Your Employee Matters

Have you audited your practices for these common wage and hour exposures?

1. Exempt vs. non-exempt. Have you classified your exempt employees properly or are you risking an overtime exposure?
2. Rest and meal period violations. Is the employee truly relieved from work and are your time-keeping clocks tracking meals accurately?
3. Travel time. Many workers who start from their home and then go to multiple locations fall under “portal-to-portal laws.”
4. 1099 misclassification. As indicated on the blog site, www.1099timebomb.com, this is a significant exposure. The IRS and state agencies are looking to find as many people as they can who are classified as employees.
5. Failure to pay prevailing wage. If you’re working a government or quasi-government project, make sure you’re complying with all wage requirements.

An article in the September/October 2010 Scientific American Mind discussed research that explains why multitasking doesn’t work. When test subjects had to deal with two activities, the brain divided the work between each hemisphere. The study explained this is precisely why people are notoriously poor at doing three or more things at a time. “After two tasks, we run out of hemispheres.”

OSHA conducts an annual evaluation of the 27 approved State Plan States each fiscal year. See how your state stacks up here.

A survey by Men’s Health magazine, asked 20 corporate bosses (including the likes of Mark Cuban, owner of the Dallas Mavericks) to rank which employee time-wasters upset them the most. Number one was “clicking out of a screen just as I walk by” (71.6%). When an employee did this to me, I chose not to confront him because I wanted to trust him. Stooopid! Turns out he was running his own business on my dime and failed to deposit required tax payments, which was part of his job. I should have addressed his actions immediately and placed monitoring software on his computer. Keeping employees honest is even harder when they’re on their iPhone or other smart-phone, rather than your computer. How can you monitor this? In fact, controlling today’s worker is a struggle you can’t and don’t want to “win.” The only alternative is to invite them into the conversation, set reasonable expectations, and create a culture of excellence in which employees police each other. Also, make sure that a third party is double-checking your books!

We’re seeing more teenagers than ever reporting sexual harassment cases. In New York State, a telemarketing company had to pay more than $500,000 in damages and interest to satisfy a claim brought by 13 women, most of whom were teenagers. The managers made numerous sexual jokes and remarks and, on occasion, promised a raise in return for sexual acts.

Because the company was an “affiliate franchise,” the franchisor argued that the affiliate was not part of the company. The Second U.S. Court of Appeals rejected this argument and affirmed the jury verdict, including an award of punitive damages.

Lesson to learn: Have managers and employees trained in sexual harassment issues and make sure they know where and how to complain. You might go one step further and distribute the Employee Compliance Survey.

What’s more, franchisors that traditionally have stayed away from employee relations to avoid “co-employment” liability will have to offer their franchisees HR training. This is both a legal and a competitive issue.

Measuring HR success isn’t easy. You can and should run your HR figures on the HR That Works Cost Calculator, a tool that will probably show the variance in your HR practices to be at least 10% of payroll. So, if you have $1 million in payroll, the variance will be at least $100,000. That’s one way of looking at HR dollars. Another approach is to determine “HR costs per employee.” These costs might include compensation, benefits, recruitment costs, outsourcing costs, as well as office space and equipment. Many companies will look at revenue per employee. Although this is certainly important, it also includes many variables that have nothing to do with HR effectiveness. For example, in a poor economy, revenue per employee will initially go down and then after cost-cutting, layoffs, etc., might well rise past previous levels. Consider what happened during the recent recession. Ultimately, the question remains, what information are you seeking and what will you to do with it? HR That Works members should review the Benchmarking Worksheet to generate some ideas.

In a case brought by the EEOC against the Fairbrook Medical Clinic, the plaintiff, Dr. Deborah Waechter, alleged four years of harassment by the sole owner of the family medical center in Hickory, NC. Apparently, the owner created a hostile work environment by routinely making vulgar and sexually explicit comments, repeatedly showing an X-ray of his torso; discussing his sex life, and telling Dr. Waechter’s patients that they could follow up with her when she “return[ed] from screwing.” There were also stupid comments about her breasts, and other rude behavior.

Interestingly, the company tried to defend itself by claiming that because the doctor was a jerk of a boss to all of his employees he didn’t discriminate against any of them.

However, most courts don’t buy this argument, especially if it involves gender-specific comments. The court held that even though the defendant was the plaintiff’s immediate supervisor and sole owner of the clinic, the HR manager and the office manager should have investigated the alleged misconduct. (In the real world, how can you punish your boss?)

My two cents: It’s important for business owners to understand that no matter the size of their company, they can face discrimination and sexual harassment claims at any time. Protect your business against any possible claim by making sure that you have EPL insurance.

