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A Legislative Update

By Peter Vickery

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

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

Non-competes

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

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


SEE: Chart of Largest Employers


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

Pregnant Workers Fairness Act

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

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

Earned Sick Time

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

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

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

Credit-report Ban

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

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

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

EEOC Transgender Enforcement

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

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

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

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

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

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

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

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

Employment Sections

Understanding EPLI

By Timothy M. Netkovick, Esq.

Timothy Netkovick

Timothy Netkovick

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

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

What Does EPLI Cover?

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

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

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

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

What Time Period Is Covered?

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

Costs and Benefits of EPLI

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

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

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

What Is Your Approach to Employment Lawsuits?

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

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

Who Controls the Claim?

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

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

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

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

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

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

Can I Have My Own Counsel?

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

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

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

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

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

Employment Sections

Questions of Substance

By John Gannon, Esq.

 

John Gannon

John Gannon

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

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

Medical-marijuana Use

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

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

Use by Employees

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

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

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

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

What about Use of Prescription Drugs?

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

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

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

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

What If an Employee Is Acting Oddly?

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

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

Bottom Line

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

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

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

Employment Sections

Shifting IT’s Focus

By Joanna Smiley

Keyla Centeno

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

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

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

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

What do Stoller and Kavanh have in common?

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

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

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

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

Brandon McGee hopes to land a job in software sales

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

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

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

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

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

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

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

Technically Speaking

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

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

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

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

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

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

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

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

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

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

tech-foundry-logo

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

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

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

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

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

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

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

Bottom Line

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

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

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

Employment Sections

Value Proposition

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

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

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

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

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

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

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

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

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

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

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

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


List of area Employment Agencies


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

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

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

Making Connections

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

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

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

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

Janice Mazzallo

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

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

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

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

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

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

Getting Ahead

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

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

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

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

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

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

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

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

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

Just a Little Respect

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment Sections

Help Wanted

By AMELIA J. HOLSTROM, Esq.

 

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

Amelia J. Holstrom

Amelia J. Holstrom

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

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

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

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

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

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

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

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

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

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

Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. She is a 2011 graduate of Western New England University School of Law, where she was managing editor of the Western New England Law Review. Her practice is focused on labor law and employment litigation; (413) 737-4753.

Employment Sections

Reach Out, Speak Up

depressiondpart

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

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

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

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

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

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

Robert Pura

Robert Pura

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

 

 

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

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

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

Joanne Marqusee, right

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

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

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

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

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

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

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

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

Suffering in Silence

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

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

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

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

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

Nina Slovik

Nina Slovik

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

 

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

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

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

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

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

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

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

Timely Education

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

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

It’s a goal Pura certainly shares.

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

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

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment Sections

Make Sure You’re Covered

 By Timothy M. Netkovick, Esq.

 

Timothy Netkovick

Timothy Netkovick

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

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

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

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

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

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

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

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

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

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

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

Employment Sections

On the Clock

overtimedpart-1016b

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

 

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

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

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

Mark Adams

Mark Adams

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

 

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

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

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


See: Employment Agencies in Western Mass.


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

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

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

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

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

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

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

Raising the Stakes

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

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

John Gannon

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

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

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

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

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

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

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

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

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

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

Role Players

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

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

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

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment Sections

Crosses to Bear

By Karina L. Schrengohst, Esq.

Karina L. Schrengohst

Karina L. Schrengohst

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

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

What would you do?

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Sections

Tricks and Treats

By Stefanie Renaud, Esq.

Stefanie Renaud

Stefanie Renaud

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

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

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

Dirty Tricks

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

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

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

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

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

Killer Treats

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

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

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

My Employee Has a Food Allergy, So What?

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

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

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

Around the workplace, employers can take a few easy steps to reduce their employees’ risk of exposure to food allergens. Employers may wish to conduct training on the risks associated with food allergies and helping employees recognize the signs of an allergic attack in others. Employers should consider posting signage in kitchen areas and providing disposable plates, cups, and utensils for use by employees with allergies.

Finally, employers must treat employees with food allergies, and their related needs, seriously. Don’t be the boss who shrugs off a food allergy.

Stefanie Renaud, Esq., is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters; (413) 737-4753; [email protected]

Employment Sections

Hire Expectations

Employment agencies, by nature of the work they carry out, can take an accurate read of the economy, the confidence exhibited by area employers, and the trends developing within various sectors. Their pulse-taking exercises reveal, among other things, that the economy has been growing steadily since the end of the recession, and that this remains, by and large,  a a job hunter’s market because businesses and start-ups are growing, and the demand for people with specialized skills is currently greater than the supply.

Tricia Canavan

Tricia Canavan says working with an employment agency can be beneficial to job seekers because such firms know what employers want and can help them hone their skills.

A client recently told Tricia Canavan that he didn’t know how she found the right person to fill an executive position in his firm.

“I told him it’s our sole focus, so it’s easier for us than it is for many small and mid-sized companies,” said the president of United Personnel in Springfield.

But it’s still no small feat: The state’s seasonally adjusted unemployment rate was 4.2% in June, for the third month in a row, and fewer people are searching for jobs.

“It is becoming increasingly difficult to find qualified candidates,” Canavan said.  “The economy in Western Mass. is really strong, the job market is very tight, and we’re seeing increased demand for direct hires as well as temp-to-hire positions.”


Chart of Area Employment Agencies


Indeed, although the market was flooded with job hunters during the recession, the pendulum has certainly swung in the opposite direction, creating new challenges for employers — and the staffing agencies trying to serve them.

“The field is rife with opportunity for people with the right skills,” said Jackie Fallon, president of FIT Staffing Solutions LLC in Springfield and Enfield, which specializes in the field of information technology. Historically, about 25% of their job openings have been for temporary positions, and although there was a rise in temp jobs from 2008 to 2010, today only two of 25 openings she is trying to fill fall into that category.

“It’s a job-candidates’ market; there is a gap between supply and demand,” Fallon continued, adding that people with IT skills are not afraid to quit jobs without notice due to the high demand for their skills, and this factor, combined with the fact that many baby boomers are retiring, has increased the number of openings in the industry.

“It is becoming increasingly difficult to find qualified candidates,” Canavan said.  “The economy in Western Mass. is really strong, the job market is very tight, and we’re seeing increased demand for direct hires as well as temp-to-hire positions.”

Ed Piekos notes the same trend in another industry. “Job openings continue to exceed hires for companies looking for financial professionals with well-rounded skill sets and strong soft skills,” said the vice president of Accountemps/Office Team in Springfield. The former specializes in accounting and finance professionals and their temporary jobs can last up to two years, while its sister division specializes in administrative support, where a business might need a receptionist for as little as a day.

Jackie Fallon

Jackie Fallon says there is strong need for employees who are proficient in information technology, and this pattern will continue.

Andrea Hill-Cataldo, president of Johnson & Hill Staffing Services in West Springfield, said the need for people in accounting and finance has grown so much that earlier this year she hired Tiffany Appleton to serve as director of the new Finance and Accounting division her firm created.

“We’re very busy, and there is a growing need for this type of expertise in both temp and temp-to-hire positions, although most of the jobs we’re trying to fill are temp-to-hire,” she told BusinessWest.

Appleton moved from the Boston area to Western Mass. to take the job, and was surprised to find the majority of vacancies in this region are newly created jobs.

“We’re not seeing a need for backfills; all of the positions we have exist because small and mid-size companies are growing and want to add to their teams,” she noted. “They’re creating permanent jobs and are fully committed; they are not testing the waters with a temp.”

Although she noted that larger firms still do employ temps, which some people prefer to call “contractors” due to the negative connotations associated with the term “temporary,” the majority of them keep these hires for a year or longer, which allows them to continuously adjust to economic demands without affecting their permanent staff.

“Temporary hires are a workforce-management tool because they can be used for projects, special needs, or uncertain demands,” Appleton explained.

Overall, who, when, and why companies are hiring are subjects still dominated by a host of questions marks. But many employment issues are coming into focus, and for this issue, BusinessWest talked with many staffing professions about what they’re experiencing, and what that means in terms of the proverbial big picture.

Meeting Diverse Needs

Although the demand for full-time employees is growing, Canavan said many companies have significant seasonal fluctuations and do need temporary workers. Decades ago they hired people to fill these jobs, then laid them off, but today they depend on employment agencies to fill their need for workers whose job duties can range from customer service to processing orders to even project management.

It’s a system that works well because local employment agencies retain pools of qualified candidates they deploy on a frequent basis.

Andrea Hill-Cataldo, left, and Tiffany Appleton

Andrea Hill-Cataldo, left, and Tiffany Appleton say that although large companies can offer rich benefit packages, small to mid-sized companies often can be more flexible or creative with benefits, which appeals to many job seekers.

The length of time they work depends on what they are hired for, but Fallon said her firm provides them with health insurance if they need it and keeps them on staff as W2 employees, because independent-contractor law in Massachusetts is the strictest in the country.

“And in our industry, many software developers want to go from job to job, which they can do in other states, but not in this one,” she explained.

Other agencies also see people who only want to work on a temporary basis. Some are retired, others are simply interested in challenging projects, a number want to gain skills and experience in a new field they are considering, and still others supplement their income by working part-time.

“They may have plans to move in a year, are re-entering the workforce, or are a recent college graduate who just wants to build a resume,” Canavan said.

She told BusinessWest there are also many part-time positions available, which is ideal for job applicants with another job or responsibilities that prevent them from working full time.

The options are unlimited, and the temp-to-hire route often works well for both employers and prospective employees, although people leaving a full-time job to take another usually want the security of knowing they have a job.

“Many companies want to try a candidate out to see if they fit well in their culture, but it’s also an excellent way for a person to see if they want to work for the employers,” Piekos explained, noting that a job placement needs to be a good fit; someone who has worked in corporate America may not be comfortable working in the construction industry.

Ed Piekos

Ed Piekos says companies seeking a highly skilled financial professional with strong soft skills must act quickly when they find one and be willing to negotiate.

That can be difficult to determine if the employer and their workplace constitute an unknown entity, which happens frequently when people search for a job on their own.

“It can be very frustrating for people to apply for jobs via the Internet. It’s like sending your resume into a black hole,” Canavan said, explaining that there is often no response and no feedback, which can be mitigated with an employment agency because they know their clients well.

In fact, Hill-Cataldo believes every job seeker should contact an employment agency.

“We can’t help everyone but we’re really honest about feedback and we offer specialized services. One interview with us can yield a lot of potential options, so it is a good investment of people’s time,” she explained.

Her agency also offers candidates they accept free assistance in polishing their resumes as well as their interviewing skills, and offers honed advice on how to turn a temp position into a permanent one.

Timing Issues

Star performers may be in demand, but Hill-Cataldo said their clients are not compromising their standards.

“They want the right person and are highly selective,” she noted, “But if they do find a top candidate, they act quickly because they know that quality people are being snatched up.”

Piekos has spent 18 years in the industry and been through three economic downturns and recoveries, and says the market right now for skilled employees is especially tight, so it is critical for employers to make offers quickly if they like a candidate.

“Companies need to be willing to negotiate quickly because a person may have a lot of offers on the table. They have to be ready to sell themselves and be willing to entertain things such as higher salaries and flexible scheduling or they could lose top performers,” he said. “We’re in a specialized economy, and skilled talent is becoming harder and harder to find, so candidates with the skill sets companies want often have multiple offers.

“Counter offers are common and hiring has become intensively competitive,” he went on, adding that the national unemployment rate is 1.8% for financial analysts, and 2.6% for bookkeepers, so there may be dozens of local companies trying to hire a senior accountant.

“It’s really a candidate’s market, and people with the right skill sets are so confident they are forcing employers to look at retention strategies and compensation plans,” Piekos continued, explaining that people are more willing to change jobs today than they were during the recession.

He believes the top items companies need to offer in order to acquire and retain top employees include a willingness to invest in their professional development; the ability to provide opportunities for career advancement; good salaries or hourly wages; and programs that reward or recognize employees for excellent work.

Many job seekers in this market, particularly millennials, are also concerned with the flexibility a job offers and want to be able to make their own work schedules.

“Candidates are definitely demanding and want to work for a company that offers them a good work/life balance. Many tell us the company’s mission is important and should allow them to take time off to volunteer, as well as allowing them to work from home as much as possible,” Fallon said, adding that employers who want to hire people competent in information technology need to keep pace with it themselves because college graduates won’t work for a company with old technology.

And since a good fit means understanding the needs of both the employer and the employee, Canavan says her firm interviews employers about what a typical work week is like, and talks to prospective employees about what they find acceptable.

There are other important factors, and one of them is that finding the right candidate for a job doesn’t necessarily mean they need all of the technical skills a company would like.

Job-placement specialists agree that skill sets are transferable, so soft skills are often more important than proficiency in a certain area and finding someone who fits well within an employer’s culture and has good soft skills can be the deciding factors in who they hire.

“Employers are more open to understanding this today than they were in the past,” Appleton said. “Many skill sets are transferable.”

Hill-Cataldo added four new employees to her own staff over the past 18 months, and followed that principle; her new placement coordinator was a legal assistant, and other hires came from the banking and retail industries.

“You can train someone on the technical aspects of the job, but you can’t train them to be passionate about their work,” she said.

Future Outlook

The need for qualified employees continues to grow, and more companies are taking measures to ensure that the people who already work for them are happy, which is critical to retention. They are also focusing on why their firm stands out so they can sell themselves to candidates they like.

Hill-Cataldo and other experts say this is especially important in the current competitive environment.

“It’s not your typical market, and we are so busy we can’t identify enough qualified candidates for the business we have,” she noted, adding that they are placing people in many high- level positions.

“It’s a good time to be looking for a job,” she said in conclusion. “There are lots and lots of opportunities.”

Employment Sections

Defining Issues

By Peter Vickery

Peter Vickery

Peter Vickery

At the end of June, the Mass. Commission Against Discrimination (MCAD) was the subject of a report by the state auditor that criticized the agency’s delays, accounting practices, and security controls. Nevertheless, in July the Legislature decided to entrust the MCAD with the task of drafting rules and regulations around the Act Relative to Transgender Discrimination (commonly, and somewhat disparagingly, known as the Bathroom Bill).

But it chose not to make the MCAD the starting point for complaints under the new Pay Equity Act. Both pieces of legislation will affect employers in Western Mass., as would any changes the MCAD makes to its operating procedures in response to the audit report. But first, an overview of a recent decision from the agency’s Boston office that may influence the way employers across the commonwealth handle temporary disabilities.

MCAD & Carta v. Wingate Healthcare Inc.

The MCAD recently awarded a formerly full-time employee $25,000 for emotional distress in part because her employer had done such a good job of accommodating her need to work part-time. When the employer argued that keeping a part-time employee in a job that needed a full timer was an undue hardship, the hearing officer pointed to the fact that the company had coped well enough for five months and could show no loss of revenue or operational burden. The employer may regret having accommodated the disability so effectively.

One might think that the MCAD would want employers to create financially viable workarounds and reward them — or at least not punish them — for providing reasonable accommodations that do not hurt the bottom line. Instead, if this case is anything to go by, an employer’s success in accommodating a temporary disability can count as a strike against it.

The case, MCAD and Carta v. Wingate Health Care Inc., is the decision of a single hearing officer, not the full commission, but it provides insight into the agency’s thinking.

Cecelia Carta was the admissions coordinator for Wingate Healthcare. During 2010, she was off work for health reasons for one week in August and then from September to December. She returned to work part-time Dec. 6, working four hours a day, initially three days a week and later four days a week. On May 12, 2011, Wingate terminated Carta’s employment, telling her that the company needed a full-time admissions coordinator.

They asked her stay in touch and suggested she apply for her old job if and when she could return to full-time work. But they had not warned her (or, rather, presented no evidence that they had warned her) that unless she returned to full time she would be let go. This was an important omission.

Perhaps the HR people were worried that if they told Carta that the company really needed a full-time admissions coordinator as opposed to a part-time one, their words could be construed as in some way discriminatory. Whatever their reason, the lack of notice carried a price tag of $25,000.

The hearing officer did not order Wingate to pay lost wages because Carta had received $116,000 in workers compensation and $181,000 from two injury-related lawsuits. But Carta was entitled to $25,000 for the emotional distress of being terminated without having been warned that her employer would like her to resume work on a full-time basis some time in the not too distant future.

Why did Wingate terminate Carta? The company’s decision-makers seem to have thought that the medical documentation put them on solid ground. After all, at the end of April, Carta’s primary care physician had cleared her to return to full-time work “from a medical perspective.” The doctor deferred to her orthopedic surgeon for orthopedic clearance, and the May 10 orthopedic opinion stated no date for a return to full-time work.

After accommodating the disability for five months, and with no medical opinion showing that Carta could ever return to full-time work, plus the knowledge that Massachusetts anti-discrimination law does not require an employer to keep a disabled employee’s job open indefinitely, Wingate’s decision seems reasonable. But the hearing officer deemed the termination precipitate.

How long should Wingate have continued to employ Carta part-time? According to the MCAD:

“At the very least, [Carta] should have been permitted to complete her physical therapy over the course of the next month, and if then there was no definitive prognosis for improvement, and no anticipated return to full duty, [Wingate’s] obligation to continue providing an accommodation in the form of a part-time schedule would likely have ceased.”

Terminating Carta in the month of May rather than waiting until June cost Wingate $25,000.

State Auditor’s Report

Just before the Fourth of July holiday, the state auditor published an official report on the MCAD. In addition to noting the commission’s four-year backlog and revealing the usual, garden-variety problems that bedevil state agencies (e.g. mismanagement, inefficiency, and poor book-keeping) it confirms a long-harbored suspicion: The MCAD asserts jurisdiction where it has none.

The statute that governs the MCAD clearly states: “Any complaint filed pursuant to this section must be so filed within 300 days after the alleged act of discrimination.” Nevertheless, the state auditor’s report reveals that in the three-year period of the audit (2012-2015) the MCAD processed more than 100 cases where it lacked subject matter jurisdiction because the applicable statute of limitations had run its course:

“[D]uring our audit period, MCAD accepted 123 complaints beyond the 300-day timeframe for complainants to file their complaints. MCAD regulations allow for this 300-day timeframe to be extended under certain conditions, but there was no documentation in the case files to substantiate that any of these complaints met those conditions.”

Out of curiosity I asked the state auditor’s office how they determined this fact. It turns out they simply had to review the data in the MCAD’s case-management system. Perhaps if the MCAD confined itself to cases over which it does have jurisdiction, it would not have a four-year backlog. In any event, employers charged with discrimination should check the calendar and take steps to preserve their objections on the grounds of late filing. Having the case dismissed on jurisdictional grounds may offer little consolation if the dismissal only occurs after four years of investigation.

Act Relative to Transgender Discrimination

This is the statute that opponents dubbed the Bathroom Bill. After much brouhaha, the Legislature passed it and Gov. Baker signed it into law. It provides:

“An owner, lessee, proprietor, manager, superintendent, agent, or employee of any place of public accommodation, resort, or amusement that lawfully segregates or separates access to such place of public accommodation, or a portion of such place of public accommodation, based on a person’s sex shall grant all persons admission to, and the full enjoyment of, such place of public accommodation or portion thereof consistent with the person’s gender identity” (emphasis added).

So what exactly is gender identity? The statute defines it as follows: “‘Gender identity’ shall mean a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.”

Perhaps aware that the foregoing does little more than restate the term “gender identity” rather than actually defining it, and mindful of the potentially ticklish nature of proving any given individual’s gender identity, the Legislature chose to delegate the task of crafting evidentiary standards to a state agency. It selected one with an imaginative and expansive approach to statutory definitions, namely the MCAD. The report is due Sept. 1.

Pay Equity Act

Together with the Act Relative to Transgender Discrimination, the Legislature enacted the Pay Equity Act, which prohibits employers from discriminating upon the basis of gender. The previous statute declared that “no employer shall discriminate in any way in the payment of wages as between the sexes.” The new version provides: “No employer shall discriminate in any way on the basis of gender in the payment of wages.” So out with ‘sex’ and in with ‘gender.’

But isn’t gender the same as sex? No, not any more (see below).

As well as differing from the old equal-pay statute, the new law also differs from the Fair Employment Practices Act (Chapter 151B). Unlike employees bringing complaints under Chapter 151B, employees who wish to charge their employers with violations of the pay-equity statute will not have to start at the MCAD. They can go straight to court. Another novelty is that the new law encourages employers to conduct regular reviews of their pay practices.

If an employee sues, and the employer can show that it undertook a good faith self-evaluation of pay practices within the preceding three years (and made progress in remedying any discrepancies) it will have an affirmative defense. With an affirmative defense, the burden is on the party raising it, i.e. the employer. So with an eye to future lawsuits, employers may wish to keep in mind the need for persuasive evidence sufficient to prove that the good-faith evaluation took place.

But what exactly does the law prohibit? It forbids pay discrimination on the basis of gender, a word the Legislature chose not to define and whose legal meaning has changed over the past 20 years.

In 1996 the United States Court of Appeals for the Fourth Circuit was saying nothing controversial, let alone heretical, when it held that in Title VII cases the words ‘sex’ and ‘gender’ were interchangeable. Although the court observed that “some academic writers” were asserting “that ‘gender’ connotes cultural or attitudinal characteristics distinctive to the sexes, as opposed to their physical characteristics” and that the distinction might be useful “for some purposes,” it decided to stick with the practice of treating ‘gender’ as a synonym for ‘biological sex.’

A dozen years later, the Court of Appeals for the Third Circuit took a more flexible approach, noting that “gender, to some people, is a fluid concept.” After acknowledging that gender is “rooted in science and means sex — male or female — based on biology (chromosomes, genitalia)” the court noted that “the usage of the word is changing in some circles as a result of social and ideological movements that find the scientific meaning to be unsatisfactory or not sufficiently inclusive.” That usage is catching on.

Last year, Judge Mastroianni of the United States District Court for the District of Massachusetts stated that the statutory prohibition against discrimination “on the basis of sex” prohibits discrimination not only on the basis of “biological sex” but also on the basis of a “gender identity.”

As authority for this proposition he cited a First Circuit Court of Appeals decision from 2002 and a Supreme Court decision from 1989 that used the words ‘sex’ and ‘gender’ as synonyms, concluding that by using the words interchangeably those courts had interpreted ‘sex’ to encompass ‘gender identity.’ Of course, using the words interchangeably had led the Fourth Circuit to precisely the opposite conclusion, i.e. that the word ‘gender’ had its scientific meaning, namely biological sex. But that was way, way back in 1996.

Nowadays law must pay less heed to science, with its pettifogging attention to such trifles as chromosomes and genitalia, and more to the “social and ideological movements” that deem the scientific terminology “not sufficiently inclusive.” Therefore, so far as the judges are concerned, if a statute says that it prohibits discrimination on the basis of sex (a matter of biology) what the statute really prohibits is discrimination on the basis of gender (a matter of identity).

