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Coronavirus

Back on the Clock

By Mark Morris

Meredith Wise

Meredith Wise says companies should regard older workers as valuable assets that can help them ramp up.

David Cruise knows how to help people navigate tough economic times, but admits COVID-19 is a different kind of event.

“Quite frankly, we’re doing this live,” he told BusinessWest. “We have no playbook.”

Since February, more than 1 million workers in Massachusetts have lost jobs as a result of COVID-19, according to the U.S. Department of Labor (DOL). Cruise, president of MassHire Hampden County Workforce Board, said nearly 35,000 workers filed new unemployment claims between February and May in Hampden County alone. One group in particular, workers age 55 and older, accounted for 20% of those new claims.

Job loss due to COVID-19 presents particular challenges for the 55-plus crowd. On top of the concern about finding a new job as an older worker, many worry that, because of their age, they face a higher risk of serious illness if they catch coronavirus.

Cruise expects many older workers will have an opportunity to go back to their prior jobs, but it may take time for that to happen. Because COVID-19 is still actively infecting people, he noted, career conversations with older workers must take into account a “fear factor” many have about returning to work.

“Our staff are trained to help people develop their career plans, and while they can be supportive, they’re not psychologists,” he said, adding that it can be a tough decision whether or not to return to work — one that’s ultimately up to each individual.

Cruise expects there will be more job search activity in July by older workers, but their prospects will depend largely on how successful the phased reopening has been and if employers are ready to start hiring again.

“Going forward, the whole notion of doing work away from the workplace could benefit many older workers, especially in industries where that type of work is encouraged and fostered. It could extend a person’s career and help maintain their financial, as well as their personal, health.”

As a first step, he recommends workers talk to the employer they recently separated from to see what kind of opportunities might be there, even in a different role. If it’s not possible to return to that employer, openings in other industries might be available.

“There are certain industries where I think older workers will find themselves in significant demand, if not full-time, certainly part-time,” he said.

He also thinks many people will seek out training in new fields, including ones that allow working from home. Those who have health concerns about returning to the workplace may find their next opportunity in a remote job. Cruise said this would be good fit for older people with a good work ethic, time-management skills, and self-discipline.

“Going forward, the whole notion of doing work away from the workplace could benefit many older workers, especially in industries where that type of work is encouraged and fostered,” he said. “It could extend a person’s career and help maintain their financial, as well as their personal, health.”

With so many Baby Boomers retiring, experienced workers are wanted and needed, according to Tricia Canavan, president and CEO of United Personnel. Hiring managers recognize that workers in their 50s still have 10 to 15 years of good work ahead of them.

“Employers are interested in people who bring a good work ethic, have skills, and are reliable,” Canavan said. “We have no issue placing older workers because our clients want employees who have those characteristics.”

Cruise advises older workers to think about who in their personal and professional networks are in a position to help them, or at least provide some guidance to finding work. “It’s essential for people to stay connected and to not leave any person untapped who might be helpful, even your dentist or your barber.”

Maintaining technology skills are another key for older workers. If a person was using technology before being laid off, Cruise said their skills are most likely in good shape. On the other hand, those who did not use technology in their job and now only use it socially may want to consider training to boost their skills and expand their job prospects.

“Technology keeps changing, and it’s possible that we all may need to develop new skills in the way we work because of the pandemic,” he added.

Because these skills can be easily updated, Canavan said a person’s “tech savvy” should not be a deal breaker when they are looking for work. “The hiring philosophy I share with my clients is: hire smart, hire the right person for the job. You can teach someone how to use Slack, but finding someone with initiative and the right mindset is harder to teach.”

When to Return?

For now, many careers are up in the air, at least until the state’s reopening progresses further. And in many cases, some are choosing not to return to work immediately.

At the beginning of the pandemic, the DOL encouraged some flexibility with unemployment claims to make it easier to comply with social-distancing guidelines. As a result, the Massachusetts Department of Unemployment Assistance (DUA) put in place emergency regulations that allowed those who could return to work to keep receiving unemployment benefits for personal health reasons or concern about the health of others in their home, even if they had not been diagnosed with COVID-19.

