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WASHINGTON, D.C. —The construction industry registered 388,000 job openings in November, according to an Associated Builders and Contractors (ABC) analysis of data from the U.S. Bureau of Labor Statistics’ Job Openings and Labor Turnover Survey, which defines a job opening as any unfilled position for which an employer is actively recruiting. Industry job openings declined by 2,000 in November but were up 22,000 from the same time last year.

“Once again, good news is bad news,” ABC Chief Economist Anirban Basu said. “The economy-wide number of job openings remained elevated at approximately 10.5 million in November, virtually unchanged from October’s revised estimate. That’s the key takeaway in a still-red-hot labor market, as many employers continue to aim for expanded capacity to satisfy unmet demand. That is the good news.

“The bad news is obvious,” Basu continued. “Despite raising interest rates during the last 10 months, the Federal Reserve is still grappling with an excessively tight labor market associated with rapid compensation cost increases. To return inflation to its 2% target, the Federal Reserve needs a looser labor market with fewer job openings, higher unemployment, and slower compensation growth. The implication is that interest rates will continue to rise, adding to construction project financing costs and potentially setting the stage for sharp declines in activity in many privately financed construction segments.”

Employment

Let the Buyer Beware

By Alexander Marsh and Jeremy Saint Laurent, Esq.

 

Historically, non-competition agreements have been a useful tool for employers to protect their businesses, financials, and proprietary information when a departing employee leaves the company to work for a competitor. Over the past decade, the ways in which non-competition agreements can be used has been restricted.

Indeed, Massachusetts has significantly limited the functionality of non-competes, and California has barred them altogether. Recently, the federal government, vis-a-vis the Federal Trade Commission, has limited their use in corporate mergers and acquisitions.

“In October 2018, Massachusetts practically banned non-competes through the creation of very specific and strict requirements. As a threshold matter, non-competes in Massachusetts cannot be freely used and, rather, must protect a legitimate business interest.”

Alexander Marsh

Alexander Marsh

Jeremy Saint Laurent

Jeremy Saint Laurent

Just four years ago, in October 2018, Massachusetts practically banned non-competes through the creation of very specific and strict requirements. As a threshold matter, non-competes in Massachusetts cannot be freely used and, rather, must protect a legitimate business interest. The definition of legitimate business interest is limited to trade secrets, confidential information of the employer that otherwise does not qualify as a trade secret, or the employer’s good will.

Other alternative restrictive covenant, such as non-solicitation, non-disclosure, and/or confidentiality agreements, must be explored prior to resorting to a non-compete.

Massachusetts further tightened up the ability to implement non-competes by creating a litany of other requirements. The non-compete must:

• Be in writing;

• Be signed by both the employer and the employee and state that the employee has a right to consult a lawyer before signing the agreement;

• Provide notice of the agreement to the employee (the notice requirements change depending on when the employee is asked to sign the agreement); and

• Occur at the beginning of employment or provide notice of the agreement no less than 10 business days before the agreement would become effective and provide additional compensation.

The conduct the agreement seeks to prevent must not violate the public interest. Generally, public policy favors an employee’s ability to move from one job to another without restriction. Only a narrowly tailored agreement to protect a legitimate business interest will fit within public policy.

It is against public policy in Massachusetts to allow for non-compete agreements in certain professions. Non-competes signed by nurses, physicians, psychologists, social workers, and certain employees of broadcasting companies are considered void in Massachusetts. This is to protect public health and the free flow of information and ideas. A non-compete agreement in any of these areas is unenforceable as a matter of law.

Additionally, a non-compete agreement is not valid against a low-wage employee. The law states that employees who are classified as ‘non-exempt’ (typically, employees eligible for overtime pay and hourly wages) under the federal Fair Labor Standards Act may not be required to sign a non-compete agreement.

Non-competes are also prohibited or unenforceable when an employee is terminated without cause or laid off. These workers are not bound by the terms of any non-compete agreement that they have already signed with their employer.

Now, on the federal side, non-competition agreements are coming under scrutiny through corporate mergers and acquisitions. The primary rationale for restricting them is public-policy concerns.

Traditionally, non-compete agreements as part of a corporate merger or acquisition were quite broad in scope and geography. The reason for their broad coverage makes sense: the sale of a business is primarily based upon good will. Buyers understandably would require broad non-competition coverage so, post-sale, they are not competing against a seller who may start or work for a competitor company. In other words, in a business sale, to protect its interest in the business, the buyer would want to restrict the seller’s ability to compete against it.

However, the Federal Trade Commission recently restricted the ability of a buyer to require broad, sweeping language in non-competes. Rather, they must be limited to what is specifically needed to protect portions of the business.

What does all of this mean for companies? Knowing how to properly craft a valid, legally enforceable non-competition agreement is paramount. As with other restrictive covenants, non-competition agreements should be used sparingly and tailored as narrowly as possible to adequately protect your client’s legitimate business interests without being overly restrictive to the employee.

Generally, a one-year duration is considered to be reasonable. Depending on the circumstances, it may be possible to protect your client with a non-compete that has a shorter enforcement period. Again, as a rule of thumb, the shorter the length of restriction, the more likely the non-compete will be enforceable. It may also make sense to explicitly prohibit competition during employment.

 

Jeremy Saint Laurent, Esq. is a litigation attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288. Alexander Marsh is a legal assistant at the Royal Law Firm LLP.

Employment Special Coverage

What’s in a Job?

team members at Big Y’s St. James Avenue location in Springfield

From left, Nadia Doyle, Leslie Soto, Anialys Gomes, and Michelle Martin, team members at Big Y’s St. James Avenue location in Springfield.

Michael Galat says Big Y has a story to tell, and its employees do, too. And sharing those stories goes a long way toward building and retaining workers in a job market slanted toward job seekers to an unprecedented degree.

“It has been a challenge. Everyone is fighting for top talent,” said Galat, Big Y’s vice president of Employee Services. “We’ve adapted by leveraging our existing workforce to share stories of why they work for Big Y. We’ve got a lot of long-tenured, dedicated people working here, and they’re our best recruiters. We focus on their testimonies, telling their stories about why they want to work at Big Y.”

The supermarket chain has bolstered its workforce efforts in other ways, to be sure, from streamlining the application process to college internships that expose students to career opportunities to hosting a recent series of on-the-spot hiring events. “That’s been a home run for us. Recruitment is an ongoing effort,” Galat said.

But the stories are important, he added, noting that it’s important to build a culture where people want to work when they have other options.

“We’ve updated our career page and social platforms with people’s testimonials — why they like working for Big Y, what makes us different, the flexibility we provide. All those things go a long way to retain people and attract new talent.”

Amy Roberts, executive vice president and chief Human Resources officer at PeoplesBank, says both the company and its employees have a story to tell, and creating the right cultural fit is key to building a stable workforce.

“We’re trying to be up front with individuals about our core values and who we are and that we’re looking for people who are interested in being a part of that,” she explained. “So the process is focused around asking the candidate to tell us stories, tell us things about themselves. We believe that’s really critical.”

After all, it’s not just about bringing in talent, but creating a team for the long run.

Amy Roberts

Amy Roberts

“I think it’s important not to oversell yourself and make the position or company something they’re not; if you do, ultimately a person is not going to stick around.”

“I think it’s important not to oversell yourself and make the position or company something they’re not; if you do, ultimately a person is not going to stick around,” Roberts said. “We try to be up front about who we are as an organization, what’s important to us, how we view success here, and hope that’s best match for the individual. We spend time in the process talking about that.”

For this issue’s focus on employment, BusinessWest spoke to five area employers — Big Y, PeoplesBank, the Center for Human Development (CHD), Bulkley Richardson, and Health New England (HNE) — to get a feel for how challenging the much-talked-about workforce crunch has been for their organizations, and how they’ve shifted their hiring and retention strategies to deal with it.

Carol Fitzgerald, vice president of Human Resources at CHD, admitted that 2021 was difficult, but “I feel like 2022 has gotten better, though there are still some challenges. In 2021, we were losing a lot of folks; it was not only hard to get folks, but our folks were making the choice to leave the field.

“As a large, human-service, behavioral-health organization, we are essential workers, and we work face to face with folks anywhere from birth to elders,” she explained. “And I think a lot of people were deciding during the pandemic not to do this work anymore. So we lost ground in 2021, but we’re gaining ground again. I feel optimistic; it feels less frenetic than it did last year, and it feels like things are improving. We’ve gained about 100 employees over 2021.”

Many of the current challenges are geographic, especially in rural settings, where CHD has dozens of locations. “It’s a lot of geography to cover, and there are fewer people in more rural places, so we’re having a harder time finding folks to do the work.”

Betsey Quick, executive director at Bulkley Richardson, had one of the most positive stories to tell about her law firm’s workforce situation, but, like at CHD, 2021 saw some turmoil.

“That was an unduly interesting time for us, as COVID made people retire faster,” she told BusinessWest. “People who had worked here 10, 20, even 40 and 50 years re-evaluated their work-life balance and said, ‘I don’t need to work until I’m 70. I want to spend money and travel; life is short.’ So we had a slew of retirements we wouldn’t have had, and that punched up our needs quite a bit.”

Carol Fitzgerald

Carol Fitzgerald

“I think a lot of people were deciding during the pandemic not to do this work anymore. So we lost ground in 2021, but we’re gaining ground again. I feel optimistic; it feels less frenetic than it did last year, and it feels like things are improving.”

When the firm started ramping up hiring last year, “all the news in every sector was stating how employees were being poached and salaries were way up; it was an employees’ market. I was fully prepared to have a difficult time because we needed attorneys, we needed staff, we needed management,” she went on. “And for maybe the first three months, I saw the tightness in the market. We weren’t getting responses. We considered going out to recruiters, which we never had to do here. But after about three months, résumés started flooding in.”

 

Passion for Purpose

Sarah Morgan, director of Human Resources and Organizational Development at Health New England, noted that the Great Resignation has affected all employers, but it has also been an opportunity to recruit talented people who are looking for new opportunities or are rejoining the workforce. And many are looking for greater purpose in their jobs.

“This is a competitive recruiting environment we face today; however, Health New England employees know they are helping our members to live more healthful lives and improving the health and well-being of the communities we serve,” she said. “Ultimately, people connect to our role as a hometown not-for-profit health plan and are excited about the possibility of joining that cause.”

At the same time, the pandemic showed all companies how much employees — both current and prospective — value flexibility, and Health New England was no exception.

“Even before the COVID-19 pandemic emerged, we recognized that our employees have different needs, such as around childcare, eldercare, transportation, and the like,” Morgan said. “We respect the individual needs of our staff members and offer flexibility when possible, including the opportunity to work primarily remotely when the business needs allow.”

Betsy Quick

Betsy Quick

“You don’t have to work 6 in the morning to 12 at night and drive people into the ground. People want something different.”

Galat agreed. “We’re highly focused on retention, so we provide flexible work schedules and work-life balance, which is very important in this day and age. People have busy lives; we understand and that try to provide that flexibility for childcare, eldercare, school activities, sports … those things are important, and having that ability to balance their personal life with work is more important than ever.”

At CHD, Fitzgerald added, “we definitely know flexibility is really something people are looking for. While we’ve always tried to be flexible, our jobs are face to face with people for the most part, so we need to be in certain settings. However, during the pandemic, we went to telehealth, and we are trying to maintain a small bit of flexibility for telehealth. Going forward, especially in remote settings, that might work best for us. For example, a clinic in Orange is posting for a position that can be primarily remote. Up there, our managers are willing to talk about any and every way to get somebody to come into work, whether that’s remote or a flex schedule where they can; they’re trying to be creative on an individual basis.”

She added that competition has changed over the past couple years as well. “A lot of service industries are paying a lot more, really crazy rates. So we had to get creative. We offer a lot of hiring incentives and bonuses to come in, and when our employees refer folks. We’re trying to be creative from a compensation standpoint as well.”

Galat says Big Y hosts employee roundtables and focus groups and conducts surveys to get feedback on how the work environment can improve and what employees are looking for, and that information is used as a retention tool. The company also implemented a wage increase in July that impacted 75% of the hourly workforce.

All these efforts are critical because, despite some success stories with hiring, the Great Resignation and a generation of young workers who feel they know their value and want to assert it have created a smaller pool of talent to draw from.

“The highly technical or skilled positions have gotten even harder to recruit for,” Roberts said, “because there’s probably a handful of people who have a certain skill you’re looking for, and they’re either going somewhere else or already have a job and are perfectly happy where they are. Trying to figure out recruiting for those positions has been tricky.

“We’ve engaged recruiting partners and firms to broaden our scope,” she went on. “We’ve had people express interest in 100% remote, and we don’t operate that way, but at the same time, managers who said for years, ‘I want them here on site’ are now open to a more flexible work arrangement, seeing how difficult it is to get people to fill positions.”

Meanwhile, Roberts said, “I think our benefit programs are some of the best around, and we’re always looking at that and asking what else we can be doing. How do we help our people learn and build a career with us? How can we bring in more educational opportunities and help them build their career paths and help them see they have a future here? That goes a long way toward retention, but also from a recruiting standpoint, people want to know they have growth potential with your company. Identifying that process definitely has been key for us.”

 

Culture Counts

As Bulkley Richardson has sought to grow, Quick said, it was clear that “we have a really strong older workforce and a really strong middle, and we didn’t have such a strong younger workforce. So part of our succession plan is to keep that younger personnel coming up behind the bigs so they garner all that knowledge.”

One strategy to bring in young lawyers has been a summer associate program that was revived a few years back. After on-campus interviews and an in-depth review process, three to five candidates are selected every summer, and at the end of the summer, if the fit is right, offers are extended. Of eight offers so far, seven are coming back, and the other one took a clerkship and plans to be back at Bulkley when it’s over.

