So many times an employer gets in trouble for following logic instead of the law.  Quite often what is logical just isn’t legal, and that can be tricky for many managers and HR professionals.  It trips them up.  That’s why one of my favorite topics to speak about is Employment Law Bloopers and Lessons Learned.

If you are interested in this topic, and like to learn employment law from stories (instead of detailed powerpoints with dense legal citations), then you have two chances to come hear me speak.  First, on August 28th at the California HR Conference in Long Beach, and second on August 29th at the FIRMA (Foodservice Industry Risk Management Association) Conference in Fullerton.

65071107 – woman hand writing what have you learned? on blank transparent board with a marker isolated over water background. business concept. stock photo

One of the bloopers I will be talking about is “Ignoring Warning Signs from Top Performers.”  Those who read my blog posts know this is an issue close to my heart.  And it is all over the news regardless of industry, from tech, to media, to entertainment, to universities and more.  Other bloopers involve skipping steps when dealing with the interactive process and reasonable accommodation, retaliation, and the mistakes people make with emails and social media (like those texts we see in litigation from managers to employees sent in the wee hours of the morning on issues unrelated to work … you get the idea).

Come be entertained on August 28th or 29th and learn a few things too!

Summer is the time for vacations, and with that comes the stress of balancing work pressures while out of the office. Many employees prefer not to take vacations when the alternative is trying to conduct work from a cell phone on the beach. Maybe California can learn from France, and the recently publicized “right to disconnect”.

Woman working on the beach on vacation
Copyright: haveseen / 123RF Stock Photo

The French Government has acknowledged the impact of persistent connectivity on both the economy and employee well-being. Since January 1st, French employees have a right to unplug. According to a report for the French Government covered in Time, “with this accumulation of emails, and these employees who return exhausted from the weekend because they have not disconnected, it is not the best way to be effective in companies.”

It is no surprise that work-related stress adds to healthcare costs. In fact, a group of Stanford business professors have estimated that workplace stress added between $125 and $190 billion dollars per year to America’s healthcare costs; overwork accounted for $48 billion of that, according to Fortune.

A never-ending connection to the workplace is certainly a significant source of stress, and the costs of stress are largely borne by employers. So France’s email restrictions could provide benefit to both workers and employers.

France’s “right to disconnect” does not necessarily mean that the employee must be completely unplugged while out of the office. Rather, the idea is to encourage employers to set up policies to address the flood of emails outside of work hours. For example, to establish more reasonable expectations for returning emails, or to avoid sending non-urgent emails outside working hours.

In fact, many French and even European companies have introduced guidelines prohibiting late afternoon staff meetings and emails outside working hours.

On the one hand, more regulation of work relationships is not welcome. But in France, news reports indicate that many companies have found increased productivity from employees returning to work refreshed and relaxed after important down time. And increased productivity, as well as less chance of off-the-clock claims by non-exempt employees answering emails after work, are both good things.

When was the last time you felt refreshed, relaxed, and reinvigorated at work? If it has been too long, maybe the French way is something for California employers to consider.

Many thanks to Natahaelle Gozlan for her contributions to this post.

Just because it’s logical doesn’t make it legal. And more often than not, what is logical in California is not necessarily legal.

Take the issue of “comp time.” Typically comp time is used to refer to an equitable idea, where someone works when she isn’t supposed to, and in turn is given different time off as “comp time.” Often such comp time is taken off the books, such as an “extra” vacation day that is not logged as such. That can mean the employer has time records that are purposely inconsistent with hours worked. And that’s a problem.

For exempt employees, comp time is really a misnomer. An exempt employee is paid a salary regardless of hours worked (or not worked) in a week. So an exempt employee who works hard one day still gets paid the same as one who doesn’t. Giving an exempt employee a “comp day” for working on a holiday or a 6th day is really just appropriately treating them as exempt. More often than not, the exempt employee is still checking in (i.e., “working” from home) anyway.

For non-exempt employees in California, such a practice is especially fraught with minefields. The key to paying non-exempt employees correctly is to make sure hours worked (and breaks taken) are accurately logged. So, if a non-exempt employee works on a day she typically is scheduled off, she must be paid for that time, even if it results in daily or weekly overtime. If she’s not paid, that’s illegal. Also, paying her for another day when she hasn’t worked, by putting fake hours on a timesheet, is also a problem, as it sets a precedent for falsifying time records.

Of course, the employer can log the day as a paid “comp day,” but in my experience, most employers don’t have that payroll code, and if they do, they don’t use it consistently. And treating employees inconsistently creates another set of issues.

I have experienced employers get sued for inconsistent comp day practices. It can be from exempt employees who claim they are owed a certain number of comp days for holidays worked (when they were supposed to get another day off but never did). That allegation typically comes with a claim for waiting time penalties for failure to pay all wages upon termination. Or, it can be from non-exempt employees who were given comp time instead of being paid overtime. Even if they agreed to it at the time (“don’t worry boss, I’ll take tomorrow off instead of getting the overtime“), it still doesn’t make it legal.