That emergency regulation expired on June 14. As shuttered businesses begin to reopen, workers who are offered their jobs by their prior employer are expected to accept them. Refusal — unless that refusal is deemed reasonable — would mean losing their unemployment benefits and termination by their employer. The DUA said determining what’s reasonable involves a fact-specific inquiry into the person’s health situation and whether they work with or near other employees or the public.

In addition to fear, finances are another disincentive to return to work. Those who lost jobs at the beginning of the pandemic could apply for traditional unemployment benefits, which cover roughly 50% of a person’s average earnings. Then in March, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which added $600 a week in addition to state unemployment benefits.

Business owners who depend on seasonal workers during the spring and summer months have told BusinessWest they are having trouble filling open positions because of the generous payments from the CARES Act. They say it creates a situation where people can make more money unemployed than if they took the seasonal jobs that are available. Unless it’s reauthorized by Congress, however, the CARES Act is scheduled to expire at the end of July.

A company’s ability to reopen — and quickly get back up to speed — may depend in part on how they acted before COVID-19 hit. Meredith Wise, president of the Employers Assoc. of the NorthEast, said some of her organization’s member companies are easily getting people to come back to work because of a well-established culture that keeps people engaged.

“The leaders have stayed in touch with people, they respect their employees, and they’re trying to do everything they can to create a safe environment for them,” she said, adding that, when employees are engaged, they want to be back at work because there is a mutual trust.

It’s a different story when a company has not communicated well and has allowed distrust to take root.

“For example, if a company has done a shoddy job of keeping up their facilities before COVID hit, why should employees trust them with proper cleaning and sanitizing now?”

Canavan echoed the importance of paying attention to worker safety. After visiting several manufacturing clients, she was impressed with the transformation they’ve done to comply with pandemic-related guidelines.

“They’ve completely retooled their facilities to ensure social distancing, and when that’s not possible, they’re putting up physical barriers,” she said. “Many have extensive policies in place regarding hygiene at work, frequency of washing your hands, and even how to get water out of the water cooler.”

Added Value

The impact of COVID-19 on older workers’ employment is something Cruise predicts will become clearer over the next six months. He is concerned that not just older workers, but younger ones — in the 18-to-24 group — may be more likely to permanently lose their jobs due to the pandemic than other groups.

With three and even four generations in some workplaces, Canavan stressed the opportunity to take a collaborative approach and learn from each other. “The members of my team are of different ages, and they all contribute different strengths based on their life and work experience,” she said.

Might companies use COVID-19 as an excuse to shed older workers? Wise said a few might, but many companies will not because they need the institutional knowledge that older individuals bring to the job. She said very few companies have effective succession planning or make a concerted effort to transfer knowledge, so they need experienced workers to get them back up to speed.

“Whether it’s an operator who knows the ins and outs of a machine or a salesperson who knows what certain customers like, companies need these people to come back to the workplace.”

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.

Workforce Development

More Than Clothes

Maria Pelletier found confidence — and a job — with the help of Dress for Success.

Applying for jobs can be a daunting task, especially if one does not have the right tools or preparation to nail the interview. Dress for Success, an international not-for-profit organization, is working toward helping low- to middle-income women achieve economic independence by boosting confidence and providing valuable skills, a network of support, and the right suit to get the job done — literally.

When Maria Pelletier lost her job in August 2017 — the first time she had ever been fired in her life — she felt like she hit rock bottom.

“It was the last thing I was expecting,” she said. “It really set me back and made me question who I am and what I’m able to do.”

Pelletier began collecting unemployment, and although she was applying for jobs, she wasn’t getting hired, and she couldn’t figure out why.

“I was just doubting myself,” she said. “I kept thinking, ‘why are they not hiring me? What is going on?’”

“We’re finding out where they want to work, how we can get them in the door, and what’s their path to move up the ladder and have career success, because ultimately, our goal is to help women gain economic independence.”

Fortunately, she stumbled upon a program called Dress for Success Western Massachusetts, which she says gave her the confidence she needed to get back on track. When asked about her journey through the program, Pelletier had three short words: “where to begin?”