“We feel like this is a desirable place to work,” Quick said. “There’s been a lot of effort from our executive committee to punch up our vibe so it’s about the humans that work for us, not just about billable hours like a lot of big law firms in big cities. You’ve got to have that component, but you don’t have to work 6 in the morning to 12 at night and drive people into the ground. People want something different.

“COVID has taught us that Bulkley Richardson has always had a super strong family vibe,” she added. “We appreciate your personal time, what happens to you in your life. We really feel that’s paying off. We’re good lawyers and good people, and I feel like this is a positive hiring time for us.”

Galat agreed that culture is key.

“We have employees ranging from 16 to 85. Our people make the difference. We look for individuals that enjoy working with people. This is a people business. We want individuals that want to learn and grow and want to develop others, want to provide exceptional customer service and support our inclusive and belonging culture. Through our employee resource groups, employees share ideas and have a voice in business initiatives and each other.”

At Health New England, Morgan said, “we have been more focused than ever on recruiting people with diverse identities and experiences. More than ever, people want to work for companies that value them for who they are and empower them to bring their full, true selves to their work. We see strength in that and want employees from all backgrounds so we can better serve customers from all backgrounds.”

To that end, Health New England aims to deepen its relationships within the community through participation in local cultural events, job fairs, leadership programs, sponsorships, and more, she noted.

Getting back to the idea of the right cultural fit, Fitzgerald said CHD isn’t looking to hire just anyone, even in a tighter-than-usual market.

“We want the soft skills, the people skills. the relationship skills. That’s important not only for the work we do, but for being able to work with folks who appreciate each other and appreciate differences and have great communication skills and can manage different conversations. These are the kinds of things we’re looking for aside from just technical skills. It’s got to be the right fit.”

After all, she added, the company can train employees on certain tasks, but soft skills and a cultural connection are more organic.

“To have the right mindset about work and fit into that culture, I think those are things that are really important to our people. They care about who they’re working with, who they’re working for, and that translates to how we treat clients and quality of care. It really matters.”

 

Joseph Bednar can be reached at [email protected]

Employment

Employers Should Look at Each Candidate as an Individual

By Kelly Moulton and Mia McDonald

 

In the midst of the Great Resignation, employers are desperate to hire new staff. Insider Intelligence reports that in 2022, approximately 20.2% of the U.S. population will be made up of Generation Z, meaning employers will increasingly need to turn to this group to fill roles.

Born between the years of 1997 and 2012 and sometimes called ‘screenagers’ for their attachment to mobile devices and upbringing in a digital environment, the strengths and weaknesses of Gen Z, as well as what they have to offer to the workforce, differ significantly from previous generations in some ways, but mirror their predecessors in other ways.

Kelly Moulton

Kelly Moulton

Mia McDonald

Mia McDonald

Edward Segal, in his Forbes article, “How and Why Managing Gen Z Employees Can Be Challenging for Companies,” discussed the challenges Gen Z applicants present to employers. Among those, noted several executives, are a lack of discipline and patience as well as the need to develop a work ethic.

Gen Z is not unique in facing broad generational criticisms. Baby Boomers and Millennials can relate to the struggle of being defined by their generation. But just like prior generations, Generation Z is diverse in its composition, motivations, and beliefs. Working to understand each of these components can help generate success for both employers and Gen Z employees, while increasing Gen Z commitment to the employer.

Raised in different decades and growing up utilizing different technologies, it can be a challenge to integrate intergenerational individuals employed in the same workplace. But with the influx of young workers entering the market, employers need to continue to learn and adapt so they can obtain and retain the best applicants, just as they require their new hires to adapt, learn, and grow within their roles.

A great way to help acclimate new hires to the community and culture of the workplace is to integrate them into a working team of established professionals who can help ease their introduction. This is a strategy we both experienced when we started at Meyers Brothers Kalicka.

MBK created a space where both of us could work directly and collaboratively with a team of other young professionals, allowing us to quickly meet and bond with co-workers in various specialties. This made for a welcoming, and less intimidating, entrance into the firm and the demands of public accounting in particular. This strategy also provides a broad base of different people to go to with questions, improves motivation and accountability, and fosters a teamwork-driven environment.

“Gen Z is not unique in facing broad generational criticisms. Baby Boomers and Millennials can relate to the struggle of being defined by their generation. But just like prior generations, Generation Z is diverse in its composition, motivations, and beliefs.”

Another important consideration is that many Gen Z workers entering the employment market have just completed school during a global pandemic. This has fostered adaptability to different styles of working and learning, as many recent graduates were required to manage their own time and resources with remote education. Employers should try to mirror this and offer similarly flexible work hours and locations.

Companies need to ask themselves, are we truly devoted to our employees maintaining work-life balance? Taking this non-traditional approach can, in turn, allow employees to pursue other interests and certifications. Generation Z is very aware of the importance of mental healthcare, often seeking out employers that understand and support a balance between their work and personal pursuits, from time with friends and famil to higher education or community events. Allowing more flexibility for staff ultimately makes for a happier work environment and more productive, connected employees.

Employers can successfully integrate and take advantage of the strengths of Gen Z new hires if they take a multi-faceted and individualized approach. This can be encompassed with the collaborative work environment, as well as flexible work hours and locations arranged to accommodate the needs of each individual. Employers need to allow for independence — showing that they trust and value contributions — while also setting clear expectations and providing consistent feedback to foster growth. This will create a sense of empowerment, which will be a vital trait for these future leaders.

For this more hybrid, flexible strategy to work effectively, communication is essential. Whether it be a quick phone call, email updates, or regular in-person check-ins, setting standards for communication will help to keep everyone on the same page.

It is important to understand that there is no cookie-cutter approach that will work in all cases, and employers should not try to generalize a strategy for all young applicants. Perhaps the most important thing employers can do is set aside preconceived notions about the generation, and instead look at each candidate as an individual. They should consider the ways in which each individual learns best, as well as the specific projects assigned. What is the overarching goal of the project, and what is the key takeaway that can be taught? Where can we allow for flexibility to best accommodate their needs and set them up for success?

For Gen Z applicants, it is important to remember that what is valued most by employers is a positive attitude and a willingness to learn. Beyond this, new hires and even current employees should always look for ways they can pull down tasks from higher-ups; offering time to check in and help on any available tasks will show initiative and generate more respect. Employ your strengths in digital communication and technology, but be open-minded and use your first few years to further diversify and learn as much as you can from those around you. Immerse yourself in your environment and seek out opportunities to bond with your co-workers and make connections. Networking not just outside of your company but within it as well will help hires work well with a variety of people and grow invaluable interpersonal skills that cannot be taught in a textbook.

With compromises in attitude and an appreciation for change and development from everyone in a workplace, employers will be able to reap the benefits of the upcoming generation of workers and future leaders.

 

Kelly Moulton and Mia McDonald are associates at the Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.

Employment Special Coverage

Employers Are Still Laboring

Meredith Wise, president of the Employers Assoc. of the NorthEast (EANE), has worked in the broad realm of human resources for decades. She’s seen a lot when it comes to different kinds of employment-market conditions, but admits that she hasn’t seen anything quite like this.

“This is an anomaly; employers have not been in a position where they’re not in control of the job market for a long, long time,” she said. “It’s been a long time since employees have had this kind of control.”

And it looks like they will maintain control for the foreseeable future, said Wise and others we spoke with, because the forces of supply and demand are certainly in their favor — as they have been since well beyond the pandemic, but now, even more so.

Indeed, the national unemployment rate in May remained at 3.6% for the third month in a row, just slightly above the mark in February 2020 (3.5%), prior to the pandemic — this despite a general cooling of the economy amid soaring inflation, supply-chain issues, the war in Ukraine, and other factors.

These numbers translate into a smaller pool of available, qualified labor, continued headaches for employers, and, as Wise said, control of the front seat in the hands of employees.

“Demand and supply still do not align where we would like them to, and more importantly, they’re not aligned where most industries and employers thought they would be at this point post-pandemic, whatever post-pandemic actually means,” said David Cruise, president and CEO of MassHire Springfield Career Center. “I think the pandemic is still very much a driving factor in decision making on the part of applicants, as well as, to some degree, on the part of the employer.”

Elaborating, he told BusinessWest that employers are struggling on several fronts; they’re not seeing large numbers of applicants for positions to be filled, they’re not seeing enough qualified applicants, and when they do find people they want to hire, they’re struggling to retain them because other job opportunities with better pay and benefits continue to present themselves.

Meredith Wise

Meredith Wise

“This is an anomaly; employers have not been in a position where they’re not in control of the job market for a long, long time. It’s been a long time since employees have had this kind of control.”

As a result, companies are spending far more than would be considered normal to recruit, hire, and onboard help, said Cruise, noting that, as retention rates continue to fall, employers are expending more time, money, and energy — all precious commodities, especially with small businesses — on the hiring process.

In other words, the Great Resignation isn’t over, although, as the economy falters, there are questions about how long it will last.

“We’re continuing to see a lot of people quitting their jobs and starting new ones,” said Chris Geehern, executive vice president of Public Affairs & Communication for Associated Industries of Massachusetts (AIM). “My sense is that, as the economy weakens and job growth slows down, that phenomena will also slow down because employees now think, ‘I can quit this job and go to six different places.’ But if there are only two job openings opposed to the six, employees think twice about leaving.”

After federal benefits ran out in September 2020, most employers thought there would be an onslaught of job seekers rushing to fill positions. But when people weren’t flooding career centers for help, employers decided they needed to revamp their systems.

There is an emphasis on ‘the next job,’ so employers needed to find new ways to attract workers, meaning their marketing strategies needed to change, said Dave Gadaire, president and CEO of MassHire Holyoke Career Center, adding that companies are “getting more aggressive in how they recruit; they’re taking more advantage of not just social media, but the airwaves and newspapers.”

Employers are also attending more job fairs, both virtually and in person. In the past month, MassHire has held job fairs in Holyoke and Springfield. Each of those fairs brought in more than 200 job seekers and more than 50 businesses, but the demand still far exceeds supply.

David Cruise

As retention rates continue to fall, David Cruise says, employers are spending more money on the hiring process, from recruiting to onboarding.

For this issue and its focus on employment, BusinessWest looks at the issues shaping the current job market, the outlook at least for the short term, and whether employers may gain back control of the market any time soon.

 

Work in Progress?

Those we spoke with said the current challenges are not restricted to certain sectors of the economy; it’s essentially across the board, with some industry groups, especially essential service sectors, particularly hard-hit. National hire rates have stayed the same at 4.4% over the past year despite more people looking for work, and despite news of layoffs in some sectors, especially financial services.

“Demand and supply still do not align where we would like them to, and more importantly, they’re not aligned where most industries and employers thought they would be at this point post-pandemic, whatever post-pandemic actually means.”

“You do see companies both hiring and laying off at the same time,” said Gadaire. “It’s confusing for people because employers need different skills, and they have the choice to train their employees up or let them go and get new employees with those skills instead. The cost of training subtracts from the bottom line. They could be great employees and the employer wants to keep them, but now they have to get paid more and get the training they need to be qualified.”

Instead of layoffs, companies are trying to slow down the hiring process, he continued. “Instead of layoffs, we’re seeing some of the companies delaying their hiring a little bit; instead of hiring 50 people, they’re hiring 40 people, that kind of thing.”

For those are hiring — and that’s most companies — it’s not business as usual, or what managers were used to before the pandemic and that aforementioned Great Recession.

Indeed, bonuses and higher wages are now the norm for businesses looking to attract — and retain — help. Companies are offering sign-on bonuses, some as hefty as $2,000, when applying and staying at a business for six months or more. That means that companies are having to rework their pay scales from the inside to retain workers.

Beyond higher wages and bonuses, companies are offering other incentives, including flexible hours and, when possible, remote work.

Wise told BusinessWest that one of EANE’s manufacturing members in the central part of the state uses flex time on its shop floor, meaning employees can have a more fluid work schedule to match their personal schedule.

But perhaps what job applicants are seeking most is culture, Cruise noted.

“Over time, the money is certainly an incentive, but it won’t be able to retain people over time without some adjustment with culture and schedules,” he explained, adding that, perhaps above all else, job seekers want to know they’re valued and heard by their employer.

“Most progressive, good companies where people want to work and build a career are working really hard to not only outreach employees and market their business, but make the case to workers that their place of business is a good place to work, not only for the financial and benefit packages, but from the perspective of having a work culture and schedules that work with the employees’ life cycle,” he went on. “Companies are trying to look at schedules that allow flexibility with an understanding that business still has to operate and has to have accommodations to make sure the work gets done.”

Gadaire agreed. He told BusinessWest about an employee who continues to work for the MassHire center because of the care she feels from her co-workers and bosses.

“She and her son got COVID early on in the pandemic, and she had to quarantine in a hotel because her mother and grandmother were living with her at the time,” he noted. “We had staff members bringing food to her, checking in, picking up medications for her every day. She said that was a difference maker for her because the amount of care meant something. She felt like her son’s health mattered to us, and she said, ‘I’ve never felt that from other jobs.’”

Good management is another key, said those we spoke with, adding that this equates to giving employees a voice and a say in how things go, making sure they’re appropriately compensated, and making sure their benefits programs are up to date with what current job seekers are looking for.

Beyond these steps, many businesses and industry groups are becoming far more proactive when it comes to creating larger pools of qualified workers. This includes work to partner with vocational schools and other institutions to create pipelines of talent — and keep a steady flow of potential employees in that pipeline.

“Employers really have to find a way of capturing and attracting the kind of skilled workers they really need,” Geehern said. “For example, you will find manufacturing and engineering companies will establish a setup with Springfield Technical Community College, Holyoke Community College, or UMass Amherst. Some of these are training partnerships, some are research partnerships, but it allows them to establish some sort of connection with the institutions that are training the people that are going to be tomorrow’s workers.”

 

Hire Power

Moving forward, the overarching question concerns just how long this will remain an employees’ market. Much depends, economists say, on whether there is a recession and, if there is one, what impact it will have on the jobs market.

