failing a drug test. She claimed this was disability discrimination because medical marijuana did not impact her ability to do the job.

The court’s decision, which should be issued in the coming months, could change the rights of employers relative to medical-marijuana users. Employers should monitor the status of this case carefully.

What about Use of Prescription Drugs?

If an employer suspects an employee is taking a prescribed opioid — or any other medication that could compromise their ability to perform their duties — can the employer ask the employee about it? As a general rule, the answer is no.

Asking an employee about their prescription medications is a ‘disability-related’ inquiry that could run afoul of the Americans with Disabilities Act (ADA), which prohibits employers from asking disability-related questions unless there is good reason to believe the employee cannot effectively or safely do the job. This might include a visual observation or reliable information from a credible co-worker about safety concerns.

Even if an employer has a valid reason to believe the employee is unfit because of prescription-drug use, termination of employment is not the next step. Employers have an obligation to engage employees in an interactive dialogue to determine whether it can accommodate their medication use.

This might involve offering a temporary ‘light-duty’ assignment until the employee is off the medication, or giving a job-protected leave of absence until the employee is fit to return. Terminating an employee without engaging in this interactive dialogue could trigger costly damages under the ADA. Employers concerned about an employee’s prescription-drug use should consult with an employment attorney before taking action.

What If an Employee Is Acting Oddly?

Employers may also encounter a situation where an employee is acting oddly, and the employer suspects that drugs might be involved. Can an employer ask the employee to take a drug test?

Generally, it is acceptable to ask employees to take a drug test when the employer has an objective, reasonable suspicion that drugs are involved. To ensure legal compliance, employers should have a drug-testing policy and provide training to all frontline managers about how to spot drug use. Employers should consult with employment counsel when establishing and enforcing any reasonable-suspicion drug testing program or policy.

Bottom Line

Medical-marijuana laws and employee prescription-drug use put businesses in a tough position. Employers attempting to protect the safety of their workers and others could inadvertently violate an employee’s rights under the ADA. But if an employer merely ignores the problem, they could face financial consequences stemming from an employee’s use of illegal or prescription drugs.

So what should an employer do? The single best thing an employer can do to prevent exposing themselves to legal risk is to consult with an attorney before taking any action. Doing so will only take a few minutes in the short term, but could save the business tons of time and money in the long run.

John Gannon is an attorney with Skoler, Abbott & Presser, P.C.

Employment Sections

Shifting IT’s Focus

By Joanna Smiley

Keyla Centeno

Keyla Centeno, team lead and graphic designer at Tech Foundry, teaches a class on soft skills.

When it was founded in 2013, Tech Foundry, a program conceived to create a steady pipeline of workers for the IT sector, focused primarily on area high-school students. But research — and experience — revealed that these young people were choosing other destinations (especially area colleges) rather than area technology firms. So today, the classrooms feature a much more diverse group of students.

Bruce Stoller is a 58-year-old displaced worker with aspirations to forge a new career in information technology. He holds a law degree, and has a background in facilities management.

Maura Kavanh, 29, used to study political science and women’s gender studies at UMass Amherst, but took a leave from college when she noticed an interesting trend: organizations she aspired to work at, like Planned Parenthood, had a far greater need for those with tech skills than policy work.

What do Stoller and Kavanh have in common?

Both are students in Tech Foundry’s class of 2017, a group far more diverse than those that came before it. And that’s by design and out of necessity.

Indeed, the Springfield-based workforce development program was launched in 2013 and designed to prepare job seekers — and not necessarily individuals like Stoller and Kavanh — for entry-level tech careers. But a year ago, the organization decided to shift its focus from a program designed for high-school students to one that has no age restriction. Tech Foundry’s current class is an eclectic mix of students ranging in age from 20 to 60.

Jonathan Edwards, director of Strategic Partnerships at Tech Foundry, notes that the organization’s shift was about responding to employers’ needs for a bigger pipeline of IT workers.

“We know that people in mid-career transition are the perfect candidates to expand that pipeline,” he explained. “They’re looking for something different; people who wake up and say ‘I want to do IT’ isn’t enough. Introducing people who already possess strong work backgrounds to a sustainable IT career is really a great match between the needs of employers and needs of our student population.”

Brandon McGee hopes to land a job in software sales

Brandon McGee hopes to land a job in software sales once he completes the Tech Foundry program in May.

Ann Burke, vice president of the Economic Development Council of Western Mass., agreed.

“The good-news, bad-news experience from the first class was that these young people became excited about fields in technology, but instead of going directly into the workforce, many decided to continue their education in community college or college,” she explained. “This was great for the students, but not for tackling the issue of developing a pipeline for entry-level technology employees.

“Tech Foundry has been piloting different approaches to finding those individuals interested in tech job opportunities,” she went on. “The student body has evolved to include a much more diverse group, including veterans, people with some community-college experience, women, and others with some work experience but not necessarily in the tech field.”

Tech Foundry still welcomes 18-year-olds who would like to go into a job in the tech field, she went on, adding that the program’s leaders found that many employers are looking for candidates with at least some work experience and soft skills, even if they do not have past technology experience.

“Tech Foundry is an innovative program that will continue to evolve to meet the needs of this growing sector,” said Burke. “It actually is interesting and exciting to see the diversity of age, gender, experience, and ethnicity in the most recent graduating class. I’m excited about how the organization is continuing to scale and prepare more candidates to be a part of the technology workforce. We know that there is a need for qualified, entry-level technology workers across industry sectors in the region.”

For this issue and its focus on employment, BusinessWest takes an in-depth look at this change in focus for Tech Foundry and its implications for the workforce, job seekers, and area companies.

Technically Speaking

Tech Foundry prides itself on partnering with a broad range of companies in the region, and Edwards said he has noticed a cross-section of employer size and industry. Partners range from Bay State Health to Smith & Wesson to startups that seek the type of talent Tech Foundry is producing.

Its success in meeting its important mission is made clear by several testimonials from area business owners and one elected official.

Andrew Anderlonis, president of Rediker Software, has been partnering with Tech Foundry for more than a year, and says the organization has helped him solve a major problem — finding passionate, talented, and committed professionals who can meet the continuously evolving workforce needs of the region’s tech community.

“Rediker Software has now hired four graduates from Tech Foundry, and all of them are performing exceptionally well, a testament to the strength of the program,” he noted. “Working with Tech Foundry has been a wonderful experience as they have put together a terrific program for the students.”

Michael Arian, co-founder and CEO of Prophit Insight, says Tech Foundry not only provides him with talented IT employees, but the opportunity to give back to the Springfield community.

“We’ve been working with Tech Foundry since their beginning. It has been a very important program for us,” he told BusinessWest. “Tech Foundry has allowed us to acquire talented IT employees in a more cost-effective manner, and it has been very successful so far.

“It also provides us the opportunity to give back to the Springfield community and help out some fantastic people who just need an opportunity, this is very important to us,” he went on. “We’ve hired three employees from Tech Foundry and currently have another who is interning, and we hope to bring him on full-time shortly.”

State Sen. Eric Lesser agreed, and said Tech Foundry’s model is one he is working to replicate statewide.

“In just three short years, Tech Foundry has shown itself to be very nimble and responsive to our region’s employment needs. Western Mass right now faces a substantial ‘skills gap’ between the available jobs in growing fields like technology and advanced manufacturing, and workers looking for employment. There is a particular challenge facing older workers who are already out of school, who either need to update their training or learn new skills to stay competitive as our region’s economy continues to shift toward fields dependent on technology and innovation. I’m glad Tech Foundry is taking this on. Their model has already proven very successful at getting workers the specific training they need quickly and efficiently for younger students, so expanding to older members of the workforce is welcome and desperately needed.”

Edwards said Tech Foundry’s goal is to eventually have twice the number of employers seeking candidates as there are students in the program. Currently, the agency partners with 60 companies in the area. Starting salaries for graduates of the program can range from $30,000 to $50,000 per year.

tech-foundry-logo

On a recent afternoon at Tech Foundry’s space in downtown Springfield, Keyla Centeno was teaching a roomful of students gathered around ping-pong tables how to hone their professional communication and interpersonal skills. They were taking part in a team-building exercise that required careful listening and negotiation.

