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Employment

Breaking Down the Trickier Aspects of Massachusetts Laws

By Ludwell Chase and Amy B. Royal, Esq.

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

Ludwell Chase

Ludwell Chase

Amy B. Royal, Esq

Amy B. Royal, Esq

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

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

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

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

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

 

Caution on the Menu

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

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

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

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

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

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

 

Food for Thought

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

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

 

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

Law

Changing the Dynamic

By Jeremy M. Forgue

 

The COVID-19 pandemic has impacted the workplace forever.

According to a report titled “Women in the Workplace – 2020,” women have been hit especially hard. As the report explains, “the COVID-19 crisis has disrupted corporate America in ways we’ve never seen before. No one is experiencing business as usual, but women — especially mothers, senior-level women, and black women — have faced distinct challenges. One in four women are considering downshifting their careers or leaving the workforce due to COVID-19.”

Gender and racial diversity are unquestionably beneficial to the workplace as it can lead to a wider talent pool with people who provide different perspectives and skill sets to utilize. With job rates slowly climbing back towards pre-pandemic levels, businesses need to put a conscious effort on recruiting and retaining female employees, and females of color in particular. Businesses small and large should re-evaluate their current practices and consider several ways to increase or maintain women in the workforce. Here are some suggestions from an employment-law attorney.

 

Flexible Schedules and Core Hours

This can be the easiest strategy, depending on your business. Allowing employees to establish their own schedules or flex the typical 9-5 business model can assist them in better balancing their home and work responsibilities. This option can allow parents to mold their schedule around daycare availability (e.g., 7 a.m. to 3 p.m. or 10 a.m. to 6 p.m.) or split their shift around home responsibilities.

 

Forgiving Gaps in Workers’ Employment History

According to a study by ResumeGo, applicants with work gaps of greater than six months have a 45% lower chance of receiving job interviews. Millions have lost their jobs during the pandemic and remain unemployed. With so many individuals forced to exit the workforce over the past year, accepting gaps in employment is critical to eliminating these hiring barriers.

 

Offering Job Training or Cross-training

The COVID-19 pandemic has made it clear that new job skills are critical in a more digitized working environment. Remote work and Zoom meetings are here to stay. Offering initial job training for skills and requirements that do not require certification or a degree will allow displaced workers a chance to gain useful skills in a new working environment. Similarly, cross-training employees to learn each other’s responsibilities (so long as their positions have enough overlap) can be effective when emergencies arise due to absences from work or other staffing challenges.

 

Create Mentorship Programs or Opportunities

A female-led or minority-led mentorship program can support and promote the advancement of under-represented groups within the workplace. Seasoned women employees can be great support structures for other women trying to begin their careers or advance within the company. Women who are currently excelling at their position or working in an executive-level position can assist other women dealing with similar daily challenges, such as work-life balance.

 

Re-evaluate the Businesses Culture

This one is more abstract and requires internal inquiries, but you should ask if your business provides a culture where women are valued or has a diverse demographic that is often desired by applicants. Ask yourself: is your workforce gender-diverse? What about the leadership positions? If the answer to these questions suggests unequal gender representation in the workplace, ask whether it is because of a culture that does not support women. Perhaps it’s more of a recruiting issue. In any event, you should dig deep for answers and insist on change.

 

 

Childcare Options

Providing on-site childcare is probably an option only for larger businesses. However, here are a few suggestions for all businesses to consider:

• Revisit your employee benefits. Do you already, or can you afford to, provide a childcare subsidy, childcare referral services for nearby locations, or extended paid leave?

• Partner with surrounding businesses. If your business space is too small to provide on-site childcare, reach out to nearby childcare locations and discuss rates and hours that could create a partnership between the businesses or, at the very least, a referral resource.

• Offer extended FFCRA benefits, which are available until Sept. 30, 2021, and can be used by employees to take time off for childcare or other COVID-19-related reasons.

 

Final Thoughts

After making positive strides in the workforce over the past decade, women’s participation in the workforce declined over the last year. To correct this trend, businesses will need to put a conscious effort toward recruiting women into their workforce.

 

Jeremy M. Forgue is an attorney with the law firm Skoler, Abbott & Presser, P.C. in Springfield; (413) 737-4753; [email protected]

Business Talk Podcast Special Coverage

We are excited to announce that BusinessWest, in partnership with Living Local, has launched a new podcast series, BusinessTalk. Each episode will feature in-depth interviews and discussions with local industry leaders, providing thoughtful perspectives on the Western Massachuetts economy and the many business ventures that keep it running during these challenging times.

Episode 61: April 26, 2021

George O’Brien talks with Meredith Wise, president of the Employers Association of the Northeast

BusinessWest Editor George O’Brien talks with Meredith Wise, president of the Employers Association of the Northeast. The two discuss a wide range of topics, from how business owners and managers handle the reopening of their offices and the return of employees — some will want to go to the office, but many won’t — to the growing challenge of simply finding enough good help. Employers across virtually all sectors are struggling with this assignment, and Wise notes things may get even worse before they get any better. It’s must listening, so join us for BusinessTalk, a podcast presented by BusinessWest in partnership with Living Local.

 

Also Available On

Estate Planning

State of Uncertainty

By Cheryl Fitzgerald

 

Over the past year, a number of words and phrases have worked themselves into the lexicon, and our everyday usage: pandemic, quarantine, super spreader, and social distancing all make that list. As does the three-word phrase working from home, which quickly morphed into an acronym — WFH.

Indeed, in March 2020, many businesses large and small required or encouraged their employees to work from home as a way to help stop the spread of the coronavirus. At the time, it clearly was intended to be a short-term measure. Nobody could have predicted that, a year later, some of the same employees continue to work from home, whether mandated by their employees or as a way of life now.

However, this has created unintended consequences for businesses and individuals. Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).

From a business perspective, some guidelines have been issued for businesses to follow. Some states have provided relief and have said the presence of an employee working in a state due to shelter-in-place restrictions will not create nexus for tax purposes in that state.

“Employees working in a state other than the company’s home (i.e., their home and business are in different states) could potentially create a need for the business to file in that other state (known as nexus).”

Some states provided a temporary safe harbor or waiver from state withholdings and tax liability for remote work in a different state during the pandemic. And still others have provided that they will not use someone’s relocation during the pandemic as the basis for exceeding the de minimis activity the business can have in the state without it becoming a taxable issue for them.

Massachusetts in particular has provided corporations tax relief in situations in which employees work remotely from Massachusetts due solely to the COVID-19 pandemic to minimize disruption for corporations doing business in Massachusetts. The Bay State has indicated it will not change the intent of whether or not an employee who has started to ‘work’ in Massachusetts because that is his or her home (i.e., a company situated in another state now has an employee physically working in the state of Massachusetts) is subject to Massachusetts corporate tax. These rules are intended to be in place for Massachusetts until 90 days after the state of emergency is lifted.

For employees that had normally worked in Massachusetts, but are now working at home in a different state, Massachusetts has stated that, since this is for pandemic-related circumstances, they will continue to be treated as performing the service in Massachusetts and subject to Massachusetts individual taxes. Most states (but not all) have adopted similar sourcing rules. Most of these rules were put in place for the year 2020. However, some states are still under the same rules and guidelines, and this will continue during 2021.

The intent for most states is to minimize any tax impact for both employees and employers if an employee’s work location has changed solely due to the COVID-19 pandemic.

However, one state has decided the Massachusetts provisions are unfair to its residents. Prior to the pandemic, New Hampshire’s southern border saw a steady stream of workers heading into Massachusetts on a normal workday. With the pandemic and the stay-at-home orders, many of these employees converted to working at their residence in New Hampshire, which does not have an individual income tax.

Therefore, with Massachusetts indicating that these wages were still going to be considered Massachusetts wages and therefore taxable, the governor of New Hampshire felt this was unfair to their residents and has filed a lawsuit in the U.S. Supreme Court over Massachusetts’ “unconstitutional tax grab.”

New Hampshire Gov. Chris Sununu has argued that “Massachusetts cannot balance its budget on the backs of our citizens and punish our workers for working from home to keep themselves, their families, and those around them safe.” This lawsuit was filed in October 2020. Stay tuned.