And what of a pay-equity statute prohibiting discrimination on the basis of gender (not sex); what does it forbid? We shall have to wait and see.

Peter Vickery practices employment law in Amherst; (413) 549-9933.

Employment Sections

Sexual Harassment in the Workplace

By Karina L. Schrengohst Esq.

Karina L. Schrengohst

Karina L. Schrengohst

“I think you and I should have had a sexual relationship a long time ago . . . sometimes problems are easier to solve” that way.  This statement is one of several sexually charged statements former Fox News host, Gretchen Carlson alleges were made by former chairman and CEO of Fox News, Roger Ailes.  Carlson claims, among other things, that she was subjected to sex discrimination and sexual harassment in the workplace. In addition, she alleges that her employment with Fox News was terminated after she reported this discrimination and harassment and rejected Ailes’ sexual advances.

Carlson’s lawsuit illustrates the two different ways sexual harassment claims arise. Most commonly, sexual harassment claims are based on hostile-work-environment harassment, which happens when sexual advances, comments, or conduct are severe and pervasive enough to interfere with an employee’s work environment and work performance.

Carlson claims that her co-host created a hostile work environment by treating her in a sexist and condescending way, shushing her, mocking her, shunning her, refusing to engage with her, and belittling her contributions. According to Carlson, after reporting this conduct to Ailes, he called her a “man hater” and “killer” and told her she needed to learn to “get along with the boys.”

Carlson also claims that Ailes ogled her and made comments about her body, including asking her to turn around so he could view her posterior, commented on certain outfits enhancing her figure, and commenting on her legs. In addition, this case illustrates quid pro quo sexual harassment, which occurs when something — a raise or promotion, for example — is promised in exchange for sexual favors or when an employee is fired for saying no to sexual advances.

According to Carlson, Ailes made it clear to her that the problems she was having at work would not have existed and could be solved if she had a sexual relationship with him.

Sex discrimination and sexual harassment is prohibited in the workplace by state and federal law. As such, employers have an obligation to take reasonable steps to prevent sexual harassment before it arises and to create a harassment-free workplace.

The first step employers can take toward prevention is creating and implementing a comprehensive written policy prohibiting sexual harassment, which has a procedure for reporting harassment. The proliferation of electronic devices and social media adds a layer of complication that did not previously exist in the workplace. As employees increasingly communicate electronically and via social media sites, there are even more opportunities for problems to arise — and to arise outside of the line of sight of supervisors.

This means that an employer’s policies should consider how harassment can arise in this context.

The next step employers can take toward eliminating sexual harassment in the workplace is ensuring that their policies are effective in practice. It is critical to communicate with employees about anti-discrimination and anti-harassment policies to ensure employees understand the company’s policies. In addition, employers should regularly train employees with supervisory roles to make certain they understand their obligations and know how to recognize and report sexual harassment when it arises.

This is particularly important because supervisors are a company’s first line of defense. What they do (or do not do) can prevent (or create) a problem. Providing the proper training to supervisors can help shield the company from costly and time-consuming employment litigation claims. Further, employers should establish an investigative process to promptly and consistently handle all complaints of discrimination and harassment. Any allegation of sexual harassment must be treated seriously, documented, and investigated in a timely manner. Finally, employers should take appropriate corrective action, as necessary.

Although in this instance Fox News has lucked out, that is not usually the case and employers typically find themselves named as a party. Employers would be wise to take proactive, preventative steps to eliminate workplace discrimination and harassment, which in turn helps to reduce the risk of liability when faced with a sexual harassment lawsuit.

Karina L. Schrengohst Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, women-managed, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Mass. 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 Sections

Careful Culling

John McGlew

John McGlew says the best predictor of future success on the job is past behavior, which can be gleaned during the interview process and by checking references.

Interviewing job candidates is an art and a science that many small and mid-size employers don’t have the time to perfect. But knowing what to ask job candidates and how to interpret their answers is important, because hiring the wrong person is a waste of time and money and can lead to difficulties later on.

John McGlew says it’s critical for employers to do their homework before they sit down and begin interviewing job candidates.

The director of Employment and Employee Relations for the Sisters of Providence Health System noted that he was interviewed by 21 people before he was hired, and he has developed a program for his managers that teaches them how to use behavioral questions to find the person most suited for a particular job.

“Good interviewing practices and thorough vetting of candidates is critical to any business trying to hire the right person,” he explained. “It includes getting proper references and employment information, but you need to do a lot to get prepared for the actual interview.”

Michele Cabral, who hired many employees in her former position as CFO and COO of Farm Credit Financial Partners in Agawam and now helps employers with the process through her company, CFO On the Go, agrees that the work should begin long before applicants are actually interviewed.

“Most companies have a culture, but they fail to take it into account when they write a job description,” said the Holyoke Community College professor of Business, explaining that it is important for new hires to be invested in a company’s success as well as its mission.

McGlew agrees, and considers this so important that he tells managers to convey the Sisters of Providence mission to candidates and explain how the job advertised will relate to it, and says every business should have a clearly articulated mission statement that it shares.

Shannon Levesque concurs, but adds that interviewers also need to have a list of clear and measurable goals that get conveyed to everyone they interview.

“The person not only needs to be a good cultural fit, but you need to be realistic, honest, and up front about what will be expected to eliminate any surprises for the candidate,” the director of talent acquisition for Baystate Health told BusinessWest. “A small or mid-sized business also needs to know what makes the company attractive; an interview is a two-way street, and if you want to hire talent, it’s important to sell your company.

“Good people always have options, and even more so if they are already working, so there has to be an incentive,” she continued, noting that this may mean taking on a new challenge or having the ability to use newly acquired education. In any case, the interviewer needs to understand what is driving the candidate to apply for the position.

Experts say it’s not difficult to assess someone’s technical skills, but knowing how well they work in a team environment and how they will handle difficult customers, people, or situations can be equally or even more important.

“The best predictor of future success is past behavior. But in order to get this information, you need to be able to elicit responses about how the person has behaved in workplace situations in the past,” McGlew said.

For this edition and its focus on employment, BusinessWest looks at methods that seasoned interviewers use in their own hiring, so business owners can employ them and assess a candidate’s ability to do a job.

Essential Measures

Although there are many ways to conduct an interview, Cabral says most people fail to ask the right questions.

“The wrong candidates are often hired because the interviewer didn’t dig deep enough during the interview,” she noted.

Michelle Cabral

Michelle Cabral says people applying for managerial positions should to be able to inspire others and have standards in place, while employees at lower levels need to be able to manage their workload.

She measures five core competencies: leadership, management, communication, technical skills, and analytical skills, or the ability to solve problems, and says interviewers need to assess each of these areas while the candidate is in front of them.

“At the highest level, you need someone who can create a vision, understand the environment they are working in, and navigate their way through it. The person needs to be articulate verbally and in writing,” she said. “At the lowest level, the new employee needs to understand the vision, but interpret it for themselves as it relates to their job. They also need to know when to use different communication skills, such as e-mailing versus speaking to someone.”

She added that people applying for managerial positions should be able to inspire others and have standards in place, while people at lower levels need to be able to manage their workload. They should also be able to identify problems, come up with ways to solve them, and be able to discuss these options with their manager.

She suggests conducting a 15-minute phone interview with candidates whose résumés align with job requirements, and recommends getting people out of their comfort zone right away.

For example, if someone says they answer the phone frequently at their current job, the interviewer should ask them to cite an example of how they handled a customer who was rude to them.

“The phone interview helps you determine how articulate the person is and also assess their listening skills and whether they answer questions appropriately,” she said.

McGlew agrees that asking a person how he or she dealt with a challenging customer or phone call, as well as what steps they took toward service recovery, can reveal how they will handle stressful situations in the future.

“You want someone who takes steps to effectively resolve a difficult situation and restore the relationship for the company,” he noted.

Indeed, experts say the ability to communicate can be more important than technical skills, because most people can be taught to do new things. “But they need to be able to communicate when they are struggling and not be too embarrassed to ask for help,” he said.

Levesque told BusinessWest that problems sometimes arise because interviewers fail to differentiate between what is needed and what is preferable, which should be clearly defined in the job description. And if no one in the company has time to spend to help a new hire become proficient in a new skill, it may be a moot point.

“If you are taking a chance on someone’s potential to learn something, you need to structure training in a way that gets them up to speed quickly,” she said.

McGlew says interviewers should write down the qualifications the applicant must have before conducting the interview. In addition to technical skills, requirements can range from the ability to complete work within a given time frame to the ability to collaborate well, be knowledgeable about cultural diversity, or anything else that is pertinent to the job.

These things are important because, if soft skills are missing, a new hire’s interactions can become problematic. “It may be important for a security officer to know the law, but if the person has a brusque way of dealing with others, their interactions may become a problem,” Levesque said.

McGlew tells managers to come up with 20 to 25 behavior-based questions and then prioritize them. Although they are unlikely to get through all of them during an interview, asking candidates the same questions evens the playing field and allows interviewers to compare their answers.

But the candidate should do most of the talking. “You need to spend twice as much time listening as you do asking questions,” Levesque said.

Her interviews begin with a welcome, followed by behavioral questions. And there is always a defined closing, with time allotted for the candidate to ask questions and for her to assess their interest.

She said some interviewers aren’t used to using open-ended questions and may need to practice interviewing team members. But it makes a difference because open-ended or behavioral questions require candidates to give examples that include details related to their past performance, which allow the interviewer to understand the situations they have encountered, what their response was, and what they learned.

“You have to probe; it’s absolutely essential, but you also have parrot back what you heard and ask for elaboration,” Levesque said.

However, interviewers should avoid asking candidates to talk about their strengths or weaknesses. “They have already done their bragging on their cover letter and résumé,” Cabral said.

More useful questions can include, “if I called your manager today, what would he or she say about you?”; “tell me about a time when you were communicating a message and you were misunderstood?”; “tell me what gets you out of bed in the morning?”; and “tell me about a time when your employer needed you to stay late at work and you couldn’t?”

“You need to remain quiet after the person’s initial response,” Cabral advised. “And once they start sharing, you need to keep digging. If they couldn’t stay late when their boss needed them to, you want to know what happened and how they handled the situation or got the work done.”

Details That Matter

Although some employers seek well-rounded employees who can bring unique perspectives to problems, lifestyle can play a role in determining whether a candidate is suitable for a job. For instance, if the person says they love to ski and do so every weekend, it is appropriate to ask if it will present a problem if they are occasionally asked to work weekends.

Shannon Levesque

Shannon Levesque says interviewers need to know which technical skills are critical and which ones are preferable and can be learned after the person is hired.

And although young candidates may not have a job history or be able to provide examples of handling difficult workplace situations, they can be asked what led them to believe the job they are applying for is the right career, Cabral said, adding that gauging a candidate’s honesty is important. They can also be asked to supply references that include professors, members of the clergy, or people at places where they have volunteered.

Obtaining proper references and an employment history does play a role in choosing a new hire, but experts say busy interviewers can hire an outside service to do this.

However, McGlew suggests asking the person for past-performance appraisals. They may need to give their supervisor permission to share the information, but it can prove invaluable.

People conducting interviews who are not familiar with employment law also need to brush up on what they can and can’t ask.

“Don’t get into the person’s personal life. If someone starts talking about their family, change the subject,” Cabral advises.

Salary or hourly pay should also be discussed. Although it doesn’t need to be definitive, it’s important to divulge how much the organization or business is willing to pay a new hire.

McGlew told BusinessWest that, if the person won’t or can’t accept the dollar figure, it is a waste of time to continue the interviewing process.

“You also have a duty to give people a clear idea of the benefits you plan to offer,” he went on. “Salary and fringe benefits are definitive economic decisions, and if you don’t meet a person’s requirements, they may choose to keep looking or stay at their present position.”

Levesque agrees, and says there is nothing more disappointing to both parties than to offer someone a job, then find out they can’t afford or are unwilling to accept the pay. And when an interview nears the time allotted for it to end, it’s important to identify and set expectations about what will happen next.

“You should ask about their job search and whether they have any offers pending; an employer needs to know where a candidate is in the process,” Levesque said. “We have an obligation to treat job seekers with respect and understand their goal is to find gainful employment that is rewarding, challenging, and fits their career goals. Nothing is more painful to a candidate than to be in a black hole and not know where they stand or what to expect.”

Cabral understands that employers can get exhausted looking through hundreds of résumés, but warns against taking short cuts simply to fill a vacancy with someone.

“Some rush to get a job filled when they know in their gut they are hiring the wrong person,” she explained. “But if a new hire is not working out, you need to have an honest conversation. It’s OK to provide a soft landing and give them several months notice, but if the job is not getting done, you need to find the right person for it.”

However, experts say that situation can be tempered by hiring a person on a probationary basis. “But the person really needs to understand that there will be a formal assessment period,” McGlew said, adding that, when a person is being interviewed or hired, the words “permanent position” should never be used.

Instead, the interviewer should refer to a job as a “full-time opportunity,” which can prevent legal problems later on, he said, even though the Massachusetts Employment at Will statute allows employers to terminate an employee at any time, barring a contract.

Final Decisions

Cabral says hiring is an art and a science, and employers need to know the art is important in helping them make a decision. “At the end of the day, 80% of a decision is based on gut feel and attitude.”

McGlew agrees. “A lot is subjective and has to do with judging whether the person’s values and priorities are in line with the organization’s values,” he said. “But there is no foolproof methodology to interviewing, and sometimes the person who shows up for work is not the person you interviewed.”

Still, knowing what to ask and being well-prepared goes a long way toward keeping that from happening.

“It can be difficult to separate personality from competency, but if you ask questions in the right way, you will be surprised what people tell you,” Levesque said. “Good interviewers accept what they see, then probe for validation. And it’s a win-win if you get it right.”

Employment Sections

For Good Measure

By Jeffrey J. Trapani, Esq.

Jeffery Trapani

Jeffery Trapani

Earlier this month, the Commonwealth’s House of Representatives began considering H.4323, titled “An Act Relative to the Judicial Enforcement of Non-competition Agreements,” the content of which reflects a compromise between parties advocating for and against the existence of such agreements.

The bill does not bar non-competition agreements, but places certain limitations on them. H.4323 provides that these agreements should be in writing and, regardless of whether the agreement commences before employment or during, that it inform the employee that he or she has 10 days to seek counsel. It limits such agreements to protecting trade secrets, confidential information, and goodwill.

The bill also limits the restrictive period to one year, unless the employee engages in certain forms of misconduct, in which case the restrictive period can increase to two years. The bill also requires that the restrictive area be reasonable in geographic reach and scope, and ties the reasonableness of these restrictions to a two-year look-back period.

During the one-year restrictive period, the former employee is not to be considered a former employee. The bill, however, provides a former employee with ‘garden leave,’ which requires the employer to pay 50% of the employee’s annualized base salary over the one-year restrictive period in the usual course and subject to the protections afforded under wage and hour laws (including treble damages if not paid properly).

The bill also makes non-competition agreements unenforceable against non-exempt employees as defined under the Fair Labor Standards Act (FLSA), certain students, employees who have been laid off or terminated without cause, or employees age 18 and younger. Also, unlike the present practice in the courts, which allows a judge to reform or modify a non-competition agreement so as to make it enforceable, H.4323 invalidates any non-competition agreement that does not strictly conform with the provisions of the bill. Finally, the bill, as presently drafted, would go into effect July 1, 2016.

H.4323 also addresses employers’ concerns about protecting their business information by adopting the Uniform Trade Secret Act (UTSA). The adoption of the UTSA brings Massachusetts in line with 47 other states, and by agreeing to adopt the act, legislators appear to be acknowledging that much of the concern about employee movement is inextricably linked to an employer’s interest in protecting its business information from competitors.

Thorny Issues

As of this writing, the House has not yet debated H.4323, and some of its provisions will be the focus of intense debate. First on this list is the garden-leave provision, which was first introduced to the conversation when House Speaker Robert DeLeo signaled his support in March 2016 for passing legislation restricting non-competition agreements. While DeLeo included it when describing the potential legislation, the exact terms of the provision were not known until recently.

Continuing with the plant theme, the House will also need to address the ‘tree line’ for employees who may be subject to non-competition agreements. The momentum for passing a bill was due, in part, to testimony from employees working in low-paying and seasonal jobs, such as camp counselors and fast-food workers, who were forced to sign non-competition agreements. In addition to precluding younger employees and students from signing one of these agreements, H.4323 eliminates non-competition agreements for employees classified as non-exempt under the FLSA.

Until recently, employees earning less than $23,660 could not be considered exempt from the minimum wage and overtime provisions of the FLSA. Recently, however, the federal government revised the regulations under the FLSA and doubled the salary amount to $47,476.  This means employees earning less than that amount cannot be considered exempt from the minimum-wage and overtime provisions of the FLSA. These regulations were also revised to automatically increase this threshold every three years. These changes under the FLSA will likely require that the House debate whether to continue to tie the prohibition on noncompetition agreements to the FLSA, to identify an independent threshold, or to exclude certain jobs.

Critics of H.4323 will also likely ask the House to revise the provision that requires courts to invalidate a non-competition agreement where the agreement includes, but does not strictly conform with, the law. This is a clear change from current precedent that could result in employers having no protections because of a non-material, technical error in the written agreement.

Broad Approach

When DeLeo signaled his support for passing legislation that would restrict non-competition agreements in Massachusetts earlier this year, employers and employees alike were put on notice that the end of a years-long debate was imminent. H.4323 takes a broad approach to addressing employers’ concerns about protecting their business information by adopting the UTSA and by retaining what many employers consider to be an effective way to prevent an employee from taking a business’ trade secrets or goodwill. The bill also appears to address what employee advocates and entrepreneurs see as abuses of the system.

While there is still much debate to be had on the more controversial aspects of the bill, the support of Speaker DeLeo shows a desire by at least the House to get these protections on the books sooner rather than later.

Jeffrey J. Trapani, Esq. is a partner at Robinson Donovan. He concentrates in civil litigation, including insurance defense, employment law, municipal liability, business litigation, and professional malpractice. He also represents landlords in summary process actions and housing-discrimination claims, and insurance companies in unfair settlement claims and coverage issues; (413) 732-2301; [email protected]

Employment Sections

Hire Education

By SARAH LEETE TSITSO

Maria Cokotis

Maria Cokotis, assistant director of Career Development for the College of Business at Western New England University, helps Michael Jednak, a senior finance major, prepare for a job opportunity at a company in Boston.

Within weeks, the job market will be flooded with newly minted college graduates clutching both diplomas and dreams of the perfect job — or at least a solid opportunity with which to begin their chosen career.

Andrea St. James, director of the Career Development Center at Western New England University, said most young professionals will fare well in their pursuits given the current economic climate — particularly those who have completed their degrees in subject areas where there is high demand for trained, qualified candidates.

And that description certainly pertains to sectors including information technology, computer science, information management, accounting, actuarial science, and business analytics.

Candice Serafino, interim director of UMass Amherst Central Career Services, agrees that many of the technical majors are seeing high rates of employment upon graduation. For some students at UMass, job offers have been coming for several months now.

“There is high demand for all of the STEM [science, technology, engineering, and math] majors,” said Serafino. “For many of these jobs, firms are recruiting students in the fall semester. These students are faring quite well, and already have their jobs lined up well before graduation. Employers are looking for the analytical and problem-solving skills these students possess.”

The ability to creatively solve problems is a common theme for this year’s graduating seniors, with career counselors crediting this skill with their success in the job market.

Andrea St. James

Andrea St. James says career-services professionals and students need to have frank, honest conversations about which jobs are hot — and which are not.

“Employers are finding that this cohort of students is filled with lifelong learners who use their critical-thinking skills to approach problem solving,” said Serafino. “Our students are looking at problems from a big-picture perspective, communicating at a high level, and working as part of a team to achieve results. They are motivated, hardworking, upwardly mobile, and resourceful. All of this makes them very appealing to employers.”

St. James agrees, noting that the 2016 graduates are comfortable sharing their opinions, are willing to take calculated risks, and have a desire to work for innovative entrepreneurs.

“Employers are going to see young professionals who are hungry to gain experience while, at the same time, making a difference in their communities,” she said. “They are a creative bunch who are ready to add value to organizations across the board.”

Laurie Cirillo, executive director of career and life planning at Bay Path University, told BusinesWest she believes this generation is sometimes “misunderstood,” with some employers believing these young professionals want high salaries and accolades without putting in the requisite work.

“That’s just not true,” she said. “The work ethic is there — when employers are able to find what motivates them. My experience with this generation is that they are pushing hard to excel and achieve. They take risks and are not afraid to try something new. Employers can catch this wave and cultivate some pretty extraordinary talent.”

Entrepreneurial thinking is a skill many of these young professionals have cultivated, which means more are looking for outside-the-box opportunities when it comes to employment.

“We’re seeing students who want to create their own machine instead of being a cog in someone else’s,” said Serafino. “Students are interested in innovative startups and niche jobs.”

Finding Their Niche

When it comes to niche professions, Cirillo noted that providing new, cutting-edge majors is critical for students’ long-term success.

She said areas like healthcare and information technology are booming, with high levels of job placement for graduates.  Total enrollment at Bay Path has grown 42% since 2011, with 100% growth in graduate programs since 2001, primarily in Occupational Therapy, Physician Assistant, Clinical Mental Health Counseling and Accounting.

She added that 96% of the 2015 graduates from the university’s traditional-student programs are employed, enrolled in graduate school, or both. She also noted that the state’s unemployment rate for March was 4.4%, well below local and national average, another benefit for job seekers. Overall, she attributes the success of Bay Path graduates to strategic decisions to offer programs and majors that reflect hiring trends and needs within the workforce.

“We build our programs and majors around where we see job growth,” Cirillo said, citing Bay Path’s new cyber security major as just one example.

Laurie Cirillo

Laurie Cirillo says she believes the current generation of students is largely “misunderstood” by employers.

Serafino said UMass takes the same approach. This year, the university noted an increase in employer interest in its life-sciences programs, so it held a career fair specifically for those students and prospective employers. “It was hugely successful, and we plan to expand on it next year.”

But if some fields are at various levels of ‘hot,’ others are cooling off, having reached a saturation point in today’s competitive job market. St. James said she’s seen a “leveling off” in law, education, communications, and marketing, for example.

And such trends warrant frank discussions between career-services professionals and students pursuing degrees in those fields, she went on.

“When we have students pursuing a major where we’re noticing a market saturation or fewer potential jobs, we’re poised to have an honest conversation with them, advising them to look at different opportunities where they can still utilize their skills and be successful,” said St. James. “In these cases, students need to look at what else they can do to diversify and translate their skills [into a career]. We want them to be ready when the economy shifts or new innovations change the marketplace.”