The monthly Business Confidence Index (BCI), initiated by AIM’s Board of Economic Advisors, noted that 76% of CEOs globally tell the Conference Board that they expect a recession by the end of 2023 or believe it’s already here. The economy appears to be growing, but employers face growing struggles with soaring fuel prices, supply-chain disruptions, and financial-market volatility.

Chris Geehern

Chris Geehern

“We’re continuing to see a lot of people quitting their jobs and starting new ones. My sense is that, as the economy weakens and job growth slows down, that phenomena will also slow down because employees now think, ‘I can quit this job and go to six different places.’ But if there are only two job openings opposed to the six, employees think twice about leaving.”

The BCI is based on a survey of AIM member companies across Massachusetts, asking questions about current and prospective business conditions in the state and nation, as well as about respondents’ own operations. The index is based on a 100-point scale. A reading above 50 indicates that the state’s employer community is predominantly optimistic, while a reading below 50 points translates to a negative assessment of business conditions.

According to the BCI, business confidence fell 3.9 points to 50.8 in June. The index sits 12.6 points lower than a year ago and marginally higher than the 50 mark that separates an optimistic from a pessimistic view. The Current Index, which assesses overall business conditions at the time of the survey, declined 3.3 points to 53.4. The Future Index, measuring projections for the economy six months from now, lost 4.6 points to 48.1.

The Wall Street Journal surveyed economists in June, and its consensus forecast was that unemployment will be 3.9% at the end of this year and 4.6% by the end of 2023. That rate would be higher than what economists are looking at now but, by historic standards, a much lower unemployment rate than is typical for a recession.

“What we may be looking at for the moment here is a jobful recession, rather than a jobless recovery,” Geehern said. “In the sense that job creation has slowed down, it certainly slowed and is out of sync with what we perceive as the decline in output. And those are two things you look at when you want to gauge if we’re in a recession or not: what is happening to economic output and what is happening to employment.”

Elaborating, he said that as economic output goes down, unemployment generally goes up. This time around, the economic output went down in the first and second quarter, but the job market has stayed resilient.

Whether things will stay that way remains to be seen. For now, and for the foreseeable future, what Wise calls an anomaly will be the status quo.

 

Kailey Houle can be reached at [email protected]

Business Management Daily News Employment Women in Businesss

SPRINGFIELD — Tiffany Appleton has been named president of the board of directors at Dakin Humane Society in Springfield. Appleton joined the board in 2017 and served as its secretary from 2020–2022.

She is currently the associate director employer relations at the University of Massachusetts Amherst, a position she has held for the past two years. Prior to that, she Appleton was a director, accounting and finance division at Johnson & Hill Staffing Services in West Springfield from 2016-2020.

“I can’t imagine what my life would be like without my pets,” she said. “They provide so much value to my life and I joined Dakin initially as a volunteer to support that amazing human-animal bond. I quickly fell in love with Dakin and all the service offerings beyond adoption that further the mission of keeping people and their pets happy, healthy, and together. I can’t wait to see all the good we can do for the community in the future.”

Appleton earned both a master of Education, Science Education, and a bachelor of Science, Chemistry at the University of Massachusetts Lowell. She previously served as a board member at the Family Business Center of Pioneer Valley from 2018-2020.

Banking and Financial Services Business of Aging COVID-19 Daily News Employment News

FLORENCE — Florence Bank announced that president and CEO Kevin Day will retire on Nov. 25, and a focused search is underway for a new leader.

Day took over as president in January 2020 and became CEO in May of the same year.

When Day took the helm at age 64, he promised that nothing would change at the bank. Little did he know, he’d be called upon to usher Florence Bank through some of the most tumultuous times in history, including a pandemic and the resulting financial strife. Day led the bank in ensuring that countless homeowners and businesses were able to defer their payments during the pandemic and in helping business customers connect to grants and other available funding.

These measures helped customers navigate the financial turmoil and gave them much-needed time to adjust to new financial situations.

The bank also expanded over these past two years, opening a branch in Chicopee; creating a work-from-home program for employees; and granting hundreds of thousands of dollars to nonprofit organizations in the Valley.

Day takes pride in the bank’s stability but shares the credit with the full banking team.

“Our goal in this transition is to identify an individual to lead the bank into the future while preserving the values and mission of the past that have proven so successful here,” he said. “I am proud to say that Florence Bank is fundamentally sound in every way. We have an experienced executive management team, a solid officer team and a dedicated staff. I am confident that the bank will continue to prosper for many years to come.”

Day joined Florence Bank in 2008 as chief financial officer, responsible for finance, facilities and risk management. His responsibilities expanded to include compliance in 2013, residential lending in 2014 and retail banking in 2016. He was also promoted to executive vice president in 2016.

Daily News Employment Health Care News Women in Businesss

HOLYOKEHolyoke Medical Center has announced the appointment of Lisa Wray-Schechterle, as the hospital’s director of Community Benefits.

Wray-Schechterle joins the hospital from Pyramid Management Group where she served as the marketing director of the Holyoke Mall at Ingleside, a position she held for more than 20 years.

Wray-Schechterle holds both a master of Arts in Communication and a Bachelor of Science in Business Administration from Western New England University. She serves as a marketing committee member for Girls Inc. of the Valley, a board member of the Holyoke Chamber of Commerce, and as an advisory board member for the Holyoke Community College School of Business.

“We are happy to welcome Lisa to our team,” said Spiros Hatiras, Holyoke Medical Center’s President and Chief Executive Officer. “Her proven ability to build collaborative partnerships coupled with her knowledge of Holyoke and the many community based organizations we work with throughout the region, will enable her to successfully manage and expand our Community Benefits program.”

Holyoke Medical Center Community Benefits provides programs and services to improve health in communities and helps to increase access to health care. This is done to advance medical and health knowledge in the community and relieve or reduce the burden of government and other community efforts. Wray-Schechterle has succeeded Kathy Anderson as the director of the department, following Anderson’s retirement. 

“I am excited to extend my knowledge and networking connections to help improve the health needs of the Pioneer Valley,” said Wray-Schechterle.  

“As the hospital has just completed their 2022 Community Health Needs Assessment, I look forward to creating the next implementation strategy based on the feedback we received and expressed needs identified by the community.”

Daily News Employment

SPRINGFIELD — The management of Big Y Foods Inc. has announced the following new appointments in Western Mass.:

Shane Lashway, store director, Amherst Big Y Supermarket;

Brian Cromack, store manager, Wilbraham Big Y Express;

Nadine Bransky, bakery sales manager, Palmer Big Y Supermarket;

Sarah Ashton, night manager, Southampton Big Y Supermarket;

Vito Guerino, night manager, North Adams Big Y Supermarket;

• Daniel Dufur, meat and seafood sales manager, Pittsfield, Big Y Supermarket;

• Raanan Hartman, district director, Springfield Big Y Supermarket;

• Jonathan Hubbard, assistant store director, Great Barrington Big Y Supermarket;

• Robert Masciulli, sales and merchandising mentor, Springfield, Big Y Supermarket;

• Keith Fronsceno, corporate senior produce sales manager, Springfield Big Y Supermarket;

• Mery Aviles, customer service manager, SpringfieldBig Y Supermarket;

• Angelo Cosme, employee services representative, Wilbraham Big Y Supermarket;

• Andrew Kubin, employee services representative, Southampton Big Y Supermarket;

• Alexander Deming, customer service manager, Southwick, Big Y Supermarket; and

• Corey Decker, store director, Westfield Big Y Supermarket.

Berkshire County Daily News Employment Real Estate Real Estate

LEE — Evan Collins has joined Lee Bank as a mortgage originator and will be working out of the Pittsfield branch.

Colins was previously employed as a sales associate at Piretti Real Estate and Stone House Properties. He has been involved in real estate sales in Berkshire County for seven years and said he is looking forward to exploring a different side of the local real estate market in his new position.

Business Management Daily News Employment

HOLYOKE —  The Dowd Agencies announced the promotion of Jack Dowd from account executive to vice president of personal lines. Dowd has been with the agency since 2016 and represents the fifth generation to join the family business.

“I am happy to announce the well-deserved promotion of Jack to this new position,” said John Dowd Jr., president and CEO of The Dowd Agencies. “For the past six years, he has been a very successful commercial producer as part of our sales team and in this new role, he will further develop the personal lines department including marketing, customer service, client retention and operating procedures.”

Jack Dowd graduated from Saint Michael’s College with a B.S. in business administration and received his MBA from the University of Notre Dame Mendoza College of Business. A licensed property and casualty insurance producer, he achieved his certified insurance counselor (CIC) designation in 2019. In addition, he has participated in the 18-month Agents Sons & Daughters Training Program for underwriting at Quincy Mutual Insurance.

In his community, he serves on committees for the Brightside Foundation and the Make-A-Wish Foundation. He is also a member of the board of directors for Boys Scouts of America, Western Massachusetts Council, where he serves as the risk management chair.

“I look forward to taking on more responsibility within the business,” said Jack Dowd. “Continuing the Dowd insurance tradition is important to me, and I am proud to be part of the fifth generation of this family-owned operation. I look forward to working with our team on the new challenges this position will bring, as well as the opportunity to continue to learn and grow here.”

Employment Special Coverage

Work in Progress

 

Since its inception, the SummerWorks program administered by the Commonwealth Corp. has opened doors for young people and introduced them to the world of work. This year, as the program expands to include individuals ages 22-25, it is primed to open more doors — and potentially create more opportunities, for employees and employers alike.

By Kaily Houle

 

David Cruise is more than familiar with the vast potential of Hampden County’s young people and their importance to the region’s business community.

As the president and CEO of MassHire Hampden County Workforce Board, he administers a program called YouthWorks, a state-funded summer-employment program that helps teens and young adults gain the skills and experience needed to not only find and keep jobs, but to begin to design a path toward success.

He’s watched over the years as the program has helped introduce young people to the world of work while also assisting area cities, towns, non-profits, and for-profit businesses with finding needed help and, sometimes, long-term employees.

And this year, he’s anticipating that he’ll see more of all of the above.

Indeed, program administrators are expanding the age parameters of YouthWorks in order to reach a broader range of young adults in the region. Initially, the program was offered to people ages 14 to 21, but now young adults from 22 to 25 are able to participate as well. The mindset behind this expansion of the program is to help more people enter or return into the workforce by providing them with jobs, leadership development and career-exploration opportunities, and various skills training.

“The intent is to take young people, primarily those that live in high-risk, urban areas like Springfield, Holyoke, and Chicopee, Westfield, and provide them with the opportunity of a structured work experience that usually lasts five to six weeks.”

“The intent is to take young people, primarily those that live in high-risk, urban areas like Springfield, Holyoke, and Chicopee, Westfield, and provide them with the opportunity of a structured work experience that usually lasts five to six weeks,” Cruise told BusinessWest, adding that the young people participating are not the only ones who stand to benefit.

Those hiring these individuals benefit as well, he said, adding that this is true at any time, but especially when businesses in every sector of the economy are struggling to find enough help to function at full capacity.

The YouthWorks program will see a boost in funding this year, from $2.5 to $3.17 million — enough to fund more than 700 summer jobs and another 130 evening and weekend jobs during the school year. These initiatives are aimed at getting young adults back into the workforce. Because some of these youth, especially those between the ages of 18 and 25, were displaced from the workforce — either by being disconnected from school or working — YouthWorks gives them the opportunity to find not only a job, but a career they can grow into.

“They may be working part time or under the table, but they’re not in a job that is going to lead them to success,” Cruise explained. “They’re not in a job where they’re in a career that will eventually allow them to make a family-sustaining wage and live at a level they feel comfortable; we have a lot of people beyond the age of 21 that are in the marginal labor market.”

YouthWorks was able to receive its funding a year earlier to aid in planning and serve young people more efficiently. In the past, the agency has received separate funds for the summer program and the year-round program. This year, they’ve combined the funds into one lump sum.

“This is the first time we’ve done that; it’s significant because now we can tie together the summer programming and the work we do during the school year,” said Cruise. “Several of the youths involved in our summer program can continue on into our year-long program.

“So it has a nice continuity to it,” he went on. “We’re not offering full-time positions, but we do think our older youth have an opportunity to not only have a successful summer program, but to also get into a company that can offer a full-time position if that is what they want to do.”

 

The Job at Hand

Cruise has long been an advocate of summer jobs — not only as a way to introduce young people to the workforce, specific lines of work, and the soft skills needed to succeed long-term, but also as a way to help at-risk young people find alternatives to the streets and the trouble often found there.

But the YouthWorks initiative has always been a win-win-win, he went on, adding that the initiative has benefitted several sectors of the economy — manufacturing and the broad hospitality sector, to name a few — as well as individual businesses and nonprofits, and area cities and towns as well.

Dave Cruise says summer jobs bring benefits to both employees and employers.

Dave Cruise says summer jobs bring benefits to both employees and employers.

And at a time when many sectors are still contending with an ongoing workforce crisis, there are more opportunities for young people and businesses to benefit, with young adults participating in Youthworks now having a better opportunity to find a job that will last longer than the five-to six-week program.

“I believe there are some opportunities in the private sector, because many companies are having a difficult time finding the sufficient staff to do their work,” said Cruise. “It’s hard in the summer to bring someone on for five to six weeks, but if we do a good job matching the young people to the particular site, that five-to six-week summer program can potentially turn into something full time. We’re pretty confident that some of that is going to happen with our older groups.”

Meanwhile, a main focus for YouthWorks is to teach young adults the importance of work and the employability skills they will need to not only find a job, but to keep that job moving forward. Young adults will learn the importance of communicating with your work colleagues, showing up on time, being open to constructive criticism, working in a team concept, developing critical thinking and judgment skills.