The most important thing Dress for Success did for her was get her confidence back up. Pelletier applied and went through the Foot in the Door program, a course that helps women enter the workforce. She was able to get a job part-time at the Post Office while going to classes for the program.

Then, in April 2018, she got a full-time job as lead Client Service specialist at Baystate Medical Center, and has been working there ever since. In that role, she answers phone calls coming into the hospital, and hopes to continue to learn more about her department and grow into new responsibilities.

“The interview skills and the classes we were taught reinforced on my skills I already had,” she said. “It was just bringing it back out to the forefront and saying, ‘yes, you can do this.’”

Sense of Sisterhood

That, said Executive Director Margaret Tantillo, is exactly what Dress for Success is about — giving women the confidence they need to get into the workforce, whether it is their first time or they need a little help to get back out there.

While the name entails part of the organization’s mission, to supply women with clothing for a job interview — or a few days of outfits once a job is secured — from the Dress for Success boutique at the Eastfield Mall, this is only part of the mission. “The suit is the vehicle, or just one aspect of what we’re able to do,” Tantillo said.

She told BusinessWest there are two workforce-development programs, and a third on the way, designed to help women become financially independent and confident in themselves.

Foot in the Door, launched in 2016 to help underemployed and unemployed women enter the workforce, is a collaboration between Springfield Technical Community College and Holyoke Community College instructors, who provide training on the interpersonal skills that are necessary for any workplace.

Margaret Tantillo says Dress for Success offers women a community of support — a sisterhood of sorts.

Within three months of graduating from this program, 70% of women, on average, are either in school and/or working, Tantillo explained. Program directors also make sure to prioritize putting women in jobs that are the right fit for them.

“We really work with our participants to find out what their interest is and what their skillset is,” said Tantillo. “We’re finding out where they want to work, how we can get them in the door, and what’s their path to move up the ladder and have career success, because ultimately, our goal is to help women gain economic independence.”

Having a good relationship with employers and referring agencies in the region is a big part of this, and Tantillo said practice interviews are available for women who finish the program successfully so they can receive feedback before going into the real interview. Some even get jobs right from the practice round.

On a more personal level, Dress for Success offers the Margaret Fitzgerald one-on-one mentorship program for women who are looking for jobs or recently entered the workforce. Each participant is paired with a professional woman in the community to work with on an individual basis.

“They are able to form a relationship so they can guide and support women in terms of whatever their unique, individual need is,” said Tantillo, adding that the program recently received an anonymous donation of $25,000. “The women who have come through that have had some really good results.”

She added that having a role model is a big part of women finding success in the programs, as many of them have not been fortunate enough to have role models in their lives.

The name of the program comes from a female mentor herself. Margaret Fitzgerald was a secretary and the only woman in the Physics department at Mount Holyoke College in the 1970s. She was called “mom” by many of the women enrolled in that program and acted as a mentor, advocate, and friend to the students. The female leaders in this program hope to do the same thing for their participants.

The newest program, The Professional Women’s Group, is set to launch in January 2020 with help from Eversource. It will focus on promoting employment retention and career advancement by providing valuable information, tools, and resources while creating a safe environment for participants to network with other professionals.

“They have a real sense of responsibility because what they do doesn’t just impact them, it impacts the next person we refer to that employer. It’s interesting to see how people respond when they feel like they’re part of something bigger.”

This group of women will be recruited from other programs and aims to help them especially in the first six months of a job, which are critical in terms of how people perform.

“The unemployment rate is lower, so there are more people in jobs that need the instruction and guidance about how to retain a job,” Tantillo said.

This new program, she explained, is intended to supplement the ones already in place at Dress for Success, and is framed around five pillars: workplace etiquette, work/life balance, financial health, health and wellness, and leadership and civic responsibility.

“We provide them with a community of support,” she noted. “We’ve had women talk about how they feel like this is a sisterhood and that they’ve never felt so supported before in their lives.”

Opening New Doors

Confidence. Community. Sisterhood.

These key words mentioned above several times are what Dress for Success instills in women utilizing its programs. And these women want to succeed not only for themselves, but for each other.