Serafino agrees that jobs in certain creative fields are experiencing a slowdown. However, she notes that technology and other innovations have shifted the demand to new niches. For example, the need for social-media professionals is opening up a whole new area of career opportunities for graduates.

Degrees of Success

Another challenge many college graduates are facing is the need for advanced degrees. Having a bachelor’s degree is often required, but in many industries it is becoming just as important to have a master’s or other advanced degree.

“You can still get a position in your field, but if you want to move up, master’s degrees are becoming the new bachelor’s degree,” said St. James. “We are also seeing an increased need for certificates and advanced study for certain professions, which is creating a niche market for specific areas of expertise.”

At Bay Path, where some of the most popular majors are science-based, advanced degrees are a necessity. Areas of study with high rates of students seeking advanced degrees include occupational therapy, physician assistant, accounting, clinical and mental-health services, and education (special education in particular).


Click HERE for a list of Western Mass. Employment Agencies


Even though some careers are now requiring a higher level of education, Serafino said she is still seeing many undergraduates who are able to secure great jobs. The question is, how are they doing it?

All three career-services professionals agree that there are several ways graduating students can get a leg up on their competition in the open market.

The first is by connecting early and often with career counselors. This includes attending job fairs, being paired with mentors who have experience in the student’s chosen field, and job-shadowing opportunities.

St. James noted that Western New England University is part of the College Career Centers of Western Massachusetts, along with American International College, Bay Path University, Holyoke Community College, Elms College, Westfield State University, Springfield College, and Springfield Technical Community College. Together, this collaborative recently hosted a career fair that helped cross-promote the colleges while also providing a one-stop shop for prospective employers.

“Hosting a career fair that is open to eight colleges really allows businesses to see the breadth and depth of the candidates we have here in Western Mass.,” said St. James. “We had a number of large employers in attendance who really got a chance to see a range of candidates from a wide variety of majors and schools.”

Serafino said UMass also hosted a number of job fairs this year, bringing more than 500 employers to that campus.

In terms of providing students with the information and guidance they need to prepare for the workforce, St. James said it is important to have career counselors with real-world experience in a specific industry.

“Our career counselors need to be able to connect students with professionals in the industry so those students can have real conversations and experiences with innovators who are working in the trenches,” she said.

Cirillo said career exploration is built directly into the curriculum at Bay Path, from the student’s first year until they complete their course of study.

“We want every student to have a plan for the future before they cross that stage on graduation day,” she said. “We spend four or more years preparing them to make connections, continuously think about and modify their education and life plan, and take the steps they need to be empowered and successful in whatever career they have chosen.”

Second, internships are more crucial than ever. Bay Path University requires internships for nearly all of its undergraduate students, for example.

Cirillo said studies have shown that employers are more likely to hire a candidate if he or she has a grade point average above 3.0 and has experience in the field. Internships provide that experience and, for many prospective employees, enable them to make connections within their industry that can lead to permanent positions. Internships help students feel confident in their chosen career path, as well as provide them with experience that often translates into higher starting salaries.

At Western New England University, students are eligible for an academic internship in their junior year. St. James noted that some majors require an internship, while others do not. That said, St. James said her career counselors always recommend internships, whether or not the student receives course credit for the experience.

“For most students, they have never done any real work in that career field,” she said. “Internships help students determine if they really want to do such work and if that career is right for them. Experiencing it first-hand, as early as possible, either reaffirms their career choice or enables them to redirect their efforts.

“When our students take that first step into the workforce, it can be a scary experience, especially if they have no knowledge or realistic expectations about work in the field,” she went on. “That can make the transition into the workforce much more difficult.”

Serafino said internships are a win/win proposition, often ensuring that talented young professionals stay in the area. She noted that employers like hiring students who have interned with their company, because those interns have a better understanding of that organization’s needs and culture.

At UMass, Serafino said a recent survey showed that close to 65% of seniors in the class of 2015 participated in some type of experiental learning, whether it was a formal internship, community-service opportunity, or job shadowing.

Cirillo also noted that internships can keep talent local.

“Employers who offer internship opportunities are cultivating their own pipeline,” she said. “It helps keep talent here in our region.

Balancing Act

As students celebrate their graduation, they are also experiencing anxiety.

Debt is front of mind for many, and so is the desire for that elusive work/life balance. As St. James noted, students want to work for companies that are socially responsible and that offer opportunities for employees to volunteer in the community. Some students want to wear a suit every day, but some don’t.

This duality is challenging for employers looking to attract and retain young talent. One commonality is a desire for mentors, and the development of strong relationships among co-workers.

“Those relationships are important to this generation of employees,” said St. James. “They need to like and value their jobs and the people around them. For them, it’s about more than a paycheck. It’s about forming relationships that have value, making a difference, progressing within their chosen field, and building a strong network. That’s what our students are looking for as they enter the job market.”

Employment Sections

Don’t Try to Disprove Evolution

By Peter Vickery

Peter Vickery

Peter Vickery

Is a hospital allowed to terminate a Muslim employee who refuses to be vaccinated on religious grounds, or would termination constitute unlawful discrimination?

That was the question confronting the U.S. District Court for the District of Massachusetts when Leontine Robinson sued Boston Children’s Hospital under Title VII of the federal Civil Rights Act and Chapter 151B of Massachusetts General Laws. The short answer? The hospital was entitled to summary judgment, meaning Robinson lost. But as for the reasons why she lost, employers should take note of the many steps the hospital took in an effort to accommodate Robinson, steps that in combination amounted to a ‘reasonable accommodation’ sufficient to fend off her claim of discrimination.

Need the hospital have gone to the trouble of taking those steps for fear of a lawsuit? The well-reported cases of the past few years send mixed messages. Some suggest that many judges are deaf to pleas for religious liberty, while others have ears to hear. On one hand, the U.S. Supreme Court has held that hijab-wearing job applicants have a right to be hired by Abercrombie & Fitch despite the company’s no-headwear policy and that Hobby Lobby has the right to refrain from paying for its employees’ abortifacients despite the dictates of the Patient Protection & Affordable Care Act.

On the other hand, unless the Supreme Court rules otherwise, the federal Department of Health and Human Services — with the approval of six different federal courts of appeal — will continue insisting that the nuns of the Little Sisters of the Poor must pay for contraceptives. Similarly, after a Catholic prep school (Fontbonne Academy in Milton, Mass.) rescinded its job offer to a man when it learned that he was married to another man, the Superior Court for Norfolk County held that the school had discriminated against him unlawfully.

Notwithstanding the fact that Fontbonne based its decision on a religious objection to same-sex marriage, it was not entitled to any sort of dispensation from the state. Incidentally, the school would have been on firmer ground had it limited its enrollment and employment to Catholics, but by welcoming people of all faiths and none, it ran afoul of the Commonwealth’s anti-discrimination law (yes, you read that correctly).

So, given the experience of Little Sisters of the Poor and Fontbonne Academy, one could be forgiven for thinking that, when a children’s hospital — by definition, a place for the treatment of children who are ill, some of them very seriously — instructs its employees to get vaccinated against influenza, it would be perfectly all right for the hospital to respond to a simple ‘no’ with an equally simple ‘goodbye,’ even if the employee cites religious grounds. That is not the current state of our Commonwealth’s anti-discrimination law, however. Boston Children’s Hospital demonstrated admirable wisdom and foresight in not immediately directing Robinson to the door marked ‘exit.’

The case began in 2011 when, in accordance with recommendations from the American Academy of Pediatrics and the Mass. Department of Public Health, the hospital adopted a policy requiring those employees working in patient-care positions to be vaccinated against the influenza virus. Robinson refused. She was often the first employee to come into contact with patients, and her job involved touching them and sitting close to them. She also happens to be a Muslim, more specifically an adherent of the Nation of Islam, and initially she said the basis for her refusal was the presence of pork byproducts in the influenza vaccine.

At this juncture, although it is not relevant to the legal analysis of Robinson’s claim of religious discrimination, readers may wish to note that, within Islam as a whole, on this issue at least, the Nation of Islam is a bit of an outlier. In 1995 (coincidentally, the year Robinson started working at Boston Children’s Hospital) the Islamic Organization for Medical Sciences ruled that the series of chemical reactions by which porcine products turn into gelatin is transformative, so much so that the resultant gelatin is not ‘judicially impure’ but ‘lawful and permissible.’ Therefore, according to the Islamic scholars who authored the 1995 statement, observant Muslims are allowed to receive vaccinations via gelatin that, prior to its transmogrification, contained pig tissue.

But the Nation of Islam takes a different view of vaccines, as do some Scientologists, a few minor Christian denominations such as End Time Ministries, and Robert F. Kennedy Jr.  The year after the Islamic scholars issued their statement, the Nation of Islam’s minister of health declared all vaccines suspect and recommended a “moratorium for all African-American members of the Muslim faith.” Although it was issued in 1996, Robinson only learned of this recommendation in November 2011.

From that point forward, she foreswore all vaccines, possibly regretting the tetanus shot she had received in September. Nevertheless, so far as the hospital was concerned, the loneliness of the Nation of Islam’s anti-vaccine position among Muslims in general and the fact of Robinson’s prior vaccines were not trees worth barking up: judges are loath to assess the sincerity and bona fides of a litigant’s religious professions.

To recap, Robinson, an employee at a children’s hospital, refused a mandatory influenza shot on religious grounds that it was pig-based, and even though mainstream Muslim opinion holds that the vaccine is permissible, the hospital did not simply fire her. Rather, in order to accommodate her religious objection (the initial one), the hospital offered Robinson a pig-free version of the influenza vaccine. But by that stage, Robinson had learned of the Nation of Islam’s moratorium on all vaccinations, so she refused that too.

Again, instead of firing Robinson, the hospital attempted to accommodate her. Human resources arranged an interview for a clerical position, a job that did not involve direct patient care, but for which Robinson was not chosen. After that, she did not apply for any other positions in the hospital. After that, the hospital not only granted Robinson a two-month leave of absence to look for work, but also assigned an HR employee to help her.

When the two months were up and Robinson had not found new employment, the hospital gave her two more weeks. Finally, when the additional two weeks expired, it categorized Robinson’s separation from the hospital as voluntary so that she could apply for other positions. In February 2014, Robinson sued the hospital for religious discrimination.

At summary judgment, the court assumed that Robinson could show that her vaccine refusal was based on a sincerely held, bona fide religious belief, so the burden shifted to the hospital to show either that it had offered her a reasonable accommodation or that a reasonable accommodation would be an undue burden. The court found in the hospital’s favor on both counts: the hospital had offered a reasonable accommodation (see the preceding paragraph), and the accommodation Robinson requested would have been an undue hardship (her working in a patient-care position without vaccination would increase the risk to the hospital’s already-vulnerable patients).

What should Massachusetts employers take away from this case? First, that Title VII and Chapter 151B prohibit discrimination on the basis of religion. Second, challenging the bona fides of an employee’s professed belief is a fool’s errand. As the court stated. “although inconsistencies between a person’s conduct and her professed religious beliefs may suggest insincerity, they may also reflect an evolution in the person’s religious views.” Do not try to disprove evolution.

Third, on the bright side, an accommodation is not reasonable if it would generate undue hardship, which in turn means that the employer does not have to create a new job for the religious objector.

Fourth, and perhaps most importantly, as a practical matter, an employer should bear in mind the burden-shifting formula and prepare to demonstrate two things in detail: (1) that it attempted to accommodate the employee’s religious objection, and (2) precisely how the particular accommodation that the employee requested would cause undue hardship.

Peter Vickery practices employment law in Amherst; (413) 549-9933.

Employment Sections

A Transition in the Law

By Karina L. Schrengohst, Esq. and Jennifer Butler, Esq.

Discrimination based on transgender status or gender identity is a developing area of the law.

Recently, there has been considerable debate on the local, state, and national levels over access to bathrooms for transgender individuals. As the public debates this issue, legislators, administrative agencies, and courts are shaping the law that prohibits gender discrimination, including discrimination against transgender individuals.

In light of this, businesses that are open to the public should understand how to navigate through the legal landscape of an evolving area of discrimination law.

Karina L. Schrengohst

Karina L. Schrengohst

Jennifer Butler

Jennifer Butler

In 2012, with the passage of An Act Relative to Gender Identity (also known as the Transgender Equal Rights Bill), Massachusetts added gender identity as a protected class under the state’s anti-discrimination law, which defines gender identity as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Massachusetts law prohibits discrimination against an individual based on that individual’s gender identity, transgender status, or perceived nonconformity with gender stereotypes in the context of employment, housing, education, and credit.

Massachusetts public-accommodation law, however, currently does not explicitly prohibit discrimination based on gender identity or transgender status. Massachusetts law prohibits discrimination in a place of public accommodation based on race, color, national origin, ancestry, religious creed, sex, sexual orientation, and disability.

A place of public accommodation is essentially any place open to the general public. This includes, for instance, hotels, restaurants, bars, retail stores, theaters, sports stadiums, museums, libraries, parks, gyms, swimming pools, beaches, laundromats, gas stations, and public transportation. In other words, this means that, for example, it is unlawful for a restaurant to refuse service or a movie theater to refuse entry to an individual based on his or her gender.

Gender identity will likely soon be a protected class under Massachusetts public-accommodation law. In fact, a bill is now under review by the state Legislature that seeks to add the term ‘gender identity’ to the existing law to expressly prohibit discrimination against transgender individuals in the context of places of public accommodation. In addition, the proposal specifically aims to increase the scope of anti-discrimination law to explicitly grant transgender individuals access to public areas legally separated by gender, like bathrooms and locker rooms, consistent with their gender identity.

The proposed legislation has gained an increasing amount of support from the business community. Earlier this month, more than 40 businesses supporting the public-accommodations bill joined Attorney General Maura Healey in an open letter to lawmakers, urging them to take a favorable vote on the bill.

In the meantime, even in the absence of an explicit prohibition on discrimination based on gender identity, business owners should understand that denying access to transgender individuals could result in a lawsuit based on gender discrimination, which is explicitly prohibited by Massachusetts public-accommodation law.

In the employment context, federal law does not explicitly prohibit discrimination based on gender identity.  Despite this, federal courts and the Equal Employment Opportunity Commission have recognized that discrimination based on gender identity or transgender status is a form of unlawful gender discrimination. A lawsuit could similarly be brought in the context of public-accommodation law.

Because change is on the horizon, and considering the current trend of interpreting gender-discrimination law, to reduce the risk of litigation, business owners would be wise to take steps to ensure that their policies and practices do not deny access and otherwise discriminate against individuals based on gender identity, transgender status, or perceived non-conformity with gender stereotypes.

Additionally, as most places of public accommodation are subject to employment-discrimination law, business owners should educate their employees that discrimination based on gender identity is unlawful and will not be tolerated in the workplace. Because this is a developing area of the law, business owners should consult with counsel with any questions concerning transgender-discrimination law.

Karina L. Schrengohst, Esq. and Jennifer Butler, Esq. specialize exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Massachusetts Supplier Diversity Office, the National Association of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council. Schrengohst can be reached at (413) 586-2288 or [email protected] Butler can be reached at (413) 586-2288 or [email protected]

Employment Sections

Distance Learning

By Stefanie Renaud, Esq.

Stefanie Renaud

Stefanie Renaud

Telecommuting is one of the fastest-growing employment trends in the U.S., up 103% since 2005. Today, more than 3.7 million employees telecommute at least half the time. Undoubtedly, that number will continue to grow, because 85% of Millenials, who make up the largest generation in the workforce, would actually like to telecommute full-time.

Although research shows that telecommuting improves morale, increases productivity, and improves employee quality of life, there are many legal issues for employers that may complicate this popular work arrangement.

The Fair Labor Standards Act

The federal Fair Labor Standards Act (FLSA) and parallel Massachusetts law require employers to pay their employees properly. These statutes categorize employees in two ways: exempt and non-exempt. For non-exempt employees, the vast majority of the workforce, the employers must keep detailed records of hours worked and wages paid, pay the overtime rate of time and half for all hours worked over 40 per week, and pay employees minimum wage.

Exempt employees are just that: employees who are exempt from these record-keeping and overtime requirements. Thus, telecommuting for exempt employees does not implicate wage/hour law. However, employers should take great care before classifying employees as exempt. The FLSA and Massachusetts law lay out a few narrow exceptions with specific job and salary requirements. To ensure you are properly classifying your exempt workers, consult with an employment attorney before classifying employees as exempt.

Record-keeping Requirements

For non-exempt telecommuting employees, the employer must keep accurate time records and pay the employee for all work performed. How does an employer keep records for an employee it never sees?

Employers may utilize an electronic time-keeping program that requires employees to punch in and out, or rely on paper time cards. Regardless of form, the employer should provide time sheets for employees to use when recording their work hours. Employees should also ‘sign off’ on their time sheets, either electronically or in paper form.

According to the 11th Circuit Court of Appeals, the employer is responsible for providing the time sheets, but the employee is responsible for accurately keeping their time records. Thus, the telecommuting policy should emphasize that the employee is responsible for accurately recording their work hours.

Employers should also provide telecommuting employees with information to help them independently determine what working time is compensable. For non-exempt employees, compensable time is any time spent engaged in ‘principal activity.’ Commuting time may also be compensable. If employees complete principal activity at their home or office, then travel to the other workplace and complete principal activity there, then their commuting time is compensable. Consult with employment counsel to help define principal activity and to untangle the many complicated issues surrounding compensable time under wage/hour law.

Proper and Timely Payment of Wages

Regardless of the telecommuting employee’s status as exempt or non-exempt, the employer is responsible for complying with all state and federal wage laws. Employers must know where telecommuting employees will be working because state law governs many facets of the employment relationship, including meal and rest breaks and how often employees must be paid.

In Massachusetts, employees are entitled to a 30-minute meal break when working six or more consecutive hours, and wages must be paid on either a weekly or biweekly basis.

Location is also particularly important to comply with minimum-wage laws, because some states and municipalities, such as San Francisco, have higher minimum-wage rates than federal law. In Massachusetts, the minimum wage is currently set at $10 per hour, with another increase scheduled for Jan. 1, 2017. Consult with your employment counsel to ensure compliance with state and local laws.

Overtime Managed

Keeping accurate time records not only aids in tracking employee eligibility for federally mandated benefits under the Family Medical Leave Act and the Affordable Care Act, but also in the proper calculation of overtime compensation. How can an employer control overtime for employees who telecommute? The telecommuting policy should clearly prohibit overtime, unless authorized in advance.

The policy should be consistently enforced, with proper remedial action taken after each violation. However, regardless of the employer’s overtime policy, a non-exempt employee must be paid overtime compensation, at the time-and-a-half rate, for all hours worked over 40 per week.

Even so, some overtime does not have to be paid — if the activity is de minimis.  De minimis activity is an insubstantial or insignificant period of time, beyond the normal work hours, that cannot practically be precisely recorded for payroll purposes. Business realities will determine if an activity is de minimis, so consult with your employment counsel on any question about whether overtime pay is due or not.

The Best Policy

The best telecommuting policy is one that is well-thought-out and extremely clear. The policy should clearly define what it means to work, what is ‘principal activity,’ which activities are compensable, and how to request authorization for overtime. The policy should also be clear as to when employees are not expected to work, what breaks should be taken, and that the employee is responsible for accurately recording their work hours.

The best policy will not only give employees important information, but get important information in return. Because state and local laws differ, employers should obtain information about the legal obligations in the specific state where their employee will be based.

Employers may wish to test their telecommuting policy by running a pilot program. A test run can help identify potential problems and allow for proactive solutions to be incorporated into the final policy. Because of the legal complexity of this area, employers should carefully consult with employment counsel when developing and implementing a telecommuting policy and program.

Finally, as with any policy, the telecommuting policy must be clear about which employees are eligible to telecommute. The policy should be consistently followed, as inconsistent awarding of telecommuting privileges could expose the employer to liability for discrimination.

Stefanie Renaud, Esq. is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She is admitted to practice in Massachusetts; (413) 737-4753; [email protected]

Employment Sections

Addiction in the Workplace

WokrplaceAddictionArt
One of many things the ongoing opioid crisis has brought to light is that addiction, of all kinds, knows no boundaries. It impacts people of all races and income levels, those who live in cities and those residing in the suburbs, the young and the not-so-young. Because of this, it also impacts businesses of every size and across every sector. And, in many cases, it’s a problem employers are not fully aware of and are not adequately equipped to handle. Experts on the subject strongly suggest that they educate themselves on all aspects of this issue, because they could pay a steep price — in many different ways — if they are not properly prepared.

Rene Pinero says antiquated beliefs persist about individuals who become addicted to alcohol or drugs, despite recent headlines and ample evidence to the contrary.

“People think they’re homeless, don’t work, and have a low level of education,” Pinero, clinical director for Outpatient Behavioral Health at the Center for Human Development (CHD), told BusinessWest. “If you ask someone to describe an addict, they may paint that picture, but they don’t realize it can happen to anyone, and they don’t think about professionals such as doctors and lawyers.

“Addiction is a medical condition, like diabetes or hypertension,” he went on. “And well-educated people who have good resources are able to hide their problems better than those who don’t.”

Amy Royal agreed. “There are high-functioning people with addiction problems who are really good at concealing it,” said the founding partner of Royal, P.C. in Northampton, whose law practice deals exclusively with employment law and representing businesses.

But whether addiction is obvious or goes unnoticed for a long period of time, it has a profound effect on the workplace. Studies show addiction costs employers roughly $250 billion annually in lost productivity, absenteeism, attrition, safety issues, worker’s compensation claims, and hidden healthcare expenditures.

The National Business Group on Health reports that employees with substance-abuse issues often fail to fulfill major work obligations at work, home, or school; use substances in situations where it is physically hazardous to do so, which can include operating or working on machinery and driving company vehicles while impaired; and have recurrent legal or financial problems. In addition, they continue to abuse substances in spite of persistent or interpersonal difficulties.

Related statistics are certainly eye-opening. The American Council for Drug Education reports that 70% of substance abusers are employed, and 75% of workers have used drugs within the past year.

Although the belief persists that people are responsible for their addiction and can choose to stop their drug or alcohol use at any time, experts say people with the problem often suffer from a mental illness and initially try to alleviate symptoms with drugs or alcohol. However, as their tolerance to alcohol or the drug rises, they need to use more and more to combat their troubling symptoms, which causes side effects such as hangovers and depression.

“The majority of clients we see with an addiction problem also have a mental-health problem,” said William Davila, vice president of clinical services for CHD, the Springfield-based social-service agency that boasts 70 programs, many of which focus on the broad issue of substance abuse in some manner.

William Davila, left, and Rene Pinero

William Davila, left, and Rene Pinero say many people who struggle with addiction also have mental-health issues.

Pinero agreed, telling BusinessWest that, when clients come to CHD’s Pine Street Clinic in Springfield, it’s not uncommon to find that life situations led to their addiction. “Many have a co-occurring disorder and are dealing with anxiety, depression, or a past trauma. It’s rare to see someone who only has a problem with substance addiction.”

