Three Steps Toward Creating a More Equitable Workplace for Brewery Staff

Over the course of the last year, Massachusetts Brewers Guild members have taken a head-on approach to addressing issues of gender, equity, diversity, and inclusion in the workplace.  The industry has committed itself to better hiring practices through the Hop Forward Equality program, and a number of individual brewers have addressed issues of pay equity, workplace behavior, and social media communications in an effort to create a more welcoming environment - from the brew floor to the tap room.

These steps can make a real difference but getting started can also pose a challenge for the small businessperson.  Here are three concrete steps that a craft brewer can take right now to protect workers, protect the business, and create a more welcoming and equitable brewery for all.

Adopt a Sexual Harassment Policy and Train Your Employees

Last month’s Tap Talk featured guidance on HR for the Massachusetts Brewer that broke down legal compliance issues for growing companies.  A number of legal obligations take effect with six or more employees, including the Mas­sachusetts Fair Employment Practices Act (Mass. Gen. Laws Chapter 151B).  Chapter 151B prohibits workplace discrimination, harassment, and retaliation on the basis of race, color, religion, national origin, sex, ancestry, age, sexual orientation, veteran’s status, genetic information, or disability, and requires employers to adopt a sexual harassment policy. The policy must be provided to new employees and an­nually to all employees. The Massachusetts Commission Against Discrimination (MCAD), which enforces Chapter 151B requirements, publishes a model policy that companies can use as a baseline to consider when implementing a policy.

The most effective policies are those that people know about and know how to apply – which is why the Commonwealth also strongly urges employers to conduct sexual harassment training.  MCAD provides training for a fee; alternatively, private law firms, consultants and human resources providers can also develop and implement a custom training to suit your workers and supervisors.  

Pro Tip:  Brewers should also consult with their insurer for free or reduced-rate resources provided by their carrier – many insurers partner with online resources or subsidize in-person training resources for subscribers.   

Adopt a Respectful Workplace Policy

Sometimes also referred to as a Code of Ethics, brewers can be proactive and adopt a respectful workplace policy to better inform employees about individual rights and responsibilities in the workplace. The Society for Human Resource Management (SHRM, pronounced “sherm”) offers a respectful workplace policy template (Note: the link will open a Word document) that brewers can use as a template to develop their own policy.

Here are a few practical considerations when developing a policy:

·      Involve your employees. Create a committee of managers, owners, and workers to review, develop and implement the policy.

·      Mutual definitions. Create and adapt terms that suit your workplace: the back office, the tap room and the brewery floor are different places.  Take locations and working conditions into account when creating norms for your operation.

·      Define What is and is not Acceptable.  Work with your employees to develop a shared understanding of acceptable behavior in the workplace.

·      Make Management and Worker Responsibilities Clear.  Accountability for workplace behavior requires everyone to understand how they will be held responsible for their actions.

·      Hold People Accountable.  Create a simple investigatory procedure for complaints and take appropriate disciplinary actions against those found responsible for violations of the policy.

·      Train, train, train.  Taking steps to periodically refresh managers and workers about expectations for the workplace can assure that your shared efforts to define acceptable behavior and hold individuals accountable can be understood and consistently applied.

Pro Tip: Your insurer may also provide help in developing a respectful workplace policy, and you may be able to keep costs down by engaging with a consultant to develop and train on sexual harassment and respectful workplace policies in tandem.

Conduct a Pay Equity Audit

Since 1945, Massachusetts has led the nation on issues of gender-based pay equity with its Equal Pay Act (“MEPA,” Mass. Gen. Laws Chapter 149, section 105A).  The Legislature updated MEPA in 2018 in an effort to close the wage gap between men and women at work.  MEPA limits the criteria that employers may use to differentiate between worker pay to the following:

·      Seniority

·      Merit

·      Productivity

·      Location

·      Job-related education, training, or experience; or

·      Travel.

Importantly, the law does not take an employee’s salary history into account when determining pay equity in a workplace, and an employer may still be held liable for discriminatory pay practices even if it did not intend to discriminate on the basis of gender.  Employers should also refrain from asking about an individual’s salary history during the hiring process, and an employer should never prohibit discussion of wages in the workplace.

Protecting your business from a gender-based wage claim is important because MEPA violations can result in damages equal to double the difference in wages plus plaintiff’s attorney’s fees and court costs.  Employees have three years to file a claim and can do so through the Attorney General or by filing a claim at the MCAD or through the courts.   

So, what can you do?  MEPA does not require Massachusetts employers to conduct a self-audit on pay practices, but employers may create a defense against any future claims by doing so.  Under the law, employers that choose to audit their pay practices should do so once every three years, and the employer should take reasonable steps toward eliminating any impermissible gender-based wage gaps revealed by the audit.   

The Attorney General has published guidance on MEPA, which includes directions for employers to conduct self-evaluation of pay practices (see page 20, Appendix A).  The self-evaluation guide includes a simple pay calculation tool that can be used to establish wage equity within a workplace.  This tool can be useful in small workplaces, but a more complex calculation may be necessary in a larger workforce.  A number of consultants have created a specialized practice to assist with complex pay equity calculations.

Pro tip:  Brewers should consider using legal counsel to conduct the self-evaluation of pay practices.  By conducting an audit at the direction of a lawyer (who may, in turn, use consultants with wage expertise), the employer gains the protection of attorney-client privilege.  For an employer seeking to evaluate and, if necessary, address pay inequities: an audit can provide an actionable baseline for creating a plan to address any identified inequities.  However, such audits are not necessarily a defense under the federal Equal Pay Act or claims made under Title VII of the Civil Rights Act of 1964 (which protects individuals from discrimination in the workplace).  Attorney-client privilege can offer additional protection from unanticipated claims.

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Creating a more equitable workplace takes effort, but these simple steps can go a long way toward demonstrating a commitment to support and fairness for your employees.

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This “Tap Talk” was written by MBG member and Principal of Fenway Law LLC Michael Loconto.