“The technical skills they learn on the job are really important also, and we don’t consider them to be secondary,” Cruise went on. “We want to be sure the young folks are getting a real sense of the value and the importance of work — that work is good, work is healthy. It’s very exploratory with our 14-and 15-year-olds but those soft skills are just as important as they are for the 21-to 25-year-olds.”

Focusing on urban areas allows young adults to provide for not only themselves, but also for their families, said Cruise. Participants between the ages of 16 and 25 will be working 100 to 220 hours over the five-to six-week program, making $14.25, Massachusetts minimum wage.

“It’s a job where … they won’t get rich, but they’ll earn money to help continue to support their families and themselves,” he noted. “They’re not taking their check and running to the Apple store — they have other priorities.”

Young adults will be placed in one of the three organizations working with YouthWorks. They have placement opportunities at New England Farm Workers Council, MassHire Holyoke One Stop Career Center, and Valley Opportunity Center. The goal this summer, as noted, is to provide 740 jobs for the summer program and about 130 jobs during the fall.

Due to the COVID-19 pandemic, many of the jobs secured by young people through the YouthWorks program were remote in nature, said Cruise, adding that as workplaces return to something approaching normal this year, participates should see a mix of working conditions, which will only add to the learning experiences.

“We want young people to not only experience hybrid and remote work and how that happens, but see it as something they have to adapt to and deal with as they deal with their career path,” he noted.

Meanwhile, Cruise emphasized that, despite the name of the program, those within the extended age range will not be treated like children. The purpose of the program is to help people — whether they be adolescents or adults — realize their potential and become successful members of the workforce.

“It’s hard to take a 25-year-old or an 18-year-old and call them a youth,” he said. “I don’t make that mistake calling them youth; they’re young adults … they’re adults, period. We treat them like adults. We respect them as adults.”

The summer program is going to begin the weekend after the Fourth of July. Applications are still available at the three organizations partnered with YouthWorks, online, and in most high schools in Hampden County.

 

Beyond a Paycheck

Since it was launched decades ago, the summer-employment program has been all about opening doors for young people, said Cruise.

These open doors lead to learning experiences on many different levels — from acquiring a specific skill, to understanding the importance of showing up for work on time, to discovering well … how to make a living.

Sometimes, these open doors lead to much more — not just a summer job, but a career. And with the expansion of the SummerWorks program to a broader age group this year, the hope, and the expectation, that more doors will be opened and many more young people will march through them.

Employment

The DOL Is Set to Ramp Up Audits

By Alexander J. Cerbo, Esq.

 

The Department of Labor (DOL) hasannounced it intends to increaseFamily and Medical Leave Act (FMLA) audits on employers. Businesses across many industries continue to face scrutiny by the DOL on their FMLA procedures due to an increase in FMLA violations.

Prepare yourself now and give your FMLA procedures a spring cleaning. The following steps are a great way to stay prepared:

Review your FMLA policy. It needs to include eligibility requirements (i.e., the reasona for FMLA leave), call-in procedures, an explanation of benefit rights during leave, and much more.

In addition to providing your FMLA policy in your handbook, post it prominently where it can be viewed by your employees and applicants. Keep in mind that if a substantial portion of your workplace speaks a language other than English, you must provide the poster in that language as well.

“Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit.”

Review your FMLA forms. Examine all existing forms to ensure they comply with FMLA regulations. The DOL loves to examine FMLA forms during an audit. You will also want to review legally compliant correspondence that may apply to FMLA leave.

Review your FMLA practices and procedures. When doing so, ask yourself: What procedures are used by my managers when an employee reports an absencethat may be covered by the FMLA? Do our procedures ensure that all requests for leave,regardless of whether “FMLA leave” is expressly requested, reach the appropriate manager or HR? Do we have procedures in place for contacting employeeswhile they are on FMLA leave? All these questions and others are important to keep in mind.

Also, be sure to maintain all employee data the DOL will want to see. Keep in mind the DOL tends to conduct broad record requests, so you will want to make sure your recordkeeping is consistent with all regulations and requirements. And remember: all FMLA-related documentation, such as above, must be kept for a minimum of three years and be kept separate from an employee’s personnel file.

Train, train, and train! Train your employees on all things FMLA! For most companies, managers are the first line of contact. If they are not comfortable with proper FMLA leave procedures now, this may create issues later on. You will greatly reduce the risk of a potential FMLA violation in the future by training now.

FMLA audits are not cut and dry and need to be taken seriously to avoid any potential violations. Lastly, do your managers understand how FMLA, PFMLA, and ADA intersect? They should.

Taking the proper steps now can help make a DOL audit go more smoothly.

 

Alexander Cerbo is an attorney who specializes in labor and employment-law matters at theRoyal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council.

 

Employment

Case in Point

By Trevor R. Brice

 

All discrimination lawsuits strike fear into the hearts of employers, but perhaps none more so than complaints alleging sexual harassment.

In addition to damaging company image, these lawsuits also involve investigations into uncomfortable and hidden aspects of employees’ lives. These lawsuits can also lead to big damages. It is not uncommon for juries to award harassment victims with six or even seven figures in damages.

Businesses often ask: ‘How can we guard against this risk?’ First and foremost, it involves creating an inclusive workplace culture that stresses respect and dignity, for which effective training and appropriate employee discipline are the keys. However, when things go wrong, prompt and thorough investigations can put an employer back on track. They can also save a business from liability if the investigation is conducted in an adequate manner.

“Sexual harassment and assault claims in Massachusetts are particularly thorny for employers, as Massachusetts courts have shown a tendency to allow a lowered standard for Plaintiffs to win on sexual harassment or sexual assault complaints.”

In a recent ruling that highlights the importance of workplace investigations, the United States District Court for the District of Massachusetts considered the case of Sara Caruso v. Delta Airlines Inc. The Plaintiff Sara Caruso (“Caruso”) was a flight attendant for Delta based out of Boston. In August 2018, Caruso served as a flight attendant on a flight from Boston to Dallas on which James Lucas (“Lucas”) was working as first officer. The flight crew, including Caruso and Lucas, stayed overnight at a hotel in Dallas after going out for dinner and drinks. At some point after dinner, Caruso became intoxicated, and subsequently she and Lucas engaged in various sexual acts. Caruso had no recollection of the incident.

The next morning, when Caruso arrived for work late, she apparently was suspected of still being drunk. She was given a breathalyzer test at the airport, which she failed, and was subsequently suspended. The next day, during her suspension, Caruso notified her supervisor about what happened with Lucas. When Caruso reported this, Delta’s Human Resources department immediately started an investigation, which included obtaining statements from all of Caruso’s colleagues, including Lucas, that had socialized with her on the night in question.

Delta also attempted to obtain the key card swipe record and video footage from that night, which the hotel would not release. Delta also interviewed Lucas twice. Lucas stated he and Caruso engaged in consensual touching but did not have intercourse. Lucas was found to be credible and was not disciplined. Caruso later filed a lawsuit claiming sexual harassment.

The court eventually dismissed Caruso’s lawsuit. This was largely due to the fact that Delta went above and beyond to investigate Caruso’s claims, including interviewing Lucas twice, interviewing all Delta employees that socialized with Caruso on the night in question, and attempting to secure the key card swipe record and video footage from the hotel within days of Caruso’s allegations.

Delta followed all investigatory steps that they could, even exhausting its investigation at the hotel when it could not get the video footage and card swipe record. It was these remedial actions that saved Delta from liability, as no negligence could be found in Delta’s investigation. This led the court to grant summary judgment for Delta on Caruso’s sex discrimination claims.

 

Takeaways

The Caruso case shows that Massachusetts employers can shield themselves even against the most serious of co-worker sexual assault allegations by conducting thorough investigations once a complaint is made. Sexual harassment and assault claims in Massachusetts are particularly thorny for employers, as Massachusetts courts have shown a tendency to allow a lowered standard for Plaintiffs to win on sexual harassment or sexual assault complaints. Indeed, liability for supervisory sexual harassment is almost automatic. The ruling stresses the importance of interviewing all possible witnesses to an assault, as well as gathering all evidence to the complained of sexual conduct if possible. This type of prompt response to an employee’s complaint of co-worker sexual harassment or assault can reduce an employer’s amount of exposure to these types of claims.

 

Trevor Brice, Esq. is an associate with Springfield-based Skoler, Abbott, P.C. He has regularly advised and represented clients in state and federal courts, as well as at the Equal Employment Opportunity Commission (EEOC), the Massachusetts Commission Against Discrimination (MCAD), the Connecticut Commission on Human Rights and Opportunities (CHRO), and other state agencies; [email protected]

Employment Special Coverage

Coping with the ‘Great Resignation’

By Sarah Rose Stack

 

You’ve just woken up. As you sip your morning coffee, you open your e-mail and give it a quick glance. Wedged in between your work and personal mail, you have several e-mails with the subject line ‘We’re Hiring’ or ‘Join Our Team.’ You switch over to social media and see that your neighbor just announced she’s left her place of employment for a new opportunity. There are few more posts from friends who are frustrated with their employers’ lack of communication or insistence on returning to the office.

How many ‘We’re Hiring’ signs have you seen or talked about today?

There has been much discussion about the current hiring crisis, and while many thought that this would be resolved once Pandemic Unemployment Assistance ended, that has not been the case. In fact, the Bureau of Labor (BOL) recorded the highest number of people who quit their jobs in August 2021, with 2.9% of people quitting (4.3 million people). This is the highest number of quits since the BOL started recording this data in 2000. Probably even more concerning is that August was the sixth consecutive month of massive quitting numbers.

Coined the ‘Great Resignation’ by Anthony Klotz, a professor at Texas A&M, people are leaving their jobs at record-breaking rates as the pandemic is waning. This is only expected to be amplified as 2021 comes to an end and people reflect on what they want in life. Employees are demanding more from their current and potential employers. Companies should be very careful to pay attention to the change in dynamics if they want to retain or attract new talent to their workforces.

“Employees are demanding more from their current and potential employers. Companies should be very careful to pay attention to the change in dynamics if they want to retain or attract new talent to their workforces.”

As part of my position at Meyers Brothers Kalicka, I assist clients with finding new talent, such as controllers, accountants, HR, marketing, and other administrative professionals, for their organizations. Prior to the pandemic, I would see 50 to 100 applications from people in Western Mass. applying for every posted job opportunity. That number has drastically declined, the geographical representation has widened, and the questions and concerns from potential employees have also significantly changed.

So, what are employees expressing that they want? Here’s a hint: it’s not just about salary. People had a lot of time to reflect during the pandemic about what work means to them and what role they want their careers to play in their overall lives.

 

Work-life Balance

Prior to the pandemic, Americans were obsessed with ‘hustle culture.’ People were happy to rise and grind and wear their burnout like a badge of honor. Perhaps people were too distracted working around the clock to ever consider what they truly wanted. You’ve probably noticed the shift in sentiment in social media from #hustle to the idea that inner peace is the new success.

Working through the pandemic came with its own unique set of stresses. Some workers had to compensate for poorly staffed jobs, while others lost a feeling of security at their jobs, causing them to work even harder to show their value. Indeed recently posted a study that surveyed 1,500 employees about burnout, and a shocking 80% of people said the pandemic made the burnout worse.

As a result, potential employees have been asking:

• What is your company’s view on work/life balance?

• Does management regularly e-mail or call after hours or on weekends?

• Is the schedule flexible if I have a family event or event for my child?

• Do people actually take their paid time off?

According to PR Newswire, “poor work-life balance tops the list of job-seeker deal breakers, ranking above other immediate turnoffs, including lower salary (50%) and a company’s decreasing profits and lack of stability (48%)”.

 

Flexibility and Remote Work

Employees are actively seeking remote or hybrid work opportunities just as many companies are now demanding that employees return to in-person work. Some have even pre-emptively started seeking flexible work opportunities out of fear that their current remote-work situation might change.

Many are expressing that the ability to work from home and have more flexible work schedules in general have helped to prevent burnout. People have enjoyed ditching the morning commute and 5 p.m. rush hour. The returned pockets of time have come with myriad benefits, including more sleep, more time with family before and after work, less wear and tear on vehicles, more time with pets, and an overall more comfortable environment.

It isn’t all hypothetical, either. Stanford conducted a study of 16,000 remote workers over a period of nine months and showed that productivity increased by 13%. Further, with more workers reporting they were happier working from home, attrition rates were cut by 50%.

Time is the only non-renewable commodity, so when employers are demanding that their people return to in-person work, employees are asking themselves, “at what cost?” The most-asked question I have received from potential employees over the last year is: “can this position be done fully or partially remote?” If the answer was no, most candidates politely declined to continue in the application process, presumably in favor of remote opportunities.

I would also attribute the increase of applicants from other regions to the normalization of remote work. I’ve seen applications from all over the country because most people in professional positions are now of the mindset that they can work for anyone, from anywhere.

 

Company Culture and Shared Values

At its core, company culture is its identity. It’s how the company’s values, attitude, approach, and ideals dictate the inner workings of the organization. Generally, this is set and modeled by the leadership and then mirrored by the people within the organization, driving the way the company does everything.

Companies with attractive corporate culture actively value their people in ways that are both tangible and intangible. They may have perks such as food, drink, cocktail hours, paid time off, tuition reimbursement, and professional-development opportunities. More than that, they will also have a solid mentorship program, encourage open communication, speak to each other with respect, and show clear indicators that the work and growth of their people are valued.

As part of corporate culture, shared values are another important consideration for many job seekers today. Whether they are directly impacted by certain causes or not, they are looking to work for companies who have values that align with their own. Employers need to understand that potential employees are doing as much vetting and interviewing of the organization as the organization is doing of them.

Employees want to know what your company culture is like and what your values are. They are asking direct questions such as:

• What is the company’s leadership like?

• Describe the company’s culture.

• Does your company have a diversity, equity, and inclusion (DEI) program?

• How does your company implement its DEI statement?

• How involved is your company in the community?

• How does your company handle discourse among employees?