For example, someone with post-traumatic stress disorder who suffers from anxiety, depression, frequent nightmares, or disturbing memories may self-medicate so they can stop thinking about these issues, while a person with undiagnosed bipolar disorder may try to cope with the mood swings that accompany it by using alcohol, marijuana, or cocaine purchased on the street, or medications that have been prescribed for them.

“It’s a more severe form of what occurs when someone says they had a bad day at work and need a stiff drink,” Davila said. “These people are looking for a way to alleviate stress, exhaustion, or fatigue, and many times they start with one drink or one pill and it snowballs. The problem is often magnified when someone has a mental-health issue.”

Pinero agreed. “A lot of the clients we see are trying to cope with serious issues and are at the point of desperation,” he told BusinessWest, adding that many fear admitting to the problem due to the stigma associated with substance abuse and fear that they will lose their job if anyone finds out.

But they are often unable to focus while they are work due to their preoccupation about how or when they will be able to use the drug again and whether people will notice their condition. “It adds pressure, and the increase in stress can actually cause the person to use more,” Pinero said.

For this issue and its focus on employment, BusinessWest wades into the tide of addiction, what employers need to know, and how they can equip themselves to cope with this issue.

Dose of Reality

Massachusetts has initiated a so-called State Without Stigma campaign in response to statistics showing that about four people in the Commonwealth die every day as a result of their addiction to opioid painkillers. The goals of the initiative include creating new pathways to treatment, reducing the stigma that prevents people from seeking help, acknowledging addiction as a chronic medical condition, and a host of concrete measures.

“If someone fell and broke their leg on the way to work, they would not be embarrassed to seek medical treatment,” Pinero told BusinessWest. “But people with an addiction problem think they have to keep it under wraps. Eventually, it starts to consume their life.

“And if they don’t get the support they need, they are absent from work more often, late more often, and can engage in unsafe behavior,” he went on. “People with addictions are five times more likely than their co-workers to have an injury at work or injure others.”

Davila said signs that indicate an employee may have an addiction problem are many and are usually recognizable to those who know what to look for. They include unexplained absences, mood swings, changes in attitude, difficulty relating to others, a decrease in productivity, lack of focus or concentration, and work that fails to meet expectations.

On the other hand, there are people who drink excessively during lunch or during the workday and are skilled at hiding it. “By the time it’s discovered, many people have been using for months or years,” he explained.

An Opioid Task Force was created in Greenfield to cope with growing numbers of people in the Franklin County and North Quabbin regions of Massachusetts who are addicted to heroin and opiates, and it’s an example of what’s being done in many regions and cities.

The list of participating agencies and healthcare groups is lengthy, but the mission is clear: to prevent heroin and prescription-drug addiction and help people who are already hooked.

And there are many reasons to help people with addiction issues, starting with the fact that employers care about the people who work for them and value them for what they are — real assets, but also human beings.

“Employers want to do the right thing and support someone who is having a tough time,” Royal said. “There really is a desire to preserve employment, especially if someone has been a good employee and is well-liked.”

There are financial considerations as well, specifically the large investment employers have made in searching for, selecting, and training personnel.

But, since they know being under the influence at work presents liabilities and potential exposure to lawsuits, employers must conduct a delicate balancing act as they attempt to both help their employee and protect themselves from liability.

Amy Royal

Amy Royal says employers often want to protect employees, but need to consider liability issues if they let addiction-related problems fester.

Royal cited a case in which a nursing home was sued after something went awry with a resident due to an employee’s irresponsible behavior. After the incident occurred, other employees told the family they had observed the person working in an altered state in the past, and, as a result, management was found negligent because it failed to do something about the problem.

“It can be a dilemma,” Royal explained. “An employer may really like the employee and want to help, but they need to weigh that against the risk of liability.”

She added that, in an office setting, concerns manifest themselves that have less to do with safety and more with the company’s reputation or the way it is perceived. For example, a receptionist who slurs his or her speech and has glassy eyes can be detrimental to interactions with the public or with clients.

However, the main concern for many employers is safety, which can be critical in a factory where machinery is involved, or when the person works for a nonprofit and engages in one-to-one care with a vulnerable population, as in the example of the nursing home.

Addressing the Issue

Royal gets a lot of questions about when, if ever, to insist that an employee undergo drug testing, but she says Massachusetts does not have a drug-testing statue.

“However, there is a privacy statue that is very broad and is utilized in the employment context,” she noted, explaining that mandating a drug test can be considered an invasion of privacy. However, the courts have implemented a balancing test where they weigh privacy against legitimate business interests.

Safety is considered a legitimate reason to test, but Royal noted that any employer who mandates a drug test needs objective criteria it can present to a court if it is challenged.

“I suggest that front-line supervisors document their observations in a concrete way,” she told BusinessWest, adding that evidence cannot be subjective, and she has worked with clients to prepare a checklist of behaviors that include odor, the way someone walks and speaks, erratic behavior, shakiness, and whether the employee’s eyes appear glassy. “But first, I try to find out what an employer’s concerns are and whether or not they want to preserve the employee.”

Regardless of their goal, it’s important to provide supervisors with training regarding the legalities of what constitutes suspicious behavior.

“A supervisor needs to be able to recognize and document it, and a company shouldn’t assume the person is armed with these skills without some type of training,” Royal went on. “The supervisor also needs to understand that their role includes being accessible and present in the workplace.”

If an employer decides to confront an employee, Pinero said, they should be understanding and tell the person they want to do whatever it takes to help them keep their job and address their addiction.

“One of the best things employers can do is to establish a policy and an employee-assistance program to handle these problems,” he told BusinessWest, adding that employers should emphasize that any information shared with employee-assistance counselors is confidential.

Davila has been a manager for many years, and says there have been times when he suspected something was wrong with an employee. But he added that erratic behavior does not always result from addiction.

“The employee may have suffered a loss in their family, have financial problems, or problems with housing that can be as distracting as addiction,” he said. “Employers don’t want to police their staff, but they need to be vigilant and proactive so they can help.”

He suggests explaining to an employee that changes have been observed in their behavior that can include mood, self-care, or asking colleagues for money. “Tell the person you are concerned, there is a program that can help, and you recommend they try it,” he advised. “You should also emphasize that you are happy to talk to them about any of their concerns.”

However, experts admit that addiction can be a lifelong struggle, and in some cases, the person isn’t ready to admit they have a problem.

Bottom Line

Addiction in the workplace is a complex issue, and despite all the media attention focused on it, outdated notions persist.

“People with addictions are not held in high esteem,” Royal said. “But it is a disease, not a conscious choice, even though people may perceive it that way.”

And there are definite benefits to helping someone recover.

“It’s a win-win situation for the employer, the person’s family, and the community,” Pinero said. “Some people start with outpatient services or peer-support programs, while others have to go to a detox program to deal with the physical aspects of addiction. But recovery is a process, and they will continue to need treatment.”

Which means employers need to be alert to potential problems and deal with them in a manner that is caring, but also addresses issues of liability.

“Just don’t be judgmental,” Pinero suggested. “Most people with an addiction want treatment, but often feel ashamed, and are waiting for someone to ask them to get help.”

Employment Sections

This Generation Is Already Making a Seismic Statement

By JAMES T. KRUPIENSKI, CPA

James T. Krupienski

James T. Krupienski

Every 20 years or so, there is a generational shift in the workplace.

The most recent group — known as the Millennial generation — is currently integrating itself into the workplace. And by integrating, they are making a seismic statement. Recent studies show that Millennials now make up approximately 25% of the total workforce and that by the year 2020 they will comprise almost 50%. Given that this generation is generally defined as those born between 1980 and 2000, they are now at a point in their careers where they are taking on leadership roles.

If your leadership and management group, like many businesses, is made up of Baby Boomers and Gen-Xers, it is imperative that you understand what drives this next generation, because they will be the workforce and customer base that carries your business into the future. Millennials are different in so many ways from the Boomers and Gen X that it will require a shift in the way your business is managed. This article will help by focusing on the motivational factors and differences that set this generation apart and the impact Millennials will have on your workforce and their interaction with other employees.

Motivational Factors

At first glance, some of the more experienced generations may have certain negative perceptions about the Millennial generation — specifically, that they are entitled, require a lot of hand-holding, need constant encouragement, and don’t want to put in long hours. Stepping back, these are really just misconceptions due to a lack of understanding of what is driving them and how they grew up differently.

While the Boomers and Gen-Xers tend to value compensation and the need to work long hours to affirm their loyalty, this was born as a result of growing up in a period of limited resources and technology, with the need to focus on sweat equity as a result. Through this hard work, parents of Millennials were able to offer things to their children that were not available previously. As such, in a changing effort to push their children, parents tended to help them along the way, focusing on the social aspect of their value to society. The so-called ‘everyone gets a trophy’ mentality was created.

With this shift in how Millennials were raised, so to came a shift in what they value most and what they are looking for in a career. First and foremost, work-life balance is generally regarded as more important than how much they are making. They saw how hard and how many hours their parents and grandparents had to work to get to where they are and would like to avoid getting burned out over time. Additionally, they feel that, with the way technology has improved, it can help them better manage their time and complete tasks in a more time-efficient manner.

Other motivating factors include buy-in to the culture and mission of their employer, as well as the ability to receive continuous training and development. They also want to be heard. They are often not content with just coming to work and punching a clock. Rather, they are looking to provide ideas and be part of the solution.

How Will This Affect Your Workforce?

With a shift in these motivational factors, the way you hired and retained employees in the past may not work going forward. Millennials don’t look at a job, even one early in their career, as one where they will need to ‘pay their dues.’ They know their value and want to be treated as a valued member of the organization — part of the team. This holds true whether it is your new front-desk receptionist or your newest design-team member. Where this can become difficult is in a company’s ability to influence the interaction between those Gen-Xers who have worked at a location for some time and those Millennials that were recently hired. Often the ability to manage these interactions can make all the difference in maintaining a successful business.

Additionally, it is important to always remember that Millennials keep a pulse on social media and, as a result, have networking skills exceeding those of many seasoned professionals. This leads to two different forces that need to be managed.

First, it is imperative to have a documented social-media policy at work. The speed in which words and thoughts can spread on the Internet cannot be overlooked.

Second, other business opportunities do arise. And Millennials are aware that they are out there. If they feel that they’re in a place where their personal values aren’t being satisfied, they are more apt to move to the next job than older generations would have been. A recent survey by PricewaterhouseCoopers found that 25% of Millennials expect six or more employers during their career, and 38% feel that senior management doesn’t relate to them. These statistics must not be ignored.

So, what is a business owner or manager to do in order to retain top talent? Some suggestions include providing them with regular training and holding frequent staff meetings. The creation of group idea-sharing sessions would afford them the opportunity to suggest ways the business or processes can be improved.

At work, Millennials want to have fun. This doesn’t mean there needs to be a pizza party every Friday afternoon, but the work environment needs to be lively with a sense of camaraderie. Finally, you need to listen — meet with them, seek feedback, mentor them, and take what they have to say seriously. While an idea or suggestion may seem off the wall to you, the fresh perspective may just be what your business needs.

The Millennials are here, and they are here to stay. As their numbers continue to grow and they continue to take on additional leadership positions within your business, it is important not to take them for granted. They are, after all, going to become your succession plan.

James T. Krupienski, CPA, is senior manager of the Health Care Services niche at Meyers Brothers Kalicka, P.C. in Holyoke; (413) 536-8510; www.mbkcpa.com

Employment Sections

For the Record

By STEFANIE RENAUD, Esq.

Stefanie Renaud

Stefanie Renaud

In December, the National Labor Relations Board (NLRB) struck down a Whole Foods policy banning employees from secretly recording conversations in the workplace as an unfair labor practice (ULP).

The NLRB concluded that the policy violated the National Labor Relations Act (NLRA) because it infringed on employees’ right to engage in concerted activity, which is protected by Section 7 of the NLRA. Concerted activity includes the ability to form, join, or assist a union; choose representatives to bargain with the company on employees’ behalf; and act together with other employees for mutual benefit and protection.

The NLRA applies to all employers, unionized or not, and all employees have the right to file a ULP charge with the NLRB if they believe a company policy interferes with their protected rights.

Whole Foods’ challenged policy was designed to foster open communication between employees and management by ensuring that conversations, phone calls, images, and company meetings were not recorded without prior authorization by management or consent of all recorded parties. Whole Foods’ goal was to “eliminate [the] chilling effect on the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded.”

Despite noble intentions, the NLRB concluded the policy was overbroad and had to be struck, because an employee could reasonably conclude that it infringed on his or her Section 7 rights. Under Section 7, photography, audio and video recording, as well as posting photographs and recordings on social media, are considered protected activity if employees are acting in concert for their mutual aid and protection, and there is no overriding employer interest. An employee acting alone may be engaged in protected activity if he or she makes the recording to further a group action, is attempting to enforce the terms of a collective-bargaining agreement, or is attempting to initiate or induce group action.

While the Whole Foods policy did not explicitly restrict or chill protected activity by prohibiting employees from engaging in protected activities, the NLRB nonetheless concluded that an employee could reasonably understand the policy to prohibit Section 7 activity. Aiding this conclusion, Whole Foods’ sole witness admitted that the policy would apply even if an employee were engaged in protected activity. Whole Foods’ policy also required employees to seek management permission to make recordings on non-working time, another infringement on employees’ Section 7 rights.

The NLRB distinguished this case from those where an employer had a compelling privacy interest that merited upholding a recording ban. For example, in Flagstaff Medical Center, 357 NLRB No. 65 (2011), enfd. in relevant part, 715 F.3d 928 (D.C. Cir. 2013), the NLRB upheld a hospital policy banning secret recordings because it protected patients’ health and privacy information. Outside of patient care, however, it is unclear what employer interest would be compelling enough for the NLRB to uphold a ban on secret recordings.

The consequences of a ULP finding are serious. The NLRB ordered Whole Foods to print and supply an insert regarding the illegality of the policy to every employee, at significant cost. The NLRB also ordered Whole Foods to post a notice in all facilities nationwide stating that “the [NLRB] has found that we violated federal labor law” and that employees have the right to “form, join or assist a union; choose representatives to bargain with us on your behalf; and act together with other employees for your benefit and protection.”

Clearly, even a small mistake can have huge consequences for the employer.

Massachusetts employers should also be aware that a recording that may deserve protection under the NLRA could still be illegal in the Bay State. Massachusetts is an ‘all party consent’ state, meaning that audio recordings (video recording and photography are not covered) made without the knowledge or consent of all parties involved violate the wiretap law. A violation of the wiretap law is a felony punishable by up to five years in prison or two and a half years in jail, fines up to $10,000, or a combination of fines and imprisonment.

The statute also provides a civil cause of action for any person ‘aggrieved’ by illegal wiretapping, but an employer cannot be considered an ‘aggrieved person.’ Only the individual whose voice was recorded could bring a lawsuit against the employee who made the unauthorized recording, even if the recordings were made at work. So there are few remedies available to employers when a worker secretly records a conversation.

To comply with the NLRA, the NLRB recommends that any policy against secret recordings specifically reference the applicable state wiretap laws. In Massachusetts, employers may want to include a provision that states that the policy applies only to those recordings that do not comply with Massachusetts law.  In addition, the NLRB suggests that any recording policy explicitly state that it does not apply to recordings made as part of protected activity or to recordings made on non-working time.

Because a mistake in this area can create huge liability, Massachusetts employers should revisit their policies and handbooks with their labor and employment counsel to ensure compliance with both Massachusetts and federal law.

This column is not intended as legal advice related to individual situations. If your business is facing a specific legal problem, consult your labor and employment counsel for legal advice and planning.

Stefanie Renaud, Esq. is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She is admitted to practice in Massachusetts; (413) 737-4753; [email protected]

Employment Sections

Lessons from the ‘Blind Barber Case’

By PETER VICKERY

Peter Vickery

Peter Vickery

A mixture of sympathy and surprise best describes the tone of the news stories about the recent decision from the Mass. Commission Against Discrimination (MCAD) in what headline writers dubbed the “blind barber case.”

According to media interviews with satisfied customers, Joel Nixon is a fine young barber. But upon losing his job, he fell into debt, faced foreclosure on the family home, and had to go on food stamps, all while his wife was pregnant with their first child. This explains the sympathy. He is also legally blind, and to the extent we ever thought about the subject at all, many of us may have assumed that barbershop owners could lawfully require that their employees be sighted. Hence the surprise.

These are the basic facts of Nixon v. Tony’s Barber Shop: Nixon suffers from the degenerative eye disease retinitis pigmentosa, has a certificate of blindness from the Mass. Commission for the Blind, and had to surrender his driver’s license in 2004. In November 2011, he applied for a job at the newly opened Tony’s Barber Shop in his hometown of Norton. The owner, Caesar Antonio Morales, hired him.

Four months later (after Nixon had tripped over a customer’s legs, a chair, and a ladder), Morales fired him. Blindness is a disability, so the MCAD decided that, by firing Nixon because of his blindness, Tony’s Barber Shop had discriminated against him, thereby violating the Massachusetts anti-discrimination law (Chapter 151B). The MCAD ordered Morales to pay Nixon $100,000, of which a sizeable sum, $20,000, was to compensate Nixon for emotional distress.

At this point, readers may be wondering, at the risk of seeming insensitive, whether those in the tonsorial business are legally entitled to require that the barbers they employ can see. After all, although the term ‘blind barber’ may not trigger the same degree of trepidation as the words ‘blind brain surgeon’ or ‘blind airline pilot,’ the occupation does entail the use of sharp scissors and, from time to time, cut-throat razors.

Some potential customers, decent people with no bias against the visually impaired, might be a tad wary of a barber who has a certificate of blindness. Does the law let Morales take this possible loss of customer confidence into account, or would that constitute prejudice by proxy? And would Morales (after Nixon tripped over the legs, the chair, and the ladder) have been allowed to fire Nixon if the young man was not visually impaired, but merely clumsy? Clumsiness is not, to date, a recognized disability, so the clumsy are not a protected class.

The narrow question is not whether current social mores favor Morales giving Nixon a fair shake, but whether state law compels him — on pain of a close encounter with the MCAD followed by a penalty of the six-figure kind — to continue employing Nixon even after the young man’s series of stumbles. A definitive answer to the question depends on this case, or one like it, making its way to the appellate courts. In the meantime, here is what we know:

Chapter 151B prohibits discrimination quite comprehensively, and Section 9 of the statute mandates that the courts construe the law liberally for the accomplishment of its purposes, which they certainly do. But it does have an out. It allows an employer to discriminate on the basis of disability if, and only if, the disability renders the employee unable to meet a bona fide occupational qualification (BFOQ).

Judges have read this statutory proviso as creating an affirmative defense, meaning the employer always bears the burden of proving it. Further, in its regulations, the MCAD interprets the BFOQ as the “narrowest of exceptions,” an interpretation the judiciary has endorsed. So, although the employee bears the burden of proving discrimination, it is for the employer to squeeze into the narrow BFOQ exception by persuading the MCAD that the discrimination was justifiable — a significant challenge.

Federal law contains a similar affirmative defense, which the delivery company UPS was able to deploy with partial success when the Equal Employment Opportunities Commission (EEOC) charged it with discriminating against would-be drivers who had failed the company’s eyesight test. UPS claimed that it was entitled to discriminate against those visually impaired people who could not meet the company’s vision protocol, pointing to the safety-of-others exception written into the federal Fair Employment and Housing Act.

Under the statute, an employer secures the protection of the safety-of-others exception if it can prove that, even with reasonable accommodations, the disability in question would prevent the employee from performing the job’s essential functions in a manner that would not endanger the health and safety of others. UPS contended that it imposed the eyesight test because — of all things — it did not want its drivers running down small children who might suddenly dart into the street.

Nevertheless, in 1997 the EEOC commenced an action in California against UPS for violating the rights of job applicants who were monocular, i.e. with sight in just one eye. Eight years later, the Court of Appeals for the Ninth Circuit held that UPS did, indeed, have the benefit of the safety-of-others defense because “peripheral vision plays an important role in avoiding accidents” and monocular drivers would have “less opportunity to see a child … darting from the impaired side.”

As a result of the case EEOC v. UPS, it is now reasonably well-established that, under federal law, peripheral vision contributes to safer driving (in California, at any rate).

So, in keeping with the spirit of the safety-of-others exception, did the MCAD consider the possibility that visual acuity might constitute a BFOQ for barbering, given the sharp scissors and cut-throat razors? No, it did not.

This brings us to perhaps the most noteworthy fact about Nixon v. Tony’s Barber Shop: the employer defaulted. At the hearing, there was nobody to advocate for Tony’s Barber Shop, and the only witness was the complainant himself, Nixon.

One piece of evidence, it turns out, was crucial to the MCAD’s ruling that Tony’s Barber Shop discriminated against Nixon on the basis of his blindness, namely Nixon’s own account of what Morales said to him in the barber shop at the time of his discharge. According to Nixon, Morales used profane comments that referred to his blindness, e.g. “you blind f___,” comments the hearing officer found to reveal “gross insensitivity” and “discriminatory animus.”

With no attorney present at the hearing to cross-examine Nixon or to elicit Morales’s (possibly different) version of the conversation, Nixon’s account stood unchallenged and unrebutted. And, without defense counsel, there was nobody to raise, let alone prove, the BFOQ affirmative defense.

The first lesson for employers? Show up. An adjudicatory hearing is an adversarial process, and if the adjudicator — here the MCAD, the same agency that investigated the complaint and found probable cause — hears from only one side, the result should surprise no one.

The second lesson? Resist the temptation to fire first and ask questions later. Upon learning that an employee has a disability and wants an accommodation of some kind, the employer has a duty to initiate an interactive dialogue to find out whether reasonable accommodations will allow the employee to perform the job.

Remember, although it is the employee’s responsibility to request an accommodation, the onus is on the employer to start the series of two-way conversations so as to determine whether an accommodation is reasonable. And when making that determination, think back to Tony’s Barber Shop and ahead to your own looming discrimination case and assess whether you will be able to prove, by a preponderance of the evidence, the affirmative defense of BFOQ.


Peter Vickery practices employment law in Amherst; (413) 549-9933; www.petervickery.com

Employment Sections

Letter of the Law

By OLGA M. SERAFIMOVA, Esq.

Olga Serafimova

Olga Serafimova

Having to deal with a unionization effort is challenging enough, but having to do it a second time after a narrow success would be truly taxing.

Yet, Danbury Hospital is faced with exactly this task.