Back in May there was some press about the Working Families Flexibility Act of 2017 that passed the US House of Representatives, and was moving on to the US Senate for deliberations. But even if that passes and amends the FLSA to allow for comp time instead of overtime, it will not apply in California. Why?

32003831 – logical illogical road sign

Always remember that California is special, and when it comes to wage-and-hour law, what is logical is typically illegal.

Have you ever felt powerless in your job?  Felt that there was no way you could have impact on the corporate environment?

Well, recent events have shown how the catalyst theory is alive and well in corporate America.

Take Uber for example.  A mere four months ago, a lone female engineer who had left the company after feeling mistreated wrote a blog post.  Within days, that post went viral, caused Uber’s CEO and Board to take notice, and sparked a chain of events that was fascinating to watch (and blog about).

One woman and her blog post ignited a chain reaction that culminated with the CEO’s resignation on June 20th.  As reported by news outlets, Travis Kalanick was forced out by Uber’s Board after several investors demanded his resignation, in large part due to the sexual harassment probe initiated by that single blog post.  The allegations in that one blog post wound up being the tip of the iceberg, with a reported 215 harassment complaints at the company, resulting in the termination of at least 20 executives.  Many of those harassment claims remain unresolved, and the company now has a mandate to change its culture and implement 47 different recommendations to make it a more politically correct company.

In fact, there are many other examples in the press about the catalyst theory at work, involving major television celebrities and executives.  Powerful people, who once seemed untouchable despite all types of bad behavior (that was widely known yet unaddressed) eventually fall or are forced out.  At times, karma really does catch up with people and justice can prevail.

So, if you are feeling powerless at your company, and think change can’t happen, well, think again.  Just read the headlines, because one person (and in this case one brave woman), can really make a difference.

 

 

 

 

 

It took three months, but the long-awaited report about Uber’s culture from former Attorney General Eric Holder and his law firm was published this week. You can read the 13-page report with its 47 recommendations here.  Uber’s Board of Directors voted unanimously to adopt all of the recommendations.

CEO, Travis Kalanick, will have a reduced leadership role.  Parts of his job will be given to a new Chief Operating Officer charged with implementing the Board’s recommendations. There will also be more Board oversight of management, and steps to create a more independent Board that can actually hold management accountable (including financially).

In addition, it was also reported that the CEO is taking an immediate and indefinite leave of absence.  It has been a rough year for Kalanick, whose mother recently died in a boating accident where his father was also seriously injured.

In his statement to Uber employees he writes: “The ultimate responsibility, for where we’ve gotten and how we’ve gotten here rests on my shoulders. For Uber 2.0 to succeed there is nothing more important than dedicating my time to building out the leadership team. But if we are going to work on Uber 2.0, I also need to work on Travis 2.0 to become the leader that this company needs and that you deserve.”

The report also reads like a help-wanted advertisement to consultants of all types as it requires:

  • Mandatory Leadership Training for Key Senior Management and Executive Team Members
  • Mandatory Human Resources Training
  • Mandatory Manager Training
  • Interview Training

Uber is also in the market for several senior executives including a new Chief Operating Officer, Chief Financial Officer, Senior Vice President of Engineering, and General Counsel after many high profile departures.

There are also recommended changes to the Human Resources Department and complaint process, which seem long overdue.  As you know from prior blog posts, the way Human Resources reportedly handled the harassment issues raised by female engineers was a lesson in how not to investigate a complaint.

Steps will also be taken to limit the party atmosphere (less alcohol and controlled substances at work) and to prohibit romantic or intimate relationships between individuals in a reporting relationship.  Hard to imagine that these protections were not already in place for a business with over 12,000 employees.

Probably the most entertaining recommendations were a revamp of the company’s core values to eliminate those that have been used to justify poor behavior, such as:

  • Let Builders Build
  • Always be Hustlin’
  • Meritocracy and Toe-Stepping
  • Principled Confrontation

Oh, and my personal favorite, the War Rooms will now be designated Peace Rooms.

Rainbow peace flag
Copyright: daboost / 123RF Stock Photo

Some are skeptical that Uber can change.  Whether it can depends on whether Kalanick and other senior managers can set aside the aggressive culture to walk-the-walk, and not just talk-the-new- peaceful-inclusive-talk.

After a flurry of activity in February, the news has been relatively quiet at Uber until this week.  We knew that reports of harassment by lady engineers triggered a massive investigation, and at the time, news reports indicated a formal report was due by the end of April.  But that day came and went.  Now, the wait is over, and Uber is in the news again.  Here is the latest:

Businessman cutting back jobs
Copyright: kaarsten / 123RF Stock Photo

According to a report from Bloomberg, at least 20 Uber executives have been fired as part of the harassment probe, and more are being disciplined, after a law firm investigated a stunning 215 claims of sexual harassmentAccording to reporting, of the 215 claims, 57 remain under investigation, 31 employees received counseling or training, and 7 received written warnings.

The New York Times also reported that Uber’s President of Asia Operations, and a longtime confidant of CEO Travis Kalanick, was fired after “reporters inquired about his actions to obtain the medical records of a woman who said she was raped by a driver” in India.