Remote working becomes even more complicated when employees telecommute in a different state from which they typically work, and this will begin to impact the employee’s eligibility for local leave (i.e., sick leave).

As the pandemic continues, and with some states having set ending dates for some of these relief provisions, employers may continue to have employees who work remotely, either by choice or convenience. The taxability of which state the wages should be taxed in will need to be revisited by employers and employees alike.

 

Cheryl Fitzgerald, CPA is a senior manager at Holyoke-based accounting firm Meyers Brothers Kalicka, P.C.; (413) 536-8510.

Law

A Question of Mandates

By Timothy F. Murphy

 

Employers have a key role to play in ensuring the successful rollout of COVID-19 vaccines and that people are safe at work. Many employers may wish to adopt vaccine mandates, especially if their employees work in close contact with others. But before doing so, employers need to consider a number of things.

 

Can Employers Require Vaccinations?

Yes. Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace. Many employers already require workers to get inoculated against certain infectious diseases.

 

Can Employees Object to Vaccine Mandates?

Yes. Anti-discrimination laws provide disabled and religious employees with legal protections from vaccine mandates. Employers that require employees to receive the COVID-19 vaccine must meet certain requirements under those laws.

Timothy F. Murphy

Timothy F. Murphy

“Non-union employers can unilaterally require employee vaccinations because employment relationships are ‘at will,’ and they have a legal duty to provide a safe and healthy workplace.”

A worker with a covered disability may seek an exemption from a vaccine mandate. For instance, medical advice to avoid a vaccine due to an employee’s underlying health condition may legally justify a vaccine refusal. In such situations, the employer must explore whether an exemption is a reasonable accommodation given the disability and job duties — so long as it isn’t an undue burden for the employer. Accommodations — like telework or working in isolation from co-workers — that would allow the unvaccinated employee to perform essential job functions would likely not be an undue burden.

According to recent guidance from the Equal Employment Opportunity Commission, sincerely held religious beliefs may also justify a vaccine refusal. An employer must provide a reasonable accommodation “for the religious belief, practice, or observance” that prevents the worker from receiving the vaccine, unless that accommodation poses more than a “de minimis” cost or burden. Employers may seek verification of such beliefs only if they have an objective reason for doing so.

 

Government Vaccine Mandates Appear Unlikely for Now

A general state vaccine mandate does not appear to be in the cards anytime soon. On the federal level, President-elect Biden has signaled that he is not considering a vaccine mandate at this time. It also appears unlikely that the federal agency charged with workplace safety, the Occupational Safety and Health Administration (OSHA), would require employers to mandate a COVID-19 vaccine. In the past, OSHA has permitted employers to require employees to receive the flu vaccine.

 

Public-health Experts Warn Against Mandates for Now

Even if employers can legally mandate COVID-19 vaccinations, U.S. Surgeon General Jerome Adams recommends against it. “Right now, we are not recommending that anyone mandate a vaccine,” Adams said in a recent interview with Yahoo Finance, noting that Pfizer’s vaccine hasn’t been fully approved yet. According to Saad Omer, a vaccinologist and infectious-disease epidemiologist at Yale University, “mandates shouldn’t be the frontline policy option.”

 

Avoid the Backlash

A vaccine mandate could trigger employee-morale issues. Vaccine hesitancy is a concern across the country. One study revealed that more than one-third of Americans would refuse a COVID-19 vaccine if offered one. However, other data suggests that Americans’ willingness to take a COVID-19 vaccine has risen as data on the vaccines’ efficacy have emerged. Many people have said they are more comfortable waiting a few months to get the vaccine. Employers need to be sensitive to employee concerns if vaccination is mandated as soon as it becomes publicly available.

 

Reduce Potential Legal Liability

Employees injured by a mandated vaccine may bring legal claims for workers’ compensation, negligence, and OSHA violations. It is difficult to predict the success of such claims. The ability to argue that government recommendations were followed would go far in defending against them. Limiting a vaccine mandate to high-risk positions or workplaces may also reduce potential legal liability and employee backlash.

 

Wait and See Is the Way to Go

Most Massachusetts non-healthcare employers and their employees are not going to have access to any vaccines before the spring of 2021. So most employers can wait to decide to mandate vaccines simply because there won’t be vaccines immediately available.

In the meantime, employers should be prepared to provide reliable information; reinforce other steps to protect employees and the public, like continued screening, fitness-for-duty programs, and contract tracing; implement employee incentives for voluntary vaccinations; and consider mandatory rapid testing, as those products come to market, as an alternative to mandatory vaccination.

 

Timothy Murphy is a partner at Skoler, Abbott & Presser, P.C., focusing his practice on labor relations, union avoidance, collective bargaining and arbitration, employment litigation, and employment counseling.

Coronavirus Features

Looking Up

Could better times be around the corner? A growing number of executives across the U.S. think so.

In the just-released 2021 National Business Trends Survey from the Employer Associations of America (EAA), 44% of company executives see an improving economic outlook in 2021. This annual survey shares information on what executives nationally are doing to address the changing business climate. Survey responses also reflect the impact COVID-19 has had on this year’s business trends.

When executives were asked if the overall U.S. economy in the next 12 months will “improve, stay the same, or decline,” the largest segment of respondents (44%) think it will improve, as opposed to last year, with only 12% expecting the economy to improve — and that was before the pandemic had come into view. This year, 33% think it will stay the same, as opposed to 52% last year. Only 24% think it will decline, compared to 36% a year ago.

“COVID certainly has had a significant impact, and perhaps many are feeling that the economy can only get better moving forward into 2021,” said Thoran Towler, who chairs the EAA board of directors. “In fact, fueling that optimism, 57% of executives project slight to significant increases in sales and revenue. American businesses are showing their resilience and readiness to tackle today’s challenges and come out stronger than ever before.”

An additional 11 questions were added to this year’s survey regarding COVID-19’s impact on business, addressing employee safety, stay-at-home measures and social distancing, remote work, online interviews and training, hazard pay and bonuses, and candidates who are unwilling to work in the office or out in the field.

When asked how concerned respondents are regarding COVID-19 and its impact on business continuity (specifically the supply chain, financial implications, and temporary shutdowns), 52% indicated they are “extremely to moderately concerned.” In the Northeast, 43% of the region’s executives expect the pandemic to negatively impact business and capital spending either moderately or significantly.

However, companies are already starting to pivot from a focus on pandemic measures to investing in the future. As the charts the two charts demonstrate, respondents expect to put less effort into COVID-specific activities in 2021 than they did in 2020, and more effort into investing in technology, equipment, and other efforts to grow their business.

“The pandemic has forced companies to be agile and innovative during these uncertain times,” said Mark Adams, director of Compliance at the Employers Assoc. of the NorthEast. “While expenditures are being scrutinized now more than ever before, the need to invest strategically nonetheless remains important as businesses seek to position themselves to rebound in 2021 and make up for lost ground.”

Similar to last year’s survey responses, the top three serious challenges for business executives include talent acquisition, talent retention, and the ability to pay competitive wages. The ability to pay for benefit costs and the cost of regulatory compliance rounded out the top five.

Also noteworthy for 2021, 64% of the survey respondents are planning to award wage and salary increases, while 29% plan to award variable pay bonuses next year.

The EAA is a national nonprofit association that provides this annual survey to business executives. The 2021 survey included 1,484 participating organizations throughout the U.S., an increase of nearly 400 over last year’s survey.

COVID-19

PPP Loan Forgiveness 101

By Jeff Laboe, CPA

Please realize that the information available today is different than it was a four months ago, and will most likely look different two months from now, so keep that in mind while reading this article.

With all the uncertainty these days, the last thing taxpayers should be worrying about is how to complete the application for your Paycheck Protection Program loan forgiveness. The intent of this article is to give taxpayers an idea of the application process and forms that need to be submitted for forgiveness of the PPP loan the business received.