Specifically, Danbury Hospital’s workforce voted 346 for and 390 against joining AFT Connecticut, which is a union comprised of teachers, nurses, and other healthcare workers. However, last month, the National Labor Relations Board (NLRB) — the federal agency responsible for the implementation of the National Labor Relations Act — set aside these results and ordered a re-run election. The reason for this development was that the NLRB concluded that the hospital had violated a recent amendment to its rules requiring employers to provide available personal e-mail addresses and telephone numbers for employees included on a voter list.

When a petition is filed with the NLRB seeking to form or join a union, the employer must comply with a number of requirements with short deadlines, such as compiling and providing a voter list. A voter list contains specific information about all employees who would be included in the proposed union if the unionization effort is successful, as these are the employees who get to vote on whether or not to unionize. After the petition is filed, the proposed union and the employer may agree to put the matter to a vote by entering into an election agreement, or may have the NLRB decide whether or not a vote should occur.

To be entitled to a vote, the proposed union must comply with a number of specific requirements, and unless an agreement is reached, the issue is decided at a hearing before the NLRB. This hearing may result in the dismissal of the petition or the issuance of a direction of election, in which case the matter is put to a vote by the employees.

Generally speaking, the voter list must be provided to the NLRB and the proposed union within two business days after the approval of the agreement or the issuance of the direction of election. This deadline is very strict. To get an extension, the employer must be able to show ‘extraordinary circumstances.’

The fact that the employer may be decentralized, have a large workforce, or rely on an outside payroll company, all of which would make gathering the required information more time-consuming, are not sufficient to meet this test. Other aspects of the rule that render the task time-consuming are the very specific format requirements. The NLRB rule controls the file format to be used, the order of the columns, the order of the names, and the font to be used, and failing to comply with any of these requirements could potentially result in a re-run election.

The information required to be on a voting list includes the employees’ full names, job classifications, work locations, shifts, and contact information, including their home addresses, available personal e-mail addresses, and available home and personal cell-phone numbers. In compiling the voter list, Danbury Hospital relied exclusively on the information contained in the employee database maintained by its Human Resources Department.

In so doing, the hospital provided all personal e-mails in that database, as well as telephone numbers for 94% of the employees on the list. Nevertheless, the NLRB held that its rules had been violated.

The NLRB reached this decision not because it found that the hospital had failed to provide any e-mail addresses and telephone numbers, but because it found that the hospital had failed to search diligently enough for any additional e-mail addresses and telephone numbers that may exist.

The NLRB reasoned that, by failing to look into other databases, such as those maintained by its Emergency and Nursing departments, the hospital had not exercised the necessary level of due diligence to comply with the rule.

Given the grave consequences of failing to comply with the requirements of the voter list and the broad interpretation of the new rule in the case of Danbury Hospital, employers facing a unionization effort are advised to start preparing the list as soon as they know the likely scope of the bargaining unit at issue.

A similar result could follow if an employer is found to have failed to properly post or distribute the notice of election, the document informing the parties and employees that a vote will be held. Under the NLRB’s new rule, this notice must be posted in conspicuous places in the workplace, including all places where notices to employees are “customarily posted.”

The employer must also e-mail the notice to all employees with whom the employer “customarily communicates” electronically.

Given these vague definitions, further litigation is bound to happen.

Olga M. Serafimova, Esq. is an attorney at Royal LLP, a woman-owned, boutique, management-side labor and employment law firm. Royal LLP is a certified 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 Sections

Going Concern

By MARYLOU FABBO, Esq.

Marylou Fabbo

Marylou Fabbo

Massachusetts specifically recognizes ‘gender identity’ as a protected classification, providing transgender employees with certain rights, including the right to be treated in the same manner as their co-workers in the workplace.

So, what exactly does ‘transgender’ actually mean? ‘Sex’ is a term used to describe someone’s biological assignment at birth. ‘Gender’ is the sex with which an individual identifies. Gender is an individual’s sense of being ‘male’ or ‘female’ and is often, but not always, expressed through clothing, hair, or other means.

‘Transgender’ is the term used to refer to people who do not identify with the sex they were assigned at birth or with society’s expectations about female and male gender roles. ‘Trans’ is often used when referring to a transgender individual. Trans people may be male-to-female (MTF) or female-to-male (FTM). Whether someone is transgender does not turn on whether the individual has had surgery to reflect his or her gender identity.

There have been many issues surrounding transgender employees, but perhaps the most frequent one that arises for employers is the use of workplace bathrooms. A transgender employee may feel entirely comfortable using the restroom of the gender with which he or she identifies, but the employee’s co-workers may be opposed to sharing a bathroom with the employee.

Co-workers may complain that they feel that their privacy is invaded or that transgenderism offends their religious beliefs. In some situations, trans employees may feel harassed when using the facility that corresponds with their gender identity. Employers often do not know what to do when faced with competing complaints.

In 2011, Massachusetts employment and housing laws were amended to specifically include transgender employees as a protected group, and Executive Order 526 extended Massachusetts equal-rights protections to gender identity and expression. As of Aug. 1, 2015, surgery is no longer a prerequisite to obtaining a new birth certificate in Massachusetts. Legislation has been proposed in Massachusetts that would prohibit discrimination against trans individuals in places of public accommodation, such as public bathrooms.

Similarly, federal courts and agencies such as the Equal Employment Opportunity Commission (EEOC) have held that Title VII of the Civil Rights Act’s prohibition against sex discrimination applies to those who do not act according to sex stereotypes, such as the expectation that only those whose sex is female should wear a dress. In 2015, both courts and federal agencies made their position on bathroom accessibility clear: transgender employees should be permitted to use the restroom with which they identify.

In April of this year, the EEOC ruled that a transgender employee cannot be denied access to common restrooms used by other employees of the same gender identity, regardless of whether the transgender employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so. In May, the Occupational Safety and Health Administration (OSHA) announced an alliance with the National Center for Transgender Equality to promote the safety and health of transgender workers, and in June, OSHA issued a four-page “Guide to Restroom Access for Transgender Workers.”

As most employers are aware, OSHA requires that employers provide employees with sanitary and available toilet facilities so that employees will not suffer adverse health effects that can result when such toilets are not available when employees need them. In its guide, OSHA has made it clear that all employees should be permitted to use the facility that corresponds with their gender identity.

Regardless of an individual’s personal beliefs regarding gender-identity issues, employers should make it clear that all employees are entitled to be treated with dignity and respect in the workplace. Employers must consider restroom modifications that provide options for transgender employees and for co-workers who are not comfortable sharing facilities. Where possible, an employer should consider offering a single-occupancy, gender-neutral bathroom in an equally convenient location. The transgender employee may not be required to use that facility, but it would remain an option for whomever is uncomfortable with the situation — whether it be the transgender employee or a co-worker.

If a single-occupancy facility is not available, employers should have multi-occupant, gender-neutral restroom facilities with lockable stalls available. Employers should also let all employees know that the presence of a transgender employee in the restroom is not per se harassment and that reports of inappropriate behavior or comments in the restroom will be addressed regardless of whether they are asserted against someone who is transgender or not.

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 practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]

Employment Sections

Joint Venture

HempDesk

The statute legalizing marijuana for medical purposes in Massachusetts presents a confounding dilemma when comes to the workplace. On one hand, the law states that any person who meets the requirements for medical marijuana may not be penalized or “denied any right or privilege” for such activity. On the other hand, employers aren’t required to accommodate marijuana use in the workplace. But what if an employee is fired for using the drug after hours, then failing a drug test? On issues like that, the statute is frustratingly vague, but cases winding their way through the system may soon provide some clarity.

Advantage Sales and Marketing never wanted to be a test case for medical marijuana, but that’s exactly what the Foxborough company has become.

It likely won’t be the only battleground, either.

The issue began when Cristina Barbuto, who suffers from Crohn’s disease and is prescribed marijuana to deal with painful flareups, applied for a job at Advantage.

“She told them, even before the pre-hire drug screening, that she was going to test positive,” said Timothy Murphy, an attorney with Skoler, Abbott & Presser, P.C. in Springfield, noting that her marijuana use, typically during the evening, was a doctor-directed strategy to deal with her condition.

She was hired. Then fired the next day.

“They brought her on, but when they got the test result, they said they had a zero-tolerance policy, and she had tested positive,” Murphy said. When Barbuto, who is now suing Advantage, reminded the company she had been upfront about her marijuana use, he went on, “they said, ‘sorry, but this is our policy.”

This type of confusion, he explained, is due to what seems to be conflicting language in the statute that legalized marijuana for medical reasons after Massachusetts voters approved it in a November 2012 ballot question.

On one hand, the law states that any person who meets the requirements for medical marijuana — which include suffering from a qualifying medical condition (such as cancer, glaucoma, HIV/AIDS, Crohn’s, Parkinson’s, multiple sclerosis, and others) and being prescribed the drug by a physician — may not be penalized under state law or “denied any right or privilege” for such activity.

On the other hand, nothing in the statute requires employers to accommodate marijuana use in the workplace or requires health-insurance reimbursement for its use.

The grey area — what about employees who use medical marijuana at home, then come to work the next day? — is proving to be vexing for employers worried about crafting drug-use policies that protect their rights under the law. Because the law, so far, is largely silent on the matter.

“When it comes to this language, no one knows what it means,” Murphy said. “A registered user can’t be denied any rights or privileges, and [Advantage] is going to be a test case.”

While the medical-marijuana law says employers don’t have to accept marijuana use in the workplace, “that’s not really the question,” said Karina Schrengohst, an attorney with Royal LLP in Northampton. “The question is whether you can make employee decisions based on marijuana use outside the workplace and whether you need to make a reasonable accommodation.”

Barbuto seems to have some standing based on the federal Americans with Disabilities Act, which prohibits workplace discrimination based on a disability and requires employers to make a “reasonable accommodation” for that employee if it would not pose an “undue hardship” on the operation of the business, as long as the employee can perform the essential functions of the job.

“We have our own state anti-discrimination law which largely tracks the federal ADA,” Murphy said. “Under that law, discrimination against disabled employees is unlawful, and employers can’t take any negative actions against employees because of a disability.”

But Massachusetts employers have rights as well, and medical marijuana isn’t even legal under federal law, and … well, it’s easy to see why confusion reigns right now.

On the wording of the Bay State’s medical-marijuana statute regarding rights and privileges, “does that mean medical-marijuana use is protected, and employers can’t take any adverse action against employees who use it?” Murphy asked. “Nobody is entirely sure.”

However, cases like Barbuto v. Advantage Sales and Marketing and others winding their way through the Massachusetts courts should begin to add clarity to the issue. That clarity, Murphy said, can’t come soon enough.

A Question of Safety

The law does seem clearer, he noted, when the position in question involves issues of safety — say, truck drivers and forklift operators.

“Obviously, it’s an employer’s responsibility to ensure a safe workplace for all employees, and that’s important. The use of marijuana can impact an employee’s job. It’s a legitimate concern for employers … similar to alcohol use.”

Employers have a dilemma, he said. On one hand, Murphy said, “they probably want to be empathetic and understanding to medical marijuana users because they’ve been dealt a bad hand; they’re not in a good place with their health. Most employers tend in that direction, but at the same time, they’ve got to maintain safety for everyone.”

On-the-job impairment, regardless of the cause — whether it’s marijuana, other prescription drugs, alcohol, or illegal narcotics — and workplace safety should be the central piece of any substance-abuse policy, he said.

However, Schrengohst noted, many positions don’t involve issues of safety.

“Often this question comes up when employers are balancing workplace safety against this new law. On the issue of workplace safety, preventing workplace injuries, for people like factory workers and forklift operators, I’m going to advise clients to require drug tests because of a legitimate safety interest,” she told BusinessWest. “But in an office setting, there’s more confusion. Obviously, you don’t want your receptionist, as a face of the business, to be under the influence, but the safety issue is the clearer one.”

And what constitutes ‘under the influence?’ The argument Barbuto makes, Murphy said, is that her nighttime use of marijuana does not affect her daytime performance. “She’s saying, ‘I have this disability, and you have a responsibility to accommodate my situation, as long as I’m not impaired at work.”

In short, he went on, “does an employer in Massachusetts have to accommodate an employee who is a medical-marijuana user? That’s the question.”

It’s a question other states are dealing with as well. In Coats v. Dish Network in Colorado, the plaintiff is a quadriplegic who used medical marijuana outside working hours, a registered user who took the drug in a manner according to the state statute authorizing medical-marijuana use.

Yet, the Colorado Supreme Court upheld his firing earlier this year because marijuana is classified as a schedule 1 drug, illegal under federal law. In other words, he couldn’t be arrested for using medical marijuana, but he could be fired.

“The court said the termination did not violate the employee’s rights. That’s really been the trend throughout the country,” Murphy said, citing two California cases: James v. City of Costa Mesa, in which the U.S. Court of Appeals for the Ninth Circuit held that the ADA doesn’t offer job protections for medical marijuana, and Ross vs. RagingWire Telecommunications, which held that the state’s medical-marijuana law does not require an employer to accommodate the use of otherwise illegal drugs for chronic back pain.

Those cases date back several years, however, and are no indication of how Massachusetts courts will view similar complaints, Murphy said.

“We need more regulations as well as more guidance through case law,” Schrengohst said. “The cases I’ve looked at in other states inform this, but they’re not binding in Massachusetts. Those cases have ruled in favor of employers, but the bottom line is, our statute and regulations don’t actually address all the issues, so I’m going to deal with it on a case-by-case basis — whether workplace safety is an issue, what the risks are going to be, and how we think a court might look at it. It’s a hard question right now.”

“In the context of workplace safety,” she went on, “employers really struggle to balance a safe workplace with this new legislation that doesn’t provide clear guidance. The explicit statement that you don’t have to accommodate it in the workplace at first seems great, and then it’s not, really.”

That’s partly because of the potential for dishonesty.

“When you drug test someone, it’s not like when you do a breathalyzer when someone is drinking,” she said. “With a positive drug test, everyone is going to say, ‘weeks ago’ or ‘after hours.’ No employee is ever going to say, ‘that was during my shift yesterday.’ I think employers are concerned, and obviously they’re worried that they’re going to be faced with litigation. It’s new, and we don’t know what to expect. It’s a really interesting topic.”

Changing Times

Murphy noted that the medical-marijuana statute makes an effort to protect employers, even if some of the specifics get blurry.

“It’s now well-understood that employers don’t have to excuse employees from performing the essential functions of their jobs, and don’t have to exclude employees from following their other types of policies, whether attendance-related or other standards of conduct,” he said.

As for drug testing, Schrengohst said companies with well-understood safety concerns are on firmer ground.

“I want to know what the facts of the situation are, what the industry is. If you want to have a drug policy and you want to drug test, why? What are the reasons behind this? Like I said, it’s a lot clearer when you have employees where safety is really important — someone who’s driving or operating equipment, and they have to be focused.”

Meanwhile, Massachusetts also faces the possibility of changing winds on the federal side, a question that vexes many physicians concerned about prescribing patients a drug that is technically illegal.

“Marijuana use remains illegal under federal law, but Obama’s administration has basically said, ‘we have bigger fish to fry, and we’re not going to be enforcing our medical marijuana and drug laws; we’re not going to punish marijuana users,’” Murphy said. “But that could change. There’s obviously going to be a change in the White House. Is the next president going to take a different view that could impact things? Or will the federal law be changed to allow for medical-marijuana use? That’s probably far less likely than state-by-state changes in laws.”

Massachusetts has progressed in this issue like many states, gradually changing its marijuana laws, Murphy noted. In 2008, the law was changed to decriminalize very small amounts of the drug. In 2012, voters ushered in the era of medical marijuana in the Bay State. In 2016, could full legalization follow, as Washington and Colorado have done?

“I expect there to be further efforts next year to liberalize our marijuana laws, and with each legislative step, maybe the picture gets clearer for employers,” Murphy said. “Advocates have tried to get the Legislature to pass it, but there doesn’t seem to be much appetite in the Legislature to do that. And, often, when the Legislature won’t act on things, people feel, ‘well, we’ve got no choice but to bring it to the voters.’”

Which would lay a whole new set of questions at the feet of employers already struggling to balance their employees’ rights and privileges with their own.

Joseph Bednar can be reached at [email protected]

Employment Sections

Not Feeling Well

SickLeaveDPart

When Massachusetts voters approved a law mandating paid sick leave for a vast swath of workers, many employers worried about the expenses and legal issues the new law would raise. While the final version of the law, which went into effect on July 1, smoothed over some of those concerns, anxieties remain, over issues ranging from higher operating costs to strained employee relations to the potential for abuse.

As new laws go, this one is causing employers to feel … well, a little sick.

“I would say many are confused and anxious,” said Mark Adams, director of HR Services for the Employers Assoc. of the NorthEast (EANE), when asked about member reaction to Massachusetts’ earned-sick-leave law, which took effect on July 1.

“They’re frustrated as well, in the sense that many of our members who have been doing the right thing, that already have paid sick-leave benefits, have had to unwind many aspects of that to come into compliance with some of the finer points of the law. There are some components built in that have given employers pause.”

At its heart, the law requires businesses with 11 or more employees to offer 40 hours of paid sick time per year. Companies with fewer than 11 employees must still provide 40 hours of sick leave, but it can be unpaid.

“We’ve done a number of briefings to educate companies, and for a lot of them, especially for companies that operate in multiple states, this has been particularly challenging,” Adams said, noting that many businesses with existing sick-leave policies must revamp their payroll systems and handbooks — mid-year, no less — to comply with the new law.

“They’ve provided this benefit all along, with favorable feedback from employees, and it costs time and effort to retool to meet the requirements,” he went on. “Then, you look at things being put forward on the federal level that would apply to federal contractors, a potential executive order that might require federal contractors to pay sick leave. If that ever comes to fruition, it would make it even more complicated to try to comply with both federal and state law, and you’re creating this ever-evolving patchwork of regulations on a benefit that, for many companies, they apply across the board. It makes it harder for many businesses that have been trying to do the right thing all along.”

Attorney Susan Fentin, a partner with the Springfield-based employment-law firm Skoler, Abbott & Presser, P.C., agreed with that assessment.

Susan Fentin

Susan Fentin says employers worry about the potential of employees abusing the new law, especially because workers are protected from employer retaliation for asserting their right to paid sick time.

“Most of our clients offer some form of paid leave,” she told BusinessWest. “The problem with the sick-leave law is, it expands the types of issues that somebody can take leave for; you’re not only allowed to take leave because of your own illness, but because of the illness of a parent, spouse, or parent in law. You can also take leave for medical or dental appointments, and to travel to and from these appointments. That’s obviously a need for many employees, but it’s generally not permissible under most employee sick-leave policies.

“So it’s an added burden,” she went on. “Perhaps a justifiable one, given the demands of society; individuals do have family members who are ill and need medical attention. But it’s nonetheless a burden on the employer.”

Attorney Olga Serafimova, an associate with Royal LLP, said the Northampton-based employment-law firm was peppered with questions leading up to July 1, as many clients were scrambling to adjust their policies, but it has been “dead silence” since, as though employers are holding their breaths and hoping they’ve instituted the changes correctly.

“Really it was smaller businesses that didn’t have leave policies previously that were affected the most,” she said. “A lot of those businesses fluctuate between 10 and 11 employees or around that number. For them, it’s an added expense.”

The attorney general’s office, she noted, did address many employer concerns in its final regulations, tightening up rules concerning sick-time accrual, employee justification for time off, and other details. “Of course, many businesses still feel it’s way too broad, way too generous, and a financial burden. And for smaller employees, this will have more of an impact.”

Potential for Abuse

That issue of justification for time off — in other words, the doctor’s note — is one element of the law that has employers on edge, because of its potential to breed abuse. The draft regulations stated that employees are not required to produce proof of illness until the time off exceeds 24 hours.

“For a part-time employee, that could mean more than a week, depending on how long the shifts are,” Serafimova said. “In the final regulations, it was changed to 24 consecutive hours or three consecutive days, even for part-timers. That was something the attorney general’s office picked up on and adjusted.”

The three-day rule, however, promises to be irksome to many employers, Fentin said.

“Previously, if an employee had an unplanned absence, the employer might have said, ‘I need a doctor’s note for that.’ Now the employee isn’t required to get a doctor’s note until, at minimum, a three-day absence.

“We represent management, so we’re always a shade cynical,” she went on. “The potential for abuse is pretty high with this law, the way it’s been drafted. Some changes to the draft regulations made it a little more palatable. For instance, now, the minimum amount of time you can use is an hour, so you can’t walk in 15 minutes late and say, ‘I was sick.’

“Of course,” she noted, “you can walk in an hour late and say, ‘I was sick.’ The employer would just have to forgive that. Frankly, somebody could take every Friday afternoon off all summer long because of so-called ‘medical appointments.’”

Serafimova noted that some employers might opt to provide 40 hours of sick time right at the beginning of employment, instead of having it accrue gradually, so they don’t have to change their payroll systems. “But that goes to the question about abuse. Giving one week up front creates the possibility for people to use it up and move on to the next business.”

This is especially true for employers with seasonal or temporary employees, she added. “As much as it sounds like it would make things simpler, [front-loading sick time] wouldn’t be a benefit for many employers. It saves them some money in adjusting their payroll systems, but they may end up paying anyway to people who are only there for a short period of time and take their sick leave, then give their notice. The requirements are so broad, there’s little limitation on how you can use sick leave. Businesses have had to really think about what is the better option.”


Click HERE to download a PDF chart of the region’s Employment Agencies


On top of that, Adams said, the law might turn out to be an employee-relations minefield for businesses that had existing sick-leave policies in place.

“Many companies are dealing with employees who might have false expectations based on what they’ve heard in the media, who think they’re getting more benefits than they’re accustomed to, when really, that’s not the case,” he explained. “These companies have already been providing fair and competitive benefits, but now they’re dealing with angst from employees who aren’t getting anything additional — but, frankly, never asked for it.”

Serafimova agreed. “Some employers who had a paid-time-off policy in place opted to reduce it and make 40 hours of it sick leave,” she said. “So people who were previously offered three weeks vacation time, saw that changed to two weeks vacation and one week sick leave. Unfortunately, while that keeps the expenses of the employer the same, the perception in the workforce is that they lost a benefit, and that creates discontent and morale issues. A lot of businesses are struggling that that decision.”

It’s just one way, Adams said, that “a law aimed at a small segment of businesses has created burdens for a large number of them.”

Navigating a Minefield

A large number indeed, to hear Fentin tell it.

“The way this is written, it’s the most generous, but, from an employer perspective, the most draconian, most burdensome sick-leave law in any state in the country — including California, which says a lot.”

Where it becomes dangerous for employers and not simply burdensome is in the law’s anti-retaliation language, and the potential for lawsuits if an employer tries to infringe upon a worker’s leave rights — or even the perception of infringement.

“They said they would not come down on employers for a while, give everyone some time to work out the bugs,” she said, regarding communications from the attorney general’s office. “That was encouraging. How long that lasts, we don’t know. All it takes is a couple of employees filing complaints.”

