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Employment

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]