“The flip side is, now, when they’re in a job, they have a real sense of responsibility because what they do doesn’t just impact them, it impacts the next person we refer to that employer,” Tantillo said. “It’s interesting to see how people respond when they feel like they’re part of something bigger.”

For Pelletier, she gained not only a community of support, but a second chance.

“I was at rock bottom, and I said, ‘OK, let me try this. Let me see where it goes from there,’” she said. “They can either kick me to the curb or they can say, ‘hey, come on in.’ And luckily, they said, ‘come on in.’”

Kayla Ebner can be reached at [email protected]

Veterans in Business

Soldier Stories

As the nation honors those who have served on Veterans Day, BusinessWest does the same with a special section on veterans in business. It includes an in-depth look at why some companies make the hiring of veterans a priority, and why others should follow suit. But we’ll start with several profiles of individuals who have made the transition from military service to business management, and how they’re taking lessons from their years of service into the workplace.


 

Corey Murphy, President, First American Insurance

Retired Marine Corps Major Stresses Teamwork, Accountability

 

 


 

Dorothy Ostrowski, President, Adams & Ruxton Construction

Her Afghanistan Tour Brought Many Lessons for Life, Business

 

 


 

Andrew Anderlonis, President, Rediker Software

His Time in the Navy Provided an Education on Many Levels

 

 


 

Smith Executive Education invites you to leverage your organization’s unique mission and function to align with the growing knowledge base for sustainability practices in the workplace. Four weeks of online learning and a one-hour virtual live session with expert Dano Weisbord, Executive Director of Sustainability and Campus Planning at Smith College. This course is designed for your busy schedule, with four weeks of online learning and a one-hour virtual live session with faculty. Take advantage of this special introductory pricing

Smith Executive Education invites you to leverage your organization’s unique mission and function to align with the growing knowledge base for sustainability practices in the workplace. Four weeks of online learning and a one-hour virtual live session with expert Dano Weisbord, Executive Director of Sustainability and Campus Planning at Smith College. This course is designed for your busy schedule, with four weeks of online learning and a one-hour virtual live session with faculty. Take advantage of this special introductory pricing

Smith Executive Education invites you to leverage your organization’s unique mission and function to align with the growing knowledge base for sustainability practices in the workplace. Four weeks of online learning and a one-hour virtual live session with expert Dano Weisbord, Executive Director of Sustainability and Campus Planning at Smith College. This course is designed for your busy schedule, with four weeks of online learning and a one-hour virtual live session with faculty. Take advantage of this special introductory pricing

Smith Executive Education invites you to leverage your organization’s unique mission and function to align with the growing knowledge base for sustainability practices in the workplace. Four weeks of online learning and a one-hour virtual live session with expert Dano Weisbord, Executive Director of Sustainability and Campus Planning at Smith College. This course is designed for your busy schedule, with four weeks of online learning and a one-hour virtual live session with faculty. Take advantage of this special introductory pricing

Smith Executive Education invites you to leverage your organization’s unique mission and function to align with the growing knowledge base for sustainability practices in the workplace. Four weeks of online learning and a one-hour virtual live session with expert Dano Weisbord, Executive Director of Sustainability and Campus Planning at Smith College. This course is designed for your busy schedule, with four weeks of online learning and a one-hour virtual live session with faculty. Take advantage of this special introductory pricing

Law

A Sometimes Fine Line

By Marylou Fabbo, Esq.

There’s no doubt the #MeToo movement has brought positive change to the business world by creating a safer environment for women (and men) to come forward with accounts of sexual harassment. But what if the claims aren’t true, either because they don’t rise to the legal definition of harassment or they’re completely fabricated? The damage, to both individual and company reputations, can be significant.

Make no mistake. Subjecting an employee to sexual harassment in the workplace, at a company-sponsored event, or on a business trip is unacceptable and should be punished.

#MeToo has had a strong, positive impact on encouraging victims to come forward with valid claims that had been unreported or overlooked. Everyone who complains of sexual harassment should be heard, but should everyone be believed? Most people — men and women — are not sexual abusers, and yet most individuals would say they have experienced some form of sexual misconduct. Most also would agree that some sexual behavior, such as grabbing a co-worker’s breast, exposing oneself to another employee, or telling an employee that he or she will get a promotion if he or she sleeps with the boss are clear-cut cases of sexual harassment.