Serafimova said her clients, too, are anxious to see how issues play out.

Olga Serafimova

Olga Serafimova says the attorney general’s final regulations addressed some initial concerns about the sick-leave law, but many businesses still find the measure burdensome.

“The final regulations say you can discipline an employee who commits fraud or abuse, that people cannot use sick leave as an excuse to come late to work. At the same time, the law says you can’t punish an employee for exercising sick leave. What is abuse to one side may be the exercise of their rights to another. To me, this sounds like future litigation waiting to happen.

“We’re going to wait and see how that plays out because, again, it is enforced by the Attorney General’s Office, and if there’s any basis [for a complaint], they will proceed to investigate. On one hand, that’s good for someone who’s fighting over their sick time at work. But, at the same time, it opens the proverbial floodgates for anyone who’s not happy with their employer for any reason.”

And while defending against a complaint could be expensive for an employer, it’a free for the employee, she added. “Ultimately, it falls on the employer to defend against a meritless claim, because there’s absolutely no barrier to filing a claim, not even a $5 filing fee.”

That’s why it’s important that human-resources staff train managers in how to handle leave requests in this new environment, Serafimova said.

“If I come up to the employer and say, ‘I’m not feeling well today. Can I go home?’ I have asked for job-protected sick leave,” she explained. “Now, if I am late three times in one week, or say, ‘I’m not feeling well, can I go home?’ an untrained manager might say, ‘oh, not again, I’m going to discipline you.’ But, with the job protection this law provides, you can’t do that anymore. If people aren’t properly trained, it could lead to trouble for the employer.”

Fentin has been sharing similar advice. “We like keeping clients out of trouble; that’s much easier than defending them when they get in trouble,” she told BusinessWest. “We want them to do the right thing. We’re all on the same page.”

Still, she added, “we’re really in the weeds here. This is going to be a problem for employers for a long time going forward. Although a lot of my clients have made changes, they’re waiting to see what happens.”

That’s true with EANE members as well, Adams said. “Eventually, it will become easier to manage, but until we get through this transition, we’re going to see considerable frustration and confusion for the foreseeable future as companies continue to come to grips with the law.”

Joseph Bednar can be reached at [email protected]

Employment Sections

Beware Section 150

By PETER VICKERY, Esq.

Peter Vickery

Peter Vickery

How much could an employer end up paying for violating the anti-retaliation provisions of the Wage Act? Much more than you might expect.

A recent case in Worcester Superior Court involved an employer that fired an employee over her request for unpaid wages in the amount $3,750. To come close to the damages the court awarded the employee, multiply that figure by 50.

The name of the case is Wessell v. Mink Brook Associates. The plaintiff, Mary Ellen Wessell, served as the business manager for a home-restoration company called Mink Brook, whose president is Robert Stone. Wessell’s annual salary was $50,000. In late 2011, Wessell told Stone she believed one of his employees was stealing from the company.

In January 2012, Stone (who seems not to have shared her suspicions) demoted Wessell and installed as business manager the very employee Wessell suspected of stealing. Two months later, Stone refused to issue Wessell her paycheck. When they met — in the presence of Wessell’s new superior, whom she had accused of stealing — Stone accused Wessell herself of stealing, and fired her. At that point, in March 2012, the amount due Wessell in wages and unused vacation time was $3,750.

A little over two years later, in January 2014, the trial judge told the jury, “if you find that Ms. Wessell was terminated unlawfully from making a complaint regarding the Wage Act, then she is entitled to damages of the amount she would have earned if she had not been wrongfully discharged from the date of her termination, forward to this date.” The final damage award, after factoring in the termination-to-trial period (and deducting the $54,000 Wessell had earned elsewhere after her firing from Mink Brook) and then trebling the figure: an eye-watering $187,111.38.

Affirming the decision, the Appeals Court held that “an employee terminated by an employer for asserting a wage right may recover damages stemming from the termination … [which] may include earnings from the date of termination up to trial.” So the employer is liable not only for what it should have paid prior to termination but also for everything the employee would have earned during the years between termination and trial, minus whatever the employee actually earned elsewhere in the meantime.

That could be a sizable sum. It certainly was in Wessell v. Mink Brook Associates.

In arriving at this decision to affirm the judgment, the Appeals Court interpreted three sections of the Wage Act: Sections 148A, 27C, and 150. Section 148A begins, “no employee shall be penalized by an employer in any way as a result of any action on the part of an employee to seek his or her rights under the wages and hours provisions of this chapter.” It goes on to provide that any employer that fires or otherwise discriminates against an employee who has sought his or her rights “shall be punished or shall be subject to a civil citation or order as provided in section 27C.”

According to the defense, this language should limit the range of penalties available against Mink Brook to the civil and criminal sanctions described in Section 27C, and rule out the possibility of an award for back pay. The court rejected this argument, pointing to Section 150, which reads, “an employee claiming to be aggrieved by a violation of sections … 148A … may … institute and prosecute … a civil action for injunctive relief, for any damages incurred, and for any lost wages and other benefits … An employee so aggrieved who prevails in such an action shall be awarded treble damages, as liquidated damages, for any lost wages and other benefits and shall also be awarded the costs of the litigation and reasonable attorneys’ fees.”

So, although Section 27C imposes certain penalties, those penalties are not — contrary to the defense’s contention — exclusive. They could only be exclusive if the Legislature had not enacted Section 150 as well. But the Legislature did enact Section 150, whose clear and unambiguous language enables an employee to obtain “treble damages … for any lost wages.” Does that term ‘lost wages’ include back pay? Yes, said the court.

In a nutshell, if an employee rightfully complains about owed wages, and the employer responds by firing her, the employer had better hope that the fired employee finds another (highly paid) job, and fast. Even better, at the risk of stating the obvious, employers should refrain from retaliating against employees to whom they owe wages.

Finally, it is worth noting that Section 150 also applies to the earned-sick-time law, which went into effect at the beginning of July (see related story, page 28). This means employers violating any aspect of the new law face the prospect of treble damages and attorneys’ fees. For example, the sick-time law does not allow employers to ask for a doctor’s note if an employee has been out ‘sick’ for less than 24 hours. Demanding a doctor’s note in those circumstances could amount to interfering with, retraining, or denying the exercise of that employee’s rights, as could using the absence as a ‘negative factor’ when conducting a performance evaluation or when considering promotion, discipline, or termination.

Certainly, the attorney general’s sick-time regulations permit employers to seek verification if they suspect abuse of the law in some situations. But those situations are quite narrow in scope. For example, if an employer has “reasonable suspicion” that an employee aged 17 or younger is misusing sick time, the employer can seek verification from a parent or guardian. And an employer may discipline an employee of any age who is “exhibiting a clear pattern of taking leave just before or after a weekend, vacation, or holiday.”

But if the party night of choice happens to become, say, Monday instead of Friday, Saturday, or Sunday (behavioral norms having been known to adapt to changes in a legal regime), may the employer take disciplinary action upon observing a clear pattern of calling in sick on Tuesday mornings? Not under the current regulations, and not without casting a wary glance over the shoulder at Section 150.

Peter Vickery, Esq. is an employment-law specialist based in Amherst; (413) 549-9933.

Employment Sections

Raising the Stakes

By JOHN GANNON

John S. Gannon

John S. Gannon

The U.S. Department of Labor (DOL) recently proposed changes to the Fair Labor Standards Act (FLSA) that will impact payroll considerations for a majority of businesses across the country.

The changes will guarantee overtime pay for almost all employees making less than $50,440 per year in base rate pay, regardless of job duties or title. The changes are expected to take effect in early 2016.

FLSA Overtime Rules

Employees may be classified as exempt from the FLSA’s overtime compensation requirement — meaning they are not entitled to time-and-a-half when working more than 40 hours in a week — if they meet one of the FLSA’s exemptions.

The most commonly relied-upon exemptions are the ‘white collar’ exemptions, which apply to executive, administrative, professional, and outside sales employees. Exempt employees must meet the “primary duties” test for each exemption, and need to be paid at or above the minimum salary threshold, which is currently $23,660 per year ($455 per week).

There are narrow exceptions to the minimum salary threshold for certain professional employees and those working in outside sales. Other than those exceptions, employees who are paid less than the minimum salary threshold must be paid an overtime premium if they work more than 40 hours in a workweek. The FLSA also requires more rigorous record keeping when tracking the hours worked and compensation of non-exempt employees.

Minimum Salary Threshold Set to Double

Last month, the DOL released a proposed rule that would increase the annual minimum salary threshold to $50,440 ($970 per week) in 2016.

Businesses expected an increase in this salary threshold, although perhaps not to the $50,440 level. In March 2014, President Obama had directed the secretary of Labor to modernize the FLSA’s overtime rules for white-collar workers because those rules did not reflect the reality of the modern economy. According to the president, millions of Americans lack the protection of overtime compensation because of the outdated regulations.

The new minimum salary threshold represents the 40th percentile of weekly earnings for full-time salaried workers, according to data provided by the Bureau of Labor Statistics. In its proposed rule, the DOL explained that it has increased the salary level only seven times — in 1940, 1949, 1958, 1963, 1970, 1975, and 2004.

“The lapses between rulemakings have resulted in salary levels that are based on outdated salary data and thus ill-equipped to help employers assess which employees are unlikely to meet the duties tests for the exemptions,” according to the department.

The DOL estimates that almost 5 million workers will no longer qualify as exempt based on the new salary level. Notably, the DOL also proposes automatically updating to the minimum salary threshold annually so that it does not become outdated in a few years.

The DOL plans to publish a notice with the new salary level at least 60 days before the updated rates would become effective.

No Changes to Exempt Duties

The proposed rules do not alter any of the white-collar job duties, or otherwise change the exempt-duties tests. There was speculation that the duties tests would be modified to ensure that more managerial employees, in particular those who are ‘working supervisors,’ would be entitled to overtime. This did not happen; however, the DOL is soliciting questions from the public about how best to alter the duties tests.

Next Steps

Although these are only proposed changes, which must go through a public notice-and-comment rule-making process, we anticipate little if any changes to the new proposed minimum salary threshold. Those who are interested in submitting comments should visit www.regulations.gov and reference rule Identification Number 1235-AA11. The public has until Sept. 4 to comment.

Employers should start budgeting for these changes now. Some options include:

• Increasing base salaries to $50,440 for those employees who work any overtime, to preserve exempt status, with plans to increase incrementally every year. This is the easiest solution, but might not be in everyone’s 2016 budget;
• Keep salaries the same and start paying time and a half when employees making less than $50,440 work more than 40 hours a week. This is another quick fix, but could be problematic if you anticipate the employee will work a lot of overtime;
• Limit or eliminate overtime opportunities for employees earning less than $50,440. This option involves careful planning to be sure you have sufficient labor power to meet business demands. Employers who go this route may have to hire more workers; or
• Establish your employees’ current hourly rate, and reduce that rate in 2016, taking into consideration anticipated overtime costs. This option may net good results from a budgeting perspective, but will certainly impact employee morale.

If you need assistance planning for the FLSA overtime changes, contact employment counsel for guidance.

John S. Gannon is an associate with Skoler, Abbott &; Presser, P.C., and practices in the firm’s Springfield office. Since joining the firm in 2011, Gannon has defended employers against claims of discrimination, retaliation, harassment, wrongful-termination claims, as well as actions arising under the Family Medical Leave Act and wage-and-hour law. He also has experience with lawsuits seeking to enforce restrictive covenants and protect trade secrets; (413) 737-4753;[email protected]

Employment Sections
Carpet-cleaning Venture Advances HRU’s Mission

Zerorez’s Luis Cerrano (center) demonstrates the company’s equipment

Zerorez’s Luis Cerrano (center) demonstrates the company’s equipment for Sue Mastroianni, board member of the Gray House in Springfield, and HRU president Don Kozera.

When Human Resources Unlimited (HRU) decided that its core mission — training and placing people with disabilities in meaningful jobs — would benefit from partnering with a national franchise, carpet cleaning didn’t seem like the most exciting option.

“We looked around the country and found there were few not-for-profits owning franchises, and then we set up specific criteria around what we hope to achieve, how much revenue we need, how much risk we’re willing to accept, and what the tradeoff is between profits and mission,” said Don Kozera, HRU’s long-time president.

The agency wound up looking at 600 chains, then took a harder look at 60 of them, before narrowing its search to three that fit the organization’s criteria. One of those was Zerorez, a carpet-surface cleaning company based in Salt Lake City with a national presence — except in New England.

“What attracted us was its patented ‘green’ approach to cleaning,” he said of Zerorez’s innovative use of what it calls “empowered water” (more on that later). “And if you can innovate in carpet cleaning, you can probably innovate the world. It’s also a technology-based company. With this phone in my hand, I know where all the vehicles are, if their machines are on, how much we booked today, where those leads came from … I know exactly what’s going on.”

But there was some hesitancy based on the perceived lack of a ‘wow’ factor. “People said, ‘really? Carpet cleaning? Don’t we want to do something more exciting?’ But the more we investigated it, the more we talked to franchises across the country and sat down with the owners and looked at their technology, looked at the environmentally friendly detergents being used, that there was a social cause, it made sense.”

So HRU opened its first Zerorez franchise in Holyoke in March, with more likely to follow. “We have a bigger strategy,” Kozera said. “We have the rights to the Hartford and Boston markets. We didn’t do this to own one franchise; we did it as a strategy of revenue generation and job development. It’s solely owned by HRU, but it might not be solely owned in the future; it depends on how much capital we need for expansion plans.”

None of this, of course, answers the question of why Human Resources Unlimited, which trains and places clients in some 120 area businesses and has started and closed myriad businesses of its own to achieve the same goals, embraced the franchise model. Simply put, Kozera said, it’s because HRU eventually wants to do some franchising of its own.

Active Intent

It starts with a program HRU created called Move to Work.

“It’s a platform designed to help people who have been out of the workforce — chronically unemployed people, not just people with disabilities. It’s a unique approach that uses physical health, emotional health, and financial health to create a healthy, productive worker.”

The concept is explained by the program’s original title, the admittedly clunkier Changing Habits and Transforming Lives. It takes principles not typically applied to job training, including exercise and physical fitness, and meshes them with conventional job training and the ‘soft skills’ — communication skills, personal work habits, etc. — so in demand by companies.

“With most people who are chronically unemployed, the data will show they’re physically not healthy, emotionally not healthy,” Kozera said. “Of course, being unemployed for a long time can lead to bad habits and losing self-esteem.”

Move to Work, he went on, “was originally to better our services. If people exercise for 20 to 40 minutes at 60% to 80% of their maximum heart rate, their ability to learn and retain information is greatly increased for up to four hours. That’s a scientific fact. So every one of our sessions starts with that.

“But, really, the foundation is our soft-skills training program,” Kozera explained. “Employers in this area are saying, ‘we cannot find qualified workers — at any level.’ The Federal Reserve did a report on Springfield five years ago that really outlined those issues. Companies said, ‘what do we need? People who come to work on time, with a good social skill set. We’ll train them on what we do technically. But we need those types of people.’”

So Move to Work was developed as an eight- or 16-week course to build those skills while incorporating the benefits of exercise for greater mental focus. Recently, HRU applied the program at Tech Foundry, a nonprofit that trains high-school students for information-technology jobs.

Having demonstrated its value, Human Resources Unlimited would like to turn Move to Work into a national model. And that’s something the agency has never before attempted.

“Our goal is to bring this new model into the marketplace as both an innovative program and something that can earn money,” Kozera told BusinessWest. “But it’s not easy to do. How can we raise enough revenue to support the expansion of that model?”

The answer was another question. “It’s taking a self-replicating model to the marketplace, and who does that? Franchises. They take a brand and replicate the brand. Through this confluence of activities, we said, ‘well, if we’re going to learn more about the replication and expansion of a brand into a national model, where else to learn from than franchises?’ So we started looking around, saying, ‘maybe we can start a franchise and look at owning franchises as a way to support ourselves and learn how to be a franchisor of Move to Work.’”

Workplace Legacy

A company like Zerorez is certainly new terrain for HRU. But doing things a little differently has long been the agency’s bread and butter.

Realizing that many employers didn’t believe people with developmental disabilities could work in complicated job environments, Human Resources Unlimited — then knwn as the Carval Workshop — was created in 1970 to be the vocational training center for Belchertown State School residents and provide employment opportunities for residents of the facility.

Zerorez

Zerorez recently donated its services to clean high-traffic areas of the Gray House to demonstrate its work and help another mission-driven organization.

It has expanded and evolved over the years, now offering a broad range of services, from assistance for individuals moving from public assistance to the workplace to a ‘day habilitation’ program called Pyramid for people with developmental disabilities; from commercial endeavors, of which Zerorez is the latest, to a series of so-called ‘clubhouses’ that provide members with a supportive environment where they can get specialized assistance with vocational skills and transition into good jobs at area companies, as well as increasing their participation in the community.

Kozera, who joined the organization in 1980 as fiscal director before moving into the president’s chair, said Zerorez is a good match for HRU because of it’s mission-driven approach to cleaning.

“Zerorez uses technology that was borrowed from the oil-cleanup industry,” he explained. What the national company calls ‘empowered water’ is actually electrolyzed and oxidized to create an environmentally friendly cleaning solution.

Traditional steam cleaning, the company notes, uses heated water mixed with soaps, detergents, and toxic chemicals that are injected into the carpet under pressure, which soak the carpets, pads and backing. Even though some of the soap, dirt, and water are removed, a considerable portion of this mixture remains embedded in the carpet. As the carpet dries, the detergent attaches to the carpet fibers and acts as a magnet for dirt and other substances. Empowered water, on the other hand, is applied to carpet fibers by a patented high-pressure spray system that loosens embedded dirt and removes it.

Zerorez cleans rugs, tiles, wood floors, furniture, counters … basically anything that people walk on, sit on, or work on, Kozera said. The primary market is residential, although it has commercial clients as well.

“We haven’t burst on the market,” he added, noting that the Holyoke franchise, which boasts three trucks and four employees to start, had 37 clients in May and is on track for 50 in June. But in the long run, Zerorez’s established structure and recognized name will help the local office succeed and, importantly, grow its roster of employees and fleet of trucks.

“What has a higher rate of success in business, Joe’s Burger Shop or McDonald’s? With a franchise, there’s a system, a proven model, there’s support. Other franchisees are amazing about sharing everything they know. They help each other. I don’t know how many networks are like that. They tell us what’s successful, what’s not successful. It’s a nice family created by the franchisors.”

Kozera said franchisors wanted HRU to commit to more than one market, adding that, overall, franchised businesses are more often sold to corporations than individuals these days. “You can’t buy just one; you have to buy three, so you have to have $2 million just to enter the market.”

At the same time, national networks have become more willing to sell franchises to nonprofits, while nonprofit boards, which tend to be conservative in their risk taking, like the security of partnering with a known commodity.

Furthermore, “Zerorez has a 90% retention rate in an industry that probably has a 10% retention rate,” Kozera said. “The other appealing part of this is that every customer has to rate us … and if they don’t rate us at least 9 out of 10, we fail.” The idea, he added, is to leverage great customer service into customers for life, one floor at a time.

Destination Unknown

Kozera knows that nothing is a given in any industry. “Any time you open a business,” he said, “the reality is, you don’t know what’s going to happen.”

But if it succeeds, the Holyoke Zerorez office — the first of what might be several across the region — will benefit HRU in three ways, by generating revenue, providing an education in franchising the agency can apply to Move to Work, and, of course, providing jobs for clients.

“It has a call center, and we place a lot of people in call centers at multiple locations; that’s a skill base many of our members have, and they’ve been very successful at that job,” he said, adding quickly, “we’re not creating jobs that don’t exist. We have one technician for one van; we’re not going to put two people there just to create a job.”

As for Human Resources Unlimited in general — which recently moved to a larger headquarters in Springfield — a (slowly) strengthening economy is ramping up demand for qualified workers at all kinds of companies, which can only benefit clients.

“We want to use these franchise concepts throughout the whole business, not just Zerorez,” Kozera said, referring mainly to the key factors of consistency and trust that drive consumers to known brands.

“We want to apply that to everything we do. We don’t have a whole lot of experience in business to business. But the sales process and the marketing process are things that will help us organizationally because human services — in particular placement organizations — don’t invest a lot in marketing and sales. We invest a lot in human capital; we just don’t measure it well.”

HRU’s first franchise business could help change that, while creating cross-learning opportunities across the organization that, hopefully, help more individuals find work.

And that, more than anything, is what makes carpet cleaning exciting.

Joseph Bednar can be reached at [email protected]

Employment Sections
Supreme Court to Weigh Claims of ‘Class-action Abuse’

By PETER VICKERY

Peter Vickery

Peter Vickery

The U.S. Supreme Court has agreed to take a case concerning the scope of two kinds of mass employee lawsuits against employers — class actions and a similar procedure created by the federal Fair Labor Standards Act (FLSA) called collective actions. If the justices tighten the standards for certifying class actions and collective actions, it would come as a relief to companies with large numbers of workers — and a major setback for the law firms that target them.

So the plaintiffs’ bar and employers alike are watching and waiting for the outcome in Tyson Foods Inc. v. Bouaphaeko, one among a host of overtime cases that two class-action law firms, Smith & McElwain and Kenney McCafferty, have brought against the food company.

Mass lawsuits are costly to defend, which means employers often settle them prior to trial rather than take the risk of going to a jury. When the other side is receiving help from state and federal agencies, the incentive to settle is even greater. But before one of these lawsuits can move forward, a judge has to certify it as a class/collective action.

Certifying an action has a dramatic impact on the lawsuit’s value and, consequently, on a company’s competitiveness and productivity. So the standard for determining whether to grant or deny certification is something that matters a great deal to companies that might find themselves in the crosshairs of mass employee lawsuits.

At issue in the Tyson cases is the amount of compensation that the company should pay its employees for the time they spend donning and doffing protective gear and walking between the locker room and the production line. Tyson pays its clerical workers ‘punch to punch,’ i.e. from the time they punch the clock in to the time they punch out. But it pays production-line workers according to ‘gang time,’ i.e. the time they are actually at their work stations while the line is moving. It does not keep track of how much time each employee spends donning, doffing, and walking, but generally pays an additional four to seven minutes per shift to cover these activities. In the last few years, it has been paying more.

Tyson started paying donning-and-doffing time after a Supreme Court case involving its corporate predecessor, IBP, made clear that this was legally necessary.

Tyson compensates its workers for donning and-doffing at the regular rate of pay. But according to the plaintiffs, under FLSA and state wage-and-hour laws, the company should be paying them overtime (time and a half). In some cases, the plaintiffs enjoy the support of the U.S. Department of Labor, which files amicus briefs to bolster the employees’ argument in favor of overtime. Given the large numbers of current and former employees, the difference is enormous. So far, the donning-and-doffing lawsuits have cost the company millions of dollars in jury awards and settlements.