Jeff Laboe

Jeff Laboe

A business of any type (LLC, S-corp, sole proprietor, etc.) that received funds via a PPP loan in 2020 may apply for the forgiveness of repayment of this loan. Taxpayers who received a loan, maintained proper records, followed the Small Business Administration rules and guidelines with respect as to how the loan proceeds were spent, and performed all necessary calculations should qualify for forgiveness on the repayment of the loan or the portion of the loan that qualifies.

There are three different application forms that may have to be completed based upon your individual PPP loan program. You have 10 months from the completion of your loan period to file one of these forgiveness applications. The three forms to be used are Form 3508S, 3508EZ, and Form 3508, or the equivalent forms offered by your bank.

The first is Form 3508S, which can be used only by those who received $50,000 or less in PPP loan proceeds. The application asks taxpayers to provide the forgiveness amount requested and to certify with signatures that all the conditions were met. There are no calculations required on the application and no reductions in forgiveness due to reduced head count or salaries or wages. This form is the most straightforward.

Form 3508EZ may be used by self-employed individuals, independent contractors, or sole proprietors that have no employees and/or wages at the time of the loan-application process.

A business also qualifies to use this form if it received more than $50,000 but less than $150,000 in PPP funds, and met one of two additional scenarios:

• Salary and wages were not reduced by more than 25% during the loan period, and the employee head count was restored by the end of the chosen loan period — essentially, the net head count wasn’t affected; or

• Salary and wages were not reduced by more than 25% during the loan period and you were unable to operate the same level of business due to compliance with requirements to any work or customer safety requirements related to COVID-19. Similar to the 3508S application, there are no calculations required. Taxpayers instead need to confirm and provide support that the loan proceeds were used for eligible costs.

The last form is the standard Form 3508. This application is for all taxpayers who do not meet the thresholds to file one of the previously discussed forms. This standard application is much more detailed and complex, and may require some additional time and supporting documents. Taxpayers might want to seek assistance from their professional advisors.

“With all the uncertainty these days, the last thing taxpayers should be worrying about is how to complete the application for your Paycheck Protection Program loan forgiveness.”

Additionally, if your business also obtained an EIDL advance, that amount needs to be subtracted from the amount of loan proceeds that would otherwise be eligible for forgiveness. This applies for all three loan-forgiveness forms. Legislation has also been introduced (U.S. Senate Bill 4321) that details potential automatic forgiveness for any PPP loan under $150,000 if the debtee “signs and submits to the lender an attestation that the eligible recipient made a good-faith effort to comply with the requirements under section 7(a)(36) of the Small Business Act.” The status of the bill is uncertain at this time.

Once you have submitted your application, the loan provider has 60 days from the date the application was received to issue a decision to the SBA. The SBA then has 90 days to review the application and remit the forgiveness amount to the lender.

When it comes to PPP loan-forgiveness applications, remember the three different levels: less than $50,000, between $50,000 and $150,000, and above $150,000. As of now, taxpayers have to apply for forgiveness within 10 months of the end of the loan period. Be sure you complied with all the rules and guidelines on what the qualified expenses are and kept accurate and complete records. And don’t be overwhelmed by the applications. If you need assistance, there are resources for you.

 

Jeff Laboe is a senior tax associate with MP CPAs; www.thempgroupcpa.com

Law

Planning for PFML

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

 

John S. Gannon

John S. Gannon

Meaghan Murphy

Meaghan Murphy

COVID-19 has created an extraordinary level of uncertainty and anxiety for businesses across the world. Since March, countless employers have been forced to dedicate just about all their energy and resources to sustaining a viable business in the face of mandatory closures, layoffs and furloughs, and ever-changing reopening regulations and guidelines.

In the midst of this chaos, it is easy to forget that the most generous paid-leave law in the country is coming to Massachusetts on Jan. 1, 2021. The Massachusetts Paid Family and Medical Leave (PFML) law provides all employees up to a total of 26 weeks of paid, job-protected family and/or medical leave to each year (up to 12 weeks of paid family leave and up to 20 weeks of paid medical leave). The PFML obligations extend to all employers in Massachusetts, regardless of size. As we approach the Jan. 1 PFML kickoff date, here are five things all businesses should be thinking about as they prepare to implement this complex new law.

 

Private-plan Exemption

The Massachusetts PFML program is a state-offered paid-leave benefit available to anyone who works in the Commonwealth. PFML is funded through a Massachusetts payroll tax paid by employees and employers with 25 or more employees. Interestingly, there is an avenue for employers to receive an exemption from collecting and paying PFML contributions. If a business offers company-provided paid-leave benefits that are greater than or equal to the benefits provided by the PFML law — typically through a private insurance carrier — it may be granted an exemption from the state PFML program.

Employers seeking an exemption need to submit an application with the state, which usually can be facilitated by the private carrier that is administrating the paid family and medical leave benefit.

Importantly, businesses that opt out of the state PFML program still need to abide by the job-protection and anti-retaliation provisions in the PFML law. Generally, employees who take family or medical leave under the law must be restored to their previous position or to an equivalent position when they return from leave, with the same status, pay, employment benefits, and seniority as of the date of leave. In addition, it is unlawful for any employer to discriminate or retaliate against an employee for exercising PFML rights (more on this below).

 

Employer-notice Obligations

Businesses are required to notify their workforce about the Massachusetts PFML program, including the new benefits and protections that apply to them. This notification includes displaying the PFML workplace poster in a highly visible location; providing written notice of contributions, benefits, and workforce protections to your eligible employees; and collecting acknowledgments of receipt of such written notice signed by all eligible employees.

Both the workplace poster and model employer-notice forms can be found on the state’s PFML website: www.mass.gov/info-details/informing-your-workforce-about-paid-family-and-medical-leave. Failure to provide the notice can lead to in a fine of $50 per employee for first violations, increasing to $300 per worker for subsequent violations.

Handbook Policies

In addition to meeting their PFML poster and written-notice requirements, employers should review and update other workplace policies that will be impacted by the new law. For example, other leave policies (e.g., sick, PTO) should be updated to note that PFML leave runs concurrently with those other leaves. Employers may also want to update attendance and related discipline policies, including procedures for requesting time off and/or call-out procedures.

It goes without saying — but we’ll say it anyway — that employers should establish and enforce their PFML policy and all other workplace policies consistently.

 

Performance Management

Employers should examine and recommit to their performance-management, discipline, and documentation policies and procedures. This is because employees who are let go or disciplined after taking PFML may have a lawsuit for retaliation if a business cannot prove the employment decision was related to poor performance or misbehavior. In fact, any adverse action taken against an employee during or within six months of PFML leave is presumed to be unlawful interference or retaliation.

As a result, employers’ expectations for performance and workplace conduct, and the consequences for failing to meet those expectations, should be clearly defined, and employers should document all such failures in a timely manner. This is critical to defending against a potential claim by an employee that his termination constitutes unlawful retaliation for his PFML leave use.

 

Training

Employers should make sure all managers receive training on performance-management and discipline policies and procedures, as well as how to properly document such issues. Managers should be disciplining employees consistently and holding them accountable for performance and discipline issues. If an employee who has used PFML leave is terminated for performance-related or disciplinary reasons, employers want to be in a position to support their lawful reasons for termination with proper documentation.

A manager turning a blind eye to performance or discipline issues, or failing to properly document them, can cost employers significantly down the road in the face of a lawsuit filed by a disgruntled employee. Well-trained managers are worth their weight in gold.

 

Bottom Line

Jan. 1 is fast approaching. Massachusetts employers need to be prepared to meet their PFML compliance obligations, which not only involves understanding how PFML benefits work, but also planning for increased frequency of employee time-off requests and longer leaves of absence. Employers with questions about how the new PFML law will impact their business should seek advice from legal counsel. u

 

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser, specializing in employment law and regularly counseling employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. Meaghan Murphy is an associate with the firm and specializes in labor and employment law; (413) 737-4753.

Law Special Coverage

COVID Lawsuits

By John Gannon, Esq.

Businesses across the globe are in the midst of planning, preparing, and executing their reopening strategies. While this news is encouraging, employers face novel and complicated legal questions about their potential liability to employees who either get sick at work or cannot return due to medical or childcare-related reasons.