“This is one of our most diverse cohorts,” she noted. “It’s a pleasure to see them help each other and come out of their shells. This older demographic we have tells me a lot of people want to change their careers and break off from what they’re doing right now; some employers even require tech training now.”

Stoller, 58, is the oldest student in this cohort. The Springfield native lived in Boston for 20 years and recently moved back to Western Mass. He practiced criminal law before retiring from his legal career to work in facilities management.

Stoller was let go during his company’s “reorg,” and because his position was eliminated, he qualified to be what’s called a displaced worker, meaning any training or schooling he attends is paid for in full for up to one year. His end goal? To land a new job at a help desk, not necessarily doing programming, but using his sales skills.

Brandon McGee, 29, was born and raised in Springfield. He found his calling in technology at the age of 13, when he would sit in his bedroom at 3 a.m. tinkering on his Dell computer. Currently enrolled at Springfield Technical Community College, he said he “took advantage of anything his professors gave me a heads-up on,” and that included a recent suggestion to look into Tech Foundry.

After working in the telecommunications industry for a number of years, McGee knew he needed an additional skill set to advance to his dream career — software sales.

“I knew I wasn’t coming from a top school, I didn’t have the greatest GPA, and I wanted to immerse myself in a way where I could be competitive and acquire transferrable skills; I want to work for a company where staying relevant is a priority,” he explained. “I started out thinking printers and passwords were IT — now I know there’s so many more avenues in the field.”

Bottom Line

McGee says he’s a “little nervous to leave the coop” in May when he graduates from Tech Foundry.

“The people at Tech Foundry have been immensely supportive — it’s a free program with huge opportunity,” he noted. “We’re all in different aspects of our life, and every opportunity here is one to get your name out there and go for it.”

Today, there is a more diverse group of people ‘going for it’ thanks to Tech Foundry, a development that bodes very well for the region, its workforce, and companies struggling to find needed IT workers.

Employment Sections

Value Proposition

From left, Phil Michaud, Alisa Feliberty, and Robert Raynor

From left, Phil Michaud, Alisa Feliberty, and Robert Raynor say PeoplesBank’s efforts to keep young professionals engaged with the company’s values and connected to the community are among the qualities their generation values in an employer.

It’s difficult to pigeonhole the Millennial generation — though many have tried — in terms of what they want in a job and a workplace.

But one recurring theme is a sense of purpose and meaning, one that goes beyond their list of duties. And on this front, employers are largely falling short.

In fact, according to a recent Gallup study, “How Millennials Want to Work and Live,” only about one-third of young professionals strongly agree that the mission or purpose of their organization makes them feel their job is important. And just 40% feel strongly connected to their company’s mission. This is a problem, the study notes, that leaders need to take seriously because Millennials currently make up 38% of the U.S. workforce, and that percentage will continue to rise.

They might do well to listen to three Millennials whose employer, PeoplesBank, seems to understand what makes them tick.

“As an employee, I feel appreciated, I feel heard, like my opinion actually matters,” said Alisa Feliberty, call center manager. “That’s a big thing for me, knowing I’m not just a body here, but a person considered for her thoughts and beliefs.”

Phil Michaud, a loan service associate, recalled being part of a meeting in which top bank officials candidly outlined their growth strategy for the next decade. “Having that kind of access to the direction the company is looking to grow, getting into the nitty gritty of all that, says they value you, and you’re worth telling.”

Then there’s Robert Raynor, who stumbled into banking after studying business management in college.

“I’d say the biggest thing for me is connection to the community,” said Raynor, now assistant vice president of Compliance. “To be able to work for a company that reaches out to the community, that makes a positive impact in the community and makes a difference, you know you’re working to help out the less fortunate in your area, not just coming in and making a widget and making a profit.”

These opinions aren’t happy accidents, said Janice Mazzallo, the bank’s chief Human Resources officer, but part of an overall strategy to create a culture that draws and retains top talent by making sure they feel connected.

“Values is something we get right in the organization,” she said. “Attracting Millennials isn’t just about having the right employee benefits, though we do that. We also recognize that Millennials — and all employees, for that matter — want to connect; when they go to work, they want to feel engaged, that what they do matters.”


List of area Employment Agencies


These efforts have drawn the attention of the Boston Globe, which has named PeoplesBank among its Top Places to Work five years running — in fact, the only company based in Western Mass. to be named to the most recent list.

“We put a lot of energy into that effort, and we don’t take it for granted,” Mazzallo said. “But it’s also not something that HR does in a vacuum.”

Rather, creating a workplace culture that keeps employees engaged and committed to the brand is an effort that requires buy-in across the organization. For this issue’s focus on employment, BusinessWest explores why PeoplesBank’s leaders feel the effort is worth it.

Making Connections

The benefits of engaging Millennials extends far beyond accolades in a magazine. In the coming years, employers must learn what makes this large, diverse group tick if they want to retain top talent.

The Gallup survey found that 67% of Millennials are engaged at work when they strongly agree that the mission or purpose of their company makes them feel their job is important. In contrast, just 14% are engaged when they strongly disagree with this statement. Because engagement leads to increased retention, fostering a connection to purpose can help companies fight Millennials’ propensity for job-hopping.

“When a company’s purpose is evident through its culture and brand, Millennials are better able to connect it to their role,” write Brandon Rigoni, associate director for Selection and Development at Gallup, and Bailey Nelson, a writer and editor at the polling company. “Leaders should strategically align the company’s purpose, brand, and culture to create an environment in which mission is something employees experience daily. By integrating purpose company-wide, leaders give employees the opportunity to own the company’s mission and transform it into enhanced performance.”

The values PeoplesBank tries to espouse, Mazzallo said, range from an extensive volunteerism culture to environmental awareness (which takes the form of an active committee that seeks out ways to make the bank and the surrounding community ‘greener’); from technological innovation to an emphasis on work-life balance.

Janice Mazzallo

Janice Mazzallo says creating a culture that has earned multiple ‘Top Places to Work’ accolades starts at the top but includes input across the organization.

“I think the fact that we’re an employer that cares about our community and gives employees opportunities to get involved in the community — whether it’s volunteerism or board involvement or the social aspect — that’s certainly important to them,” she went on. “We have a lot of opportunities here to get involved.”

The bank’s employee-driven committees tackle everything from wellness and the environment to organizing social events, such as bowling outings and trivia nights. A popular annual event called Employee Fest is another opportunity to make workers feel connected and appreciated.

“Everyone looks forward to Employee Fest; it’s a week where the company kind of caters to you, but you also realize how everyone contributes to our success,” Felberty said.

Michaud agreed, noting that various departments compete in contests, and it’s good to see people, especially those in far-flung branches, he doesn’t talk to on a regular basis. “At face value, it looks like we’re playing games, but I think about the connections we’re making and what that does for everyone in the bank. It’s more about building community and building relationships in this place where we spend the majority of our time.”

None of these efforts — the events or the committees — would happen if they didn’t have support at the top, Mazzallo stressed. “We have a senior management team that believes strongly that this is important, and support the idea that people want to feel engaged, and without that engagement, the high performance doesn’t come. We know that; we’ve seen it. Our financial performance over the last five years has been phenomenal, and that’s no coincidence — we have highly engaged employees.”

Getting Ahead

The three young professionals we spoke with also praised the company’s advancement efforts, from its management-development program to its support of continuing education and a willingness to move people around if they desire a new challenge.

“Management here supports us and allows us to take time to develop our skills,” Michaud said. “I started off as a less-than-part-time teller, and in a short period of time, I made this position. The opportunities are definitely there. You see people moving up in departments and transferring between them. If you find it’s not a great fit or you’re interested in something else, they’ll move you to another department.”

Feliberty agreed. “They’re interested in making sure you’re happy and successful. It’s important for them to retain you as an employee, and they’d rather move you from one department to another than keep you stagnant in one position.”

That flexibility is married, they added, to encouragement by bank leaders to communicate their goals and ambitions.