 

Pandemic Protocols in General

While we all have pandemic fatigue and want the pandemic to be over, there are still so many open issues that need to be faced head-on. Potential employees are very concerned with how companies handle current guidelines regarding masking, social distancing, quarantine, and vaccination.

This would be simple if everyone had the same passionate stance on the subject, but they don’t. Employees tend to be divided into three camps: Those who wants the strictest protocols in place, those who prefer more lax protocols, and those who are indifferent and will simply follow whatever protocols are set. Regardless of which camp your organization falls into, companies should be aware that their response to these questions will either encourage or deter certain prospects from continuing with the interview process.

I’ve found that most candidates were generally satisfied to hear that the organization is simply following the current federal, state, and municipal guidelines. In addition to the actual protocols, candidates have been very concerned with how those protocols are communicated. They routinely ask:

• Does the leadership communicate changes to protocols in a timely manner?

• Have they listened to employees’ questions and concerns?

• Are protocols safe, fair, and reasonable?

 

In Conclusion

We are in an employee market, and employees want the best of it all. They want work-life balance and more remote-work opportunities, but also want to feel connected with their company’s mission and their colleagues.

This may feel like an impossible balance to achieve, but I believe it can be done. People want to work, they want to feel connected, and they want their work to mean something. That’s the good news. Companies who understand these needs can take action and translate them into powerful employment opportunities that almost certainly will yield happier and more productive workers, better products and services, and stronger businesses.

 

Sarah Rose Stack is the Marketing and Recruiting manager for the Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.

 

Employment

Facing Whistleblower Concerns

By Jeremy Saint Laurent, Esq.

 

Facebook is currently in very murky waters with both the federal government and with its users. Employers should pay attention to the multitude of issues surrounding this matter to better understand potential exposure and develop a response plan.

On Oct. 5, after leaking sensitive Facebook documents to the media and the Securities Exchange Commission, whistleblower Frances Haugen testified before Congress. Haugen’s testimony provided the Senate subcommittee with a glimpse into how Facebook’s policies negatively impact the mental health of its users, particularly children; creates political and social discord; and undercuts democratic ideologies.

Although dealing with public and agency scrutiny is not uncharted territory for Facebook after facing similar allegations during the last two presidential elections, these newly raised allegations of misconduct appear to be especially worrisome because Haugen was a Facebook insider. Haugen was employed in a department within Facebook tasked with investigating how the platform’s algorithm spreads misinformation and how the network was being used by our nation’s foreign rivals. In short, Haugen is believable, credible, and convincing because her allegations amount to Facebook disbanding and ignoring the work of herself and her colleagues in the pursuit of financial growth.

Jeremy Saint Laurent

Jeremy Saint Laurent

“Employees who come forward to the SEC and/or government regarding perceived misconduct are often covered by federal whistleblower protections and other laws, like wrongful termination in violation of public policy.”

In a recent NPR interview, attorney Andrew Bakaj, who represents Haugen, stated that “we have made lawful, protected disclosures to the Securities and Exchange Commission and to Congress. Such disclosures are protected both by law and Facebook’s own internal policies.”

Bakaj correctly states that federal whistleblower protections afford employees and ex-employees a broad range of legal protections for alerting law enforcement, the SEC, and Congress of potential malfeasance. Typically, employers have no legal recourse if that’s the only thing a whistleblower does to report potentially incriminating information. In fact, a Facebook representative told the Senate subcommittee that the company won’t retaliate against the whistleblower for speaking to Congress.

 

Lessons Employers Should Learn from the Facebook Whistleblower Fiasco

Employees who come forward to the SEC and/or government regarding perceived misconduct are often covered by federal whistleblower protections and other laws, like wrongful termination in violation of public policy. In a 2014 decision, the U.S. Supreme Court held that privately owned companies, in addition to publicly traded companies, may be subject to whistleblower liability if they retaliate against an employee or former employee who reports malfeasance to the appropriate agencies.

Massachusetts, like most states, adheres to the at-will employment model. The at-will employment doctrine allows an employer or an employee to terminate the employment relationship at any time, for any reason, with or without cause or notice. However, in addition to federal whistleblower protections, employees are afforded additional protections under state law.

Commonly referred to as ‘wrongful discharge,’ wrongful termination in violation of public policy is a sort of catch-all, judge-made rule that prohibits employers in many states from firing an employee who opposes or refuses to participate in certain unlawful or unethical activities. In Massachusetts, an employee has a viable claim for wrongful discharge if they have a reasonable belief that they are preventing a violation of law. An employee who complains internally that his employer allegedly violated a criminal statute will, more often than not, have a claim for wrongful violation of public policy.

Employers must be conscious of when employees make complaints about possible violations of the law, and be cautious of terminating employees who refuse to conform to a company policy or engage in some action because they believe they are preventing a violation of law.

However, the tide turns when an employee takes things a step further and disseminates confidential information to the media or a competing organization. In the situation of Facebook, before Haugen resigned from Facebook, she copied thousands of pages of confidential documents and shared them with the SEC and Congress, but also with the Wall Street Journal, which in turn, authored a series of articles containing the classified information. Although sharing the information with the Journal does not make Haugen’s actions any less heroic, it may muddy the waters when it comes to what protections she is afforded under whistleblower protection and applicable state law.

Releasing information to media outlets or competing organizations can be in violation of many non-disclosure agreements entered into between the employee and employer during the onboarding process. Because most non-disclosure agreements exclude disclosure only to agencies like the SEC and Congress, employers can explore legal recourse through vehicles like breach-of-contract claims. Typically, non-disclosure agreements require employees to return or destroy confidential documents prior to or immediately after either party terminates the employment relationship. Essentially, non-compete agreements are structured to allow employees to utilize their legal right to report potentially illegal activity or policies within their company while protecting the employers’ legal rights and interest by limiting the types of disclosures allowed.

Should an employer choose to pursue a claim against an employee or former employee for exceeding the bounds of protected activities as outlined by whistleblower regulations and state laws, the employer may seek as damages any severance paid at the time of departure, private pension accrued by the former employee, stock options paid in connection to employment, and general monetary damages.

If you find yourself as an employer in a similar situation, be sure to consult with your labor employment counsel before moving forward with any employment action.

 

Jeremy Saint Laurent, Esq. is a litigation attorney who specializes in labor and employment law matters at the Royal Law Firm LLP, a woman-owned, women-managed corporate law firm that is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected]

 

Employment Special Coverage

Questions, Questions

 

At a time when most companies and nonprofit institutions in the region are hiring, or trying to, many area business owners, managers, and HR directors are sitting across the table from job candidates trying to determine if that individual is the proverbial ‘right one.’

Given this climate, BusinessWest asked a number of area business leaders to identify one of their favorite, most effective interview questions. We asked them to explain why they ask that question and what it reveals to them about the candidate.

Suffice it to say, their responses provide some food for thought on a very important part of business.

 

 

Sara Rose Stack

Sara Rose Stack

Sara Rose Stack, Marketing & Recruiting Manager, Meyers Brothers Kalicka

The question: “Tell me something that you would do differently than your current boss at your current job.”

I ask this question to learn more about candidate’s awareness of people around them, their creative problem-solving skills, their desire to improve and grow, and their level of tact. A candidate’s answer to this question will reveal a lot about his/her ability to solve problems, but what I am most interested in is how they communicate their proposed solution. The question itself has a somewhat negative connotation because it is asking for the candidate to share something that their boss could do better or differently. My experience has shown that, if someone will bash a supervisor or competitor to you, then they will repeat the behavior to others. Further, anyone that can share suggestions for improvement in a positive way is a great addition to the team. Tact and diplomacy are powerful tools for making improvements, contributing ideas, and working in a team.

 

Sandra Doran

Sandra Doran

Sandra Doran, President, Bay Path University

The question: A two-parter: “How will this position help you grow your career?” “Tell me about an experience or work project where you had to work across departments to accomplish the goal(s).”

 

In the first part of the question, I am looking for authenticity of the candidate and the ability to be introspective and share their current strengths as well as their vulnerabilities. As their experience grows, their value as contributors to Bay Path will also increase. The second question provides insights to their capacity to be a team player and team leader within our organization. Today, 40% of Bay Path students are students of color, and we are striving to increase the diversity of our employees. As a result, as the candidate explains the project, I am looking for how they respect and handle other opinions and perspectives, value diversity of thought, and exhibit multi-cultural competencies. Above all, the candidate must be both mission- and student-centered.

 

Brenda Olesuk

Brenda Olesuk

Brenda Olesuk, President, Graduate Pest Solutions Inc.

The question: “What do you consider to be your professional and personal strengths, and, conversely, what areas do you struggle with or are not interested in doing professionally?”

 

This is a mainstay question in all of my interviews since it encourages the applicant to be introspective and reflective about themselves — and this tells me a lot about them. Learning what they consider to be their professional strengths and how they’ve applied those strengths often creates context for what they can and will bring to the table in the position they are applying for. Perhaps more important to me is the level of candor with which they communicate areas of struggle or lack of interest and how they have managed this in their career. This question often leads to an additional discussion that unveils the applicant’s openness to coaching and development, which is a trait that is important to me as a leader, manager, and employer.

 

 

Ellen Freyman

Ellen Freyman

Ellen Freyman, Esq., Partner, Shatz, Schwartz and Fentin, P.C.

The question: “What would make you satisfied in this job?”

 

This question lets the applicant know that we care whether our employees are happy working for us, and at the same time, it helps us determine if this applicant will be a good fit. It is also another way of finding out the applicant’s strengths without asking directly, and discloses what part of the job they may not care to do. The answer to this question can reveal why the applicant hasn’t stayed in previous jobs and potentially lead us to rethink some of the things we are doing in our office. The question helps us determine if the applicant understands the position they have applied for and if they have the right skill set. Getting an honest answer to this question helps both the applicant and us know whether hiring this person will be satisfying to both of us.

 

Carla Cosenzi

Carla Cosenzi

Carla Cosenzi, President, TommyCar Auto Group

The question: “How do you delegate responsibilities to team members?”

 

I ask this question to potential hiring candidates because most managers fail at delegation. As a good leader, it is their responsibility to be clear about what they are delegating and their expectations. In our company, it is our manager’s responsibility to offer their team the tools they need to succeed by encouraging and supporting the decision-making environment. The effective delegation and empowerment of their employees is essential for their success as a manager. By asking this question, I am able to learn if a potential candidate is able to release control and effectively delegate, empower, and hold accountable their future team members.

 

Pia Kumar

Pia Kumar

Pia Kumar, Chief Strategy Officer, Universal Plastics

The question: “Why did you leave your last job?” Or, if they are still employed, “Why are you looking to leave this job?”

 

As an employer, I value continuity and longevity in job history. However, the résumé is just a piece of paper. The interview is the opportunity to either rise above what the piece of paper says or minimize it. How someone discusses a job change tells me whether they are a team player, whether they are growth-mindset-oriented, and what kinds of cultures, people, and attributes they either enjoy or don’t. In short, it is the ‘heart’ (as opposed to the ‘head’) part of the interview, which answers the most important question of all for me — do I want this person on my team?

It is never easy to leave a job, whether you do it on your own terms or have been asked to do so. So, how you answer this question brings up your response to a difficult situation, which may even involve conflict or confrontation. As an employer, I want to know how you handle difficult situations. At Universal Plastics, we believe in giving people chances, lots of them, but it has to start from a place of candor and commitment to our culture and the values we espouse, and this question aims to ascertain exactly that.

 

Michael Matty

Michael Matty

Michael Matty, President, St. Germain Investments

The question: “What did your parents do?”

 

I like to ask this because we are all a product of our background, and it is a great opportunity to gain some insight into the person. If, for example, the parents ran their own business, the candidate probably has a good understanding of the needs of a small business and what it takes to make it work. It is also a good opportunity to ask why the candidate doesn’t want to work there. Conversely, the mom may have been stay-at-home, and dad worked in a factory job in a blue-collar role. The candidate may be first-generation college and first-generation in a professional role — sometimes a bit less polished in presentation, but likely with good reason. And if they are smart, energetic, and willing to learn, I’d potentially think they were a good hire. Overall, it’s a good, open-ended question that can lead to some good conversation.

 

Jane Albert

Jane Albert

Jane Albert, Senior Vice President and Chief Consumer Officer, Baystate Health

The question: “What impact has the pandemic had on you?

 

This is a newer question I ask because it opens the door to conversation about a current topic of significance with many pathways to get to know the candidate. Asking a broad, open-ended question provides the candidate with a choice to respond with an orientation toward their personal life or their work experiences. like to provide that option to make it most comfortable for the candidate during the interview. This question enables conversation about how they handled changes and challenges related to the pandemic and offers glimpses into how they may handle and adjust to changes within our healthcare environment and their potential new work responsibilities. It also opens the door to learning about the candidate’s priorities, relationships, engagements, and abilities to adapt to change, along with how they handled this in their daily life as well as throughout their work experiences.

 

 

Kate Campiti

Kate Campiti

Kate Campiti, Associate Publisher and Sales Manager, BusinessWest

The question: “Have you had experience in the service industry?”

 

When I interview for sales, I look for — and ask about — experience in the service industry. If the candidate has it, I ask how they’ve handled a tough customer or table and how they turned it around or were able to shake it off to continue successfully serving the rest of the shift. If candidates can wait tables or bartend successfully, it shows they have what it takes to think on their feet, appeal to customers, and provide high-level service to earn tips. It also shows they are driven by both money and customer service, which bodes well for a sales position with BusinessWest. For other positions, I typically ask what motivates them, what they do to unwind, if they have tactics for stress relief inside and outside the office, and what they think their best assets and weaknesses are and what they think their current or previous employers would say.

Employment

Get the Vaccine or Get Fired?

By John S. Gannon, Esq. and Meaghan E. Murphy, Esq.

 

To mandate the COVID vaccine, or not to mandate?

John S. Gannon, Esq

John S. Gannon, Esq.