Searching for answers, businesses leaders are confronted with an array of local, state, federal, and industry-specific protocols for operating safely. Charting a course in the face of this uncertainty is no small task. Unfortunately, one thing remains clear: there will be a wave of lawsuits triggered by the difficult business decisions made during this challenging time.

The COVID-19 crisis will send shockwaves through the courts and fair-employment agencies (such as the Equal Employment Opportunity Commission and the Massachusetts Commission Against Discrimination) for years to come. Senate Majority Leader Mitch McConnell remarked that an “epidemic” of these lawsuits will lead to “a trial-lawyer bonanza.” While likely overstated, the concern for employers should be real. Numerous COVID-19-related lawsuits have been filed, with many more on the way. Here are a sampling of those legal theories, with prevention tips and tactics at the end.

Negligence and/or Wrongful Death

One of the scariest claims for businesses will be negligence and wrongful-death lawsuits. In short, these actions may be lodged by employees (and even customers) who are harmed by COVID-19 because the employer failed to keep the work environment safe.

How might this look? Imagine that employees in a manufacturing plant return to work as the business reopens (or perhaps they have been working all along if the workers are deemed ‘essential’). Joe, who works on the factory floor in close proximity with others, tests positive for COVID-19. Mike, who works near Joe, also tests positive. Mike in turn infects members of his household, including an aging, immune-compromised parent. Can any of them sue the business?

John S. Gannon

John S. Gannon

“Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’”

Our workers’ compensation system typically prevents employees from suing their employers for injuries that result from working. Instead of suing, employees with occupational injuries get paid through workers’ comp. But is a COVID-19 infection ‘occupational?’ Proving the root cause of a COVID infection is very difficult, as the virus spreads easily and can be contracted nearly anywhere.

In the above example, would Joe have a workers’ comp claim? Probably not, unless he can show others he was working in close proximity with someone who had the virus before him. What about Mike? He has a better claim, but still no sure thing. And certainly the family member would not be filing a comp claim. Instead, a negligence or wrongful-death suit might follow.

Recently, the relative of a retail-store employee in Illinois who died from COVID-19 sued the retailer for negligence and wrongful death. The lawsuit claims that the employee contracted COVID-19 in the store, and the business did not do enough to protect employees from the virus. All businesses that are open or reopening should have this case on their radar.

FFCRA Violations

By now, everyone should know that the Families First Coronavirus Response Act (FFCRA) allows employees to take paid leave for a number of COVID-19-related reasons, including the need to care for children who are unable to go to school or daycare. Employees who are denied FFCRA rights or retaliated against for taking FFCRA leave can sue you in court. Successful employees may be entitled to reinstatement, lost wages, attorney’s fees, and double damages.

The first FFCRA-related lawsuit was filed last month. In the case, a female employee (and single mom) claimed she was fired because she requested FFCRA leave due to her son’s school closing. The employee allegedly discussed her need for leave to care for her son, and was told that the FFCRA was not meant to be “a hammer to force management into making decisions which may not be in the interest of the company or yourself.” She was fired a few days later and then filed what might be the first FFCRA lawsuit. Many more are certain to follow.

Discriminatory Layoffs

At the time of this article, the unemployment rate in the U.S. stands at almost 15%, and more than 30 million Americans have filed for unemployment since mid-March. Each layoff decision comes with the risk that someone will claim the reason they were selected was discriminatory.

Suppose Jane, who is 60, gets laid off, while many younger workers were retained for employment. Jane may claim that the reason was at least partially motivated by her age. If she was right, it would be would be textbook age discrimination.

Whistleblower/Retaliation Lawsuits

Employees who raise complaints or concerns about workplace safety are protected against retaliation by the Occupational Safety and Health Act. Similarly, Massachusetts has a law that protects healthcare workers who complain about practices that pose a risk to public health. We expect an increase in these lawsuits during this pandemic.

Prevention Strategies

These novel COVID-19-related lawsuits generally fall into one of two buckets: claims related to worker health and safety, and discriminatory or retaliatory adverse employment actions.

To protect against the first batch, businesses need to rigorously follow federal, state, and local guidance on maintaining a safe workplace. Agencies like the Centers for Disease Control and Prevention, the Occupational Safety and Health Administration, and the Equal Employment Opportunity Commission have issued guidance on topics like maintaining safe business operations, temperature checks for employees, and personal protective equipment. Check with your risk-management advisors to see if they have developed checklists or other tools you can use to aid in your business reopening.

Avoiding the second type of lawsuit (discrimination, retaliation, etc.) involves the same tried and true principles that were critical before COVID-19. Make sure you have reasonable, business-based justifications for your decisions that are not motivated by characteristics like race, age, gender, or use of FFCRA leave. These business-based reasons should be well-documented and understandable to laypeople, who may be reviewing your justification in a jury room. Finally, when in doubt, consult with your labor and employment-law specialists.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations; [email protected]

Law Special Coverage

Calling Back Workers

By Mary Jo Kennedy, Esq. and Sarah Willey, Esq.

Mary Jo Kennedy

Mary Jo Kennedy

Sarah Willey

Sarah Willey

As businesses prepare for reopening, many employers are summoning laid-off and furloughed employees and notifying employees who have been working remotely to return to the physical workplace.

Some employers are anticipating that their reopening may be a gradual process. Employers may do a ‘soft reopening’ in order to test workplace-safety measures such as social distancing. Some businesses may find, as a result of new safety procedures, that their workplace no longer requires certain positions. As a result, employers may not need the same number of employees or positions they had back in early March.

However, recalling only a portion of a workforce does have its own risks. Employers should carefully consider who and how many workers to recall and when to have them return.

Once notified, workers’ responses to the callback may vary. Some employees will welcome the return to work as a sign that things are returning to ‘normal,’ while others may have mixed feelings as they may want or need to stay home until the pandemic is over. Employers must consider how to best respond to workers’ requests.

How do you select which employees to call back when calling back fewer than all?

First, identify the types of positions and the number of employees needed for each position to be recalled. There may be certain skill sets or knowledge base needed in order to ramp up business after the shutdown.

“If they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.”

Second, businesses should consider any policy or past practice regarding recalling employees as there may be a legitimate business reason for not following them. Employers should evaluate their business rationale for the selection process and document the criteria used for selecting one employee over another. Selection criteria may appear neutral on the surface, but the effect of its application may inadvertently result in the elimination of all or a majority of a group of employees in a class protected under discrimination laws. As a result, selection criteria may need to be reconsidered in order to avoid possible discrimination claims.

Can you decide not to recall employees because of a concern regarding their health?

Employers may have a genuine concern that a group of employees may be susceptible to greater harm if infected with COVID-19. For example, an employer may be concerned about possible exposure to COVID-19 of an older employee, employees with known medical conditions, or a pregnant employee. Any selection decision based on a person’s age, perceived disability, or pregnancy will expose the employer to discrimination claims.

Employers should not take a paternalistic view of deciding what is best for its employees. Rather, an employer should let employees know that, if they have medical concerns regarding returning to work, they should discuss those concerns with their supervisor or human-resources team and encourage them to stay home or arrange an alternate work assignment.

What if you laid off some and furloughed other employees?

Employers should consider calling back furloughed employees before rehiring laid-off employees. Employers may have given furloughed employees written assurances that they would be called back and may have retained them on health insurance, indicators that the employer intended to have the furloughed employees return to work.

How do you communicate the call back?

Employers should communicate the offer to return to work in writing. The communication should detail the start date, full-time or part-time status, position, hours, work schedules, wages, location, and conditions of the job.

What if a business calls back laid-off or furloughed employees and the response is that an employee has found other employment?

If an employer is told that a laid-off or furloughed employee is not returning to work because the individual has found employment elsewhere, the employer should document the reason for not returning and then move to the next employee on the recall list. If your business participated in the Paycheck Protection Program, documenting the reason for the refusal is critical in order to meet the loan-forgiveness requirements.

Also, if accrued but unused vacation time has not previously been paid, it should be paid out to the employee immediately, and if the employee was on the employer’s health insurance, a COBRA notice should be sent to the employee.