“I’m always surprised at the open doors to communication,” Raynor said. “I’ve had the opportunity to sit down with the then-CFO — now president — and talk about my career path, and what my interests are. With that busy schedule, to take time to sit down and talk about my thoughts and plans is pretty amazing to me. You don’t hear about that taking place that often.”

Michaud agreed, citing coffee events held with senior officials, who share their own paths to success. “The feeling is, they’re looking for you to ask questions and discover your own path to success, and then give you the tools to do that. They’re incredible at that. They’re giving you confidence that they’re here for you — you’re not on your own here.”

Added Raynor, “it’s not a canned message. It’s, ‘this is my story, this is what happened — the obstacles I faced, what happened in my personal life that helped me make this decision or that decision.’ It’s incredibly helpful.”

It’s also not the way most companies operate. According to the Gallup survey, only 26% of millennials say that, in the past seven days, they have heard someone talk about how their daily work connects with their organization’s mission and purpose. And just 34% of millennials report that they have heard a story in the past 30 days about how their company impacted a customer to improve their business or life.

PeoplesBank’s openness, Raynor added, breeds pride in the company and one’s place within it, which suppresses the natural urge to believe the grass is greener somewhere else. “Being at a place like Peoplesbank and having those conversations, I know where the grass is greener, and that’s a pretty good feeling.”

Just a Little Respect

Mazzallo called on one more word to describe the workplace culture at PeoplesBank: Respect.

“I’ve worked for a lot of organizations in my life, and there’s something about this bank that, I think, leads with respect. When you have that in place, there are so many lessons that can be learned,” she told BusinessWest. “When we have strategic initiatives, we want to hear from every level of the organization … I think there’s a healthy respect for the people who are directly involved in day-to-day projects.”

Feliberty said young employees definitely want to be heard. “It’s important to feel we’re included, that we matter, that what we think is considered when making decisions.”

There’s also a healthy regard for trying new ideas that arise from those discussions, Mazzallo said, whether it’s a new product or a new technological innovation.

“It’s OK to make mistakes,” she said. “I don’t think a lot of employers will say that. But if you want to have an innovative organization, you have to take risks — smart risks. I think people feel they can be creative and take risks, and, as a result, some very, very innovative ideas have been created.”

Like the brainstorm, cultivated over time, that clearly communicating the company’s values — and making employees feel connected to those values — will not only keep them around, but motivate them to new heights.

Joseph Bednar can be reached at [email protected]

Employment Sections

Help Wanted

By AMELIA J. HOLSTROM, Esq.

 

In response to an increase in claims of workplace harassment, the U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws including Title VII, issued a 75-page Proposed Enforcement Guidance on Harassment on Jan. 10.

Amelia J. Holstrom

Amelia J. Holstrom

The majority of the guidance deals with matters previously addressed by the EEOC, including the elements of harassment; the list of protected characteristics under federal law, including the EEOC’s interpretation that ‘sex discrimination’ includes one’s sexual orientation and gender identity; and the defenses available to an employer facing a harassment suit.

Although it has a long-standing practice of issuing harassment-enforcement guidance, the EEOC appears to take things a step further in this proposed guidance and makes suggestions for employers, including policy and training suggestions, among others. Before providing specific suggestions in the guidance, the EEOC begins by articulating that senior leaders are the “cornerstone of a successful harassment-prevention strategy,” and that they have to express frequently and with clarity that harassment will not be tolerated.

As part of that strategy, the EEOC notes that employers must allocate resources and time for harassment-prevention efforts and regularly assess harassment risks and take necessary steps to eliminate them. So, how might an employer implement and enforce such a strategy?

First, the EEOC suggests that employers adopt an anti-harassment policy. According to the EEOC, the policy should include an express statement that harassment on the basis of any protected characteristic is illegal; examples of harassment; details regarding the employer’s complaint system, including how to report; language that encourages employees to report any harassment; an indication that the employer will conduct a prompt and thorough investigation into the allegations and assurance that it will take appropriate corrective action; and a statement that retaliation is prohibited against those who file complaints and/or participate in investigations. Additionally, the EEOC recommends, among other things, that the policy be written and communicated to all employees.

Massachusetts employers should already have an anti-harassment policy that contains the criteria suggested by the EEOC. Under Massachusetts law, employers are required to have a sexual-harassment policy that includes a number of the same criteria. Employers are also required to distribute that policy to all employees both at time of hire and annually. As a practical matter, however, savvy employers have adopted and issued broader anti-harassment policies that include all types of unlawful harassment, as the EEOC suggests. Regardless, this proposed guidance should signal to employers that it is time to review their policies and consider whether changes would be appropriate.

Second, and in follow-up to its suggestion that details of the complaint system be included in the policy, the guidance makes recommendations regarding how an employer should structure its complaint system.  Under state and federal law, an employer has a duty to promptly and thoroughly investigate all allegations of harassment and discrimination.  As a result, every employer should already have a protocol in place for doing so. For example, some employers choose to hire a third party to conduct investigations, while others have an internal person or department such as Human Resources handle investigations.

In its guidance, the EEOC recommends that employers fully resource the complaint system; provide multiple avenues for filing the complaint, such as listing a male and female to which complaints may be brought; have a process to ensure that the alleged harasser is not presumed guilty before the investigation is complete; and have a procedure for informing the complaining party and accused of the outcome of the investigation or corrective action to be taken, to the extent appropriate.

The EEOC also notes that, among other things, those responsible for receiving and investigating the complaints need to be well-trained and neutral, have authority and the resources to investigate, have the ability to make people feel comfortable, and keep adequate documentation during the investigation.

Lastly, the EEOC notes that, even if all employees know about the policy and complaint system, those are only part of an effective strategy to eliminate harassment. To be sure that employees understand what constitutes illegal harassment, the EEOC recommends regular and interactive training that is promoted by senior leaders and conducted and revised regularly. The training should include examples of unlawful harassment, information about employees’ rights, details of the complaint process, and the range of consequences for someone who engages in prohibited conduct. Additionally, because managers and supervisors have additional responsibilities under federal law (and state law too) when it comes to harassment complaints and investigations, the EEOC suggests that managers and supervisors undergo additional training that includes training on recognizing risk factors, methods for addressing harassment, and clear instructions regarding reporting harassment.

The proposed guidance is available HERE. The EEOC recently sought public comment, and will next review all feedback and consider making revisions prior to finalizing its guidance.

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. She is a 2011 graduate of Western New England University School of Law, where she was managing editor of the Western New England Law Review. Her practice is focused on labor law and employment litigation; (413) 737-4753.

Employment Sections

Make Sure You’re Covered

 By Timothy M. Netkovick, Esq.

 

Timothy Netkovick

Timothy Netkovick

Many employers with employment-practices liability insurance (EPLI) and directors and officers liability insurance (D&O) policies know too well that they often face a frustrating struggle when reporting the fact that a lawsuit has been filed to their insurance company.

As an employer, being faced with employment litigation is challenging enough, but then being told that you have to work with an attorney you have never met, who may not be locally located, is extremely frustrating. Employers are frequently told they have to use the attorney their insurance company tells them to use. This, however, is contrary to Massachusetts law when an insurance company reserves its rights. In fact, under Massachusetts law, the insured can choose its own counsel in that scenario.

The insurance company will frequently reserve its rights upon initial receipt of a claim. It will then send a reservation-of-rights letter, advising its insured (you) that it will provide a defense of the claim while simultaneously reserving its right to deny coverage of the claim. This means that, while the insurance company will provide a defense right now, it is reserving its right to deny coverage of the claim after it learns additional information, which could leave you exposed to liability with little or no insurance coverage at a later date.

Many employers know that one issue that periodically arises with insurance companies is their insistence on having the insurance company’s attorneys defend a claim, even when the insurance company is reserving its rights. The insurance company you are dealing with could be located in another state, where the laws governing insurance companies may be different, and the insurance company could try to bully you into selecting an attorney that the insurance company selects. That attorney could be at a big firm in a big city, and you may prefer to be represented by a local attorney who knows your business.

If your attorney has been representing you in the matter prior to litigation being filed, it may also not be in your best interest for the insurance company’s attorney to become involved from the standpoint of cost and familiarity with the claim. In a reservation-of-rights scenario, you have the right to choose your own counsel. Massachusetts courts have ruled that an insurance company cannot insist on using its own attorneys to defend a case when it is reserving its right to deny coverage, as it has the potential to adversely affect the insured’s rights.