Sometimes Tyson wins, and sometimes it loses. For example, in two separate cases, Acosta and Gomez, juries awarded combined damages of $24 million. In contrast, in another pair of cases, Guyton and Lopez, which concerned the very same issues — whether donning, doffing, and walking required overtime — juries found in favor of Tyson, and sent away the plaintiffs and their lawyers empty-handed.

With such unpredictable jury results, it is no surprise that Tyson sometimes opts to settle, as it did in a Tennessee case for $7.75 million and another in Georgia for $32 million. But in Bouaphakeo, the jury’s reliance on a controversial formula has prompted Tyson to go all the way to the Supreme Court.

The plaintiffs in Bouaphakeo are hourly workers at Tyson’s Storm Lake, Iowa pork-processing facility, which employs approximately 1,600 people. The class-action lawyers wanted to include all hourly workers at the facility in the class, but the court limited membership to workers in the kill, cut, and re-trim departments. Employees in these three departments have to wear various kinds of protective gear depending on the nature of their work, e.g. hard hats, steel-toed boots, hair/beard nets, ear protectors, gloves, aprons, belly guards, and scabbards. Those who use knives have to dip them in sanitizer at the start and end of each shift. How long an individual takes to don and doff (and dip) depends on the gear.

In the Gomez case, the plaintiff’s expert witness, Kenneth Mericle, a labor economist and professor emeritus at the University of Wisconsin, Madison, School for Workers, testified that, by his calculations, based on analysis of video footage, the workers spent 25 to 29 minutes donning and doffing. Even though Tyson presented no expert testimony of its own to counter Mericle, after listening to his answers on cross-examination, the jury found that the donning-doffing time was closer to six minutes.

This is a significant divergence in view of the number of workers involved and the amount of money at stake. Nevertheless, in Bouaphakeo, the plaintiff’s expert witness used Mericle’s time-studies as the basis for calculating damages. Again, the jury found that the donning-doffing time was just a fraction of what Mericle’s statistics claimed, awarding damages of less than half the amount the plaintiffs claimed they were entitled to receive.

When the Court of Appeals denied Tyson’s request for rehearing, Justice Beam dissented, noting that “giving the best gloss available to the plaintiffs under the evidence they themselves adduced, well more than one-half of the certified class of 3,344 persons have no damages whatever, and the balance have markedly lower individual damages that are now virtually impossible to accurately calculate.” And this constitutes the nub of Tyson’s argument to the Supreme Court: for class/collective actions, there needs to be a way to determine individual damages so as to avoid the practice of ‘trial by formula,’ which the Supreme Court disapproved of in the 2011 case of Wal-Mart Stores Inc. v. Duke.

Tyson argues that the use of Mericle’s statistics amounted to trial by formula. Because of the range of differences between class members, plus the fact that some class members sustained no damages at all, the district court should not have granted class/collective action certification in the first place, said Tyson. The question, as the company presents it, is whether a trial court should be allowed to certify a class/collective action (1) if the court determines liability and damages with statistical techniques that presume all class members are identical to the average observed in a sample, ignoring the differences among individual class members, and (2) when the class contains hundreds of members who were not injured and have no legal right to any damages.

Tyson and allies such as the U.S. Chamber of Commerce would like the Supreme Court to answer ‘no,’ so as to make it harder for cases to qualify as class/collective actions. They characterize the slew of actions against Tyson as class-action abuse, and probably interpret the fact that the court has taken the case as an encouraging sign. Arguments are scheduled for the fall term.


Peter Vickery is an employment-law attorney in Amherst; (413) 549-9933.

Employment Sections
Failure to Hire Muslim Woman Was Religious Discrimination

By KIMBERLY KLIMCZUK

Kimberly Klimczuk, ESQ.

Kimberly Klimczuk, ESQ.

It is well-settled that employers may not discriminate against employees or applicants on the basis of religion. On June 1, the Supreme Court ruled that Abercrombie & Fitch unlawfully discriminated against applicant Samantha Elauf when it failed to hire her because she wore a headscarf.
Abercrombie & Fitch maintains a so-called ‘look policy’ for all employees in order to project a particular image across all of its stores. The policy specifically prohibits employees from wearing “caps,” because, according to the company, they are too informal for Abercrombie & Fitch’s image.

Elauf, a practicing Muslim, wore a headscarf in observance of her religion. She applied for a position in an Abercrombie & Fitch store and wore a headscarf to her interview. Heather Cooke, the assistant manager who interviewed Elauf, rated her according to Abercrombie & Fitch’s applicant-evaluation system and determined that she was qualified to be hired. However, Cooke was concerned that wearing a headscarf would violate the company’s prohibition against caps.

The look policy does not include a definition of the term ‘cap,’ so Cooke asked her district manager, Randall Johnson, whether Elauf’s headscarf would violate the look policy. She also told Johnson that she believed Elauf wore the headscarf because of her religion. Johnson told Cooke that all headwear, including Elauf’s headscarf, would violate the look policy, and he told Cooke not to hire Elauf.

Elauf filed a complaint with the Equal Employment Opportunity Commission, which sued Abercrmbie & Fitch on her behalf, alleging that Abercrombie had violated Title VII of the Civil Rights Act of 1964 when it refused to hire Elauf. The district court for the Northern District of Ohio found in favor of Elauf, but the Tenth Circuit Court of Appeals reversed the ruling, holding that an employer cannot be liable for failing to provide a religious accommodation until the applicant or employee provides the employer with actual knowledge of her need for a religious accommodation.

Abercrombie had argued that, because it hadn’t known for sure that Elauf wore the headscarf for religious reasons, and therefore didn’t know whether she would need an accommodation, it couldn’t be liable for religious discrimination.

The Supreme Court disagreed, pointing out that Title VII makes it unlawful for employers to fail to hire an applicant “because of” her religion, which includes religious practice. The court noted that, unlike other anti-discrimination laws, such as the Americans with Disabilities Act, Title VII does not include any knowledge requirement. Rather, Title VII prohibits discriminatory motives, such as, in this case, the desire to avoid potentially having to accommodate a religious practice.

The court also clarified that an applicant only has to show that her need for accommodation was a “motivating factor” in the decision not to hire her. The court found that was the case here, stating that “the employer at least suspected that the practice was a religious one. Its refusal to hire was motivated by the desire to avoid accommodating that practice, and this is enough.”

Abercombie argued that Elauf could not demonstrate a discriminatory motive because its look policy is neutral — it prohibits all headwear, religious or otherwise. However, the court pointed out that Title VII does more than require that religious practices be treated no worse than other practices; it gives religious practices favored status, requiring employers to accommodate religious practices unless doing so would create an undue hardship.

Because the Tenth Circuit dismissed the case on other grounds, the Supreme Court did not discuss whether allowing Elauf to wear a headscarf would be an undue hardship for Abercrombie, but the court ordered that the case be sent back to the Tenth Circuit for a ruling on that issue.

So what can employers learn from Abercrombie & Fitch’s mistakes? First, employers should not jump to conclusions about applicants’ need for religious accommodation, and, if they do, they cannot simply decide not to hire an applicant based on that conclusion. Rather, employers have an obligation to explore whether a religious practice can be accommodated.

Here, for example, Abercrombie could have hired Elauf and then, if she asked to be allowed to wear her headscarf at work, decided whether it could accommodate that practice in light of its look policy. Another option would have been to inform Elauf during the interview of Abercrombie’s look policy and to determine at that point whether allowing Elauf to wear a headscarf would create an undue hardship for the company.

Although the Abercrombie decision does not signify any change in religious-discrimination law, it serves as an important reminder to employers of their obligations under the law.


Kimberly Klimczuk is a partner at the management-side labor and employment firm Skoler, Abbott & Presser, P.C.; (413) 737-4753; [email protected]

Employment Sections
United Personnel Engages in Professional Matchmaking

UnitedPersonnelDPart
Jennifer Atwater says partnerships are at the foundation of United Personnel’s 30-year history of success.

“We don’t just put bodies in jobs; we do much more than that. We take a proactive role and partner with our customers so both they and our job seekers can meet their goals,” said the company’s vice president of operations. “Employers often tell us they need a candidate who can hit the ground running, while job candidates can be so anxious to find employment, they say they are willing to take whatever we have available.

“But it’s important for us to talk to the employer in depth to get to the bottom of what they really need,” she continued, noting that these meetings often reveal that the position the customer wants to fill entails responsibilities not included in the job title or description. “It’s also important for us to extrapolate a job candidate’s strengths from their résumé, pare them down, and make sure the work environment will be a good fit for their personality and what they want to do.”

In 1984, Mary Ellen Scott and her late husband, Jay Canavan, opened the job-placement agency in Hartford, under the moniker United Temporary Professional and Industrial Staffing. Five years later, they moved to Springfield, where they quickly were recognized for their ability to provide local companies with staffing and employment solutions. Today, the business operates in three locations — the others are in Easthampton and Pittsfield — and continues to be run by family members.

Although Jay is deceased and Mary Ellen has retired (she serves as chairman emerita of the board), their daughter Patricia is president, and daughter Andrea also sits on the board of directors.

The company’s professional job-matching service has led to a bevy of long-time and new clients who include sole proprietors that need someone part-time, manufacturers in need of temporary employees throughout the year, and businesses seeking to fill permanent positions. And United has done well despite the ebb and flow of the economy over the past three decades. Business is currently booming in its offices, which employ a total of 30 people.

“As the economy improves and things pick up, many of our customers find they need an extra pair of hands, but are not yet ready to commit to a full-time employee,” Atwater told BusinessWest, adding that, over the past year or two, the number of companies using United to fill full-time positions has risen. Overall, the company placed and paid 2,700 employees last year, and 303 were hired full-time by the businesses where they were placed.

She noted that many companies don’t have a job recruiter, and the responsibilities of advertising, sifting through résumés, and interviewing job candidates often interfere with efficient operations when added to a busy employee’s schedule.

“It can also be difficult for businesses that need temporary employees to keep pace with ever-changing employment laws,” she said, noting that United’s commitment to staying knowledgeable and keeping clients informed about changing legislation sets them apart from other job-placement agencies.

Atwater cited progressive discipline as an example, and said firing temporary employees is not as simple as it was years ago.

“The mentality toward temporary staffing has changed. In the past, if the employer didn’t like a temporary worker, they could demand that the agency find someone else. But today, more goes into the equation; we don’t want to run into a situation where an employee feels they have been treated unfairly,” she told BusinessWest, noting that United makes sure laws are followed to avoid accusations or lawsuits claiming discrimination.

Complex Formula

United Personnel has grown considerably since its early beginnings.

The agency opened a second office in Northampton in 1994, then moved to Easthampton when it outgrew its space there. However, that branch will soon move back to Northampton in a building the company purchased on Brewster Court to accommodate its increasing client load.

A third office also opened in Pittsfield three years ago after Canavan contacted area business owners and determined there was a need for their services in Berkshire County.

In addition to finding temporary workers for employers who need to fill a position for a pre-determined period of time, the agency also does ‘temp-to-hire’ placements in which they put people in temporary jobs that can lead to full-time positions.

UnitedPersonnelLOGO“It gives the person a foot in the door so they can see what the climate of the company is like, and lets the employer assess the person’s skills and see whether they can fulfill the duties they need them to accomplish,” Atwater said.

United also provides direct hires, which range from administrative assistants to executive positions such as human resource managers, chief financial officers, and sales directors. “We do all the vetting and have a wide database of candidates to choose from,” she noted. “We advertise for the positions through our website, MassLive, and social media.”

However, after a preset, limited number of candidates are selected, the customer typically conducts its own interviews and makes the final determination as to who will get the job.

And United spends a considerable amount of time with each client before they search their database to find a qualified applicant. Atwater said company representatives visit customers and speak with them at length, as well as view the environment the new employee will be working in. “It’s important because not everyone wants to be in a cubicle or at a company with more than 20 people.”

The firm also delves deeply into what the employee will need to do on a daily basis. “Companies have called us saying they need someone to answer the phone, but when we meet with them, we discover the person also needs to be able to work with Excel and Outlook. We spend a long time at their business so we can fine-tune exactly what they are looking for,” she continued.

The selection process for job candidates begins when they fill out an application. After it is reviewed, they are contacted by phone, and if United feels they can help them find employment, an interview is scheduled at one of its branches to get more information about what the person does best, their job history, and what they are seeking.

“We also look for skills that are transferable because they may be able to transition into a new industry,” said Atwater. “For example, United has had great in-house success hiring people with sales backgrounds, as our jobs are fast-paced and customer-oriented.”

After a placement is made, United continues to solicit feedback from the customer to ensure things are going well, which can be especially important in manufacturing, where a diverse range of skills can be required.

Atwater said it’s reassuring for customers to know that United’s phones are manned 24 hours a day, seven days a week, to handle any problems that might arise. A staff member is available until 9 p.m., and after that, a live answering service takes over. If a temporary employee calls in sick, they are expected to call in and notify United as well as the firm they are working for.

Atwater added that it’s important for both the employer and employee to be happy. “If someone is going to spend eight to 12 hours a day in a position, they need to like what they are doing.”

Careful Screening

The partnerships United Personnel forms extend into the community. Indeed, its employees are actively involved in nonprofit organizations, and many serve as ambassadors at their local chambers of commerce or are members of Northampton Young Professionals or the Young Professional Society of Greater Springfield.

“Every employee also has a professional-development plan which they draw up with their manager. It insures that they continue their training,” said Atwater, adding that it is critical for them to keep up with changes in employment law, such as the Right to Know Act for temporary workers, which was passed last year and requires employers to give industrial job candidates specifics in writing that include their rate of pay, work location, and job duties.

Canavan is active in at least 11 local nonprofits, and the combined efforts of her employees allow the agency to stay in tune with local workforce needs while networking and solidifying relationships.

The agency also supports organizations including Girls Inc., the Women’s Fund of Western Massachusetts, and the Berkshire Community Foundation, and has sponsored events and nonprofits including the Outlook Legislative Luncheon, Go Red for Women, Dakin Humane Society, Springfield Bright Nights, Dress for Success, DevelopSpringfield, the Springfield Public Forum, and more.

Although the groups United Personnel works with have changed over the course of three decades, its services have always been in demand.

“When the economy is poor and our customers have to lay people off, they need temporary help because they still have to produce the same amount of product,” Atwater said.

Once the economy shifts into a higher gear, however, temporary employees may be able to transition into full-time jobs. “Our job is to work with customers, figure out their needs and provide them with the most qualified job candidates,” she continued. “We want everyone we serve to be happy.”

Which involves a very specialized type of matchmaking that requires knowledge and insight far beyond the skills listed on a résumé.

Employment Sections
Recent SJC Rulings Reject Efforts to Constrain Employers

By PETER VICKERY, Esq.

Peter Vickery

Peter Vickery

In April, the State Supreme Judicial Court (SJC) issued two important employment-law decisions. In both cases, the SJC rejected arguments that would have further constrained the ability of employers to run their businesses flexibly and efficiently.

The first relates to the Tips Act (M.G.L. c. 149, §152A) and should come as good news to restaurateurs and bar owners. The second case involves the independent-contractor law (M.G.L. c. 149, §148B), and, although it concerns the highly regulated field of Boston taxi cabs, the way the SJC interpreted the statute may help businesses in other fields rebut the legal presumption that any given individual performing a service is, by default, an employee.

The case about tips, Meshna v. Scrivanos, concerned a Dunkin’ Donuts franchisee that adopted a no-tipping policy. In Massachusetts, employers have to ensure that employees receive their tips by the end of the day or in their next paycheck at the latest. Violating the Tips Act can have drastic consequences: having to pay restitution plus 12% interest, and criminal penalties ranging from hefty fines to one year’s imprisonment (for a first offense).

To avoid both potential liability under the Tips Act and the administrative costs of dividing up tips among the employees, the franchisee adopted a policy of prohibiting tips altogether. In addition to telling employees not to accept tips, the employer put up signs for customers stating “no tipping” and “thank you for not tipping.”

Prior to the Meshna case, two Superior Court justices and one federal district court had ruled no-tipping policies lawful under the Tips Act. Nevertheless, some current and former Dunkin’ Donuts employees, all of whom earned at least the minimum wage, filed suit in Superior Court alleging that the no-tipping policy violated the law.

The Tips Act provides that no employer “shall demand, request, or accept from any staff employee, service employee, or service bartender any payment or deduction from a tip or service charge given to any such staff employee, service employee, or service bartender by a patron.” The employees and the Labor Relations and Research Center at UMass Amherst (which filed an amicus brief) argued that the words ‘deduction from’ are flexible enough to mean ‘prohibit’ — i.e. no employer shall prohibit an employee from receiving a tip.

Not so, said the SJC. When it enacted the statute, the Legislature’s intent was to bar employers from deducting or retaining tips that customers had given to the waitstaff. Making it unlawful for restaurant and bar owners to keep or skim tips is not the same as forbidding employers from trying to prevent customers from tipping in the first place. A no-tipping policy simply does not violate the statute. And so long as the owner clearly communicates the policy to customers, if they still leave money behind, the servers do not have the right to claim that money as theirs. The employer is not breaking the law by keeping it or giving it away.

The take-away for employers? If you have a no-tipping policy, make sure that you get the message across to your customer clearly.

In the second case, Sebago v. Boston Cab Dispatch Inc., the issue was whether licensed Boston taxi drivers were independent contractors or the employees of the defendants (taxi-cab license owners, radio associations, and a taxi-servicing garage). Three drivers, together with the Massachusetts AFL-CIO, argued that the separate defendants really constituted one monolithic industry, a sham designed to evade the strictures of wage and overtime laws.

The SJC disagreed, holding that the various entities were not all one and the same and that “distinctions in services within the taxi-cab industry as a whole are not illusory, but quite real.”

Much of the court’s decision revolves around the municipal rule that regulates taxis in Boston, namely Police Department Rule 403, which establishes four possible business models for cabs. One permissible model allows the owners of medallions (taxi licenses) to lease their medallions to drivers at a flat rate, not a percentage of the fares. This was the model at issue in the Sebago case: the drivers paid the medallion owners a fixed amount rather than a cut of their takings.

Rule 403 requires parties using that business model to sign a City of Boston Hackney Carriage Shift Lease Agreement, which includes an optional independent-contractor clause. Under the independent-contractor clause of the city-mandated contract, the drivers are free to operate anywhere they choose, and to pick and choose which radio dispatches to accept. As the SJC noted, drivers “may lease taxicabs and medallions from whomever they wish … each day of the week, they may lease from a different owner, each using a different radio association… earn as much as they are able and need not accept a single dispatch.” Moreover, the statutes governing workers’ compensation, unemployment insurance, and income-tax withholding all exclude taxi drivers operating under flat-rate leases from the definition of ‘employee.’

Nevertheless, the plaintiffs argued that they were employees. This is because, under Massachusetts default rule, the onus is on the defendant to rebut the presumption that an individual is an employee, and this can be done only by clearing three distinct hurdles. The defendant has to prove that:

(1) the individual is free from control and direction in connection with the performance of the service, both under his contract for the performance of service and in fact;
(2) the service is performed outside the usual course of the business of the employer; and
(3) the individual is customarily engaged in an independently established trade, occupation, profession, or business of the same nature as that involved in the service performed.

The Sebago case hinged on the second factor, i.e. whether the service that the drivers provide is outside the usual course of the defendants’ business. That depends on whether the service is necessary to that business or merely incidental to it. So is taxi-driving necessary or incidental to the medallion owners’ business? Incidental, said the SJC. The medallion owners are in the business of leasing medallions, something that is “not directly dependent on the success of the drivers’ endeavors.”

At first blush, this interpretation of the term ‘usual course of the [defendant’s] business’ may appear a stretch. How can cab drivers be merely incidental to — rather than necessary to — the business of a company whose sole raison d’être is the leasing of taxi licenses? After all, without the drivers, the medallions would be worthless. In fact, this was the approach that the Superior Court judge took in denying the defendants’ motion for summary judgment.

But the SJC said that the judge’s reasoning “proves too much.” Taken to its logical conclusion, it would mean that “all lessees would be deemed presumptive employees of their lessors.” Instead, the SJC stated that the second prong (the ‘usual course of the business’) does not include all aspects of the business.

The nutshell for business owners? First, Sebago arose in a unique regulatory environment involving city-prescribed contracts governing the leasing of city-issued licenses. Second, the courts remain vigilant for Rube-Goldbergian contractual arrangements involving several legal entities designed to evade the Wage Act. But with those two caveats, business owners operating several connected but distinct entities should remember that individuals claiming to be employees rather than independent contractors must establish — and not simply assert — that the several entities are merely alter egos.

If the companies are not organized as part of a ruse but are legitimately separate, the courts will be more likely to define the ‘usual course of the business’ narrowly, to the benefit of the business owner. So, while the Massachusetts independent contractor remains an endangered species, it is not yet extinct.


Peter Vickery practices law in Amherst; (413) 549-9933; www.petervickery.com

Employment Sections
Paternity Leave Becomes Law in Bay State — but Hold the Applause

By Valerie Vignaux, Esq.

Massachusetts has officially recognized the importance of paternity leave.

On April 7, the Bay State updated its Maternity Leave Act, expanding it to include time off for fathers. The new Act Relative to Parental Leave, with its more inclusive title, offers both men and women eight weeks of unpaid leave from employers with six or more employees. Such leave is available for the birth or adoption of a child, or for the placement of a child under the age of 18.

Qualified employees must be full-time workers and have passed their employer’s probationary period, not to exceed three months, and must provide two weeks’ notice of their intended leave. Two parents at the same job are limited to a total of eight weeks between them.

Employers, upon the new father’s return, must restore him to the same position, or one similar (with an exception if there is a similarly qualified individual who had been laid off). Employers may not reduce the father’s benefits because of leave taken — no reduction in sick time, vacation, seniority, or pay, for example — but that time off can be discounted in calculating such benefits.

Businesses may grant a longer leave. In such cases, these job protections cease at the end of eight weeks only if the employer informs the employee in writing before the leave is taken. Any violation of this act is a violation of Massachusetts anti-discrimination laws.

The Family Medical Leave Act (FMLA) remains in place with time off for mothers and fathers alike, but is applicable only to employers of 50 or more. This act provides for 12 weeks of unpaid leave for full-time employees of one year or more.

This extension of Massachusetts law to provide for fathers is a step in the right direction. Massachusetts, after all, has a reputation for being a state with progressive policies (e.g., it was the first in the nation to legalize same-sex marriage). Consider, however, the affordability of unpaid leave for the 99%. Whether eight weeks or 12, mothers or fathers, how many new parents have the luxury of forgoing a paycheck for any stretch of time?