What if a business calls back a laid-off or furloughed employee who is unable to return to work because of a lack of childcare?

With schools and daycare facilities currently closed, employees with school-aged children may not have childcare options. Under the CARES Act, individuals who are unable to work (including telework) and are the primary caregiver for a child whose school or childcare facility is closed or whose childcare provider is unavailable due to COVID-19 can receive Pandemic Unemployment Assistance.

In addition, the employee may be eligible for paid extended family and medical leave under the Families First Coronavirus Response Act (FFCRA), under which eligible employees who are unable to work at their normal worksite or by means of telework are entitled to 12 weeks of paid extended family and medical leave (at two-thirds of their regular rate of pay) to care for a child whose school or place of care is closed (or childcare provider is unavailable) due to COVID-19-related reasons.

The FFCRA provides eligibility for paid extended family and medical leave to an employee who was laid off or otherwise terminated by the employer on or after March 1, 2020 and rehired or otherwise re-employed by the employer on or before Dec. 31, 2020, provided that the employee had been on the employer’s payroll for 30 or more of the 60 calendar days prior to the date the employee was laid off or otherwise terminated.

What if an employee has been working remotely during the shutdown and is unable to physically return to the worksite because of a lack of childcare?

While many remote employees have been able to work effectively at home during the forced shutdown, other remote employees may have struggled due their type of work not being conducive to telework. An employer may have valid concerns about an employee’s telework performance, such as the quality and quantity of the work, and should address with remote employees any performance issues.

An employer should discuss with an employee the possibility of flexible or reduced hours in a physical workplace or a modified remote-work schedule. If these options are not viable, an employee unable to return to their normal worksite may be eligible for unemployment.

What if an employee who has a medical condition increasing their risk of harm if exposed to COVID-19 wants to continue working remotely?

Addressing this issue requires consideration of federal and state reasonable-accommodation laws. If the medical diagnosis constitutes a disability under state or federal disability laws, the employee may be entitled to a reasonable accommodation. Given these unprecedented times, an employer may treat a medical condition that puts an individual at an increased risk of harm if exposed to COVID-19 as a disability. The employer should also explore with the employee other possible accommodations in addition to working remotely.

What if an employee can work but has a medical condition, adding increased risk of harm if exposed to COVID-19, but the employee’s job duties cannot be done remotely?

Dealing with employees whose work cannot be done remotely but are at an increased risk of harm if exposed to COVID-19 has unique concerns, and each situation should be considered on a case-by-case basis. If the employee was advised by a healthcare provider to self-quarantine due to concerns related to COVID-19 and the employer is subject to the FFCRA, the employee may be eligible for 80 hours of paid sick leave under FFCRA.

However, in this scenario, the FFCRA requires that the employee be “particularly vulnerable to COVID-19” and that following the advice of a healthcare provider to self-quarantine prevents the employee from being able to work, either at the employee’s workplace or by telework. Employers should obtain appropriate medical documentation substantiating the reasons for the self-quarantine.

In addition, if the medical diagnosis constitutes a serious medical condition or a disability, the employee may be entitled to either an unpaid leave of absence under the Family Medical Leave Act (if the employer has 50 or more employees and as such is a FMLA-covered employer) or a leave of absence as a reasonable accommodation for the disability.

What if an employee wants to continue to work remotely because the employee has an immediate family member who has a medical condition that puts that family member at increased risk of harm if exposed to COVID-19?

An eligible employee of a FMLA-covered employer can take a leave of absence to care for a family member with a serious medical condition. But if the family member does not need the employee’s care, the requirements for FMLA leave would not be met.

Under the American with Disabilities Act, employers are required to provide qualified disabled employees with a reasonable accommodation. When leave and accommodation laws do not apply, employees may ask employers to apply common decency to the situation and let them return to the physical workplace at a later time.

These are challenging issues for employers, who must balance the need to protect employees from COVID-19 with the need to maintain a workforce to keep the business open.

Employers should be cautious when navigating the various leave and disability laws in order to avoid lawsuits. Before denying employees’ leaves or other reasonable-accommodation requests, employers should engage with employees in order to assess the validity and reasonableness of the requests and should document the steps taken.

Mary Jo Kennedy is a partner and chair of the employment group at Bulkley Richardson, and Sarah Willey is counsel and member of the employment group at Bulkley Richardson.

Coronavirus

Coronavirus in the Workplace

By John Gannon and Andrew Adams

John S. Gannon

John S. Gannon

Andrew Adams

Andrew Adams

For those of you not living under a rock or in Antarctica, COVID-19 (the novel coronavirus), has become a topic of everyday discourse. As the number of reported COVID-19 cases rise, so do the concerns for businesses and their employees.

Employers are wondering what, if anything, they can do to help their workplace remain safe. At the same time, employees may fear coming into the office and working alongside sick colleagues or customers. Can these folks stay home? Can employers force them to stay home? Do businesses have to pay employees who stay home? Should they pay them? These are some of the questions we tried to answer during this rapidly evolving situation.

How Does Coronavirus Relate to Workplace Laws?

The Equal Employment Opportunity Commission (EEOC) is tasked with enforcing workplace anti-discrimination laws such as the Americans with Disabilities Act (ADA). Several years ago, the EEOC put out guidance explaining that the ADA is relevant for employers to consider during pandemic preparation because it regulates the types of questions and actions employers can take when dealing with employees suffering from medical impairments.

“Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.”

Recently, the EEOC referenced this guidance when discussing coronavirus, and also stated that the guidance does not interfere with or prevent employers from following the guidelines and suggestions made the Centers for Disease Control and Prevention (CDC) about steps employers should take regarding coronavirus.

CDC’s Recommended Strategies for Employers

The CDC’s “Coronavirus Disease 2019 (COVID-19): Interim Guidance for Businesses and Employers” lists several suggestions for employers to implement in their practices. We summarize the most relevant recommendations below:

• Actively encourage sick employees to stay home.

• Ensure sick-leave policies are flexible and consistent with public health guidance. Employers should maintain flexible policies that permit employees to stay home to care for a sick family member. Employers should be aware that more employees may need to stay at home to care for sick children or other sick family members than usual.

• Separate sick employees. Employees who appear to have acute respiratory illness symptoms (i.e. cough, shortness of breath) upon arrival to work or become sick during the day should be separated from other employees and be sent home immediately.

• Emphasize staying home when sick, respiratory etiquette, and hand hygiene by all employees. The CDC recommends that employers provide soap and water and alcohol-based hand rubs in the workplace, and instruct employees to clean their hands often with an alcohol-based hand sanitizer that contains at least 60% to 95% alcohol, or wash their hands with soap and water for at least 20 seconds.

• Advise employees to take certain steps before traveling, including checking the CDC’s Traveler’s Health Notices for the latest guidance and recommendations for each country to which employees will travel.

• Employees who are well but have a sick family member at home with COVID-19 should notify their supervisor and refer to CDC guidance for how to conduct a risk assessment of their potential exposure.

• If an employee is confirmed to have COVID-19, employers should inform fellow employees of their possible exposure to COVID-19 in the workplace but maintain confidentiality as required by the ADA.

Some Questions and Answers

Here are some of the most common questions we have been getting from businesses in connection with the coronavirus outbreak:

Can employers ask for more information from employees who call out sick? Yes, employers can ask employees if they are experiencing flu-like symptoms, as long as they treat all information about sickness as confidential.

Can employers request that employees stay home if they are experiencing flu-like symptoms? Yes, but employers should consider whether they will pay employees who are asked to stay home due to possible coronavirus exposure. Also, absenteeism policies should be relaxed if you require an employee to remain at home, or if the employee is required to stay at home due to a mandatory requirement. Employers should be mindful of employment laws that speak to sick-time usage, including the Massachusetts Earned Sick Time Law.

When an employee returns from travel during a pandemic, must an employer wait until the employee develops influenza symptoms to ask questions about exposure to pandemic influenza during the trip? No. If the CDC or state or local public health officials recommend that people who visit specified locations remain at home for several days until it is clear they do not have pandemic influenza symptoms, an employer may ask whether employees are returning from these locations, even if the travel was personal.

