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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

On-the-money Analysis

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Watching the Bottom Line

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

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

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

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

Employment Sections

The New Pay-equity Law

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

John S. Gannon, Esq

John S. Gannon, Esq

Amelia J. Holstrom, Esq

Amelia J. Holstrom, Esq

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

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

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

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

What Is Comparable Work?

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

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

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

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

What If Employees in Comparable Jobs Are Paid Different Wages?

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

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

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

From Pay Equity to Pay Transparency

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

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

Defense for Those Who Evaluate Pay Practices

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

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

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

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

John S. Gannon is an attorney with Skoler, Abbott & Presser, LLC, one of the largest law firms in New England exclusively practicing labor and employment law. He specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation; (413) 737-4753; [email protected]. Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. Her practice is focused in labor law and employment litigation; (413) 737-4753; [email protected]

Cover Story Employment Sections

Paws for Effect

Lauren Mendoza

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

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

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

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

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

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

But the benefits extend far beyond that, she added.

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

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

Deb O’Brien

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

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

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

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

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

And the feeling is reciprocal.

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

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

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

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

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

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

Tails to Tell

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

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

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

Meghan Lynch

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

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

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

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

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

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

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

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

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

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

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

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

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

Pet Projects

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

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

Rhyme Digital’s official ambassadors

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

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

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

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

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

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

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

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

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

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment Sections

An Engaging  Topic

Janice Mazzallo

Janice Mazzallo

Danielle St. Jean

Danielle St. Jean

Elba Houser

Elba Houser

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Listen Up

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

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

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

Better still, he responded to what he heard.

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

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

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

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

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

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

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

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

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

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

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

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

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

The Not-so-secret Sauce

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Bottom Line

There’s that word again. Engaged.

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

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

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

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

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

Employment Sections

There Are Many, for Employers and Employees Alike

By Erica E. Flores

Erica E. Flores

Erica E. Flores

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Sections

Labor Pains

Angst.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

— George O’Brien

Employment Sections

Engagement Is a Word; Being Engaging Is Your Responsibility

By Janice Mazzallo

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

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

Start at the Top

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

Bet on Promise; Double Down in Hard Times

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

Talk Less, Observe More, Ask Impactful Questions

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

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

Praise and Forgive

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

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

Give Time

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

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

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


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

Employment Sections

Hire Degree of Difficulty

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

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

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

Until recently.

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

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

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

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

Andrea Hill-Cataldo

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

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

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

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

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

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

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

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

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

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

Getting the Job Done

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

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

Jackie Fallon

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Pipeline Projects

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

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

Jennifer Brown

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Body of Work

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

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

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

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

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

Employment Sections

Outside the Silos

Anne Kandilis

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

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

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

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

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

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

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

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

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

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

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

Come Together

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

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

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

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

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

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

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

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

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

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

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

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

Bridging the Gap

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

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

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

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

Joseph Bednar can be reached at [email protected]

Employment Sections

The Process Begins with an Important Shift in Focus

By Brian Braudis

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

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

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

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

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

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

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

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

1. Production to Outcomes

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

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

2. Specialist to Visionary

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

3. One to All

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

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

4. Solving Problems to Predicting Problems

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

5. Worker to Learner

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

Bottom Line

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

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

Employment Sections

Hire Power

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

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

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

126,000.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Surveying the Situation

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

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

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

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

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

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

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

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

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

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

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

Jason Randall

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

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

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

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

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

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

Counting Down

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Odds Are

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

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

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

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

You can bet on it.

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

Employment Sections

Accommodating Attitude

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

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

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

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

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

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

Daniel Carr says the bill currently leaves several questions unanswered

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

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

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

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

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

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

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

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

Taking Aim

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

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

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

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

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

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

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

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

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

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

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

Meghan Sullivan

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

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

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

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

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

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

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

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

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

Working It Out

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

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

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

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

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

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

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

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

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

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

Even if they’re still hazy on the details.

Joseph Bednar can be reached at [email protected]

Employment Sections

Women Only

By Daniel C. Carr, Esq.

Daniel C. Carr, Esq.

Daniel C. Carr, Esq.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Employment Sections

A Legislative Update

By Peter Vickery

billsdpart

 

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

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

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

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

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

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]