When an insurance company says it is going to fund a defense, it means it will pay the legal fees and costs associated with defending the claim. Depending upon the language of your individual insurance policy, your company will likely be responsible for paying legal fees until your deductible is reached. The insurance company would pay all legal fees once the deductible is exceeded.

Let’s assume your insurance company is providing you a defense under a reservation of rights, and then decides to deny coverage based upon facts it learns as the case develops. What happens to your company? In this scenario, timing is key. Massachusetts courts have ruled that an insurance company can be barred from denying coverage in a scenario where the insurance company learns of facts upon which it could deny coverage, then takes no action to inform its insured it will deny coverage until months, or years, later.

Many employers are also familiar with their insurance company trying to force the settlement of a claim during litigation. The insurance company recommends settlement of the claim based upon its bottom line by performing a financial analysis of the potential settlement amount against the cost of paying the legal fees and costs associated with the continued defense of the claim and the risk to its insured.

However, if the insured believes the claim is meritless, a settlement may not be in the insured’s best interest. If a settlement is paid, then the insured’s premiums will increase, whereas, if the claim was taken to trial and the insured prevailed, its premiums would not increase.

Often, employers think they are at the mercy of the insurance company when it comes to decisions made in litigation. As an employer, it is important to know your rights under EPLI and D&O insurance policies. Decisions made in litigation have an impact on your business, your employee relations, your reputation, and your bottom line.

Timothy M. Netkovick, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office and the National Assoc. of Minority and Women Owned Law Firms; (413) 586-2288; [email protected]

Employment Sections

Reach Out, Speak Up

depressiondpart

According to a survey cited by the National Alliance on Mental Illness in Massachusetts, while the vast majority of people say they would confide in a family member about a mental-health issue like depression, fewer than three in 10 say they would tell a co-worker. That stigma means millions of Americans suffer in silence on the job, while their productivity plummets. The NAMI Mass program known as CEOs Against Stigma is trying to turn that trend around by fostering open communication around mental-health issues and helping employees get the help they need without fear or shame.

Not all behavioral-health issues are alike — in impact, prevalence, or public perception.

Take substance abuse, which is having its day in the sun in Massachusetts as public and private organizations across the state wage a high-profile fight against what has become, in recent years, an opioid crisis.

Robert Pura says that spotlight has helped people understand that addiction is a disease like any other, one that needs to be treated as candidly and openly as cancer or cardiovascular disease.

But across the spectrum of behavioral health, other issues, such as depression, aren’t always treated the same way.

“The numbers of students who carry with them mental-health issues has increased, so it’s our responsibility to appreciate and understand those struggles, just like when someone struggles with a disease like diabetes or a heart issue or a pulmonary issue,” said Pura, president of Greenfield Community College and one of the most recent signers of the CEOs Against Stigma pledge.

Robert Pura

Robert Pura

There are treatments and protocols for mental illness with very hopeful indicators of positive outcomes, but too many struggle in the dark and are less than comfortable talking about it.”

 

 

The pledge is a key component of an effort by the National Alliance on Mental Illness of Massachusetts (NAMI Mass) to push back the feelings of shame, stigma, and isolation that keep people from seeking help for mental-health issues. More than 250 leaders of for-profit companies, nonprofit agencies, and municipalities have signed on to date.

“There are treatments and protocols for mental illness with very hopeful indicators of positive outcomes,” Pura told BusinessWest, “but too many struggle in the dark and are less than comfortable talking about it. We send a get-well card to someone with heart issues, but we stay away when someone is struggling with mental-health issues.”

And that’s a serious concern, given the prevalence of such issues in the workplace. Mental-health conditions affect one in five adults and, unlike physical illnesses, carry a stigma that prevents people from discussing them at work, said NAMI Western Mass. President Bernice Drumheller. “That stigma can lead to high turnover, low productivity, and increased employer costs. In fact, mental-health conditions represent the leading cause of workplace disability.”

Joanne Marqusee, right

Joanne Marqusee, right, signs the CEOs Against Stigma pledge last year alongside Bernice Drumheller and Laurie Martinelli from NAMI.

CEOs Against Stigma seeks to change misconceptions, one company at a time, about mental illness by encouraging people to open up and speak freely about the conditions that affect them and their immediate families — and, importantly, seek treatment without fear of being ostracized or losing their jobs.

Joanne Marqusee, president and CEO of Cooley Dickinson Health Care, signed the pledge about a year ago and has since ramped up communication in the organization to encourage people who are struggling with depression and related issues to seek treatment.

“People might think it’s easier for us, that our staff is sensitized to it, because we’re always giving that message to patients,” she told BusinessWest. “But healthcare workers tend to focus on what the patient needs, not what they need themselves. As a caregiver, they may feel they somehow don’t deserve care.”

However, she continued, “we want to be clear with our employees that they’re human beings and have the same challenges and issues as patients — and they can’t give compassion and support to patients unless they feel compassion and support from us.”

Cooley Dickinson’s initiatives to date include trainings and discussions with managers, directors, vice presidents, and other department leaders, who then reach out to all employees about the resources — such as a robust employee-assistance program — available if they find themselves struggling with depression or any other issue.

“Most people are not going to come to the CEO and say, ‘I’m having challenges with mental-health issues,’” Marqusee said, adding that they need to feel comfortable taking these concerns to their supervisor. Reducing the fear through communication is one way to overcome the stigma of talking about such issues.

“They need to know their supervisor will support them and in no way make them feel uncomfortable,” she said, “but will help them get the resources they need, whether it’s flexibility in their schedule to see a therapist once a week or something else.”

Suffering in Silence

According to NAMI Mass, 20% of American adults currently suffer from a depressive illness, yet 71% of adults with depression never contact a mental-health professional about it. Meanwhile, employees experiencing depression lose 35% of productivity each week.

Most of that lost productivity has nothing to do with missing work, however. The more common culprit is ‘presenteeism,’ an illness-related reduction in work productivity — in other words, showing up for work but getting far less done than a healthy employee would. Among all productivity losses, 81% is due to presenteeism.

Yet, individuals with mental-health disorders also experience more absentee days per year than individuals with no conditions — at a ratio of 31 to 1, NAMI Mass reports. Meanwhile, such disorders contribute to workplace accidents. For example, drivers with severe depressive symptoms are 4.5 times more likely than others to experience an accident or a near-miss in the 28 days preceding. Driving with severe depression has been likened to driving with a blood-alcohol content of 0.8 — which, in Massachusetts, is legally impaired.

So employers have plenty of reasons to be interested in the mental health of their employees. But CEOs Against Stigma wants to address the personal toll of depression and other conditions, not just the financial costs.

“In general, there’s more conversation around mental-health issues than there used to be,” said Nina Slovik, a social worker and clinic director for the Center for Human Development. “In some senses, the stigma is diminishing, although we still encounter some amount of misinformation and shame and ignorance about how to recognize signs of significant health problems.”

Nina Slovik

Nina Slovik

It’s not the job of a workplace to address someone’s mental-health issues, but it certainly can’t hurt to say, ‘this workplace wants to support you.’ Just the little spark of someone else acknowledging you and wondering if you’re OK is a good thing.”

 

In the workplace, she noted, people aren’t typically looking for those signs, but the signs do exist. “Typically, when someone becomes clinically depressed, you see changes — reduction in their motivation, which may be manifested in attendance issues or concentration issues. And when people are depressed, they tend to withdraw socially; their interactions may be less friendly. Communication is a casualty of depression.”

Conversely, people might mention some of their stressors at work, such as financial or marriage problems at home, and that can be a sign of depression as well.

“As with any mental-health issue,” Slovik told BusinessWest, it never hurts to directly ask someone what’s going on — not ‘what’s wrong with you?’ but ‘what’s going on with you?’ — expressing concern from a non-judgmental, dispassionate place, and always avoiding blaming, shaming, or accusing. Ask, ‘what can I do? Let me direct you to some resources.’ The bottom line is beginning a dialogue and letting them know you’re concerned.”