Meaghan E. Murphy, Esq

Meaghan E. Murphy, Esq.

That is the question on the minds of employers across the globe. As employment lawyers, we have been asked that question countless times by clients (and friends). Until about a month ago, all we could do was provide our best guess based on guidance and legal decisions related to other vaccines, like the flu shot. However, on May 28, the U.S. Equal Employment Opportunity Commission (EEOC) provided some comprehensive COVID-19 guidance that addresses this topic head-on.

The EEOC is the federal agency that enforces anti-discrimination laws applicable to workplaces. The news is good for Massachusetts employers considering a mandatory vaccine program. Some of the key takeaways for employers are described below.

 

Mandatory Vaccinations

The EEOC guidance declares in no uncertain terms that an employer can lawfully require employees to obtain a COVID-19 vaccination as a condition of returning to the workplace. Such a practice would not run afoul of the Americans with Disabilities Act (ADA) or the Genetic Information Non-discrimination Act (GINA). There is one big catch: an employer mandating vaccines must reasonably accommodate employees who are unable or unwilling to get vaccinated because of a disability or sincerely held religious belief.

These employees might need to be excepted from the vaccine mandate if other safety measures can keep them and others safe. The EEOC provided examples of such accommodations, including requiring an employee to continue to wear a mask and socially distance while in the workplace, limiting contact with other employees and non-employees, providing a modified shift, permitting continued telework if feasible, conducting periodic COVID testing, or reassigning the employee to a vacant position in a different workplace.

Notably, employers should not assume that an employee does not require an accommodation relating to COVID simply because the employee is fully vaccinated. The guidance provides that an employer may need to accommodate an employee who is fully vaccinated for COVID if there is a continuing concern for heightened risk of severe illness from a COVID infection.

For an employee who is unwilling to obtain the vaccination because of a sincerely held religious belief under Title VII, employers should presume that the request is legitimate. The EEOC does make clear, however, that if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information.

Employers presented with this issue should proceed with caution, as the EEOC will take a narrow view of such circumstances. Employers are required to engage in a similar ‘interactive process’ with employees who have sincere religious objections to vaccination and provide an accommodation that allows the employee to return to work where doing so does not present an undue hardship.

 

Vaccination Incentives

An employer may lawfully provide an incentive to its employees to obtain COVID-19 vaccination outside the workplace so long as the incentive is not so substantial as to be coercive. Unfortunately, the EEOC did not give any examples of what incentives would be considered ‘so substantial as to be coercive’ and also failed to clarify whether and to what extent an employer must provide a vaccine incentive to employees who are unable to obtain a vaccination due to a medical or religious-based reason.

 

Confidentiality

An employer’s request for self-disclosure of vaccination status, or for documentation or other confirmation that an employee has received a vaccination from a third party (such as a pharmacy or personal physician), is not a medical examination or a disability-related inquiry. As a result, employers may lawfully request this information without implicating the ADA or GINA.

With that said, employers should restrict access to vaccine-related information, apply safeguards similar to those applied to other types of sensitive personal information, and obtain appropriate consent from employees before disclosing vaccine-related information to third parties.

 

Legal Actions

To date, there has been one reported case dealing with mandatory vaccines in the workplace. Similar to the EEOC guidance, the case supports an employer’s right to mandate COVID vaccines.

In April, the Houston Methodist Hospital System in Texas issued a directive requiring that all employees be fully vaccinated by June 7 or they would be placed on a two-week suspension. Employees who were not vaccinated by the end of the suspension period would be terminated.

In late May 2021, more than 100 employees who were not vaccinated, and apparently did not qualify for a disability or religious exemption, filed a lawsuit against the hospital raising a number of claims, including wrongful termination. The judge dismissed the lawsuit entirely. In his written decision, the judge expressed his dismay with the plaintiffs for equating the threat of termination for refusing to get the COVID vaccination to the forced medical experimentation in concentration camps during the Holocaust, calling the comparison “reprehensible.”

Addressing an argument that the vaccine mandate was contrary to public policy, the judge wrote that the vaccine requirement “is consistent with public policy. The Supreme Court has held that (a) involuntary quarantine for contagious diseases and (b) state-imposed requirements of mandatory vaccination do not violate due process.”

 

Bottom Line

While this EEOC guidance and recent decision may seem like a big victory for mandatory COVID vaccines in the workplace, Massachusetts employers should be cautious in relying on them too heavily. The Commonwealth has its own anti-discrimination and public-policy laws, so it’s difficult to predict how this might play out in a state court or administrative proceeding.

In other words, while the decision is encouraging for Massachusetts employers who want to require vaccines, it is important to check in with experienced labor and employment counsel before implementing a mandatory vaccine program.

 

John Gannon and Meaghan Murphy are attorneys at the firm Skoler, Abbott & Presser, P.C., in Springfield; (413) 737-4753; [email protected]; [email protected]

Employment

Breaking Down the Trickier Aspects of Massachusetts Laws

By Ludwell Chase and Amy B. Royal, Esq.

State and federal laws pertaining to minimum wage, tips, overtime, and employing minors are complicated. As a result, these are areas where mistakes are often made.

Ludwell Chase

Ludwell Chase

Amy B. Royal, Esq

Amy B. Royal, Esq

Employers, however, cannot afford these errors because the consequences of not complying with these laws can be very costly. In fact, in Massachusetts, there are mandatory treble (triple) damages for violations of wage-and-hour laws relating to minimum wage, tips, and overtime. This means that, if an employer is found in violation of state law, at a minimum, for every dollar an employer does not pay in accordance with wage-and-hour laws, that employer will have to pay three times that amount.

Under Massachusetts and federal law, employers are allowed to pay employees who receive tips an hourly wage that is lower than the minimum wage. This works by allowing employers to take a ‘tip credit’ for a certain amount in tips that the employee earns. The employee must not make less than minimum wage when their tips and hourly wage are combined. Under the federal law, the Federal Labor Standards Act, all hourly workers must be paid the federal minimum wage of $7.25. Tipped workers may be directly paid $2.13 per hour if their tips and hourly wage combined are at least equal to the minimum wage. In other words, employers can claim a ‘tip credit’ of $5.12 per hour.

The U.S. Department of Labor (DOL) recently released new proposed regulations for tipped workers that reinstate the 80/20 rule. This rule limits the amount of time tipped workers can spend performing activities that are related to tip-generating duties, while their employers can still claim the tip credit. Tipped workers must spend at least 80% of their time performing directly tip-generating activities, such as serving customers, and no more than 20% of their time performing not directly tip-generating activities, such as setting tables. This rule was previously in effect but was replaced by DOL guidance in 2018.

The 2018 guidance provided that employers could claim the tip credit if non-tipped duties were performed at the same time as tipped duties, or if the non-tipped duties were performed for a reasonable time before or after tipped duties. This new proposal returns to the 80/20 rule. In addition, the new proposal specifies that, if an employee performs non-tipped activities for 30 minutes in a row, the employer cannot pay the employee the lower tipped hourly wage for that time.

For employers with tipped workers that are subject to federal wage-and-hour law, this proposal is a good reminder that they need to pay attention to these potential changes and their effects on how they compensate employees.

 

Caution on the Menu

Massachusetts has its own complex laws relating to tips, minimum wage, and overtime. As a result, these are areas where it is easy for employers to make mistakes. Therefore, employers need to pay special attention to ensure they are complying with both state and federal laws. As of Jan. 1, 2021, the minimum wage in Massachusetts is $13.50 per hour. Massachusetts is incrementally increasing the minimum wage in order to reach a $15 minimum wage by 2023. For now, employers may pay workers who make at least $20 a month in tips a tipped hourly wage of $5.55 and take a tip credit of up to $7.95 per hour, for a combined minimum wage of $13.50.

The Massachusetts Tip Law mandates that all tips must be given to employees whose work directly generates tips, and that employers and managers may not keep any portion of their employees’ tips. The law applies to three categories of employees: waitstaff employees, service bartenders, and service employees. Waitstaff employees include waiters, waitresses, busboys, and counter staff who serve beverages or food directly to patrons or clear tables, and do not have any managerial responsibilities. Service bartenders prepare beverages to be served by another employee. Service employees include any other staff providing service directly to customers who customarily receive tips but have no managerial responsibilities. For the purposes of this law, managerial responsibilities are duties such as making or influencing employment decisions, scheduling shifts or work hours of employees, and supervising employees.

Massachusetts law allows for ‘tip-pooling’ arrangements. This means all or a portion of tips earned by waitstaff employees are pooled together and then distributed among those employees. Employers must be cautious when administering a tip pool and ensure that only waitstaff, service bartenders, and service employees are being paid from the pool. This means managers and back-of-house employees like cooks and dishwashers cannot share in tips. Even employees with limited managerial roles who also directly serve patrons are not considered waitstaff employees on days when they perform managerial duties.

When employees do not receive enough in tips to make up the difference between the tipped hourly wage and the minimum wage, employers must pay the difference. Employers are required to calculate tipped employees’ wages at the end of each shift, rather than at the end of the pay period. This requires employers to keep track of how much workers receive in tips for each shift. This may also require employers to pay their tipped employees additional amounts in order to compensate for slow shifts.

Under Massachusetts law, certain businesses, including restaurants, are exempt from paying employees overtime; however, they may not be exempt under federal law. If subject to federal law, employees working in restaurants must be paid one and one-half times the minimum wage (not one and one-half times $5.55 per hour) for all hours worked in excess of 40 hours per week.

Under the Massachusetts Tip Law, if a restaurant includes a service charge, which serves as the functional equivalent of an automatic tip or gratuity, all the proceeds from that service charge must be paid only to waitstaff employees, service employees, or bartenders as a tip. Employers may, however, charge a ‘house fee’ or an ‘administrative fee,’ which they may use or distribute at their discretion, but only if it is clearly stated to customers that the fee is not a tip, gratuity, or service charge for tipped employees. Thus, any fees not intended as gratuities and not paid solely to tipped employees should not be labeled as a service charge.

 

Food for Thought

These complexities are especially important to Massachusetts employers, given that the consequences of failing to comply with wage-and-hour laws can be costly, and the penalty is the same regardless of whether the employer violated the law willfully or by mistake.

Considering the consequences of violations, businesses with tipped employees should regularly consult with their employment counsel to review their practices and policies to ensure compliance with state and federal law.

 

Ludwell Chase and Amy B. Royal work at the Royal Law Firm LLP, a woman-owned, boutique, corporate law firm; (413) 586-2288; [email protected]

Employment

Leaving — No Doubt

Peter Rosskothen admits to not knowing there is a statistic called the ‘quit rate.’

But he could certainly relate when told that this stat — a measure of how many people in the workforce quit their jobs in a given month — is historically high (2.5% in May, down from a record 2.8% in April, according to the Bureau of Labor Statistics) and also when told the reasons why.

Rosskothen, owner and operator of the Delaney House restaurant, the Log Cabin Banquet & Meeting House, and several other businesses, told BusinessWest he cannot recall a time (and he’s been in business for nearly 40 years) when it’s been more difficult to hire, and especially retain, people, particularly in the restaurant and banquet business.

He cited a host of reasons, starting with the fact that, during the pandemic, many of the workers in that field couldn’t keep working within it because businesses had to close their doors — for a few months or, in some cases, forever. So they found something else, and now, they don’t want to go back.

Meanwhile, with everyone fighting hard for good help, many companies are paying more — enough to turn heads in many cases and prompt people to leave for what appear to be greener pastures. With that, Rosskothen related the story of how he lost one of his managers to a competitor, one that was offering considerably more than this individual was making.

Sara Pileski

Sara Pileski

“When the pandemic hit, many people had a lot of time to think — they were in quarantine, some were furloughed or laid off — and they took this time to assess what was important to them: flexibility, compensation, career advancement, and whether their own values line up with those of the company they work with.”

“I had to decide if I wanted to match, and ultimately decided that I wouldn’t,” he said, adding that he opted to hire someone at roughly the same rate he was paying and absorb the other costs attended with doing so, such as training. And everyone he knows in this sector is facing the same kinds of hard decisions — on a regular basis.

Leaving for a higher salary is just one of the reasons why the nation’s quit rate is so high, said Sara Pileski, a regional vice president for Robert Half International, a national staffing business with a local office in Springfield.

She said many individuals stayed with their jobs through the pandemic because of the security they provided at a time when unemployment was soaring. Now that the worst is over, many are looking around and, in many cases, deciding it’s time to move on — for any number of reasons, ranging from a fondness for remote work and a preference to keep toiling that way when the boss is ordering them back to the office, to a desire for a different culture.

“Some people are looking to obtain a salary boost, and others are looking for greater career-advancement opportunities,” Pileski told BusinessWest. “When the pandemic hit, many people had a lot of time to think — they were in quarantine, some were furloughed or laid off — and they took this time to assess what was important to them: flexibility, compensation, career advancement, and whether their own values line up with those of the company they work with.

“During COVID, people re-evaluated what they are looking for in their careers,” she went on. “And a lot it has to do with flexibility. People, and businesses, have learned that people can be successful working remotely, so many individuals have been looking for fully remote roles, and a big piece of that is Millennials.”

Elizabeth Wise, president of the Employers Assoc. of the NorthEast, concurred, and said members are telling her that employees are leaving their jobs for a host of reasons, ranging from retirement, or, in many cases, early retirement, to those higher salaries that are now available as companies desperate for good help ante up. Like Pileski, she said many employees used the pandemic to take stock of their situation, with a good number not only finding something, or some things, lacking, but also discovering a newfound determination not to settle for what they had.

“Members are seeing more quits, more people leaving, than they would certainly like to see,” she said. “And it comes down to employees taking a step back, looking and things, and saying, ‘I’ve enjoyed my time with this company, I’ve done this, and I like this, and all of this is great, but I don’t know where things are going to go, and I don’t know what’s going to happen. I’ve always wanted to try this new field or this new area, or making this kind of change, and now is the time to do it because there are job offers out there, and the pay I’m going to get for making the change is better than it’s ever been. So I’m going to put my toe in the water.’”

