Happy Memorial Day

Happy Memorial Day! For many, this is a day to honor fallen soldiers and also a time to get ready for summer.

Have you done the following?

• Sunscreen?
• Summer reading list?
• Pay Equity Audit?
• Midyear handbook and diagnostic workplace audit?

If you answered “No” to any one of these questions, we can help!  Read on.

SUNSCREEN

It is outside our wheelhouse but we do like to be helpful.  See the latest list from Consumer Reports. http://www.consumerreports.org/sun-protection/get-the-best-sun-protection/

PAY EQUITY

In 2016 alone, California, New York, Nebraska, Maryland and Massachusetts passed aggressive equal pay legislation. If you are not in this group, the EEOC’s proposed expansion to the EEO-1 reports means more pay data will be required from federal contractors and employers with more than 100 employees.

Do I Need to Buy More Software?

Absolutely not.  By now you may have seen software solicitations touting the importance of statistical analysis to comply with pay equity. Beware.  Sizes matters: unless an employer has a significant number of employees performing the same role and a statistically significant amount are women, a statistical analysis will not produce reliable results. Most of our clients should perform a cohort analysis, which better compares the factors affecting pay.

Why Should I Use Your Pay Equity Audit?  

By partnering with an attorney, the process is protected by the attorney-client privilege. Any pay equity found will be kept strictly confidential.  Moreover, in Massachusetts you create a rolling affirmative defense by conducting an evaluation of pay practices if it is completed within three years prior to the commencement of a wage discrimination claim. We have developed an effective and painless Pay Equity Audit to achieve compliance and create an affirmative defense.

Why Now? 

The effective date of the MA Pay Equity Law is July 1, 2018.  Many of you are planning for 2018 in your budgets and hiring. Include Pay Equity in that list to be compliant and create the rolling affirmative defense against any future claims.

SUMMER READING

Software slamming aside, Bill Gates is a pretty smart guy.  His summer reading list looks terrific.  Check it out!  https://www.gatesnotes.com/About-Bill-Gates/Summer-Books-2017?WT.mc_id=05_22_2017_10_SummerBooks2017_BG-media_&WT.tsrc=BGmedia

 

MIDYEAR HANDBOOK AND DIAGNOSTIC AUDIT

Probably not high on your reading list but terribly important is your employee handbook.  When is the last time you read it? We recommend that you review and update your handbook on an annual basis. Now is a particularly good time given the many local and state law updates.  Marijuana, equal pay, paid family leave, sick leave—many changes have taken place that are probably not properly addressed in your handbook.

Why Worry about the Handbook?

A well-crafted handbook serves many valuable purposes:

• Define the culture of your business
• Set expectations
• Inform employees of compensation, benefits and rules
• Provide a clear avenue for dispute resolution, a critical road map for staff

Your Handbook are a valuable tool for you and an important resource for employees.

 

What is the Diagnostic Audit?

The Risk Management Diagnostic Audit is a tool we have developed to allow you to identify and respond to the compliance risks at your workplace. This audit targets your organization’s unique vulnerability and provides action items to put you on the path to compliance.  Please check out our website or call 508-548-4888 for the steps and timelines for this popular service. http://www.foleylawpractice.com/diagnostic-compliance-audit.html

Enjoy the long weekend!

Contact us at 508-548-4888 or info@foleylawpractice.com

 

 

 

Why Many Executive Orders are Hot Air

On May 4, 2017, President Trump signed an Executive Order Promoting Free Speech and Religious Liberty.  Could this order allow discrimination against LGBTQ individuals and women, as feared?   Will this impact the workplace? No. Here is the line to remember: Existing laws cannot be overturned by Executive Orders.

Let’s take a look at this Order as a good example. The portion of the Order that pertains to Federal law is:

_Sec_. _4_. _Religious Liberty Guidance_. In order to guide all agencies in complying with relevant Federal law, the Attorney General shall, as appropriate, issue guidance interpreting religious liberty protections in Federal law.

Attorney General Jeff Sessions can issue guidance until the cows come home: The US Equal Employment Opportunity Commission (EEOC) does not answer to him.  The EEOC is an independent federal agency charged with enforcing federal laws against illegal discrimination in the workplace. Laws like the ADA, ADEA, FLSA, FMLA and Title VII are under the purview of the EEOC for enforcement and guidance. Congress may make changes to the laws and the courts can overrule, clarify or uphold the laws.

