Your Employee Matters

The Alabama Federal District Court case, Reeves v. CH Robinson Worldwide, offers a significant guide to sexual harassment workplace issues. Plaintiff Ingrid Reeves began working as a transportation sales rep in the company’s office. She was the only woman. Reeves alleged that sexually offensive language permeated her work environment every day (To read a complete collection of crude language, review the facts of the case). This rude behavior continued despite complaints to co-workers and management. What’s more, an offensive radio program played in the workplace every day.

Reeves resigned and filed a complaint alleging that the sexually offensive language and radio show created a hostile work environment that violated Title VII. The trial court entered a summary judgment for the company on the grounds that because men and women were subject to the same language, the harassment was not “based on” Reeves’ sex

She appealed, claiming that simply because she was not the target of the harassing language did not determine whether there was a hostile work environment. The appellate court agreed, ruling that “sex-specific profanity” is more degrading to women than men, and that a workplace permeated with discriminatory intimidation, ridicule, and insult satisfied the “based-on”� element required to support a sexual harassment hostile environment case. The court based this conclusion in part on parallels with race discrimination cases.

After analyzing the frequency and severity of the problem, the court held that the evidence provided could lead a reasonable jury to believe that the harassing conduct need not tangibly affect an employee’s job performance to be actionable. The court added that, “Ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing does not satisfy the severe or pervasive element required for a claim.”

Lesson learned: Beware of employees entering a traditionally male or female role at your company. Once this happens, the rules do in fact change!

To read the case, click here.

An extensive survey of more than 4,000 low-wage workers in Los Angeles, Chicago, and New York City by the National Employment Law Project (NELP) reached these conclusions:

• More than one in four workers surveyed (26%) were paid less than minimum wage.
• Among these workers, 16% were underpaid by more than one dollar per hour.
• More than three in four (76%) workers who worked overtime were not paid for their time. The average worker had put in 11 hours that were either underpaid or not paid at all.
• Women and foreign-born workers were victimized more than anyone else.
• The average wage theft was 15% of earnings.

Additional violation categories included:

• Off-the-clock
• Meal breaks
• Pay stubs
• Illegal deductions
• Tips
• Illegal employer retaliation
• Workers Compensation violations

It is hard to balance this economic suffering with the fact some executives are making tens of millions of dollars during a failing economy. You don’t have to be of any political persuasion to realize that something’s out of whack. Not only do these employers deprive good people of a fair day’s pay, they’re also at war with companies who strive to grow their business the right way; perhaps even going above the call and actually empowering their workers rather than oppressing them. If we can fight overseas to assure basic human rights, we should be able to do the same here.

For more information on the survey, click here.

Effective human resource or other executives must be able to communicate to an executive group, a prospective employee, or business partner. To make sure that you’re communicating effectively, follow these guidelines:

• Tell a story. People love stories. Stories have a beginning, middle, and end.
• Don’t engage in death by PowerPoint. Too many presenters overwhelm their audience with far too much information in their PowerPoint. It’s called PowerPoint, not PowerParagraph. Don’t have more than three bullet points on any slide. Don’t use entire sentences, just a snapshot of the point to be made. Even better, see how just one picture can express many words. An excellent book to consider is Presentation Zen by Garr Reynolds.
• Begin logically and end emotionally. Move from the left side of the brain to the right side. Give people powerful information and the emotional why� for applying it.
• Less is more. Sometimes it’s better to communicate from a single page of bullet points than from an extensive handout. You can always make more information available later on.
• Ask powerful questions. What can you ask that would be thought provoking? What questions keep your audience up at night? What questions will develop a rapport with your audience immediately?
• Get feedback regularly. Be sure that your audience understands your point. Do they agree with you? For example, after making a point, superstar presenter Tony Robbins will ask the audience to say “Ay”in unison to help reinforce the point just made.
• Wrap it up with action items. Identify the actions that you and your audience should take next. Give them a form or checklist to apply the information shared in your presentation.