Peter Rosskothen

Peter Rosskothen

“Everyone is in the same boat — they’re fighting for people, but paying them more. And then you get into the conversation … is it worth ‘this much’ to keep this person? Before COVID, you would almost always say ‘no.’ But I don’t think you can think that way anymore.”

For this issue and its focus on employment, BusinessWest looks at why so many people are putting their toes in the water and leaving their jobs, and also at what employers are doing, or should be doing, in response to this challenging trend.

 

Resigned to the Situation

Pileski stated the obvious when she told BusinessWest that this is a candidate-driven market. How long it will stay that way is anyone’s guess, but for now, job seekers are in the proverbial driver’s seat.

That’s because there were more than 9 million job openings nationwide at the end of May, and also because, well, people are still quitting a near-record rate, creating more jobs to fill.

“The ball is in the candidate’s court,” said Pileski, adding that her company has been flooded with orders from clients looking to fill positions, and there is a dearth of candidates to fill them. And those who are looking can pick and choose and go to the highest bidder, if you will. “When we call individuals on opportunities, whether it’s contract or permanent, they have multiple offers on the table, where in the past, we may have been their only resource or their only offer. Now, they’re seeing three, four, or five offers because the ball is in their court and they have the upper hand because the talent market is so low right now.”

This environment is certainly contributing to the higher quit rate, she went on, because there are myriad places for people who aren’t entirely happy to go, and, in many cases, more attractive employment packages to be found.

“Whether people are actively looking or not … they’re definitely thinking about it,” she told BusinessWest, adding that she believes the quit rate will remain higher than normal (which is just south of 2% historically) and speculates that it might not have actually peaked yet.

These sentiments were put into perspective locally — and, more specifically, across the hospitality sector — by Rosskothen, who used some words and numbers to paint a picture about how dire the hiring scene has become.

First, some numbers. He estimates that he’ll need maybe 350 employees at his various facilities to handle the peak of the season, to arrive in just a few weeks. He’s at 270 now, and really has doubts about whether he can hit his number.

“I’ve got a little bit of forgiveness in July because it’s busy, but we’re not crazy yet,” he said. “But it’s coming — it’s coming fast.”

He further estimates that his overall payroll is running about 10% higher than last year (or the last normal year), when a 2.5% to 3% increase (reflecting raises of that amount given to most employees) would be the average.

“The biggest challenge for us in this industry is that, to attract and keep people, we’re paying a lot more money than we were two years ago — a lot more,” he said. “For example, for a line cook, I used to be able to keep them happy at the $16- to $17-an-hour rate; now, I can’t get a line cook for less than $20 or $22 an hour now, because if I don’t pay them that, they’re going to go right down the street and find a job that pays them that.

“Everyone is in the same boat — they’re fighting for people, but paying them more,” he went on. “And then you get into the conversation … is it worth ‘this much’ to keep this person? Before COVID, you would almost always say ‘no.’ But I don’t think you can think that way anymore.”

Elaborating, he said that, in this climate, retention is extremely challenging. He estimates he can only retain maybe 30% of those he hires, where historically, the number is more like 60% to 70%.

Speaking in general terms, Wise told BusinessWest this problem extends across the board, to all sectors. “It’s an equal-opportunity quit rate,” she said, adding that departures are being seen in healthcare, higher education, hospitality, and other areas of the economy.

Some of those leaving are retiring, she noted, adding that the pandemic convinced many that it was time to leave the workforce, at least on a full-time basis. For others, there might be burnout, she went on, noting that, during the pandemic, many employees actually worked longer hours and skipped vacations, while dealing with stress on a number of fronts. With something approaching ‘normal’ returning, some are seeking out opportunities to take some stress out of their lives.

Whatever the reason, people are quitting in higher numbers, and employers must respond proactively, both Wise and Pileski said. And raising wages is just part of the equation. In some cases, they may need to be more flexible when it comes to where people work and when, although Wise does not believe that’s a huge issue in the 413.

As for wages, she said they are “starting to come up in Western Massachusetts,” with the pace and rate of climb determined by how competitive things are getting in a specific sector and how desperate employers are feeling.

 

Bottom Line

Adding more perspective, Rosskothen said things are certainly desperate within his sector.

“Everyone I talk to is dealing with this right now — everyone,” he noted, adding that he has seen and heard about companies offering bonuses to start and bonuses to stay a certain number of months.

He’s opting to give the bonuses to existing employees who refer people who are eventually hired. And overall, he and his managers are working harder at recognizing and rewarding long-time employees.

“I have a really hard time giving an incentive to a new employee to start with us,” he said. “I’d rather give an incentive to an old employee for being loyal.”

That’s just one way employers are coping with a quit rate — and all that comes with it — that just won’t quit.

 

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

Employment Special Coverage

Remote Possibilities

Most of Big Y’s 11,000 employees — those who stock shelves, prepare food, work the cashier lines, and do any number of other tasks — must do their jobs on site, in a specific location. But at Big Y’s 300-employee-strong customer-support center in Springfield, which supports those frontline workers, about 70% of them have worked remotely since the start of the pandemic.

“This past year, we learned that remote work can work, and it allows for a lot of flexibility for individuals,” said Michael Galat, vice president of Employee Services at the supermarket chain. “That being said, we’re a company where we stress collaboration and teamwork, and that has definitely been a challenge at times. Meetings using technology are different than having in-person meetings. It definitely can work, but there are pros and cons to it.”

The company’s pandemic response team was quick to set up safety protocols last spring to protect the thousands of customer-facing, frontline employees, but it also set many employees up with the necessary technology to work from home, put together a best-practices guide for working remotely, and has carefully followed the public-health data to determine when to bring them back.

“As time has gone on, they’ve seen the productivity; they see that the work is getting done, customers are being served, and people are happy. Now they’re saying, ‘maybe we don’t need to have everyone in.”

One important finding? Productivity never flagged — which tracks with accounts from many other area employers over the past 12 months. Thus, many employers feel no rush to bring everyone back before the pandemic is in the rear view — and that poses a question no one expected last March: does every employee really have to come back? And what if they don’t want to?

Meredith Wise

Meredith Wise says employers run the gamut when it comes to bringing back remote workers; some are anxious to do so, while others may see value in changing their model altogether.

Most employers last March thought shutdowns would last a couple months. But a year later, millions of workers are still working from home — and the result has been a national experiment with remote work that has borne some surprising data.

“It’s striking — we’re seeing a little bit of everything,” said Meredith Wise, president of the Employers Assoc. of the NorthEast. “We have a number of companies — like manufacturers — that never shut down and had employees come in the whole time. And we have companies starting to have employees coming back on a sporadic basis — maybe not five days a week, but two or three days a week. Then others have said, ‘we aren’t even thinking about having employees back until later in the year.’”

One reason for that hesitancy is the fact that workers have not only adapted to remote work, but have, in most cases, been as productive as they were in the office. So employers are taking their time bringing them back, looking to state guidance and public-health metrics to guide decisions.

“As time has gone on, they’ve seen the productivity; they see that the work is getting done, customers are being served, and people are happy,” Wise said. “Now they’re saying, ‘maybe we don’t need to have everyone in.’”

UMassFive College Federal Credit Union is one example of that phenomenon.

“We moved about 60% of our workforce home last spring, and it continues to be that way,” said Craig Boivin, vice president of Marketing. “We’re developing plans and processes for what this will look like in the post-pandemic world, but we’re not looking to bring people back until the state says it’s safe for large groups to gather indoors.”

During the exodus from office to home last March, he recalled, “I won’t say it was chaotic, but we had to make a lot of quick decisions at the senior level to make sure everyone had the equipment and support they needed at home,” in addition to developing guidelines to ensure accountability and making sure everyone understood new (to them, anyway) communication tools like Zoom and Slack.

“We found there are some real positives with productivity and being able to shut off some of the distractions,” he went on.

Employees — especially those who have grown to appreciate working from home, and even prefer it — are thinking similar thoughts, and that may pose a problem of pushback at some companies when they try to bring their teams back in. For now, in most cases, there’s no rush, but those days won’t last forever.

 

National Conversation

The same story is playing out nationally, with some companies planning to remain 100% remote post-pandemic, while others — including big names like Microsoft — taking a hybrid approach, giving workers more flexibility about where they work. Other companies are clamoring to bring everyone back.

“I see a hybrid approach in the future, finding balance, again, between meeting the needs of the business and allowing people flexibility to take care of their home life.”

“It’s no longer, ‘do you offer remote work?’ but, ‘do you offer it with enough organizational support so I can be as successful as the people who work in the office?’” Andrew Hewitt, senior analyst at market research firm Forrester, told CNN recently. He expects about 60% of companies will offer a hybrid work model, while 30% of companies will be back in the office, and 10% will be fully remote.

Since last summer, Big Y’s support-center workers have been required to be on site at least one day a week, and the company continues to discuss internally what the full transition back will look like.

“Productivity has not been an issue,” Galat said. “But, with our company, the culture is a huge component of it. Collaborating and having discussions on Zoom … you can do that, but it’s not the same.”

By essentially being forced into a mode of flexibility since last March, he believes companies — including Big Y — have learned some important lessons going forward. “I see a hybrid approach in the future, finding balance, again, between meeting the needs of the business and allowing people flexibility to take care of their home life. It’s a constant discussion we’re having with the executive team about what’s working, what’s not working, and what this will look like in the future.”

The fact that the support center is not just an 8-to-5 operation, but requires coverage on nights and weekends, allows for some flexibility of schedules for workers juggling their kids’ remote learning or taking care of parents, he added. “We continue to take care of business, while allowing people the flexibility to take care of home needs as well.”

Another of the region’s largest employers, MassMutual, continues to keep a large swath of workers off campus, and is in the process of evaluating their return to the office, said Chelsea Haraty, communications consultant in Media Relations for the company.

Craig Boivin

Craig Boivin

“At a high level, we expect to have MassMutual employees return to our corporate offices in a slow, phased manner later this year,” she told BusinessWest. “We will continue to monitor and reassess that plan, factoring in a number of considerations — including guidance from medical experts and government officials, a sustained reduction in cases, broader availability of testing and vaccines, as well as our employees’ circumstances and comfort in returning.”

What employers are starting to understand, Wise said, is that employees are also weighing the pros and cons of coming back, and while some are eager, others would rather stay home, and may make that fact known.

“Employers have employees all over the spectrum — some want to get back into the office and don’t feel part of the team when they’re not. Others are saying, ‘I’m not sure I want to come back; I’m not sure about the cleaning protocols and sanitation protocols. Are people wearing masks? I’m not sure I’m comfortable in the office.’”

She noted that some companies are fine pushing those decisions into the future. “They’re saying, ‘things are going pretty smoothly; we don’t have quite as much water-cooler talk, not as much gossip going on, and people are really productive when they’re remote. We don’t have to have people come back to the office and incur the expense of coffee and bathroom supplies. Maybe we can cut some of our expenses.’”

Including some major expenses — most notably the office space itself. “Some of these companies have leases coming up in the next year, so they’re asking, ‘can I reduce my footprint? Do we need as much space as we have?’”

 

Back and Forth

On the other hand, Wise said, questions about workplace culture are very real. “Some companies are looking at their culture, their camaraderie, their teamwork, just the ability to walk down the hall and talk to somebody, and they want to get all their employees back in the office as soon as they can.”

She noted the importance of age-old rituals of the workplace, walking in the door at the start of the day and asking co-workers about their weekend, or their family, or whatever might be going on, whether it’s related to their jobs or not.

“How do you incorporate new personnel into the culture outside of the physical environment? That’s a big challenge.”

“When people are removed from an environment that really is a team, where you’ve gotten to know each other’s family situations and personal life, you really do lose that with a remote connection,” she said. “When people come into an office meeting, they sit down and chit-chat with the person next to them a little. It’s hard to recreate that on a Zoom meeting; you lose some of that personal connection.”

Boivin agreed. “The productivity piece seems to be working out pretty solidly now,” he told BusinessWest. “At the same time, the collaborative, in-person aspect is missed.”

One big topic of conversation is new-employee onboarding, he said, noting that orientation is conducted in person, and video communications are a regular reality, but he wonders if that’s enough to keep them engaged.

Mike Galat

Mike Galat

“I have a new graphic designer in the Marketing department who started at the end of August. She’s been [physically] at UMassFive for just a day or two. How do you incorporate new personnel into the culture outside of the physical environment? That’s a big challenge.”

Also challenging is the way boundaries between work and personal life have blurred, whether it’s juggling job responsibilities with helping kids with remote schoolwork, or simply working too many hours.

“Productivity is up,” Wise said, “but some of it is putting in longer hours — rolling out of bed, having breakfast, and getting right to work instead of commuting, and then at 5, instead of getting in the car and driving home to fix dinner, they keep working. Something we’ve heard is that people need to build in some transition time so they don’t start working at 7 and quit at 6.”

Whatever the reason, many employees will be more than happy to return to the pre-pandemic work world.

“Now that we’re going on a year, a lot of people are saying, ‘I thought I wanted this, but I really want to be back in the office — maybe not five days a week for 52 weeks a year, but maybe in the office three days and at home two days,” she added. “A lot of employees are saying, ‘this isn’t what I thought it was going to be — I need to be back around people; I need to have boundaries by being back in the office.’”

Each industry is different, too, Wise added. For example, companies where creativity is crucial, like marketing firms, probably find it easier to brainstorm when people are together in one physical space, able to immediately bounce ideas off one another.

“I don’t think it’s a one-size-fits-all answer that’s going to fit every organization,” she said. “My guess would be a lot of manufacturers, since they have individuals on the floor who have to be at work, are going to be less likely to have their office staff remain totally remote because that creates an us-and-them mentality. But some other organizations will allow many people to stay totally remote, or there may be that hybrid of people working in the office and then from home.”