Marylou Fabbo, Esq

Still, even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law. This leaves the door open to unfounded and/or, in some cases, intentionally false claims, which can have a damaging impact on company image and the accused person’s professional and personal life.

Sexual Harassment Defined

Title VII and Massachusetts law prohibit sex discrimination in the workplace, and sexual harassment is a form of sex discrimination. The harasser and the victim of sexual harassment can be the same or opposite gender and have the same or different sexual orientations.

Although this article addresses sexual harassment in the workplace, sexual harassment is also prohibited in places of public accommodation, educational facilities, and housing.

“Even if sexual comments or behaviors are inappropriate for the workplace, not everything of a sexual nature rises to the level of illegal sexual harassment under the law.”

There are two types of sexual harassment: ‘quid pro quo’ harassment and ‘hostile work environment’ harassment. Quid pro quo harassment includes sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature when a term of employment or employment decision depends on whether an employee accepts or rejects those advances.

Many of the accusations asserted against producer Harvey Weinstein fall into the quid pro quo category. Actors have come forward stating that Weinstein promised them career advances in exchange for a positive response to his sexual advances; they also have stated that Weinstein failed to help them out if they chose not to meet his sexual demands. That’s unambiguous quid pro quo harassment.

In Massachusetts, employers are strictly liable for quid pro quo harassment, which means the business is on the hook for damages even if it did not know about the harassment.

The other type of sexual harassment is hostile work environment sexual harassment. Under Massachusetts law, illegal sexual harassment occurs when “requests for sexual favors and other verbal or physical conduct of a sexual nature unreasonably interferes with an individual’s work performance by creating an intimidating, hostile, humiliating, or sexually offensive work environment.”

Complaints about Matt Lauer and Charlie Rose’s actions fall into the sexually hostile work environment category. Lauer is accused of exposing himself to staff, and the accusations against Rose included making lewd phone calls and groping women’s breasts. In both cases, the individuals’ employers have been accused of knowing about the harassment and doing little to stop it.

Subjective and Objectively Offensive

An employee who is offended by sexual behavior may file a claim of harassment with the Mass. Commission Against Discrimination (MCAD), believing that the actions were illegal simply because they were of a sexual nature.

However, to constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public. Ask yourself this question: if an employee shows co-workers vacation pictures on his phone that include friends in bikinis, is that sexual harassment? What about the long-term manager who refers to women as ‘girls,’ gives hugs occasionally, and makes jokes about the lack of sex in his long-term marriage?

Some may find those comments and actions offensive, and others may not. Is the manager just ‘old school’? If an employee subjectively perceives the behavior as hostile, intimidating, humiliating, or offensive, then the conduct may constitute sexual harassment. But that’s not enough — the question becomes whether a reasonable person in the employee’s position would find the conduct offensive.

“To constitute illegal sexual harassment in the workplace, the behavior must be offensive both to the recipient and the general public.”

Conduct of a sexual nature also must be unwelcome in order to constitute illegal sexual harassment, but it is almost impossible to be absolutely sure whether the conduct is welcome or unwelcome. The fact that an employee appears to be a willing participant in sexual discussions about weekend conquests may suggest that the employee was not opposed to the sexual discussions by the water cooler on Monday mornings. Yet, the employee may have actually been cringing on the inside.

Under the law, even if an employee makes sexual comments or jokes, or engages in sexual conduct, those actions do not automatically mean that all behavior is welcome. A disgruntled employee who appeared to be a willing participant may later claim that behavior that was welcome was in fact unwelcome.

Nimrod Reitman, a former NYU graduate student, accused his school adviser, Avita Ronell, of sexually harassing him over a three-year period. He claimed that she referred to him in e-mails by names such as “my most adored one” and “sweet cuddly baby,” and kissed and touched him repeatedly and required him to lie in her bed, among other things. Ronell did not deny the behavior but denied the harassment and claimed that the behavior had been welcomed.