The Center for Human Development’s own CEO, Jim Goodwin, is another signer of the anti-stigma pledge. “Recognizing that something isn’t quite right with our emotional wellness doesn’t indicate a weakness; it indicates a strength,” he said when he joined the movement. “It says you know who you are, you realize something isn’t as it should be, and you are strong enough to ask for help. Or it says you care enough about someone to get help for them.”

One key element of the program is NAMI’s In Our Own Voice presentations into the workplace, which feature two people sharing their personal stories of recovery.

“It’s very powerful,” Marqusee said. “These are very brave, very articulate young people, and you think, ‘that could be my daughter — how would I want her workplace to support her?”

GCC already has a similar program where students speak openly about mental-health issues, learning disabilities, and other topics, Pura said, so awareness of the need to tackle stigma is already part of the campus culture — but the college can always do more, he added. “It’s not as if we’ve licked it; we want to continue working at it.”

Timely Education

Recognizing that college campuses are just as prone to mental-health issues as workplaces and family settings, the American Medical Assoc. (AMA) recently adopted a new policy to improve mental-health services at colleges and universities. The policy supports strategies to improve accessibility to care and reduce the stigma surrounding mental-health issues. The AMA also urged colleges and universities to emphasize to students and parents the importance, availability, and efficacy of mental-health resources, and to develop mechanisms of care that support timely and affordable access.

“Depression, anxiety, suicidal thoughts, and — sadly — suicide are common among young people at colleges and universities. The lack of resources and stigma associated with seeking help can prevent students from getting the mental health care they need,” said AMA board member Dr. William Kobler. “By improving access to care, colleges and universities will make it easier for young people to focus on their own well-being and give them a greater chance for success on campus.”

It’s a goal Pura certainly shares.

“That’s one of the things that prompted us to sign on — to open a window, open some doors, and light the way for individuals and families who are struggling with mental health.”

While the CEOs who have signed NAMI’s pledge hail from a variety of industries, healthcare is the most widely represented field, encompassing hospitals, health systems, insurers, and public-health agencies, to name a few.

One issue specific to healthcare and a few other professions is known as ‘compassion fatigue,’ Slovik explained. “People in the mental-health or medical environment are seeing terrible things, one story worse than the next, and we’re not inoculated against that. People can experience compassion fatigue and get burned out, triggering a sense of despair. There’s a special onus on mental-health and healthcare professionals to recognize that’s an issue.”

Of course, she went on, “it certainly can be true in other high-stress businesses where people are under constant pressure — they have to perform, have to be ‘on’ all the time, have to be in a good mood, and internally they’re in conflict because they don’t feel good, and that can cause stress in their lives.”

Marqusee hopes Cooley Dickinson’s system-wide focus on reducing mental-health stigma draws the attention of employees who might be feeling that burnout.

“There’s lots more work to do,” she said, noting that, although there has been a marked increase in use of the employee-assistance program, it’s difficult to quantify the effects of the anti-stigma effort. “We have some talented staff in there, and people are feeling comfortable enough to call.

“I feel hopeful the message is getting out,” she continued. “In healthcare, people assume we know this world because we provide patient care, but I don’t think healthcare organizations are immune to how stigma affects a workforce — even if they’ve been successful in helping patients overcome stigma.”

That stigma can affect workplaces of all kinds, which is why NAMI Mass presses on with its outreach to CEOs, and why Slovik continues to encourage people not to ignore the signs that a co-worker might be struggling in isolation.

“It’s not the job of a workplace to address someone’s mental-health issues, but it certainly can’t hurt to say, ‘this workplace wants to support you,’” she told BusinessWest. “Just the little spark of someone else acknowledging you and wondering if you’re OK is a good thing.”

Joseph Bednar can be reached at [email protected]

Employment Sections

On the Clock

overtimedpart-1016b

The income threshold under which workers are entitled to overtime pay, many argue, has been far too low for far too long. But raising it from $23,660 to $47,476, as the U.S. Department of Labor will do on Dec. 1, is a more significant jump than most businesses expected. With that deadline looming, employers are considering a number of strategies aimed at adhering to the new rule, keeping employees happy, and protecting the bottom line.

 

If employers are just starting now to grapple with the implications of the U.S. Department of Labor’s new rules regarding overtime pay, Mark Adams said, they’ve wasted a lot of time.

“That’s a lot to plan for in two months,” said Adams, who leads the HR Solutions team at the Employers Assoc. of the NorthEast, which has been helping EANE members navigate the change, which will dramatically increase the number of workers who qualify for overtime pay.

“Some of these proposed rules were being articulated back in 2015,” he noted, “so as we turned the page into 2016, we were saying, ‘don’t wait for some legislative bailout to happen. When Dec. 1 arrives, you want to have a plan in place that could work and minimize the impact as much as possible for your business.’ Frankly, much of this should have been done early in the game.”

Mark Adams

Mark Adams

We’ve heard from our members, small businesses, nonprofits, and other employers that the salary threshold is going to result in significant new labor costs and cause many disruptions in how work gets done.”

 

In fact, a bill recently passed the U.S. House of Representatives aiming to delay implementation for six months, but even if it passes the Senate, it’s unlikely to overcome a promised veto by President Obama.

Currently, DOL rules grant overtime pay to people who gross a salary of less than $23,660 per year. On Dec. 1, that salary threshold will jump to $47,476, meaning employees who gross less than $913 per week would be eligible to claim time-and-a-half pay beyond 40 hours worked in a given week.

Between 4 million and 5 million workers are expected to be impacted within the first year of implementation, and employers in sectors including fast food, retail, colleges and nonprofits worry that the rule will drive up their costs and force them to cut employees’ hours and depress hiring. A lawsuit filed last month by a coalition of labor groups and state attorneys general claims as much.


See: Employment Agencies in Western Mass.


“We’ve heard from our members, small businesses, nonprofits, and other employers that the salary threshold is going to result in significant new labor costs and cause many disruptions in how work gets done,” Randy Johnson, the U.S. Chamber of Commerce’s senior vice president of labor, immigration, and employee benefits, said in a statement.

But lawsuits and legislation are question marks, and the Dec. 1 deadline is, for the time being, a sobering reality for employers, Adams said.

“We’re sitting here, it’s October, and people need to plan. It certainly isn’t a one-size-fits-all proposition for companies,” he said, noting that the EANE has conducted a number of briefings with members. The first step in developing a strategy to deal with the new rule, he explained, is identifying the population that will be affected.

“There are going to be some people not affected at all because they’re making more than the revised amount,” he said. “For those who are going to fall below the threshold that were previously above the threshold, how large is that employee population? What types of jobs are they? What is the gap between what they are making and what the threshold is?”

John Gannon, an associate attorney with Skoler, Abbott & Presser in Springfield, has also been communicating with employer clients on how to handle the new rule, which begins with whether to reclassify employees — from exempt, meaning salaried and not entitled to overtime pay, to non-exempt.

“The rule itself, unlike a lot of things in law, is pretty straightforward. If you’re not earning $913 a week in salary, you need to be reclassified,” he said. “And if we are going to reclassify people, how are we going to pay them? Are we going to convert them to an hourly rate, or keep them on salary and set them up so we still pay them overtime when they work more than 40 hours in a week?”

These questions are being asked in companies across the country. Hopefully, as Adams noted, the conversations started long ago.

Raising the Stakes

As he spoke with BusinessWest, Adams laid out a number of potential strategies for handling the new overtime rule.

“One strategy might be to bump salaries up to the minimum and nothing more,” he said. “But for some, the gap between where they currently lie and what the minimum is might be too much of a financial pill to swallow.

John Gannon

John Gannon says the new overtime rule is a good opportunity for companies to take a fresh, top-to-bottom look at how they classify, pay, and provide benefits to employees.

“A secondary strategy might be to keep the pay where it is, ‘but we’re going to acknowledge you’ll be non-exempt, and we’re going to make the effort to manage your workload so you don’t go above 40 hours a week and trigger overtime,’” he went on. “For some businesses, that might not be feasible, based on the workload and schedule and how they deliver services to clients. For example, there might be production schedules in the manufacturing world that make that impossible.”