May an employer encourage employees to telework (i.e., work from an alternative location such as home) as an infection-control strategy during a pandemic? Yes. The EEOC states that telework is an effective infection-control strategy. In addition, employees with disabilities that put them at high risk for complications of coronavirus may request telework as a reasonable accommodation to reduce their chances of infection.

Do we have to pay employees who stay home sick? As a general rule, non-exempt/hourly employees are only required to be paid for any time they perform work. If a non-exempt employee is required by you or a public health authority to stay home, they do not need to be compensated for that time, unless they have company-provided sick-time benefits. However, businesses need to consider fairness in this situation.

Employers should encourage the use of unused vacation or personal time if the employee is out of sick time, and also be wary of employee morale problems that could arise if employees are required to remain out of the office and are forced to go without pay. This is especially true given the comments that members of Congress on both sides of the aisle have made regarding the need for American businesses to step up and pay workers for time out that may be occasioned in a pandemic scenario.

In short, employers without telecommuting options should consider paying employees for time spent under self-quarantine, even if the employee is out of sick-time benefits. Employers should also remember that their exempt employees should be paid full salaries if they perform any work during a work week, even if it is done at home.

Employers should be carefully monitoring the CDC website for updates and information. In addition, now is a good time to review your company sick-leave policy and consider whether you will allow for more time off during pandemics. We also recommend that employers consult with labor and employment counsel on this complex situation if they are planning to take action against sick employees or instituting any new policies.

John Gannon is a partner with Springfield-based Skoler, Abbott & Presser. He specializes in employment law and regularly counsels employers on compliance with state and federal laws, including the Americans with Disabilities Act, the Fair Labor Standards Act, and the Occupational Health and Safety Act. He is a frequent speaker on employment-related legal topics for a wide variety of associations and organizations. Andrew Adams is an associate with the firm and specializes in labor and employment law; (413) 737-4753.

Law

Breaking Up Is Hard to Do

By Amelia J. Holstrom

On Nov. 3, 2019, news broke that the McDonald’s board of directors voted to terminate CEO Steve Easterbrook for having a consensual relationship with an employee.

Early reports indicate that, after a three-week internal investigation, McDonald’s board found the relationship to be inappropriate and in violation of its policies, including its standards of business conduct, which prohibits employees with “a direct or indirect reporting relationship” from “dating or having a sexual relationship.” McDonald’s makes clear in its policy that “it is not appropriate to show favoritism or make business decisions based on emotions or friendships rather than on the best interests of the company.”

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

McDonald’s is not the first large corporation to find itself in this type of predicament. Companies like Boeing, in 2005, and Best Buy, in 2012, have parted ways with chief executives based on alleged relationships with employees. The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.

You may be asking, can companies do that? Can they fire someone for a consensual relationship? Yes, they can — and so can you.

Love Hurts

It isn’t any secret that people spend most of their waking hours at work. Not surprisingly, office romances sometimes bloom. What better place to meet your soulmate, right?

From the employer’s point of view, dating in the workplace can spell trouble. Office romances create many problems. Because employers cannot prevent their employees from developing emotions, it is important to address workplace romances well in advance of any potential problems.

Workplace dating is a recipe for disaster in more ways than one. In addition to decreasing morale and productivity, when true love goes sour, employees often cannot work with each other anymore, or worse, workplace romances can ultimately lead to sexual harassment and/or discrimination and retaliation claims.

“The decision to remove an employee at any level involves consideration, but to remove an employee at the top of the ladder should be no different.”

Assume, for example, that a superior and subordinate have been dating for some time. Their romance fizzles, and things end. What if the subordinate now claims to have felt pressured into the relationship? A supervisor’s relationship with a subordinate is most damaging to the company because of the legal consequences.

In Massachusetts, when a supervisor engages in harassment of a subordinate, even if there is no direct reporting relationship, a business is automatically liable for that harassment.

I Would Do Anything for Love, but I Won’t Let Supervisors Date Subordinates

How should you combat workplace romances? Employers can adopt policies on personal relationships in the workplace that specifically prohibit supervisors and managers from engaging in any romantic relationships with employees at the company, including direct and indirect subordinates.

If you choose to adopt such a policy, it should state that such relationships raise ethical and fairness issues and problems with favoritism and morale, and that they will not be tolerated. Employers should also spell out what will happen if such a relationship is discovered.

Some employers confront the couple, indicate that, if they wish to continue the relationship, one must resign, and let the employees decide who will resign. Other employers confront the employees and terminate the employment of one or both of them effective immediately. It depends on the stance your business wants to take.

Love Rules

What if you don’t want to prohibit such relationships at your workplace? Another approach used by some employers is to have employees in a relationship enter into a ‘love contract.’

Such a document essentially memorializes, in writing, the consensual nature of the employees’ relationship. Be careful here, though. Love contracts are not prospective, as they will not limit the company’s liability for future sexual harassment and/or discrimination and retaliation claims. They may only be helpful to demonstrate that there was a consensual relationship between the employees before and at the time the employees signed the contract.

You Oughta Know

All employers can learn a valuable lesson from the situation involving McDonald’s. Each employer should consider how it wants to handle workplace romances before one becomes an issue for its business. Having a plan or policy in place could save you a lot of heartaches … I mean, headaches.

(The author wishes to thank Neil Sedaka, Nazareth, Meat Loaf, Don Henley, and Alanis Morissette for their wise lyrics about love.)

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

Opinion

They call it ‘employee ghosting.’

By now, just about everyone has heard the phrase, and most employers have actually experienced it. While definitions vary, the most common form of ghosting occurs when an individual is offered a job, accepts it, and then, on what would be their first day on the job, doesn’t show up, because between the time when they accepted the job and when they were supposed to start, something better came along.

But it also happens with interviews — a candidate will agree to one and just not show up for it — and with already-hired employees — they’re in the office one day, and the next day they’re not, usually without explanation.

Ghosting is a byproduct of a tight unemployment market, immense competition for good talent, and, maybe (according to some) a desire for payback among individuals who applied for a job, interviewed for it (maybe a few times, even) and then never heard from the potential employer again.

In any case, while ghosting is a fairly recent phenomenon and a sign of the current times, it is also part of what we believe will be a new norm for employers, and not a temporary inconvenience. That’s because demographics certainly favor employees; Baby Boomers are retiring, and the generations following them are considerably smaller.

Yes, we know that advancing technology will eventually reduce or eliminate certain types of employment opportunities — depending on whom one talks with, we won’t have much need for truck drivers or even lawyers soon — those days are a ways off. For now, employers must cope with this new norm. And that’s why BusinessWest partnered with Garvey Communication Associates Inc. (GCAi) this month to present a morning-long series of workshops called “Attracting the Best Candidates in Possibly the Worst of Times”.

Whey these are, indeed, the worst of times — for employers, anyway; for candidates, it’s the best of times — things are probably not going to change much moving forward. Yes, the economy will eventually decline, and yes, the unemployment rate will climb, but for a host of reasons, including demographics, employers shouldn’t expect to be in the driver’s seat anytime soon.

In this environment, they have to do things differently than they have for decades. In short, they have to create an attractive culture — one people want to be part of — and then sell that culture.

Sarah McCarthy, senior Human Resources business partner for Commonwealth Care Alliance and member of a panel at the Sept. 20 event, probably summed things up best when she said, “it’s not an environment where people are coming to you; you have to do some mining and find these individuals and encourage them to come work for you, and in doing that, you need to provide context for them — why should they want to come work for you?”

Indeed, why should they? Employers will have to come armed with reasons, and they must involve more than a number on the paycheck — although that’s always important. And it will have to involve more than flex time and casual Fridays.

As John Garvey, president of GCAi, put it, “people want to be a part of something they’re passionate about. That’s important. And that requires us to talk to them in different ways and develop talent in different ways — and also to reach out in different ways.”

Note that word ‘different.’ That’s the key. Companies can’t do things the way they used to, they can’t talk to candidates like they used to, and they can’t sell themselves like they used to.