Galat agreed, adding that that he’s heard of some companies staying fully remote, but most seem to be moving toward a hybrid approach — which speaks to one way COVID-19 may have permanently altered the American workplace.

“We’ve learned a lot through the year,” he said. “We miss that component of teamwork and collaboration; not having that makes it more challenging. But I think the hybrid approach might be the approach we look at going forward. We’ll evaluate and fine-tune it as we go.”

 

Joseph Bednar can be reached at [email protected]

 

Employment

Putting Experience to Work

Colleen Holmes says client employment, inclusion, and empowerment have been challenged by the pandemic.

Colleen Holmes says client employment, inclusion, and empowerment have been challenged by the pandemic.

Colleen Holmes calls it a ‘full-circle moment.’

That’s how she chose to describe her decision to assume the role of president and CEO of Viability, the Springfield-based nonprofit with a broad mission that boils to providing services — and creating opportunities — for those with disabilities. Those opportunities come in a number of forms, and we’ll get to that shortly.

But first, that ‘full circle’ reference. Holmes used it to note that she spent a full decade at one of the legacy agencies, in this case Human Resources Unlimited (HRU), that became Viability in 2107 (Community Enterprises was the other) before moving on to a new role leading as president and CEO of the 18 Degrees agency.

So she’s back where she was. Well, sort of, but not really. Viability is a much bigger agency than HRU was — it boasts $36 million in annual revenues, 420 employees, and 37 sites in four states — and so much has changed in the interim, much it before COVID-19. And the pandemic has simply added another layer — or several layers, when you get right down to it — of challenge and intrigue.

“Coronavirus has in no way taken away from the need for the services we provide. And in many ways, it has made it even more important to provide those services; that has been job one for me, and for all of us here.”

“Coronavirus has in no way taken away from the need for the services we provide,” Holmes explained. “And in many ways, it has made it even more important to provide those services; that has been job one for me, and for all of us here.”

In that respect, much hasn’t changed, and she has, indeed, come full circle, especially when it comes to agency’s mission, which boils down to enriching the lives of the people served by the agency and continuously reinforcing the belief that every individual, no matter their ability, can be a valuable contributor to the community — and the workforce.

It carries out this mission through a number of programs and services, including:

• Clubhouses, which provide members with a supportive environment to increase their vocational, educational, and social skills;

• Partnering with more than 600 employers to provide members with a variety of supported employment opportunities;

• Community living programs that provide that provide care management, direct care, and referral services to individuals with disabilities, enabling them to live in the community with dignity;

• Day supports and various recreational programs that provide individuals with a broad range of community activities; and

• Transitional services that provide members with upfront job-readiness skills, placement assistance, and ongoing supports.

The common denominator in each of these areas, said Holmes, is dedicated staff that not only make the programs happen, but make the individual goal set by and for each member attainable.

“This work doesn’t happen without our staff — and I don’t mean that simply from the standpoint of hands being on deck,” she said. “A lot of the way in which progress is made with individuals is through trusted relationships that are built that give people a safe space to try things, to grow, to progress, to fail and come back and try again another day. Those trusted relationships are pivotal, and our staff’s ability to offer that is everything.”

But COVID has certainly impacted many of these initiatives, said Holmes, adding that the agency has collectively overcome a number of challenges to keep employment, inclusion, access, and empowerment for people with disabilities in the forefront, despite the pandemic. Moving forward, lessons learned from the pandemic will be applied to the future of these programs and services and how they are provided.

“What worries me is that some of these people are losing ground that they worked so hard to gain — people who were working, people who were gaining life skills, people who were gaining in their levels of independence, people who were ready for their next step in employment. There are a number of folks who have lost ground.”

And there will be some important ground to be made up, she said, adding that, in some cases, COVID stunted the progress being made by some members who were forced inside and into a form of isolation that is not part of this agency’s MO.

“What worries me is that some of these people are losing ground that they worked so hard to gain — people who were working, people who were gaining life skills, people who were gaining in their levels of independence, people who were ready for their next step in employment,” she noted. “There are a number of folks who have lost ground.”

Overall, however, many members, and the agency as a whole, have been able to carry on and move forward through this pandemic, she went on, adding that many members work in essential positions, and they take pride in being essential.

For this issue and its focus on employment, BusinessWest talked at length with Holmes about her new assignment, but especially about how the pandemic has only magnified the need for the various services this agency provides, and how Viability has gone about responding to this changed landscape.

 

Work in Progress

Holmes said she certainly wasn’t looking for a new challenge when Don Kozera, the long-time CEO of HRU, her former boss (she served the agency as special projects coordinator), and, most recently, the interim president and CEO of Viability following the unexpected passing of Dick Venn (who stepped into that role after having the same titles at Community Enterprises), asked to talk with her about possibly becoming a candidate for this role.

Suffice it to say he did a good sales job, although it wasn’t necessarily a quick or easy sell.

“He said he thought I would be a good fit for this position and asked if I might consider it,” Holmes recalled. “And I said, ‘I don’t know … I’ll go talk to people; I’m always happy to do that.’”

She did talk to people, and came away intrigued by the possibilities.

“What I saw in this was an opportunity to sort of test my skills and challenge myself in a larger organization; this one is probably two and half times the size of the organization I was leading,” she explained. “Also, and this is probably most compelling, coming to Viability was an opportunity to advance work that matters to me in a different and larger arena.

“Our focus is on employment, training, empowerment, and inclusion with people who have disabilities and other challenges and disadvantages,” she went on, “and that speaks very much to me, in the combination of capacity building and social-justice change.”

Fast-forwarding a little, she did enter what became a nationwide search for a permanent president and CEO, and prevailed through a series of interviews conducted virtually, which she described as a new and different experience — at least as the interviewee.

She arrived in November to a full plate of challenges, including continuation of the daunting process of combining HRU and Community Enterprises into the larger entity that exists today, work that was in some ways slowed, and complicated, by both the passing of Venn and then the arrival of COVID.

“As I came on board, the organization that I am coming to know was ready to be on the other side of that transition,” she told BusinessWest. “And it would have been on the other side sooner had it not been interrupted by the grief and loss of Dick Venn, and had it not been for a pandemic.”

Elaborating, she said that what has been delayed has been the process of “breaking down the silos” within the organization. “You have a much larger organization in every way you can name — there’s more staff, many more programs and services, and in more geographic areas — and one that was continuing to grow, not just as a result of the merger but because it’s part of the mission, vision, and value of the organization. It’s about silos, systems work, and some of the basic functional things, like IT.”

A big part of the process of leading the organization to that proverbial ‘other side’ is to do a lot of “listening, watching, and learning,” she noted.

“You don’t walk into an organization like this one and think you know what you need to know,” she explained. “And I can say I’ve walked into an organization of people who are very welcoming, very helpful, who have lots to share, and who are deeply committed to the mission. Our people show up because they believe in the work that they’re doing and the people they’re working with.”

 

The Job at Hand

Supporting and nurturing this staff is just one of the many priorities for Holmes moving forward — and is, in itself, a challenge.

“One of my larger concerns, and it’s one that’s certainly shared, is the fact that human-service salaries are woefully inadequate to the jobs people do,” she explained. “Joining in advocacy efforts at the state level for eliminating the disparity in pay between community-based providers and state employees who do substantially the same work is important. But it’s also important for us as an organization to prioritize our staff to the extent that the limitations of our largely state-funded dollars allow us to do. Continuing services and supporting our staff are real priorities.”

Another priority, of course, will be transitioning, if that’s the right word, to a post-COVID world. Many staff members have been working remotely, she noted, and there are questions moving forward about how and where work will be carried out and even how much office space the agency may actually need in the short and long term.

And there are many factors to consider in making those decisions, she said.

“It comes down to how we most effectively support the services and the staff members that are delivering the services,” she explained. “There might be a natural tendency to say, ‘OK, there are certain positions that can be carried out remotely, so let’s just put all of them out and save that space.’ But it’s more complicated than that; human-services work is very collaborative. It’s teamwork, but more deeply than that, there is an environment of support that’s hard to come by when you’re not in contact with people, when people don’t see you walk through the hall and see you being a little more tired, a little more stressed than normal. In the kind of work we do, we need to pay attention to that.”

Meanwhile, there are those lessons learned and the new ways of doing things that came about out of necessity — and ingenuity.

“There was a brief period when staff needed to switch to providing services remotely, and … by golly, they did it,” Holmes told BusinessWest. “You get creative, and I’m sure we all have; you learn how to do some things differently, and you discover that the paradigm of how services are provided is turned on its head.

“That’s a new skill set we’ll carry forward, but it by no means replaces in-person services,” she went on, adding that, moving forward, the agency will look toward using the new skills and new technology, including virtual reality, to carry out its mission.

She noted that Viability is using virtual reality to acclimate and train clients and members for job placements. “We started during the pandemic, and we’re very much in the testing and piloting stage,” she explained, adding that early results are very positive. “If you have folks who have autism or others who for various reasons are highly sensitive to changes in environment or to noises, or just to new experiences … to be able to take a work environment and load it into a virtual-reality system so that people can safely explore and navigate that workspace without actually being there is very advantageous. It can lead to much smoother transitions.”

As for the employment programs, the ones that put thousands of individuals in jobs across this region and beyond, COVID prompted some businesses to close and many others to slow down, said Holmes, adding that obvious question marks remain about when and to what extent business, and jobs, will pick up again.

“It is a concern as to how long the economic rebound takes, and if there continues to be a shortage of positions,” she said. “As is so often the case, people who are marginalized are pushed out first, so that is a concern. But there are a number of employers we partner with who, through experience, will tell you the value of working with us, and that, when it comes to our members, their attendance is superior, and the quality of their work is at least on par.”

 

Past Is Prologue

Holmes has talked with many such employers over the years, so she understands those sentiments. She has, as she said at the top, come full circle when it comes to her career in human services.

But in most all respects, she is not coming back to where she was years ago. The landscape has changed in myriad ways and, thanks to COVID, it continues to change, each month and almost each week.

This is a different test, a sterner test, one she fully embraces. As she said, she’s excited about the opportunities — for herself, but especially for those benefiting from Viability’s programs and services.

 

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

Employment

Don We Not Our BLM Apparel

By Tim Murphy

Americans across the country have been actively engaging in the Black Lives Matter (BLM) social-justice movement, which advocates against incidents of racially motivated violence police. Often, BLM supporters will demonstrate their commitment to the movement not only by protesting, but also by wearing apparel, such as T-shirts and face coverings, with BLM messaging.

But what happens when supporters wear this clothing to work? Can employers enforce a dress code requiring employees to refrain from wearing politically motivated clothing? Yes, a recent Massachusetts federal court determined. Even so, is it worth the negative publicity and PR fallout? You be the judge.

The case involved the well-known Whole Foods grocery store, and a group of nearly 30 Whole Foods’ employees who claimed to be negatively impacted by the store’s “neutral” dress-code policy, which prohibited employees from wearing clothing with visible slogans, messages, logos, and/or advertising that are not Whole Foods-related.

“Can employers enforce a dress code requiring employees to refrain from wearing politically motivated clothing? Yes.”

Beginning around June 2020, in the wake of George Floyd’s killing and subsequent nationwide protests, Whole Foods employees began wearing masks and other attire with BLM messaging to work. Some employees were disciplined for violating the dress-neutral dress-code policy, while others were sent home without pay and directed to change clothing. Several employees quit, and others kept wearing BLM clothing to protest the store’s actions.

Then, a group of 27 employees filed a lawsuit against Whole Foods, accusing the store of racial discrimination. They claimed Whole Foods was selectively enforcing its dress code banning “visible slogans, messages, logos, and/or advertising” against black employees.

Last month, a federal District Court judge dismissed the race-discrimination claims. The court was not convinced that Whole Foods was enforcing the policy based on race-related reasons. Instead, it was enforcing a neutral dress-code policy with no consideration to race. The court noted that, “at worst, they were selectively enforcing a dress code to suppress certain speech in the workplace.” The judge went on to state that, “however unappealing that might be, it is not conduct made unlawful” by anti-discrimination laws.

On its face, this decision makes sense. Generally speaking, an employer can lawfully implement and enforce a dress code, as long as it is applied equally to all employees. This is particularly important when violations of the dress code negatively affect productivity or lead to employee disputes. As far as political speech is concerned, the First Amendment provides no protection for employees unless they work for the government, because the First Amendment applies only to governmental restrictions on speech.

Additionally, in Massachusetts, there are no state laws or protections for speech in a private workplace. It also appears there was no evidence in this case supporting the argument that Whole Foods was selectively enforcing the dress-code policy against black employees.

Given the current political climate, employers may be left wondering whether Whole Foods and other retail employers are making the right move by enforcing dress-code policies in a way that restricts political and socially progressive speech. Certainly, there are arguments to be made that these policies are geared toward improving customer relations and eliminating politically charged disputes between workers and customers. Last summer, much news was made about a customer in Target berating an employee wearing BLM attire with questions about whether “all lives matter.”

The same can be said for employee relations. It is not hard to envision heated disputes around the water cooler over clothing that bears political or social-justice messages.

That said, this case has generated a lot of publicity for Whole Foods. And they are not alone. Starbucks had a similar dress-code policy that prohibited employees from wearing BLM attire and other clothing bearing political and social messaging. After protests and public outcry, Starbucks reversed its position and began allowing employee to wear T-shirts or pins supporting the Black Lives Matter movement.

Businesses need to pay careful attention to this issue. While the adoption of strict, ‘neutral’ dress codes appears legal, there could be unintended consequences, including irreversible harm to employee morale and negative public-relations nightmares.

 

Tim Murphy is an attorney with the Springfield-based firm Skoler Abbott & Presser, specializing in labor relations, union campaigns, collective bargaining and arbitration, employment litigation, and employment counseling; (413) 737-4753.

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]

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