A third strategy is to raise an employee’s salary to the new threshold, but add more to their plate to justify the pay raise.

“Again, how readily achievable is that? Are you talking about eliminating positions and rolling two roles into one?” Adams asked. “There are a lot of different strategies that can be employed, but to decide what strategy makes the most sense, you really need to take stock of the business and the culture, what you can afford to do financially, and what kinds of jobs will be affected, to know which strategy is going to work — or maybe a combination of those strategies.”

Gannon noted that the new DOL rule allows employers to include non-discretionary income to comprise up to 10% of the $47,476 threshold, meaning an employee making 90% of that figure in base pay and the rest in bonuses and commissions could still be considered exempt. The old threshold considered base pay only.

There are other ways to navigate the new rule creatively, he added.

“Some employers were surprised to learn they can still keep on paying employees a salary, even though they’re non-exempt,” he said. It’s a classification known as ‘salary non-exempt,’ he explained, and it’s currently uncommon, but the new overtime rule could lead more employers to consider that option.

Whatever the case, he went on, employers must deal with more than the financial challenges of expanded overtime; newly exempt employees moved from salary to hourly status will need to be trained in timekeeping practices they’ve never worried about before. There’s also the matter of status that many employees attach to being salaried.

“From an administrative standpoint, it’s easier to convert everyone to hourly; it makes everything cleaner,” Gannon said. “But from an employee-morale perspective, you might consider keeping them salaried.”

He concedes that just raising everyone’s pay to the new threshold is unlikely to be the best answer for anyone, so reclassifications will be necessary for countless businesses. Questions like whether to convert to hourly pay, keep salaries in place with the potential for overtime, or eliminating overtime altogether must be made on a company-by-company basis. In other words, “how do you implement this in such a way that doesn’t hurt employee morale?”

Role Players

However, pay isn’t the only test of whether a worker is exempt. There’s also the matter of job duties. An employee is considered exempt even under the $47,476 threshold if their job involves the responsibilities of an executive, administrative, professional, computer, or outside-sales employee. That part of the DOL rules is not changing.

That means raising someone’s pay by consolidating roles and giving them additional responsibilities might itself trigger an overtime exemption, Adams said.

“The duties test is the one that leads to the most litigation — those tests that say the employee has to do X, Y, and Z on a daily basis, or as part of their primary duties, in order to meet the exemption,” Gannon added. “Those aren’t impacted by the new rule. The only thing changing is the salary threshold.”

With that in mind, he’s encouraging employers to take a holistic look at whether some employees may be misclassified in regard to their job duties. “It’s a good opportunity to look at the company and its practices as a whole.”

Gannon noted that the overtime threshold has gone up several times before, albeit not to this degree, and the new law includes an automatic escalator provision that will increase it again every three years — so a strategy of simply raising someone’s pay to the threshold won’t work unless that pay will continue to rise along with the automatic updates.

The National Retail Federation, which is part of the lawsuit being spearheaded by the U.S. Chamber of Commerce, has a different concern, arguing that the new rule will force businesses to limit hours or cut base pay for workers to offset added payroll costs.

“Retailers are already struggling to implement this new government mandate before the swiftly approaching deadline, and the automatic update included in the rule would make them do this same dance every three years,” David French, the trade group’s senior vice president for government relations, said in a statement.

Adams understands the myriad concerns surrounding the change, citing financial considerations, logistical considerations, even policy aspects that arise regarding the benefits offered to different classifications of employees.

“The dollars-and-cents part of it is not the end-all, be-all. You can’t think of it in a vacuum,” he told BusinessWest, noting that companies are also grappling with the rising costs of healthcare reform, new pay-equity and transparency laws, and ever-changing compliance rules in a host of areas, and the overtime change is one more significant hurdle.

“That’s not to say change wasn’t needed,” he went on. “The salary base was antiquated; if you were making minimum wage, you were almost at the federal threshold. People knew it had to change. But it’s quite a leap to make this quickly, and that’s why a lot of people are pushing back and expressing frustration.”

Joseph Bednar can be reached at [email protected]

Employment Sections

Crosses to Bear

By Karina L. Schrengohst, Esq.

Karina L. Schrengohst

Karina L. Schrengohst

You have an employee, Jack, who says he belongs to the Church of the Flying Spaghetti Monster. He practices the religion of ‘FSMism’ and, pursuant to this practice, he requests, as religious accommodations, an exception to the dress code and a schedule change.

Specifically, he wants to dress like a pirate and wear a ‘colander of goodness’ on his head.  In addition, he wants every Friday off because every Friday is a religious holiday for ‘Pastafarians.’  Jack has been preaching to his co-workers that they should join his church because Pastafarian heaven has a stripper factory and a beer volcano.

What would you do?

The Nebraska State Penitentiary was faced with precisely this request from an inmate. When prison officials refused to accommodate the inmate’s purported religious beliefs, he filed a lawsuit. Because the plaintiff in this case was an inmate and not an employee, this case does not involve reasonable accommodations under Title VII of the Civil Rights Act of 1964. But the case is an interesting illustration of how requests for religious accommodations can arise.

Title VII and Massachusetts state law prohibit discrimination based on religion in the workplace. In addition, state and federal law require employers to provide reasonable accommodations for sincerely held religious beliefs, unless doing so would create an undue hardship. Unlike disability discrimination law’s high burden, in the context of religious discrimination law, an accommodation constitutes an undue hardship if it would impose more than a de minimis cost on the employer. A reasonable accommodation is simply an adjustment to the work environment, such as an exception to dress code or schedule requirements, that will allow the employee to practice his or her religion.

But what exactly is religion for purposes of employment discrimination law? Defining ‘religion’ is difficult, as we have a growing, religiously diverse population. Title VII defines religion as including all aspects of religious belief, observance, and practice. The Equal Employment Opportunity Commission defines religion to include moral and ethical beliefs that are sincerely held with the strength of traditional religious views.

Religious beliefs typically involve deep and imponderable ideas, including existential matters, such as humankind’s sense of being; teleological matters, such as humankind’s purpose in life; and cosmological matters, such as humankind’s place in the universe. Religious beliefs are typically comprehensive and broad in scope.

Religion typically has some formal or external signs, including, for example, services, ceremonies, and rituals; writings, structure, or organization; holidays; clothing; and propagation. However, beliefs grounded solely in political, economic, or social ideology are not religious.

For example, courts have found that the Ku Klux Klan is not a religion protected by Title VII, but instead is a political and social organization. In addition, personal preferences are not religious. For instance, a district court in Florida found an individual’s purported ‘personal religious creed’ that eating Kozy Kitten cat food was contributing significantly to his state of well-being and therefore his overall work performance by increasing his energy to be a mere personal preference and not a religion protected by Title VII.

With this in mind, is FSMism a religion? The Nebraska federal court came to the conclusion that FSMism is not a religion. The court found that FSMism is a satire, intended to advance an argument about science, the evolution of life, and the place of religion in public education.  FSMism, which originated as a response to intelligent-design theory, argues that it is just as likely that God set the universe in motion as did a great Flying Spaghetti Monster.

The court, however, was not questioning the validity of the plaintiff’s beliefs. Religious beliefs do not have to be acceptable, logical, consistent, or comprehensible to others. In fact, religious beliefs can be preposterous to others.

Now consider you have an employee, Sally, who refuses a mandatory flu shot. She requests an exemption from the requirement. Sally says that, because she is vegan, it is against her religious beliefs to take the flu shot because it contains animal byproducts. What would do you?

An Ohio hospital was faced with this very request from an employee.  After the hospital denied the request and terminated her employment for refusing the flu shot, this employee filed a lawsuit in an Ohio federal court arguing that she was denied a religious accommodation.

The employer argued that veganism is not a religion, but rather a dietary preference or social philosophy. The employee argued that her practice constitutes a moral and ethical belief, which is sincerely held with the strength of traditional religious views. The employer in this case ended up settling after the court denied its motion to dismiss.

Finally, consider you have an employee, Jill, who comes to work one day with facial piercings. Your dress code prohibits facial piercings. Jill’s supervisor sends her home for violating the company’s dress code. Jill tells her supervisor that she belongs to the Church of Body Modification. She requests a blanket exception to the policy. What would you do?

