Workers’ Compensation

Massachusetts Strengthens Its Equal Pay Act
News Brief
OSHA Reporting Deadline Delayed

 

The Massachusetts Equal Pay Act (MEPA), passed in 1945, was the first state law of its kind. But it hasn’t provided enough detail to be useful to employees or stiff enough penalties to be compelling for employers. The amendments to MEPA, which take effect July 1, 2018, make the law significantly more relevant.

 

Equal Pay for Equal Work
Under the updated MEPA, employers are prohibited from paying employees who do “comparable work” different wages because of sex. Wages include all forms of compensation, including benefits. Comparable work is work that involves substantially similar skill, effort, and responsibility and is performed under similar working conditions. Employees who do comparable work may not necessarily have the same duties or even be in the same department.

 

Acceptable Reasons for Pay Differentials
The only acceptable reasons for a pay differential between employees of different sexes who do comparable work are the following:

  • A seniority system (time missed because of pregnancy or protected parental, family, or medical leave may not reduce seniority);
  • A merit system;
  • A system that measures earnings by quantity or quality of production, sales, or revenue;
  • The geographic location in which a job is performed;
  • Education, training, or experience—to the extent such factors are reasonably related to the job;
  • Travel that is a regular and necessary condition of the job.
  • Note that there is no catch-all provision, such as “or any other factor not related to sex.” Employers should ensure that differentials can be fully explained by one or more factors from this six-point list.

 

Salary History Inquiry Ban
The law makes it illegal for employers to ask an applicant about their salary history until an offer of employment that includes compensation has been made. If an applicant volunteers their salary history, an employer may verify it, but employers should not in any way encourage candidates to disclose this information. Salary history is not an acceptable reason for a pay differential.

Discussion of Wages Must Be Allowed
MEPA bans pay secrecy practices and policies, such as blanket prohibitions on discussing wages or assertions that wages are confidential.

 

An employee’s right to discuss their wages is protected federally by Section 7 of the National Labor Relations Act, although it only applies to non-management and requires that employees are acting together to improve their wages. The Massachusetts law, however, applies to all employees and does not require any group action. For instance, under MEPA, a middle manager may go to their supervisor and inquire about the wages of the CFO, their peers, or their subordinates simply because they are curious on their own behalf. They may also discuss their own wages with whomever they like, as well as the wages of other employees who shared that information with them freely.

 

The law does not require that an employer (or other employees) provide an employee with the requested wage information, but it does prohibit any adverse action or retaliation against an employee for asking.

Self-Evaluation and Remediation as a Defense
Employers will have an affirmative defense under the law if they have undertaken a good faith self-evaluation within the last three years and can show that reasonable progress has been made toward eliminating any pay discrepancies. The self-evaluation must be of reasonable detail and scope.

 

Action Items

  • Conduct a self-evaluation. Assess your overall pay structure, pay bands for job groups, and individual wages. Focus on whether differences in pay can be fully and reasonably explained by the six factors allowed under MEPA, and if they cannot, make adjustments.
  • Be aware that you cannot lower the compensation of one or more employees to equalize pay.
  • Remove any policies related to pay secrecy from handbooks, confidentiality policies, and offer letters, and ensure that those with the authority to discipline are aware of the protections provided by the law.
  • Train anyone involved in the interview process to steer clear of salary history questions.
  • Ensure that your application forms don’t ask for salary history. We have a compliant application available in the HR Support Center, which you can find by using the search bar and typing in Employment Application.
  • For additional information, guidance on performing a self-evaluation, and a policy-and-practices checklist, bookmark or download this guide from the Massachusetts Attorney General.

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The HR Support Center News Update

Content Spotlight
Preventing Sexual Harassment in the Workplace

 

Last year, nearly 27,000 charges of sexual harassment were filed with the Equal Employment Opportunity Commission (EEOC). This number doesn’t include charges filed with state and local agencies or situations where employees went directly to an attorney, and many employees who are victims of sexual harassment or are affected by it never report the incidents at all.

Victims and witnesses of harassment often refrain from reporting because the harasser has the power to retaliate or because the organization has not set up adequate channels for reporting. In other cases, victims report the harassment, but nothing is done about it. The harassment is excused, and the complaints are rebuffed. Word gets around that the organization tolerates harassment, and people cease reporting it internally. They either keep quiet, file charges with a governmental agency, or seek out an attorney.

None of these outcomes is good for employers or for the people they employ. If litigation ensues, harassment can cost employers hundreds of thousands of dollars—millions even, if harassment is pervasive in the company culture. And when harassment continues unabated, victims suffer physically and psychologically and often see their careers stifled. Needless to say, the workplace should be a safe and secure place, and it’s the employer’s responsibility to make it that way. No one can prevent all harassment from happening, but employers can and should do everything in their power to prevent harassment and appropriately respond when it occurs. Training employees on what constitutes harassment and how to respond to it is a good and necessary first step, but employers also need to establish multiple options for reporting, investigate allegations promptly and thoroughly, and take appropriate steps to discipline violators.