These are different times, and in most ways, they represent what is a new norm. And if companies don’t understand this, they will soon come to understand what employee ghosting is all about.

Law

A Disturbing Trend

By Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

Amelia J. Holstrom, Esq.

The #MeToo movement exploded back in 2017. With #MeToo in the news almost a daily, women everywhere became more comfortable coming forward and reporting harassment and telling their stories.

As a result, women felt empowered, but has sharing their stories hurt them in other ways? According to a recent survey conducted by LeanIn.org, the answer to that question might be yes.

Over the past two years, LeanIn.org — an organization dedicated to helping women come together and achieve their goals — conducted surveys to gain an understanding of what individuals are experiencing at work. One of the surveys revealed that, in the post-#MeToo world, women may be receiving less support at work from male managers and may be hindered in their ability to seek career advancement.

The survey, titled “Working Relationships in the #MeToo Era,” suggested that 60% of male managers reported they were not comfortable participating in common work activities — mentoring, working alone, or socializing — with women.

To put that into perspective, according to LeanIn.org, that percentage was only 32% just a year ago. The survey also noted that senior-level men were 12 times “more likely to hesitate to have one-on-one meetings” with junior female employees, nine times “more likely to hesitate to travel [with junior female employees] for work,” and six times “more likely to hesitate to have work dinners” with junior female employees. According to the survey results, 36% of men said they avoided mentoring or socializing with women because they were concerned about how it might look.

Worrisome Results for Employers

The results suggest that #MeToo may actually lead to more gender discrimination in the workplace. If male members of management distance themselves from mentoring, working alone with, and socializing with women, they might be creating legal liability for their employer because they are giving women less opportunity to advance and succeed with the organization.

For example, while work performance is always a factor in decisions regarding promotions, skills learned through mentoring and workplace connections and relationships also play an important role. If a female employee is denied a promotion due her lack of mentorship and/or workplace connections and relationships, and she did not have access to those things like her male colleagues did simply because of her gender, the employer could be subject to a gender-discrimination lawsuit.

The survey did contain some good news for employers: 70% of employees, compared to 46% in 2018, reported that their company was doing more to address sexual harassment. The increase in this statistic is likely because more employers are conducting annual sexual-harassment training in the post-#MeToo world. Unfortunately, the remainder of the survey results suggest that training alone is not enough.

Proactive Steps

Employers should continue to address harassment in the workplace through their anti-harassment policies and by conducting annual anti-harassment training, but they also need to do more to educate employees regarding other forms of discrimination.

First, employers should have an equal-employment-opportunity policy that clearly outlines that discrimination based on gender or any other characteristic protected by law is expressly prohibited. The policy should also outline how an employee may file an internal complaint of discrimination at the workplace.

Second, employers should add annual anti-discrimination training to their training agenda. Implementing effective training will demonstrate that you care about the issue and are taking it seriously, which could help you defend against a lawsuit if an employee decides to bring one.

Finally, employers should remember that gender discrimination doesn’t just arise in this context. Businesses should take a close look at compensation practices to be sure there are no pay-inequity issues. Studies show that women in America earn about 80 cents for every dollar paid to men. Not only is this wage gap a fundamental problem, but it can also lead to serious legal trouble for an employer. Case in point: the World Cup-champion U.S. women’s soccer team’s lawsuit alleging pay inequity and “institutionalized gender discrimination.”

Bottom Line

It is clear that #MeToo has led to important changes in the workplace, but LeanIn.org’s recent study suggests that employers need to continue to be proactive and take steps to create a culture free from harassment, but also address other forms of discrimination.

The full survey results can be found at leanin.org/sexual-harassment-backlash-survey-results.

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

Education

Closing the Skills Gap

Caron Hobin says Strategic Alliances can help fill skills gaps that exist in the region’s workforce.

The ever-changing workforce environment is a continuous challenge for employers seeking qualified people to fill their positions.

However, not all employers are looking for people with a college degree. In fact, the World Economic Forum reported recently that skills are in higher demand in the labor market than occupations and degrees.

This is one of the many reasons why Bay Path University started a new division on campus — Strategic Alliances, which provides customized training and learning experiences for area employees, as well as the latest online certifications and recertifications.

Caron Hobin, Bay Path’s vice president of Strategic Alliances, said the goal for this new division is a direct reflection of the overall mission of what was then Bay Path Institute when it was founded in 1897. And that is to always be attentive to the needs of the employers in the region and to make sure the university is preparing prospective employees to succeed in the workplace.

“That’s what I see our division doing here in an authentic way,” said Hobin, adding that this initiative strives to help employers target areas of recognized need through specialized training. Whether the focus is on cultivating emotional intelligence, working in teams, storytelling for success, or any other topic a company may need help with, Strategic Alliances uses carefully selected faculty from Bay Path as well as practitioners who have expertise in the topic to create programs that address these issues.

“Time is always of the essence, money is critical, so how do you provide training, and how do you help close the skills gap that employers say is definitely an issue out there?” said Hobin. “We do discovery sessions with companies and prospective clients, and we listen to what they are looking for, and then we create customized programs to meet their needs.”

She said these trainings may last anywhere from a few hours to weeks or months; however, she does her best to encourage companies to choose a lengthier program in order to get the most out of the experience, noting that, if the goal is changed behavior, employers aren’t going to get it with a one-hour training.

Longmeadow-based Glenmeadow, which provides of variety of senior-living options, is one of about a dozen clients of Strategic Alliances. It recently completed a six-month leadership academy for all its managers.

“They used a best-practice model for adult learning, which is learning something new and then putting it into practice,” said Hobin. “It’s not theory; it’s not just a couple of hours, then you’re done. You go through an intensive training.”

“We do discovery sessions with companies and prospective clients, and we listen to what they are looking for, and then we create customized programs to meet their needs.”

Anne Miller, Glenmeadow’s vice president of Operations, scheduled six training sessions with Strategic Alliances for 20 managers at the facility, with each three-hour session going into detail on specific topics, with the aim of improving overall leadership skills. After each training session, Miller put together breakout sessions held at Glenmeadow that helped her employees apply what they learned from the trainings.

“We wanted to do some things that reinforced some of the training or actually made it come to life a bit,” Miller told BusinessWest, adding that post-training sessions are important in order to help with retaining and applying what’s been learned.

These training sessions, conducted by a host of individuals from Bay Path, covered a wide array of topics ranging from how to de-stress to how to complete a good performance review, which Miller said are critically important for customer-service purposes within the many aspects of Glenmeadow’s broad business portfolio.

“I think it set a good base for us to continue the learning,” she said.

Interactive Approach

Glenmeadow’s case provides a perfect example of how Strategic Alliances works and why it was created, said Hobin, adding that, today, adult learners not only want to learn new information, but they want interactive, applied learning that goes along with it.

So, after the initial presentation session, Strategic Alliances hosts a practice session, where participants take the training they’ve received and apply it using strategies like role play in order to engage the employees.

Hobin said this training, coupled with ongoing work to determine specific needs among industry sectors and specific businesses, helps Strategic Alliances tweak its customized programs. And it also helps Bay Path when it comes to teaching students in its classrooms.

“We recognize that, with declining numbers of high-school graduates and with just a changing work environment going forward, we are going to need to find new markets,” she said, referring to the need to improve the skills of those already in the workplace and those seeking to advance within the workforce. “We can tell you very concretely that these are the skill sets that employers are looking for.”

Bay Path also partners with MindEdge, a provider of online continuing-education courses, to deliver various certifications and recertifications to any interested student or employee. When Bay Path launched its American Women’s College, its online degree program, Hobin said, she was hearing that more and more employers were not necessarily interested in people having a degree, but rather specific skill sets and certifications.

She hopes this will encourage students to get a professional certification before graduation, and she has a specific goal for the future — to have every Bay Path student complete a certification before they graduate.

For now, Hobin said Bay Path is implementing several strategies to reach out to the community, improve the visibility of Strategic Alliances, and build relationships with area business and economic-development-related agencies.