In our own backyard, Costco was faced with precisely this request. When Costco would not give the employee the requested accommodation, she filed a lawsuit in federal court in Springfield. In this case, the district court left the question of whether the Church of Body Modification is a religion unanswered. Costco argued, and, on appeal, the First Circuit found, that permitting the employee to display her facial piercings was an undue hardship because it would adversely affect Costco’s public image and efforts to present a professional workforce.

What if Jill had come to work with a visible tattoo on her arm? She does not express that her tattoo has any religious significance. She simply considers her tattoo to be an individual expression. What would you do?

Under these circumstances, you can require Jill to cover her tattoo while working, assuming that is consistent with your policies. Generally, private employers can set whatever dress, grooming, and appearance standards that they think are appropriate for their businesses as long as the standards are not discriminatory or based on religion or any other protected categories (sex, race, disability, etc.). The question remains, however — do you want Jill to cover her tattoo?

Some employers are adopting more flexible appearance standards. This is driven, in part, with an eye toward employee retention. There is a generation of workers currently in the workforce who value individual self-expression and who are changing workplace culture related to acceptable appearance. In fact, there is a growing trend across the country at large, with national companies allowing employees to visibly display tattoos.

Whatever the appearance standards you decide are appropriate for your business, whether you have a conservative dress code or you allow employees to dress like pirates with visible tattoos and facial piercings, it is important to remember that policies should be consistently and uniformly applied to all employees, and exceptions to these policies should be considered for religious accommodations on a case-by-case basis.

Karina L. Schrengohst, Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office and the National Assoc. of Minority and Women Owned Law Firms; (413) 586-2288; [email protected]

Employment Sections

Tricks and Treats

By Stefanie Renaud, Esq.

Stefanie Renaud

Stefanie Renaud

October in Massachusetts is a beautiful time, filled with colorful leaves, bright orange pumpkins, and pleasant fall weather. For most of us, Halloween marks a time of fun and revelry, complete with costumes, good-natured pranks, and lots of candy.

Even workplaces get in on the fun, holding costume parties and providing candy to sugar-deprived employees. But for employees with food allergies — about 15 million people across the U.S. — Halloween can be full of increased exposure risk from holiday ‘treats’ and potentially life-threatening reactions to innocent ‘tricks.’

This Halloween, avoid having a holiday horror story of your own.

Dirty Tricks

Everyone loves a good prank, but what if that trick was life-threatening to an employee? The employer might be liable for discrimination. That’s what happened to Panera LLC last fall, when a former employee sued, alleging that Panera violated Title VII of the Civil Rights Act of 1964 by allowing harassment against him based on his food allergies.

Plaintiff Dustin Maldonado alleged that his manager and co-workers taunted him about his allergy, intentionally exposed him to peanuts, tricked him into eating nut-laced food items, and teased him that his EpiPen would spread AIDS. One time the manager ‘pranked’ Maldonado by leaving peanut butter outside his office. Another time, the manager ‘tricked’ Maldonado, telling him that his co-workers had made dinner for him, then placed peanut-butter-filled treats into Maldonado’s uncovered hands, causing an allergic reaction. After the incident, Maldonado filed a formal complaint with the human resources department, which allegedly told Maldonado to have a better sense a humor about the situation.

Although liability in this case remains to be seen, employers should be aware that even innocent-seeming pranks can result in potential legal liability.

You might be thinking, who on earth would think it was OK to intentionally expose someone to an allergen, even as a prank? More people than you think, apparently. In the Sept. 29, 2016 edition of the Washington Post’s advice column, another employee with food allergies wrote in, seeking advice. According to the employee, she had repeatedly asked a co-worker to not bring or consume peanut products in the office, due to the employee’s severe allergy. A few months later, the employee sat at her desk and began to notice reaction symptoms.  Finding a smear of peanut butter on her hand, the employee looked under her desk and found a large glob of peanut butter smeared on her desk. When the employee called her boss, he shrugged it off and told her he “didn’t think [the employee] should be able to dictate what others can eat.”

That’s the wrong answer. Be sure to keep an eye out for the forthcoming lawsuit!

Killer Treats

What about those candy bowls spread around the office? Obviously, it is easy enough to know that peanut-butter cups might be a trigger for a person with food allergies, but what about those deluxe Halloween cookies your co-worker makes each year? They can also pose an exposure risk, and possibly lead to litigation.

In March 2015, a family sued the grocery chain Publix after their son died after eating a mislabeled cookie. The family purchased the cookie from the bakery section of the store only after being told it was nut-free, as no ingredients were listed, and there was no allergen warning. Despite this assurance, the little boy had a severe reaction to the cookie, which contained walnuts, and he eventually died.

While there are no similar cases where an employer was found liable for exposure to treats brought in by another employee, it is plausible that such a suit could occur, particularly if the treats were shared as a part of company-sanctioned festivities. Thus, employers may need to be cautious when encouraging employees to share homemade treats during the Halloween season.

My Employee Has a Food Allergy, So What?

Depending on their severity, food allergies may be covered by the Americans with Disabilities Act (ADA) or similar state laws. The burden is on the employee to alert the employer to their food allergy.  Once an employee has done so, management must treat the claim seriously.

If the employee is seeking accommodations because of their allergy, the employer should follow the ADA protocol the same as it would with any other potentially disabled employee. The employer may request documentation of the allergy before granting an accommodation. If the medical documentation shows that the employee in fact suffers from a disabling condition, the employer needs to engage in the interactive process and brainstorm accommodations that would allow the employee to perform the essential functions of the job.

If there are no such accommodations, then the employee is simply not qualified for the position. However, you should not simply dismiss a request as unreasonable until you have fully explored whether it would, in fact, be possible. Remember, showing that an accommodation is unreasonable because it would present an undue hardship is a very high burden. Finally, the ADA’s anti-retaliation provisions mean that you cannot fire someone just because they have a food allergy or because they asked for an accommodation for that food allergy.

Around the workplace, employers can take a few easy steps to reduce their employees’ risk of exposure to food allergens. Employers may wish to conduct training on the risks associated with food allergies and helping employees recognize the signs of an allergic attack in others. Employers should consider posting signage in kitchen areas and providing disposable plates, cups, and utensils for use by employees with allergies.

Finally, employers must treat employees with food allergies, and their related needs, seriously. Don’t be the boss who shrugs off a food allergy.

Stefanie Renaud, Esq., is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters; (413) 737-4753; [email protected]

Employment Sections

Hire Expectations

Employment agencies, by nature of the work they carry out, can take an accurate read of the economy, the confidence exhibited by area employers, and the trends developing within various sectors. Their pulse-taking exercises reveal, among other things, that the economy has been growing steadily since the end of the recession, and that this remains, by and large,  a a job hunter’s market because businesses and start-ups are growing, and the demand for people with specialized skills is currently greater than the supply.

Tricia Canavan

Tricia Canavan says working with an employment agency can be beneficial to job seekers because such firms know what employers want and can help them hone their skills.

A client recently told Tricia Canavan that he didn’t know how she found the right person to fill an executive position in his firm.

“I told him it’s our sole focus, so it’s easier for us than it is for many small and mid-sized companies,” said the president of United Personnel in Springfield.

But it’s still no small feat: The state’s seasonally adjusted unemployment rate was 4.2% in June, for the third month in a row, and fewer people are searching for jobs.

“It is becoming increasingly difficult to find qualified candidates,” Canavan said.  “The economy in Western Mass. is really strong, the job market is very tight, and we’re seeing increased demand for direct hires as well as temp-to-hire positions.”


Chart of Area Employment Agencies


Indeed, although the market was flooded with job hunters during the recession, the pendulum has certainly swung in the opposite direction, creating new challenges for employers — and the staffing agencies trying to serve them.

“The field is rife with opportunity for people with the right skills,” said Jackie Fallon, president of FIT Staffing Solutions LLC in Springfield and Enfield, which specializes in the field of information technology. Historically, about 25% of their job openings have been for temporary positions, and although there was a rise in temp jobs from 2008 to 2010, today only two of 25 openings she is trying to fill fall into that category.