The EEOC recommends these additional preventive measures:

  • Make an organizational commitment to diversity, inclusion, and respect—and establish policies and procedures to hold people accountable to that commitment.
  • Empower those who are responsible for responding to allegations of harassment and preventing harassment from occurring.
  • Establish a sense of urgency and seriousness about prevention by spending appropriate amounts of time and money on training or other prevention and response activities.
  • Survey employees on whether they’re currently being harassed or know of harassment taking place.
  • Avoid rewarding managers for minimum complaints on their team, as doing so could incentivize the suppression of reporting.
  • Protect people from retaliation.
  • Assess risk factors.
  • Assess preventative measures already in place to ensure they are effective.
  • Clarify what behavior is prohibited.
  • Use discipline proportional to the offense (sexual assault and an offhand remark shouldn’t necessarily have the same consequence).

No one can prevent all harassment from happening, but employers can and should do everything in their power to prevent harassment and appropriately respond when it occurs.”

For any of these measures to work, employees need to know that if they report harassment, their report will be taken seriously, they’ll be protected from retaliation, and the harassment will stop. In short, they need to trust their employer. Consequently, anything an employer does to foster distrust will make anti-harassment measures much less effective. When it comes to preventing harassment, employers cannot say one thing and do another. Honesty and accountability are key. Trust can take time to build, but it can be lost in a moment.

For additional information on harassment prevention and response in the workplace, check out the Anti-Harassment Policy Checklist, the Harassment Investigation Guide, and the Workplace Harassment Training On-Demand (and many other resources)—all available any time you need them. Log into  the HR Support Center today!

Employment Law

Did You Know?

We’re often asked whether the pay of exempt employees can be reduced if they work less than 40 hours in a week. And the answer is almost always no.

The very idea of the overtime exemption, at least in the case of White Collar employees, is that you are paying them to complete important tasks that require use of their own discretion and are less (or not at all) time-clock-sensitive. You pay them more than the bare minimum and can expect more than the bare minimum in terms of time commitment. But if they can complete their tasks in less than 40 hours – because they have used their discretion well – that’s okay too.

However, there are situations where a pay deduction is allowable:

  • When they are absent from work for one or more full days for personal reasons other than sickness or disability;
  • When an exempt employee is absent for one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide sick leave plan (5+ paid days are offered per year, plus additional requirements);
  • To offset amounts received as witness or jury fees, or for military pay.
  • If an employee is absent, but their time away doesn’t fit into one of the scenarios above, such as a partial day absence for personal reasons or sickness, you may reduce the hours in the employee’s PTO, vacation, or sick leave bank – but only if your policy says you will do that. And if the employee has used up all the hours in their bank already, you must still pay their full salary.

    Check out the HR Support Center to learn more. We have numerous 2-Minute HR Trainings on the White Collar Exemptions, as well as a new training on Exempt Employee Payroll Deductions. We also have a “Safe Harbor Deduction” policy in the Policy Library, which can offer some legal protection if added to your handbook and followed by management.

Employee Relations

Why Paid Sick Leave Is Becoming More Popular

We’ve all seen it—one of our employees has a bad cold, maybe even the flu, but they come to work anyway. In some cases, the employee has the option of taking time off, and you’d prefer they do so, but still they show up, putting everyone in the workplace at risk. The reasons vary. Sometimes the employee can’t afford the reduced hours. Sometimes they can take the financial hit, but they’re worried about falling behind on their projects, missing an important meeting, or looking bad next to their co-workers who never seem to take a day off.

Some employers encourage sick employees to stay home and rest. To that end, they offer paid sick or personal time so that employees who already feel lousy don’t have to suffer the stress of a smaller paycheck. While paid leave doesn’t work 100% to keep sick employees home, it helps.

In fact, more and more states have passed laws requiring it. In 2011, Connecticut became the first state to pass a paid sick leave law. Now, a total of ten states plus Washington D.C. require at least some employers to provide paid sick leave; these are Arizona, California, Connecticut, Maryland, Massachusetts, New Jersey, Oregon, Rhode Island, Vermont, and Washington. And many cities have their own, typically more generous ordinances.

The paid sick leave laws passed so far share some common elements. Employers are typically required to offer an hour of paid sick leave for a certain number of hours worked per week (usually 30 or 40). Every state-mandated paid sick leave law requires employees to be able to use paid sick leave to care for a family member, and most allow the time to be used in case of domestic or sexual violence. The laws vary most—though still not dramatically—with respect to which employees are eligible and when, and what kind of documentation can be required to prove that employees used the leave for a permissible purpose.