Executive Orders might be good optics but cannot impact the rule of federal. state or local law in the workplace.

MA Wage Act is mightier than your commission plan

 

Last month, a Massachusetts US District Court judge held that a former employee who quit was still eligible for $32,000 in sales commissions despite a commission plan that provided otherwise.  (Israel v. Voya Institutional Plan Services, LLCI)  Voya’s commission plan specifically stated that an employee who resigns is not eligible for further commission payments.  The plan was clear and on point.  How did the judge get to yes on the commission?

Voya’s plan could not override the Wage Act requirement that sales commissions be paid promptly once the amount is “definitely determined”–at that point the commission becomes “due and payable.” The judge distinguished a sales commission, as a share of sales revenue generated by an employee, from other types of variable compensation– like a bonus.  Because the amount of commission was known and earned based on sales, it fell under the Wage Act’s strict payment requirements.

Massachusetts employers who provide commissions as part of their pay structure are advised to review their commission plans in light of this decision.  As we all know, the MA Wage Act, with its costly provisions for damages and attorney’s fees, is not to be taken lightly.

This is Your Brain on Conflict: Deconstructing Conflict in the Workplace

I spend my days providing virtual in-house employment counsel to companies all over the United States. My position allows me to observe work-place conflict across a wide range of industries and geographical locations. While most of the questions I field relate to compliance with employment laws, they also relate to something much more basic – fear of conflict.

Conflict Avoidance

Conflict is disagreement, but contrary to popular belief conflict does not always involve fighting. Conflict exists in any situation where facts, needs or fears pull people in divergent directions. When the disagreement is unpleasant, conflict elicits stress, which is a basic self-defense mechanism. According to Joshua Gowin, PhD, stress tells our brains one of two things: I’m hurt, or I’m about to be hurt. If we believe we’ve been hurt, we release adrenaline within seconds and cortisol within minutes, which causes us to become impulsive. Ever send that panicked email you instantly regretted? You can thank the one-two punch of adrenaline and cortisol for that. Moreover, even stress over an anticipated conflict activates our stress response, leading to that sick feeling that something bad is about to happen. We experience this anticipative stress in most long-term conflicts with peers; we worry about some harmful outcome that might happen—or not. The danger with stress caused by both immediate and anticipated conflict is that the worry itself can cause as much harm as the outcome – while you’re stressing over what might happen, your body is releasing adrenaline and cortisol as if you are actually in danger.

When stress lingers, cortisol levels remain chronically high. Chronically elevated cortisol levels are a telltale mark of depression, anxiety, and post-traumatic stress disorder (PTSD). It is also a hallmark of burnout. 

Cortisol, like many hormones, has an optimum range, and too much is a problem. When stress lingers, cortisol levels remain chronically high. Chronically elevated cortisol levels are a telltale mark of depression, anxiety, and post-traumatic stress disorder (PTSD). It is also a hallmark of burnout.

This physiological response explains why we avoid perceived conflict – it isn’t pleasant. However, while it’s human nature to avoid uncomfortable conflict with others, that tactic won’t work in the long term, particularly in the workplace.

Workplace conflict isn’t limited to the problem employee who can’t get along with anyone in the department. In my experience, conflict shows up all over the workplace, and even small conflicts are often a symptom of larger problems. Unfortunately, avoiding uncomfortable conflict can be costly. According to Joseph Grenny of VitalSmarts, every unaddressed conflict wastes about eight hours of company time in gossip and other unproductive activities. Additionally, conflict avoidance can lead managers and HR to ignore important workplace compliance issues. In short, conflict avoidance, is a compliance-killer.

I firmly believe in building a culture of compliance, where organizations understand that at their root, employment laws are about treating employees well. A good place to start in building a culture of compliance is to understand that even though people often shy away from it, conflict is actually normal and healthy. In fact, healthy conflict is arguably a vital ingredient to organizational success. Experts have found that the most effective teams are those in which members feel safe enough to disagree with one another. A culture where dissent is allowed, or even encouraged, can spur innovation, diversity of thought and better decision-making.

In other words, conflict can be a good thing, and avoidance and procrastination are the real problems.