In addition to being a member of several local chambers of commerce, Strategic Alliances hosts virtual roundtables which provides viewers with a free, one-hour training course on various topics, which Hobin said have brought in many interested companies. These videos host a panel of professionals in the field and have focused on topics including using one’s power voice, having difficult conversations in the workplace, and diversity and inclusion.

Overall, Hobin wants Strategic Alliances to be a resource for the region, its business community, and individuals who want to be better-equipped to succeed in an ever-changing workplace.

“We’re here,” she said. “We’re interested in innovative approaches to professional development going forward.”

— Kayla Ebner

Law

Paid Family and Medical Leave

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

John S. Gannon

John S. Gannon

Amelia J. Holstrom, Esq.

Amelia J. Holstrom

Businesses have had almost a year to prepare for the implementation of Paid Family and Medical Leave (PFML) in Massachusetts. Still, many questions remain, and the first critical date — July 1 — is right around the corner.

Here are five things that should be at the top of your to-do list as employers in the Commonwealth prepare for PFML.

Decide How to Handle Tax Contributions

PFML is funded through mandatory payroll contributions that begin on July 1. Currently, the contribution is set at 0.63% of an employee’s eligible wages. Because PFML covers two types of leave — medical leave and family leave — the state Department of Family and Medical Leave (DFML) has attributed a portion of the contribution (82.5%) to medical leave and the remainder (17.5%) to family leave. As if that wasn’t confusing enough, employers are permitted to deduct up to 100% of the family-leave contribution and up to 40% of the medical-leave contribution from an employee’s pay. Employers with 25 or more employees are required to pay the rest.

Although employers can pass on a lot of the contribution to the employee, businesses should consider whether to pay a portion, or even all, of the employee’s portion. When doing so, employers should consider the impact on morale, whether an employee is more or less likely to use the leave if they are paying for it, and whether the employer can afford to do more.

Provide the Required Notices

Employers are required to provide notice to employees about PFML on or before June 30. Two separate notices are required — a workplace poster and a written notice distributed to each employee and, in some cases, independent contractors. The mandatory workplace poster must be posted in English and each language that is the primary language of at least five individuals in your workforce if the DFML has published a translation of the notice in that language. Posters are available on the DFML website.

“It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work.”

The written notice must be distributed to each employee in the primary language of the employee and must provide, among other things, employee and employer contribution amounts and obligations and instructions on how to file a claim for benefits. Employees must be given the opportunity, even if provided electronically, to acknowledge or decline receipt of the notice. The DFML has issued a model notice for employers to use.

Employers must get these notices out by June 30, but also within 30 days of an employee’s hire. Failure to do so subjects an employer to penalties.

Consider Private-plan Options

Employers who provide paid leave plans that are greater than or equal to the benefits required by the PFML law may apply for an exemption from making contributions by applying to the DFML. Employers can apply for an exemption to family-leave or medical-leave contributions, or both. Private-plan approvals are good for one year, and, generally, will be effective the first full quarter after the approval.

However, the DFML has made a one-time exception for the first quarter — July 1 through Sept. 30. Employers have until Sept. 20 to apply for an exemption, and any approval will be retroactive to July 1. Employers should consider whether this is a viable option for them before employees can begin taking leave on January 1, 2021.

There are benefits to doing so, but employers should consider the potential cost. If an employer chooses to self-insure its private plan, it must post a surety bond with a value of $51,000 for medical leave and $19,000 for family leave for every 25 employees. Employers may also have the option to purchase a private insurance plan that meets the requirements of the law through a Massachusetts-licensed insurance company.

Review Current Time-off and Attendance Policies

The principal regulator of frequent leaves of absence is the fact that employees are not getting paid for this time away from work, absent company provided paid time off like sick or vacation time. Once those company-provided benefits are used up, the employee is not getting a paycheck.

Naturally, this gives employees motivation to get back to work and on the payroll. Unfortunately, when Jan. 1, 2021 comes around, businesses will lose this regulator as PFML will be paid time off, up to a cap of $850 per week (and up to a whopping 26 weeks of paid time off per year).

It goes without saying that employees will have less incentive to return to work once PFML goes live. This undoubtedly will increase the amount of time employees are out of work. Therefore, businesses should be reviewing their current time-off and attendance policies to determine whether changes should be made in light of this forthcoming law. Are you providing too much paid time off already? Should you develop stricter requirements surrounding absenteeism and employee call-out procedures?

The time is now for discussing these changes as modifications to leave and attendance policies take time to think through and implement.

Plan for Increased Staffing Challenges

Many businesses and organizations throughout the region are currently dealing with significant staffing difficulties due to historically low unemployment rates. This challenge is only going to increase when the leave protections of PFML kick in on Jan. 1, 2021.

We recommend that employers try to get out in front of this by having meetings and possibly forming committees tasked with planning for expected workforce shortages. Consider increasing per-diem staff as regular staffers are likely to have more time off and call-outs from work. Consult with staffing agencies to explore whether temporary staffing will be an option if (and when) employees take extended PFML. Whatever you do, don’t wait until late next year to address potential staffing problems.

Bottom Line

PFML is certainly going to be a challenge for employers to deal with, particularly smaller employers who are not already familiar with leave laws like the federal Family and Medical Leave Act. Although it may seem as though the sky is falling on employers, with proper and careful planning and guidance from experts, transitioning into the world of PFML should be reasonably manageable.

John S. Gannon and Amelia J. Holstrom are attorneys with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively representing management in labor and employment law. Gannon specializes in employment litigation and personnel policies and practices, wage-and-hour compliance, and non-compete and trade-secrets litigation. Holstrom devotes much of her practice to defending employers in state and federal courts and before administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, compliance, and union-related matters; (413) 737-4753; [email protected]; [email protected]

Employment

More Than a Job

President Tricia Canavan

President Tricia Canavan

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

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

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

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

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

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

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

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

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

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

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

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

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

Steady Growth

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

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

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

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

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

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

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

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

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

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

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

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

Work Your Way Up

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

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

United Personnel has been headquartered in Springfield

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

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

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

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

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

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

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

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

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

Community Focus

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

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

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

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

Joseph Bednar can be reached at [email protected]

Opinion

Opinion

By Mark Adams

The ripple effects of the government shutdown have started to come to bear on employers.

Specifically, due to the partial government shutdown that began on Dec. 22, 2018, the E-Verify system is not available. According to the E-Verify site, operated by the Department of Homeland Security (DHS), “E-Verify is currently unavailable due to a lapse in government appropriations. While E-Verify is unavailable, employers will not be able to access their E-Verify accounts. We apologize for any inconvenience and look forward to serving you once we resume operations. For more information, see E-Verify Unavailable.”

During the shutdown, employers will not be able to enroll in the program; access their E-Verify accounts; create a case; view or take action on any case; add, delete, or edit accounts; reset passwords; edit company information; terminate accounts; or run reports. Workers will not be able to resolve E-Verify Tentative Nonconfirmations (TNCs) during the shutdown.

In addition, myE-Verify will be unavailable, and employees will not be able to access their myE-Verify accounts.

To minimize the burden on both employers and employees, DHS announced that:

• The three-day rule for creating E-Verify cases is suspended for cases affected by the unavailability of the service;

• The time period during which employees may resolve TNCs will be extended. The number of days E-Verify is not available will not count toward the days the employee has to begin the process of resolving their TNCs; and

• Federal contractors with the Federal Acquisition Regulation E-Verify clause should contact their contracting officer to inquire about extending federal contractor deadlines.

Further information about what is and is not available online can be found at www.e-verify.gov/e-verify-and-e-verify-services-are-unavailable.

The shutdown does not affect an employer’s responsibility to verify employment eligibility through the Form I-9. Employers must still complete the Form I-9 no later than the third business day after an employee starts work for pay and comply with all other Form I-9 requirements.

Once the government operations fully resume, DHS will notify employers with additional guidance regarding the ‘three-day rule’ and time period to resolve TNC deadlines once operations resume.

Mark Adams is director of HR Services for the Employers Assoc. of the NorthEast (EANE), an Agawam-based company that provides resources for organizations to maximize employee engagement and retention while minimizing risk.

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