California, New Jersey, and the District of Columbia stand alone in the U.S. for offering paid family leave to both men and women. Globally, the U.S. is an embarrassment: out of 185 countries, the U.S. is one of only three that do not offer national paid maternity leave (the other two are Oman and Papua New Guinea).

For perspective, Iran offers 12 weeks, the Democratic Republic of Congo offers 14, and the United Kingdom offers 40 weeks of paid maternity leave. The U.S. and Massachusetts offer none. Further, there are 70 countries that offer national paid leave. Iceland provides three months, Finland six weeks, and Kenya two weeks. The U.S. and Massachusetts offer none.

Some may laud Massachusetts for moving toward a more family-friendly policy, expanding the rights of new fathers, and protecting employees of small businesses. Certainly this movement is preferable to the status quo. But any celebration should be tempered until true progress is made, in this state and the nation, toward the support of an employee’s responsibilities at home.


Valerie Vignaux is an associate attorney with Bacon Wilson and a member of the firm’s Estate Planning and Elder Law team. She assists clients with all manner of estate planning and provides representation for guardianship and conservatorship matters. She has also served as Superior Court clerk to the justices of the Massachusetts Trial Court; (413) 781-0560.

Employment Sections
Do Employers Have to Tolerate Attendance Problems Under the ADA?

By ERICA E. FLORES, Esq.

Erica Flores

Erica Flores

Today, just about any physical, mental, or emotional ailment will likely qualify as a ‘disability’ under the Americans with Disabilities Act (ADA), giving rise to a growing number of requests by employees for workplace accommodations. And, increasingly, such accommodations implicate what is perhaps the single most fundamental requirement of any job — attendance.

So how can Western Mass. employers best position themselves for potential ADA litigation when considering an employee’s request for an attendance-related accommodation? A recent decision out of the U.S. Court of Appeals for the Sixth Circuit offers some helpful guidance.

Jane Harris worked for Ford Motor Co. as a resale buyer of raw steel for auto parts. At first, her performance was strong, but it quickly began to decline, and by her final year at Ford, she ranked in the bottom 10% of her peers. Harris’s poor performance was due largely to her poor attendance, which was related to her disability — irritable bowel syndrome.

Harris disclosed her condition to her supervisor, and Ford approved a series of accommodations. First, Ford granted Harris a flexible schedule, allowing her to work four 10-hour days per week and telecommute as needed. Despite this flexibility, Harris’s attendance was irregular and unreliable, and she failed to perform the core objectives of the job.

Ford next provided Harris with workplace reporting guidelines and then allowed her to telecommute both during and after core business hours. Harris’s attendance problems continued, however, and she finally requested permission to work from home permanently up to four days per week.

In response to the request, Harris’s supervisor and two HR representatives met with her to discuss the essential functions of her position. They identified 10 different essential responsibilities and discussed her ability to accomplish each of those duties from home. Harris admitted that she could not complete four of her duties from home at all — including attending meetings with suppliers, attending internal meetings, and creating price quotes — and Ford concluded that Harris also could not effectively perform four of her other duties from home.

Accordingly, Ford denied her telecommuting request as unreasonable, but proposed two alternative accommodations — moving Harris’s workspace closer to the restroom or transferring her to a position better suited for a flexible telecommuting arrangement. Harris declined these offers and instead filed a charge of discrimination with the Equal Employment Opportunity Commission, which took up her case and filed a lawsuit against Ford on her behalf.

Ford won the case both in the district court and on appeal before the U.S. Court of Appeals for the Sixth Circuit. The court agreed with Ford that a trial was not necessary, finding that regular and predictable on-site attendance was an essential function of Harris’s job, and the accommodation she requested was unreasonable because it would have eliminated that essential function.

Although Harris disagreed that her physical presence at work was necessary, the court noted that an employee’s definition of the essential functions of her position is not valid when it is based solely on her personal viewpoint and experience. Although Ford allowed other resale buyers to telecommute, those employees telecommuted no more than one set day per week.

And, finally, there was no evidence that improved technology eliminated the need for Harris to participate in face-to-face interactions. In short, regular, on-site attendance was an essential function of Harris’s job because it was “job-related, uniformly enforced, and consistent with business necessity”; there was no accommodation available that would have allowed her to perform that essential function; and Ford had acted in good faith by maintaining an interactive dialogue with Harris and trying to accommodate her illness.

The Sixth Circuit’s opinion provides useful guidance for employers who may face requests for attendance-related accommodations.

Most importantly, employers must be able to clearly articulate the essential functions of each and every job in their workforce, including the attendance requirements. Those essential functions should be documented in written job descriptions that are provided to new employees at the time of hire and updated as job duties change.

Additionally, employers who make flexible schedules, telecommuting, or other alternative attendance arrangements available (upon request or through a policy, for example) should consider developing specific eligibility or other criteria designed to ensure that such arrangements do not impede the effective performance of the other essential functions of each position.

If employers do this homework ahead of time, they will be in a good position to handle a request for an attendance-related accommodation and will be able to better assess whether that requested accommodation is reasonable, whether it would instead eliminate an essential attendance requirement, and whether any other reasonable accommodations might be available.

Erica E. Flores is an attorney at Skoler, Abbott & Presser, P.C ., which exclusively represents management in labor and employment matters. She has successfully defended employers before state and federal courts and administrative agencies. In addition to her litigation practice, she regularly advises clients with respect to day-to-day employment issues, including decisions regarding adverse employment actions and litigation avoidance. This article is not intended as legal advice related to individual situations. If your business is facing a specific legal problem, consult your labor and employment counsel for legal advice and planning; (413) 737-4753; [email protected]

Employment Sections
TWO Program Is Honored for Closing Workforce Skills Gaps

WorkforceDPart“The economic imperative for aligning the workforce needs of Massachusetts with the needs of students attending community colleges is powerful and growing. Massachusetts is at a crossroads in its capacity to compete — and the ability of its residents to fully participate in the current economy and the rewards that employment brings. For the Commonwealth to flourish going forward, a high priority must be placed on training the workforce that is needed by the industries that are driving the Massachusetts economy. That responsibility falls squarely on the Commonwealth’s public higher-education system, most predominately the 15 community colleges.”

That was one of the more hard-hitting bits of analysis and commentary contained in a blistering 2011 report issued by the Boston Foundation, a document that essentially called out the state’s community colleges for not doing enough to help train a workforce to meet industry needs, while making some controversial suggestions about how to bring about change, such as a centralization effort that would do away with local boards of trustees at the schools.

Bill Messner — now, as then, president of Holyoke Community College — remembers his reaction to that report. His initial response was that its authors didn’t do enough research — at least when it came to the schools west of Worcester — and missed some key evidence that community colleges in the 413 area code were, in fact, being imaginative and somewhat effective in efforts to close so-called skills gaps within the workforce.

Bill Messner

Bill Messner says the Boston Foundation report in 2011 caught the attention of area schools and prompted initiatives like TWO.

Still, Messner and others, like his counterpart at Springfield Technical Community College, Ira Rubenzahl, chose not to shoot the messenger — although they were highly critical of those suggestions to centralize the community-college system and put it under one board — and heed calls from the Boston Foundation, as well as the Commonwealth Corp. (which issued its own report with similar findings at that time) to do more to partner with businesses and workforce-development agencies to properly align their training programs with the specific needs of industry sectors.

So it was with a large dose of pride that HCC and STCC learned that, together, they had won the first Deval Patrick Award for Community Colleges, named after the former governor and funded by the Boston Foundation, for work undertaken through a program called TWO (Training & Workforce Options), an acronym that is now resonating throughout the local business community.

The cash prize, to be split by the schools, is $50,000 — a small amount, especially when budget cuts of nearly 10 times that number were announced by the Baker administration for both schools the same week the award was presented. But the rewards go well beyond the money (which will go into both schools’ general operating funds), said both Messner and Robert LePage, vice president of Foundation and Workforce Training at STCC and the school’s TWO point person.

Indeed, the award will bring recognition to the program, said LePage, adding that with that exposure might come support from other state agencies as well as more participation among area businesses and thus more progress in combatting regional workforce issues.

“Recognition from a group like the Boston Foundation is the kind of endorsement that can get others to invest in you — I hope this is something we’re able to leverage,” he explained. “People want to see a good return on their investment, so I’m hopeful that this will bring some eyes to Western Mass., prompt others to appreciate the work we’re doing here, and cause people to say there are things happening here that they can adopt.”

In many ways, the Boston Foundation report validates TWO’s mission and underscores the success stories authored in its first three years, said LePage, adding that there have been many of them.

For example, TWO has partnered with Baystate Health to create a regional ICD-10 (medical coding) incumbent worker training academy and is working with regional employers to launch an advanced hospital medical coding academy that will prepare workers for the many changes coming to that important realm within healthcare. Meanwhile, it has worked with MassMutual and a host of other employers to develop a new advanced call center and customer service certificate, a program that has succeeded in placing a number of individuals in jobs within that emerging sector.

Meanwhile, TWO has taken the lead in training individuals for the gaming industry that will soon become a force in this state through the creation of the Mass. Casino Careers Training Institute.

For this issue and its focus on employment, BusinessWest looks at how TWO has managed to impress far more than the Deval Patrick Award judges and, in the process, has enabled more individuals to join the workforce and helped area businesses thrive.

Work in Progress

Increasingly, Messner noted, groups such as the Boston Foundation are creating cash awards, like those attached to the Deval Patrick Award, as incentives to prompt groups and individuals to respond to their various initiatives and calls for action.

And in many instances, such tactics are working, he said, adding quickly that, with the Patrick Award, there was little fanfare, and many administrators at the state’s community colleges, himself included, were not even aware of the award until a call for applications was issued last fall.

The much more profound incentive to respond to the 2011 report and others like it, said Messner, was a recognized need for a regional response to a skills gap that goes a long way toward explaining still-high regional unemployment rates at a time when many businesses are struggling mightily to fill key positions — a phenomenon that has in some ways stifled economic growth.

“While we didn’t agree with everything in the report, it certainly got our attention,” said Messner, using ‘we’ to mean both community colleges. “And we responded accordingly with TWO.”

Slicing through the 2011 Boston Foundation report and summing up its main points, the authors’ main contention then was that the state’s community colleges were not working collaboratively (or working enough) with employers, industry groups, and workforce-development-centered agencies to identify needs, close skills gaps, and create opportunities for those challenged in their attempts to enter the state’s knowledge-based workforce.

So TWO, which was already in its formative stages when the report came out, was designed to change that equation, create a host of partnerships, and incorporate a far more proactive approach to workforce issues and challenges than what existed prior to the program’s existence.

TWO’s mission — and its operating philosophy — are summed up nicely in this passage from the joint application submitted by HCC and STCC for the Deval Patrick Award:

“Prior to community college reforms, the two colleges often worked in a reactive form and in competition with one another,” the application authors wrote. “This often led to an inefficient and duplicative approach to workforce development and employer engagement in Hampden and Hampshire counties. With the formation of Training and Workforce Options, the two colleges have formed a cohesive and proactive sales and training approach and have effectively broadened the reach of both colleges. TWO has provided HCC and STCC a stronger and unified voice and further positioned the colleges to provide a deeper and wider leadership role in serving regional workforce needs that serves as a catalyst to support economic-development success.”

It has assumed this leadership role through engagement with the business community and agencies ranging from area Regional Employment Boards to one-stop career centers to economic-development-related agencies to identify needs and develop programs to address them.

Through its so-called ‘business-discovery model,’ LePage said, TWO has met with more than 200 businesses in five key industry sectors — financial services/customer service, healthcare, hospitality and culinary, IT, and manufacturing — to validate employer needs.

Bob LePage

Bob LePage says the Deval Patrick Award will garner recognition for TWO, prompting more participation and attempts to emulate its success.

And program partners run the gamut, from major employers such as MassMutual, Baystate Health, Smith & Wesson, Six Flags, and MGM to smaller operations such as Mustang Seats, the Three Rivers-based company that makes replacement motorcycle seats for Harley Davidson, Honda, BMW, and other brands, and Ludlow-based Chemi-Graphic, which manufactures nameplates, labels, and other products for a wide range of customers.

Input from these businesses has helped spawn several direct responses in the form of new programs and training initiatives.

At Chemi-Graphic, for example, TWO has provided a host of services, from assessing workforce needs to direct training programs to advice on how to secure state workforce-training grants, said LePage, adding that the manufacturer is in many ways representative of the businesses TWO was created to assist.

“They’re the kind of company we’re looking for, because they have 50 to 60 employees, so they’re not large enough to have a training arm, per se,” he explained. “And they have a niche business, one that’s doing well, but is now facing the retirement of all those Baby Boomers, and they need to replace those workers. They’re really what we’re looking for — we want to help as many of those small and mid-size companies as we can because they are the heartbeat of this region.“

Answering the Call

Overall, TWO’s most profound impact has been with closing those aforementioned gaps between the skill sets that the current workforce possesses and the skills that are needed within certain industries and for specific jobs.

Two of the better examples of how TWO has operated are the ICD-10 incumbent worker training academy and the advanced call center and customer service certificate.

ICD-10, as that name would suggest (at least to those in the industry), is the 10th revision of the International Statistical Classification of Diseases and Related Health Problems, or ICD, said Jason Pacheco, a senior workforce-planning consultant for Baystate Health. And it represents a significant change from ICD-9.

“ICD-9 has around 9,000 or 10,000 codes, while ICD-10 has roughly 60,000 codes,” he explained, adding that this nearly exponential increase is projected to generate a decrease in productivity — primarily because it already has in countries where ICD-10 is being used. As a result, said Pacheco, healthcare providers and medical practices will either have to bring on more employees or outsource more work.

To widen the pool of potential job candidates, TWO is partnering with Baystate, the Regional Employment Board of Hampden Country, and other players on worker training initiatives that have, to date, involved more than 50 companies.

“The concept to fill the gap in the labor pool was to come up with a development program,” said Pacheco. “What Training and Workforce Options has been able to do is work with those two community colleges to help align the students and their curriculum toward flexible workforce arrangements that meet employers’ needs.”

And that’s just one example, he said, of how Baystate and others in the healthcare sector have partnered with TWO to identify and close gaps involving several specific positions, including sterile-processing technicians, medical lab technicians, pharmacy technicians, and others.

That list includes call-center employees, he went on, adding that Baystate is one of many area employers, large and small, that have participated in the Advanced Call Center & Customer Service Training program.
To date, three cohorts of students have produced more than 55 graduates, with roughly 80% of those individuals placed in companies like MassMutual, PeoplesBank, Health New England, and many others, thus meeting a growing need for such specialists.

“There are quite a few call centers in the region if you start to add them up, and they’re across many sectors of the economy,” said Nick Fyntrilakis, vice president of Community Involvement for MassMutual, which has hired several of those graduates. “And a growing challenge for everyone with a call center was finding qualified applicants; different companies have different needs, but there are some foundational pieces that run across the whole spectrum.”

TWO, working in conjunction with those employers and the Regional Employment Board, developed a curriculum, identified solid candidates for the program, established a call-center simulation center, and developed a formal employer-engagement process to improve student placement, he went on, adding that these various steps have all helped ensure success and sum up what the program is all about.

“To us, that’s the kind of work that community colleges were designed to do,” said Fyntrilakis. “That’s what they were built to do — to plug into the workforce needs of the community and tailor programs that identify people that have a skills gap or require additional training or education, and then help connect them to those careers.”

And that’s exactly the type of work that the state’s community colleges were not doing, at least according to the Boston Foundation.

Bottom Line

Messner told BusinessWest that, while he had confidence in the joint submission for the Deval Patrick Award, he wasn’t exactly expecting the two Western Mass. schools to prevail in that competition.

“I was more than a little surprised by this, because we assumed that the Boston Foundation, being a Boston foundation, might be inclined, especially for this first award, to stick closer to home,” he said, adding quickly that, beyond geography, he wasn’t surprised by the choice.

That’s because of TWO’s quickly amassed track record and the promise to add to its portfolio of success stories.

The Deval Patrick Award might help with all that, and, as Messner, LePage, and others mentioned, that’s a far bigger prize than a pair of $25,000 checks.

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

Employment Sections
O’Connell Care at Home Tries to Keep Up with Soaring Demand

Danielle Lord

Danielle Lord says home care is in demand, and so are qualified home-care aides and nurses.

Growing up in Holyoke, Fran O’Connell lived with an extended family, including an elderly aunt and grandfather. In those days, the family took care of each other, in sickness or health; no one had heard of home care.

These days, as owner of O’Connell Care at Home in Holyoke, he helps other families take care of their loved ones at home, away from institutional settings, through a broad range of home-care services, in addition to nurse-staffing services for a variety of clients.

Almost three decades after he launched the enterprise in 1987, O’Connell continues to see steady growth in his business, and explosive growth in the home-care industry — growth that’s being held back only by a national shortage in qualified home health aides. That’s because, as people live longer than they used to, and with their caregivers and children (often one and the same) more aware than ever of the care options available to them, demand for home care and other nursing services is only expected to increase.

“Really, there’s such a need in the community for home care,” said Danielle Lord, the company’s vice president of operations, who essentially runs the company’s day-to-day activity. “As the population of Baby Boomers age, more want to stay at home — or where they’re currently at, maybe assisted or independent living — rather than go to a nursing home.”

Lord came on board in 2007 and has seen significant change since then, including a move to larger quarters on Bobala Road in Holyoke; the company plans to move again this year, from Holyoke to Springfield. In addition, it opened a South Deerfield office last year.

“We opened that office to better serve the Franklin County and northern Hampshire County areas. While doing that, we decided to move our Holyoke office to Springfield to better serve Hampden County and southern Hampshire County,” she explained. “Business has tripled in the last five to seven years. We are really growing; there’s such a need in the community. We still could probably grow more, but home health aides and qualified home healthcare workers are so in demand right now.”

That’s the key issue right now for home-care companies — one O’Connell is addressing through an ambitious array of job fairs, recruitment efforts, and in-house training, all with the goal of keeping more Western Mass. seniors living safely and happily at home.

Fertile Ground

Before starting the firm, Lord said, O’Connell was a nurse practitioner who had taken care of his own grandfather at home. After earning his nursing degree from Columbia University in 1984, he returned to Holyoke and discovered that several of his friends had caught the entrepreneurial bug and were opening their own businesses.

While most nurses worked at specific settings, such as hospitals, he simply incorporated himself and started selling himself as a nurse. “If someone needed a nurse for the day, or someone got out of the hospital and needed a private-duty nurse, I did that,” he explained. “Word got out quickly, and I couldn’t do every shift, so I started bringing in friends, and before long I had 10 people subcontracting for me.”

Someone pointed out that O’Connell was essentially running a temp agency, so he took the next step and employed his fellow nurses, and the business was on its way.

“There weren’t home-care services out there in the ’80s, so it started really as a staffing business, then gradually turned to home care,” Lord said — a shift that began when O’Connell started getting calls from the Holyoke Visiting Nurses Assoc. and other organizations that service seniors.

O’Connell found he loved home care, and went on to earn his master’s degree in nursing in 1996 and was later certified as a family nurse practitioner.

Home care encompasses myriad services, Lord said, from basic household help to medication management to transport to appointments. “Primarily, it’s all your activities of daily living, the things you need to do to stay at home. We do homemaking and meal preparation, help people get up, get dressed, take a shower, toileting, all those sort of things.”

Home-care companies typically offer a wide range of time commitments as well, she added. “It’s everything from two hours once a week to help get someone groceries, to around-the-clock care because someone can’t be left alone, for dementia or hospice, or someone who wanders and can’t be left alone. It’s really such a broad spectrum.”

And it’s not just the client who benefits from home care, she added, but their family as well. “We help people figure out how to stay home, where they want to be, but also support other family members. Especially if the husband or wife is declining, we can help the spouse, help the family around the house, make sure they’re not getting overwhelmed.”

The staffing piece of O’Connell Care at Home — such as its contract work with Highland Valley Elder Services and various VNA organizations — is different in some ways, Lord said. “We’re still doing home care in those situations, but they provide the clients and have care plans already written. If an adult day service needs a nurse, we’ll try to staff a nurse. On [student] field trips, we’ll provide a nurse for the day. If a VNA has somebody on vacation and they have higher census and need home health aide, we’ll provide that. So, yes, we do some staffing, but it’s primarily home care.”

Transportation is another facet of the company’s service. “That’s all private pay — we’ll take somebody to the doctor or a family event on the weekend or around the holidays,” she explained. “We’re very busy with that around Christmas; people call us and ask, ‘can you transport my mother to Christmas dinner and then home?’ We have a wheelchair van for that. It’s a popular service around those times.”

Training Days

In fact, all O’Connell’s services are becoming more popular, which keeps the pressure on to continually add more talent. That’s easier said than done, with Forbes and U.S. News & World Report both listing home-care aide as one of the most in-demand jobs in coming years. Simply put, there aren’t enough bodies to meet the need.

“We recruit all the time, and we frequently have job fairs for people interested in the job,” Lord said. “The need for home health aides hinders our growth. Other companies are dealing with the same thing; they’re all looking for qualified workers. I think that’s across the board. We’re fighting now with hospitals, nursing homes, assisted living, independent living, home care, nursing homes. But we’re willing to train our own people. If someone has an interest, we’ll train them. We want to put the best person out there to care for clients — the kind of people I’d want to take care of my own family.”

The reason strikes at the heart of why home care is so important, she went on. “We want to make sure families feel their loved ones are safe at home. We write a care plan for the people we take care of. We learn what this person likes, doesn’t like, and decide who’s the best person we can send. We try to match their interests and send someone they can form a relationship with. Home care aides can take care of people for years, in many cases. They become a really important part of the family and increase their quality of life.

“We’re not perfect at it,” she was quick to add. “We’re honest with people that the first person you get may not be a perfect match, but we’re going to find you someone you end up clicking with — someone they’ll look forward to seeing each day.”

Lord said O’Connell mainly hires people who have been trained as home health aides or CNAs, “but if there is somebody who has other kinds of experience and thinks this is something they want to do, someone who’s caring and compassionate and really wants to take care of older people — because we primarily do elder care — we can offer some training to get them up and running, to become a home health aide.”

Beyond the basics, though, “we’re looking for someone reliable, with good common sense, someone who’s going to get there in a snowstorm,” she went on. “We want someone really caring who considers the needs of their clients and really wants to take care of them and do what’s best for them. They care about the people they’re taking care of.”

O’Connell says he takes pride in seeing people come work for him as CNAs, then go on to get PN or LPN degrees and return as nurses. He stressed that it’s not an easy job, but as a career path, it can be rewarding and — important for job seekers these days — stable.

Lord agreed, and said families appreciate the stability of a reliable home-care nurse or aide.

“We do a lot of training and have a lot of supervision,” she said. “We meet the family, write a care plan, and try to be really thoughtful. We’re trying to make good matches and keep people where they should be — and improve their quality of life.”

Joseph Bednar can be reached at [email protected]

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