While that case doesn’t arise in the employment context, it provides an example of one reason employers should implement zero-tolerance policies when it comes to sexual banter in the workplace. What may have been considered welcome sexual commentary or behavior may have actually have been unwelcome and could subject them to a lawsuit.

False Accusations of Sexual Harassment

Why would one make a false accusation of having been sexually harassed at work? It cannot be disputed that some people fabricate claims of sexual harassment in the workplace because alleged victims have admitted to making up allegations against co-workers or management for many different reasons.

In some cases, sexual-harassment claims may be made to ward off terminations because employers are fearful of being accused of illegal retaliation if they take (warranted) disciplinary action after an employee has come forward with a sexual-harassment complaint. Disgruntled employees have been found to have made false accusations against someone they believe is responsible for an adverse personnel action the employee received, such as a demotion or termination from employment.

Employees have admitted that they have intentionally made sexual-harassment complaints against co-workers for vindictive reasons or for attention.

Unfortunately, it is often difficult to determine whether specific allegations are true or false, as there usually are no witnesses or hard evidence. Because of this, businesses may overreact or react harshly without having all of the facts.

Nev Shulman, star of MTV’s Catfish, was accused of sexual assault. He denied the claims, but the show was suspended anyway. Upon a later investigation, the claims were deemed not credible, and the show was reinstated. A Sacred Heart University student falsely reported having been raped by two school football players and has since faced criminal charges. The leader of the New York City Ballet was accused of sexual harassment and retired. He was later cleared of any wrongdoing.

Collateral damage follows baseless accusations of sexual harassment. Valid harassment claims are devalued and may be looked upon skeptically. When it becomes known that an accusation was false, it raises the possibility in individual’s minds that the next allegation of a similar nature may also not be credible.

Being falsely accused of sexual harassment is also a downfall to the accused’s career. Prior to having their names cleared, alleged harassers may quit or be required to resign, and they sometimes remain under suspicion even after the complaint is found to have been fabricated. The fact that a sexual harassment lawsuit has been filed against a company may be covered in the media, but when, years later, it is dismissed by the court before it gets to the jury stage because the case is without factual support, that information often is not made available to the public — perhaps forever leaving a bad mark on the employer in the eyes of its customers as well as employees. u

Marylou Fabbo is an attorney with Skoler, Abbott & Presser, P.C., one of the largest law firms in New England exclusively practicing labor and employment law. She specializes in employment litigation, immigration, wage-and-hour compliance, and leaves of absence. Fabbo devotes much of her practice to defending employers in state and federal courts and administrative agencies. She also regularly assists her clients with day-to-day employment issues, including disciplinary matters, leave management, and compliance; (413) 737-4753; [email protected]

Opinion

Opinion

 By Associated Industries of Massachusetts

Late winter and early spring is high workplace gambling season. College basketball’s March Madness playoff brackets mean many workers will be talking about, gambling on, and even watching the games at work. 

What does workplace gambling look like? Betting pools, online betting, cellphone calls, and texting are some of the common methods employees use to gamble during the workday. All this may lead to a significant reduction in job performance by some employees.

On the other hand, many employers regard employee gambling as a harmless distraction that creates a little excitement, a diversion from the humdrum of the long winter and workday routines. Most employees treat it as a lark that, win or lose, will not impact them very much. In most workplaces, the single-pool proceeds are relatively small dollars, ranging anywhere from a couple of hundred dollars to perhaps a few thousand.

That said, workplace gambling is a big deal and likely to get bigger. The American Gaming Assoc. estimates that employees may bet up to $10 billion alone on the college basketball tournament. And, by the way, sports betting remains illegal in Massachusetts. 

If you are concerned about workplace gambling or feel that your current policies are insufficient, here are some questions to consider:

• Does gambling disrupt the workplace? Is the gambling behavior interfering with production? Are arguments between employees over games and gambling taking place? Is bad blood festering over unpaid debts? Is there a spike in wallet or purse thefts among co-workers? 

• Are you seeing betting take up an unreasonable amount of work time? Are workers leaving their work stations throughout the day to discuss gambling? Are they gathering during work time to discuss betting options?