Follow these presentation essentials and you too will do a great job of communication.

To learn more about presentations, see our Form of the Month: Powerful Presentation Techniques.

To help protect yourself against discrimination claims in the hiring process, we recommend that employers answer these questions developed by the California Case Analysis Manual:

Discrimination

Did the respondent fail to select the complainant because of the complainant’s protected status (race, sex, etc.)?

Relevant Questions:

• Did the adverse action (failure to select) actually happen?
• Is the respondent’s claim that the complainant is less qualified than the person selected accurate?
• Is any other rebuttal asserted by the respondent valid?
  • Is the respondent’s reason for not selecting the complainant factually accurate?
  • How did the respondent treat others in a similar situation as the complainant?
• Does the respondent’s application of its pre-selection procedures to similarly situated persons indicate that the failure to select occurred because of the complainant’s protected status?
• Does the relevant statistical pattern indicate that the failure to select occurred because of the complainant’s protected status?
• Is there any direct evidence to link the failure to select to the complainant’s protected status?
• Is there any anecdotal evidence to link the failure to select to the complainant’s protected status?

I recently finished the Positive Discipline for Parents course by Jane Nelsen. I would recommend this program to any parent. I’ve already raised two sons who are great young men at 29 and 31. Now I’m blessed with an eight year-old and I remain motivated to be a great parent.

Having “been there and done that” just isn’t good enough. Odds are, by listening to the discipline course and applying it, I’ll become that much better.

Much of the course centers on leadership and discipline. We’re instructed to be “kind, but firm,” to focus on encouragement and engagement rather than punishment or reward. Finally, we learn how to deal with poor behavior: How to react or more importantly, how not to react to create promises, mutual agendas, and consequences.

Here’s a fact: There’s no substitute for continually improving yourself as a parent, executive, manager, or employee!

I know every one of you is running 75 miles per hour. Trust me, I run pretty hard too, but I’ve learned that when I take care of myself and feed my body, mind, and spirit, I become a far more energetic, effective, and likeable person.

In the end, the greatest discipline must be to doing my best, all the time.

RETENTION PROGRAM POSSIBILITIES SPREADSHEET
(PDF)

Use the time-tested marketing formula: Cost, ease, and impact to ask yourself, “What’s the cost of this item, how easy is it to implement, and what’s the bottom line impact?”

HR That Works Members can also access this document in Word format by logging on to the site

The Department of Labor has done a good job of improving its Web site. Here are the top questions employees are asking the DOL. Make sure you know how to answer them!

• What is the current status of COBRA premium reductions under ARRA?
• When is overtime due?
• When must breaks and meal periods be given?
• How are vacation pay, sick pay, and holiday pay computed and when are they due?
• What is the minimum wage?
• If an employee suffers an illness and the doctor writes a medical certification that the employee is sick, who pays for this sick leave?
• What is ERISA?
• More Frequently Asked Questions

To get an idea of the types of cases being pursued by the EEOC, click here.

They have been busy, for example issuing 20 press releases on Sept 30, 2009 alone!

Although many employers might believe that the Employee Free Choice Act (EFCA) is dead, it isn’t. As with many other legislative initiatives, Congress pushed EFCA aside to focus on two other major pieces of legislation: Health care reform and cap-and-trade. Although EFCA appears headed for some compromise, it remains organized labor’s top legislative priority and a major objective for the Administration and Congressional Democrats.

EFCA was introduced in the Senate (S. 560) and House of Representatives (H.R. 1409) in March 2009. Since there were more than enough votes to pass it in the House, the focus of debate was in the Senate, where 60 votes are needed for cloture. Last spring and summer, a number of conservative Democrats expressed concern over a union’s ability to organize an employer without a secret ballot election. This is the so-called card check provision, which would force an employer to recognize and bargain with a union if a majority of employees in the bargaining unit sign cards supporting it. The opposition to card check by five or six Democratic Senators, together with the focus on health care reform and energy legislation stymied EFCA’s passage, which many commentators had thought would happen by the August recess.