On the other hand, I wonder why this professional woman continued to work in an environment where she was not treated properly for four years. The last time I looked, it was called work, not jail. Did she attempt to send out her resume during this time? Was she afraid that her skill set wasn’t good enough to get a job elsewhere? There’s a responsibility on her part, too.

A man once told me that his boss discriminated racially against him for three years. When I asked if he ever took his resume for a spin, he told me he had not. When I asked why he put up with the discriminatory conduct for as long as he did, he stated that “I didn’t want to leave the company because I loved playing on their softball team.” That’s how ridiculous some of these stories can get.

Click here to read the case.

An excellent article in the October 2010 Corporate Counsel magazine discussed mistakes executives continue to make using e-mail. The author offered these common-sense guidelines.

• Use company email accounts appropriately.
• Don’t e-mail inside jokes or nicknames for clients or employees.
• Don’t e-mail when angry.
• Don’t e-mail potential ammunition for opposing counsel.
• Avoid using such phrases as “Don’t tell them” or “They’ll never find out” in your e-mails.

This list is far from exhaustive. The article provides excellent job examples of how unwise e-mail conduct on the job has resulted in a significant exposure to the employer. Bear in mind that these guidelines also apply to using such social media as Facebook, LinkedIn, and YouTube. We encourage HR That Works users to examine our Electronic Use Policy, as well as the Social Media Policy.

Employers’ ability to monitor e-mails sent by employees at work is a hot topic being addressed by courts nationwide as privacy laws work to catch up with technology. In United States v. Szymuszkiewicz, the Seventh Circuit Court of Appeals provides a different perspective on this issue, finding that an IRS agent violated the Wiretap Act by secretly setting up his boss’s e-mail account to forward all received e-mail messages to his own account.

David Szymuszkiewicz worked as an IRS agent whose job required him to visit delinquent taxpayers’ homes. After losing his driver’s license for driving while drunk, he became concerned that he might lose his job and decided to secretly monitor all e-mails sent to his supervisor. The Wiretap Act makes it unlawful to “intercept” electronic communications. Szymuszkiewicz argued that he did not violate the Act because he did not intercept any communications during transmission as one might intercept a telephone call by tapping a phone line. The court rejected this argument, holding that an interception need not be contemporaneous and that Szymuskiewicz’s use of the auto-forward feature in Outlook met the statutory definition. The court also stated that its analysis applies equally to digitally transmitted telephone calls, which are sent in a manner similar to e-mail transmissions.

Although this decision offers a reason for caution, it does not mean that employers must abandon their existing communications policies. Courts have ruled that employers are not subject to liability under the Wiretap Act for monitoring employees suspected of violating company policy if the monitoring serves to protect the company’s “rights and property.” Employers also have a legitimate argument under the Act that they are not liable for monitoring employee communications if the monitoring occurs in connection with “an activity which is a necessary incident to the rendition of [the employer’s] service.”

Nevertheless, it’s wise to act carefully when monitoring employees’ electronic communications, because this area of the law is developing rapidly and the rules vary from jurisdiction to jurisdiction. Be sure to have up-to-date policies notifying employees that their communications may be stored, monitored and reviewed. You might also strongly consider requiring all employees to acknowledge such policies as a condition of employment.

Article courtesy of Worklaw® Network firm Franczek Radelet.

In Mitchell v. University Medical Center, Inc., the U.S. District Court for the Western District of Kentucky addressed a sensitive issue: The tension between an employer’s need to maintain a professional, harassment-free workplace and an employee’s right to voice her personal religious conviction on the job. The plaintiff, a staff nurse at the University Medical Center hospital, was a devout Christian. Based on her readings of the Bible, she believed that she had calculated the date for the end of the world or the coming of the Antichrist. She shared her calculations and revelations with co-workers. Several of her co-workers were uncomfortable with these conversations and reported them to a supervisor, who gave the plaintiff a verbal warning not to discuss religion at work or face discipline, up to and including termination. Upset about the meeting, the plaintiff resigned at the end of the day, and filed a religious discrimination claim against her employer.

The court decided in favor of the employer, ruling that although the plaintiff wanted the right to have religious conversations with co-workers, these conversations were offensive and troubling to them and violated the hospital’s harassment policies. The court noted that any accommodation of the plaintiff would necessarily infringe on the rights of other employees, and ruled that she could not establish a claim for disparate treatment because she failed to show that she received treatment different from that of other employees in similar situations. The Court reasoned that she was not treated differently because of her religion, but because of how her religious beliefs and actions affected others.

For guidelines on dealing with religious discrimination issues in the workplace, download the Religious Accomodation Flow Chart.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.