• Are gambling employees asking co-workers or the company for loans on wages or from 401Ks, or are there delays in repaying debts? 

• Are your supervisors running the gambling pool, raising disparate treatment issues across the business?

If the answer to any of these questions is yes, you may want to consider establishing a gambling policy.

There are a number of options:

• Adopt a no-gambling policy. Define gambling or the type of behavior that is restricted. Employers are free to establish such a policy. The key factor, as always, will be how consistently will it be enforced by your supervisors.

• Determine what constitutes appropriate disciplinary action against any employee who violates the policy.

• Consider adopting a limited no-gambling policy. One method would be to prohibit gambling above a certain dollar figure or value. Such a policy would recognize that small-stakes gambling such as a few dollars or a lunch is reasonable and will be tolerated even though it remains illegal under state law. The problem — will employees disclose they are doing it? There is also the question of determining what is a reasonable dollar value threshold and how to enforce it.

While it is unlikely any company would face any serious civil or criminal liability for a small-time gambling pool, if its operation makes some employees feel uncomfortable, it may make sense to end the practice as soon as you become aware of it, or before it gets going. Whatever policy you choose to adopt, make sure it is one that is enforceable for your workplace. 

The Fourth Installment of BusinessWest’s Future Tense Lecture Series!
Future Tense – Power of the Pause
Thursday, November 8, 2018
8 a.m.-9:30 a.m.
Cost: $25 donation to Tech Foundry
Presenter: Susan O’Connor, Esq.: Health New England, Director & General Counsel

It’s not easy managing in today’s fast-paced, complex, dynamic work environments. Leaders are required to remain focused in the face of a myriad of commitments, to have clarity of mind, to ensure they are doing the right things (not just doing ‘things’), and maintain calm in the midst of daily storms. But what if we as leaders could hit the “pause” button during our day, step back, and meet challenges with a sense of space, clarity and focus? What if there was a way to not just “get things done,” but ensure that what does get done connects us with ourselves, with the people we work with and ultimately, with our organization’s deepest values? Mindfulness is a compelling tool for performance, teamwork and effectiveness as well as presence, kindness and balance. Moira Garvey, Senior Consultant and Facilitator with the Potential Project, will share why mindfulness is relevant in the workplace and why companies around the globe are incorporating mindfulness to support workplace performance and employee well-being.

In this session you will hear how Springfield-based Health New England brought mindfulness training to its Associates. In 2015, HNE ran a pilot to enhance their high performance culture – 30 leaders participated in a 4 month course. HNE leadership knows the key to success is the ability to work at a high level of mental effectiveness, while also remaining resilient in the face of stress. In many industries including health care, the velocity of change, competition and complexity are constant challenges. Since the successful 2015 pilot HNE has continued to invest in Mindfulness training as a way to fortify a culture of high performance that is focused and intentional. In 2017, 63% of the participants held leadership positions

In the foundational session Moira will provide an overview of the nature of the mind and attention, while sharing information on the most recent scientific findings regarding how the brain works and how it can be rewired to enable us to be more focused, calm and effective at work every single day. She will teach a basic mindfulness practice and offer a focus strategy for immediate application.

Presenters:
Moira Garvey, Senior Consultant and Facilitator, Potential Project
Susan O’Connor, Esq., Vice President and General Counsel, Health New England

Employment

Talking Pot

By Erica E. Flores, Esq.

It took almost two years, but Massachusetts regulators have finally started to issue licenses to businesses looking to grow, manufacture, distribute, and sell recreational marijuana products in the Commonwealth.

The first license went to a cultivation facility in Milford back in June; since then, the Cannabis Control Commission has issued licenses to six other businesses, including provisional licenses for retail locations in Northampton and Easthampton.

Erica E. Flores, Esq.

Erica E. Flores, Esq.

Despite this progress, however, retailers cannot open their doors just yet — retail marijuana products must be tested for various contaminants before they can be sold, and the commission has yet to issue a license to a testing facility. But with the licensing process finally picking up steam, and public pressure on the commission to allow the voter-approved industry to take root, Western Massachusetts employers may be wondering how these changes will affect their workplace and what they can or should be doing to prepare.