“It’s a job-candidates’ market; there is a gap between supply and demand,” Fallon continued, adding that people with IT skills are not afraid to quit jobs without notice due to the high demand for their skills, and this factor, combined with the fact that many baby boomers are retiring, has increased the number of openings in the industry.

“It is becoming increasingly difficult to find qualified candidates,” Canavan said.  “The economy in Western Mass. is really strong, the job market is very tight, and we’re seeing increased demand for direct hires as well as temp-to-hire positions.”

Ed Piekos notes the same trend in another industry. “Job openings continue to exceed hires for companies looking for financial professionals with well-rounded skill sets and strong soft skills,” said the vice president of Accountemps/Office Team in Springfield. The former specializes in accounting and finance professionals and their temporary jobs can last up to two years, while its sister division specializes in administrative support, where a business might need a receptionist for as little as a day.

Jackie Fallon

Jackie Fallon says there is strong need for employees who are proficient in information technology, and this pattern will continue.

Andrea Hill-Cataldo, president of Johnson & Hill Staffing Services in West Springfield, said the need for people in accounting and finance has grown so much that earlier this year she hired Tiffany Appleton to serve as director of the new Finance and Accounting division her firm created.

“We’re very busy, and there is a growing need for this type of expertise in both temp and temp-to-hire positions, although most of the jobs we’re trying to fill are temp-to-hire,” she told BusinessWest.

Appleton moved from the Boston area to Western Mass. to take the job, and was surprised to find the majority of vacancies in this region are newly created jobs.

“We’re not seeing a need for backfills; all of the positions we have exist because small and mid-size companies are growing and want to add to their teams,” she noted. “They’re creating permanent jobs and are fully committed; they are not testing the waters with a temp.”

Although she noted that larger firms still do employ temps, which some people prefer to call “contractors” due to the negative connotations associated with the term “temporary,” the majority of them keep these hires for a year or longer, which allows them to continuously adjust to economic demands without affecting their permanent staff.

“Temporary hires are a workforce-management tool because they can be used for projects, special needs, or uncertain demands,” Appleton explained.

Overall, who, when, and why companies are hiring are subjects still dominated by a host of questions marks. But many employment issues are coming into focus, and for this issue, BusinessWest talked with many staffing professions about what they’re experiencing, and what that means in terms of the proverbial big picture.

Meeting Diverse Needs

Although the demand for full-time employees is growing, Canavan said many companies have significant seasonal fluctuations and do need temporary workers. Decades ago they hired people to fill these jobs, then laid them off, but today they depend on employment agencies to fill their need for workers whose job duties can range from customer service to processing orders to even project management.

It’s a system that works well because local employment agencies retain pools of qualified candidates they deploy on a frequent basis.

Andrea Hill-Cataldo, left, and Tiffany Appleton

Andrea Hill-Cataldo, left, and Tiffany Appleton say that although large companies can offer rich benefit packages, small to mid-sized companies often can be more flexible or creative with benefits, which appeals to many job seekers.

The length of time they work depends on what they are hired for, but Fallon said her firm provides them with health insurance if they need it and keeps them on staff as W2 employees, because independent-contractor law in Massachusetts is the strictest in the country.

“And in our industry, many software developers want to go from job to job, which they can do in other states, but not in this one,” she explained.

Other agencies also see people who only want to work on a temporary basis. Some are retired, others are simply interested in challenging projects, a number want to gain skills and experience in a new field they are considering, and still others supplement their income by working part-time.

“They may have plans to move in a year, are re-entering the workforce, or are a recent college graduate who just wants to build a resume,” Canavan said.

She told BusinessWest there are also many part-time positions available, which is ideal for job applicants with another job or responsibilities that prevent them from working full time.

The options are unlimited, and the temp-to-hire route often works well for both employers and prospective employees, although people leaving a full-time job to take another usually want the security of knowing they have a job.

“Many companies want to try a candidate out to see if they fit well in their culture, but it’s also an excellent way for a person to see if they want to work for the employers,” Piekos explained, noting that a job placement needs to be a good fit; someone who has worked in corporate America may not be comfortable working in the construction industry.

Ed Piekos

Ed Piekos says companies seeking a highly skilled financial professional with strong soft skills must act quickly when they find one and be willing to negotiate.

That can be difficult to determine if the employer and their workplace constitute an unknown entity, which happens frequently when people search for a job on their own.

“It can be very frustrating for people to apply for jobs via the Internet. It’s like sending your resume into a black hole,” Canavan said, explaining that there is often no response and no feedback, which can be mitigated with an employment agency because they know their clients well.

In fact, Hill-Cataldo believes every job seeker should contact an employment agency.

“We can’t help everyone but we’re really honest about feedback and we offer specialized services. One interview with us can yield a lot of potential options, so it is a good investment of people’s time,” she explained.

Her agency also offers candidates they accept free assistance in polishing their resumes as well as their interviewing skills, and offers honed advice on how to turn a temp position into a permanent one.

Timing Issues

Star performers may be in demand, but Hill-Cataldo said their clients are not compromising their standards.

“They want the right person and are highly selective,” she noted, “But if they do find a top candidate, they act quickly because they know that quality people are being snatched up.”

Piekos has spent 18 years in the industry and been through three economic downturns and recoveries, and says the market right now for skilled employees is especially tight, so it is critical for employers to make offers quickly if they like a candidate.

“Companies need to be willing to negotiate quickly because a person may have a lot of offers on the table. They have to be ready to sell themselves and be willing to entertain things such as higher salaries and flexible scheduling or they could lose top performers,” he said. “We’re in a specialized economy, and skilled talent is becoming harder and harder to find, so candidates with the skill sets companies want often have multiple offers.

“Counter offers are common and hiring has become intensively competitive,” he went on, adding that the national unemployment rate is 1.8% for financial analysts, and 2.6% for bookkeepers, so there may be dozens of local companies trying to hire a senior accountant.

“It’s really a candidate’s market, and people with the right skill sets are so confident they are forcing employers to look at retention strategies and compensation plans,” Piekos continued, explaining that people are more willing to change jobs today than they were during the recession.

He believes the top items companies need to offer in order to acquire and retain top employees include a willingness to invest in their professional development; the ability to provide opportunities for career advancement; good salaries or hourly wages; and programs that reward or recognize employees for excellent work.

Many job seekers in this market, particularly millennials, are also concerned with the flexibility a job offers and want to be able to make their own work schedules.

“Candidates are definitely demanding and want to work for a company that offers them a good work/life balance. Many tell us the company’s mission is important and should allow them to take time off to volunteer, as well as allowing them to work from home as much as possible,” Fallon said, adding that employers who want to hire people competent in information technology need to keep pace with it themselves because college graduates won’t work for a company with old technology.

And since a good fit means understanding the needs of both the employer and the employee, Canavan says her firm interviews employers about what a typical work week is like, and talks to prospective employees about what they find acceptable.

There are other important factors, and one of them is that finding the right candidate for a job doesn’t necessarily mean they need all of the technical skills a company would like.

Job-placement specialists agree that skill sets are transferable, so soft skills are often more important than proficiency in a certain area and finding someone who fits well within an employer’s culture and has good soft skills can be the deciding factors in who they hire.

“Employers are more open to understanding this today than they were in the past,” Appleton said. “Many skill sets are transferable.”

Hill-Cataldo added four new employees to her own staff over the past 18 months, and followed that principle; her new placement coordinator was a legal assistant, and other hires came from the banking and retail industries.

“You can train someone on the technical aspects of the job, but you can’t train them to be passionate about their work,” she said.

Future Outlook

The need for qualified employees continues to grow, and more companies are taking measures to ensure that the people who already work for them are happy, which is critical to retention. They are also focusing on why their firm stands out so they can sell themselves to candidates they like.

Hill-Cataldo and other experts say this is especially important in the current competitive environment.

“It’s not your typical market, and we are so busy we can’t identify enough qualified candidates for the business we have,” she noted, adding that they are placing people in many high- level positions.

“It’s a good time to be looking for a job,” she said in conclusion. “There are lots and lots of opportunities.”