Currently, eighteen states have pending sick leave bills, but we don’t know how many, if any, will soon pass. If a paid sick leave law is enacted in your state, we recommend taking the following steps:

  • Review all leave policies for compliance. While these laws will generally allow you to keep a current policy as long as it is at least as generous as required by the state law, you will need to comply with the various notice and recordkeeping requirements as well.
  • Decide whether lumping vacation, personal, and sick leave together would be better for your organization and, if applicable, for which specific employee groups (you may want a lump sum policy for full-time employees and an hour-by-hour accrual system for part-timers).
  • Determine which employees work in places with paid sick leave laws and consider whether a one-size-fits-all policy or location-specific policies would be better.
  • Confirm that usage terms, accrual, coverage, carry-over, and any vesting rules meet minimum requirements.
  • Review the employee notice; the law may require a poster, written policy, notice on employee paystubs of time accrued, or all of those.
  • Update your handbook and distribute it to employees.

What It Means to Build a Team

It would be nice if building an efficient and productive team required no more than hiring skilled workers with agreeable personalities. Unfortunately, teams don’t work that way. Like any successful relationship, team relationships take thought, effort, and compromise. Each person has their own manner of doing things, their own preferences, their own values, and their own strengths and weaknesses. One member of a team might value deadlines and prefer to get work done in a timely fashion. Another might value quality over speed and prefer to take extra time to get things right. If these differences are not acknowledged and addressed, conflict and frustration inevitably ensue.

The purpose of team building is to get the people on a team to work well together. More specifically, team building teaches team members about one another so that their differences serve as a basis for collaboration and innovation instead of conflict and frustration. It’s okay to have social events without much formality or structure, but more structured activities will get you closer to your goal.

Knowing What Activities Are Best for Your Team

When you plan a team-building activity, first take note of who the people are on the team. You’ll want them engaged in a task that brings out their individual work preferences, habits, values, and strengths. Teams with money to spend might opt to participate in some professionally organized game in which their behaviors are observed, but you don’t need expensive, elaborate set-ups to see and assess your team in action. You could have them design a fun, informational poster about their team, discuss what superpower would be most beneficial for their job, plan a ten-minute tour of your workplace, or collectively role-play their response to an upset customer.

It’s important, however, that the activity not be part of their work. Employees doing work need to focus on getting the work done and doing it well, not on getting to know one another. Work has its own purpose. Treating work itself like a team-building exercise would be like treating a performance as if it were a practice.

Giving Purpose to Your Team-Building Activities

When the team members are engaged in a team building task, pay attention to the behavior of each person. What differences are at play? Has someone tried to do all the work themselves? Is anyone keeping a close eye on the time remaining to complete the task? Is someone delegating? Is anyone raising objections to what’s been proposed or what’s being done?

When the task is done, you will all have seen the different ways that each person behaved. Now it’s time to discuss those differences. Ask each team member to explain why they did what they did. Then ask them what they learned about one another. Finally, have them discuss ways in which their differences could be beneficial or harmful to their work as a team.

After you’ve talked through their behaviors and your team members better understand one another, it may be time to make some changes based on what you’ve learned. Let’s say you had someone who took it upon themselves to monitor the team’s progress with a constant eye on the clock. This person may have underutilized project management skills. Perhaps they would be good at keeping the team on track with various projects. Or suppose a member of your team displayed creative thinking and problem-solving skills you had no idea existed, perhaps because their job duties don’t typically require those skills. Consider how those skills could be used within the team. What workflows make the most sense given everyone’s strengths and weaknesses? What conflicts exist on the team? In what ways could they be resolved?

Making It a Team Effort

The best team building, though, doesn’t come from on high. If you try to impose new workflows on a team that require them to be more collaborative, and the members of the team don’t want to collaborate more, you’ll get pushback and likely make the team function more poorly. Forced to work together more, they’ll argue more about the way they want to do things.

Before team-building efforts can be successful, the workers on a team must want those efforts to be successful. They need to be willing to disagree and debate in good faith, compromise when needed, and balance out one another’s skills. A proven way to engage employees in team building: put them in charge of it. Let them plan their team-building activities and decide how best to incorporate what they learn into their workflows. Give them the freedom to be creative and build up one another. Trust them and encourage them to trust one another. After all, team building must be a team effort.

Assessing Success

Any team-building effort requires time and resources. In other words, you’re paying for it. You therefore should be able to determine whether such efforts were worth the cost. A vague feeling of improvement is not sufficient – especially not when the fruits of team building can be measured. Before, during, and after team-building activities, you should be recording and analyzing metrics pertaining to team efficiency and productivity. Did the team meet its goals? Look at the key performance indicators that make sense for your team. Production, morale, and retention are good figures to examine. Definitely measure whether the team has been able to get more work done in less time.

Keep an eye on the numbers, account for other variables, and be willing to try new team-building activities or rethink your team-building strategy.

Making it Happen

Before you get started, remember that you’re not just building any team, but the team you have. Your goal is to help the people on this team understand one another better so they’ll be better able to collaborate. So, begin by considering what you already know about your team and brainstorming activities that will require their collaboration, communication, and compromise. When they do these activities, observe their behavior and discuss it with them afterwards. If you learn anything that could improve the team’s workflow, consider giving it a try, and then pay attention to the team’s performance metrics in the weeks that follow.