Here’s what you need to know now:

Marijuana in the breakroom?

The recreational marijuana law specifically provides that it “shall not require an employer to permit or accommodate conduct otherwise allowed by [the law] in the workplace,” and further, that it “shall not affect the authority of employers to enact and enforce workplace policies restricting the consumption of marijuana by employees.”

This means that employers who pre-screen job applicants for marijuana, have drug-free workplace policies that prohibit employees from working under the influence of drugs or alcohol, and who conduct other lawful drug tests of employees may continue their current practices, and need not accommodate an employee’s use of marijuana for recreational purposes, even when they are off duty.

That being said, the availability of marijuana products for sale at retail locations (and, eventually, at so-called “cannabis cafes”) will likely drive an increase in marijuana use by adults across the state. This means that employers may see a rise in positive drug-test results by applicants and those who are subject to random testing. Employers may also see an uptick in employees arriving to work impaired and/or using marijuana products on the job.

To combat these potential problems, employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.

Employers may also want to adopt a reasonable-suspicion drug-testing program, if they do not have one already, and train their managers and human resources professionals about how to recognize the signs and symptoms of marijuana impairment and how to properly document their observations. Such evidence, in combination with a positive test result, can help an employer prove that its reasons for disciplining or terminating an employee were legitimate should the employee challenge that decision in a legal forum, particularly given the fact that currently available drug-testing methods do not measure current impairment; they can only detect that the drug is in an employee’s system.

Drug-testing Considerations

Employers may also want to reconsider the scope of their pre-employment drug-testing programs. Such tests are legal in Massachusetts, but a 2016 decision out of the Mass. Superior Court suggests that employers who screen applicants for non-safety-sensitive positions run the risk of being sued for an invasion of privacy. Accordingly, employers can reduce their risk of a privacy claim (and possible liability) by eliminating marijuana from the testing panel for non-safety-sensitive positions or even doing away with drug screens for such positions altogether.

“… employers who have drug-free workplace policies might consider issuing reminder notices to employees making clear that their policies apply to marijuana just like they do to alcohol, which is also legal.”

Finally, employers should be prepared to address requests by prospective and current employees to tolerate the use of marijuana as a reasonable accommodation for a disability. Last year, the Supreme Judicial Court ruled that Massachusetts employers have a legal obligation to accommodate a disabled employee’s off-site, off-duty use of medical marijuana, pursuant to a valid prescription, unless there is an “equally effective alternative” or the employer can demonstrate that the accommodation would be unduly burdensome.

The decision relied, in part, on the language of the medical marijuana law, which guarantees to registered users the continued benefit of all “rights and privileges.” But many disabled employees may choose to bypass the medical marijuana registration process when they are able to obtain the drug at a recreational shop, potentially at a lower cost, while avoiding the cost, time and potential stigma associated with becoming a registered medicinal user. Must these employees also be accommodated?

Technically, the SJC’s decision applies only to employees who have registered as part of the medical marijuana program. Additionally, both the legislature and the Cannabis Control Commission may seek to keep it that way. To be sure, it may not be such a good idea for doctors and other healthcare providers to be able to recommend marijuana as a treatment for a medical condition without going through the process that would enable them to actually prescribe the drug.

Further, it may be bad public policy to encourage disabled persons to self-medicate by using marijuana products that are designed for recreational use as medication. On the other hand, if an employee can demonstrate a disabling condition and the absence of an equally effective alternative to marijuana, allowing employers to deny the accommodation just because the employee obtained the drug at a recreational shop seems somewhat arbitrary.

Bottom Line

These competing considerations are not likely to be resolved all at once, and certainly not right away. So employees who do not want to risk becoming the test case should give some thought to the pros and cons of accommodating such employees and devise a strategy that makes the most sense for their unique business.

When in doubt, employers should consider retaining employment counsel to help them navigate these difficult and ever-changing legal issues.

Erica E. Flores is an attorney at the firm Skoler, Abbott & Presser, P.C.; (413) 737-4753 or [email protected]