Unfortunately for employers, it would appear that EFCA has been waylaid, but not forgotten. Although unions still are pushing for a bill which includes card check, a group of Senators, including Senators Brown (D-Ohio), Carper (D-Delaware), Harken (D-Iowa), Prior (D-Ark.), Schumer (D-N.Y.) and Specter (D-Pa.), have been working on a compromise, which they reportedly “think will bring 60 votes for cloture.� Indeed, Senator Specter reported the existence of such a compromise to AFL-CIO convention delegates in September.

Although the details are still sketchy, what appears to be emerging is a bill that would replace card check� with a quickie� election. Employers now normally have 42 days from the date a petition is filed with the NLRB to the date of the election to run a campaign. This period reportedly would be changed to just seven days under the compromise, which in most instances won’t be enough time to run an effective campaign. For sake of comparison, unions usually win a little over 50% of the elections in the U.S. (but only about 30% where the employer mounts a strong campaign opposing the union), compared with a win rate of more than 70% in the Canadian Provinces of Ontario and British Columbia, which require elections within five to 10 days. The EFCA compromise also reportedly includes a provision permitting union access to the employer’s premises during the campaign under certain circumstances, which currently is prohibited.

Perhaps even worse, the compromise in the works continues to require binding arbitration for a first contract. This means that if there were no contract agreement within 120 days, an arbitrator would impose a contract of two years duration. This is a huge change from current law, under which neither party can be forced to agree to any contract provision, and would prevent an employer from even attempting to remove a union until after the contract has expired. Under current law, if there’s no contract, a union can be removed one year after its certification as a bargaining representative.

Thus, while employers might have dodged the card check bullet, something almost as bad appears to be on the horizon. This means that employers desiring to remain union-free need to implement such measures as: (1) Effective group and individual communications mechanisms; (2) understandable and consistent personnel policies and procedures; (3) supervisory training on how to manage employees and avoid unionization; and (4) confidential employee surveys designed to measure objectively the effectiveness of an employer’s human relations program and uncover issues that could lead to unionization. Although you now have the ability to uncover and correct such issues, the law severely restricts your ability to do so once union organizing activity begins.

Article courtesy of Worklaw Network firm Millisor Nobil (www.millisor.com).

Companies that impose automatic time deductions for meal breaks risk exposure to class-wide liability under the FLSA if they end up shorting nonexempt employees for hours worked due to interrupted or skipped lunch breaks. A recent spate of lawsuits against healthcare employers for alleged failure to pay wages due to such policies demonstrates this.

Companies use meal break auto-deductions for a variety of reasons. Sometimes it’s because automated timekeeping systems require a default meal period to be input. In other instances, the time expended getting to and from a remote time clock might be so great to make a default deduction preferable. In still other cases, employees might view punching in and out for lunch as motivated by employer micromanagement, making auto-deduction a kinder and gentler method of accounting for time. The FLSA risk arises when the employer fails to adopt practices that account for actual variation (i.e. the shorted lunch hour interrupted by work). If auto-deduction is the only practical method available of accounting for unpaid lunch breaks, companies should be able to help avoid FLSA liability by taking these steps:

• Inform employees that they’re required to report any variation in the length of their lunch break to their supervisor so that their time record can be adjusted.
• Require supervisors to review and sign off on time records to ensure that they reflect actual hours worked.
• Make sure that the employee handbook advises employees that they should report any improper deductions or errors in their pay to their supervisor or to human resources promptly so that appropriate corrections can be made.

Finally, if you’re only using auto-deduction to avoid the “micromanaged employee” syndrome, consider explaining that punching in and out is not required for punitive reasons, but to ensure that employees are fully and fairly compensated.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).