Meanwhile another law firm is also conducting an investigation led by former US Attorney General Eric Holder into claims made by Susan Fowler and other female engineers in February.  That investigation apparently is still ongoing.

In addition other senior executives are resigning for various reasons, including Uber’s Vice President of Product and Growth who reportedly resigned once an affair with an employee was revealed, as well as a female Global Policy and Communications Chief who resigned amid reported clashes with the CEO.

Yes harassment issues still reign in California, and top executives can lose their jobs because of it.  Even people who once seemed untouchable can fall from grace.

It remains to be seen if Uber’s new hires, including Francis Frei, a well-known Harvard academic who was recently hired as Uber’s first Senior Vice President of Leadership and Strategy, can transform the super aggressive “bro-culture” into one of diversity and inclusion.

Stay tuned.

Earlier this week, in Mendoza v. Nordstrom, the California Supreme Court clarified some ambiguous issues involving requirements under the California Labor Code involving when a “day of rest” must be provided to employees.

Woman laying on hammock during day of rest
Copyright: bialasiewicz / 123RF Stock Photo

The Court clarified:

  • That a day of rest is guaranteed for each workweek (as the workweek is defined by the employer).
  • There is an exception for employees who work shifts of six hours or less every single day in the workweek.
  • An employer can’t “cause” an employee to go without a day of rest, but an employee can “choose” to forgo that right as long as s/he is fully apprised of the entitlement.

What does this mean for California employers?

First, it means that there is no rolling seven day period in which a day off needs to be provided. Rather, if an employer defines its workweek as Monday through Sunday, one day off must be provided in that week. It can be Sunday one week, Tuesday the next week, and Friday the next. That is good news and avoids some scheduling nightmares.

Second, it means that part-time employees who consistently work short shifts of six hours or less can be scheduled to work seven days. But be careful, any shift over six hours in that week (even by a few minutes) will moot that exemption.

Third, there is still an open issue as to when an employer “causes” an employee to go without a day of rest. The Court was not as clear on this issue as many employers would have liked. To address this ongoing ambiguity, California employers should:

  • Add a provision to their employee handbooks advising employees of their right to one day of rest per workweek. They should also make sure the workweek is clearly defined.
  • Train managers not to pressure employees to work seven days, and to take shifts to cover other employees when they only have one day off.
  • Consider getting some sort of attestation from the employee who works a 7th day in any workweek that s/he is doing so by choice.

Finally, what this case has not changed is the commonsense advice that everyone should get one day of rest per week. It is certainly a better practice (whether required or not), to allow an employee one day off to rest, rejuvenate, and get some perspective away from work.

Have you ever seen one of those workplace training videos and thought “I could do that?”  Well I did that!

I am excited to be featured in a training video to assist workplace supervisors in recognizing and responding to common legal issues that arise in the day-to-day management of workers.  The video was developed and produced by Kantola Productions and is titled “Employment Laws: What Supervisors Need To Know.”

The video focuses on the decision-making process and provides helpful strategies for ensuring compliance with national workplace laws and regulations, covering topics such as:

  • Accommodation requests
  • Safety concerns
  • Social media and related privacy expectations
  • Wage and hour compliance challenges

The DVD retails for $289 and is available to Fox Rothschild clients and their contacts at a 20% discount.  Please enter Fox20 in the “catalog code” box when filling out the online purchase form.

Take a look at a clip from the video below.  Enjoy!

Preview:

I just returned from the Cornell HR in Hospitality Conference in Las Vegas with my partner Carolyn Richmond.  I participated in the Executive Summit and shared ideas with some of the most innovative minds in the hospitality industry.  Here is my annual top ten list of take-aways:

  1. While no one knows what will happen under the Trump Administration, some common assumptions include:  Less active Department of Labor and NLRB (especially as to non-union work forces ); EEOC likely to apply current law to egregious situations, but not expand it
  2. That said, states like California will pick up the slack, so California employers should not expect any decrease in claims or lawsuits
  3. One of labor’s biggest concerns about the Trump Administration is the shift in courts; there are 117 vacant federal court vacancies, which means a lot of conservative judges could be appointed and rule in a more business-friendly way
  4. A less powerful NLRB may mean more corporate campaigns, and with that may come more RICO lawsuits to challenge them
  5. How hotels treat their Sales Managers (whether exempt or non-exempt) is still all over the map, although the trend is certainly towards classifying lower level sales and catering managers as non-exempt
  6. Employees are focused on more than just compensation and benefits; renewed focus on culture, recognition and development
  7. Benchmarking is only part of the equation, because if you pay the median, you can’t differentiate from others and get the best candidates
  8. Acknowledging that many millennials move on after a few years, many recruiting efforts now focus on alumni re-recruiting, which changes the off-boarding process and the attitudes towards employees who leave
  9. Automation is a hot topic in hospitality, but companies need to balance guest experience with efficiency; Human Resources should embrace technology to free up time to focus on people, not mundane tasks
  10. Anticipate trend to de-regulate tip pooling so that more employees can participate without such archaic restrictions on back of the house and time spent touching tables

I am heading to Las Vegas for the annual Cornell HR in Hospitality Conference, from March 27-29th.  I am particularly excited for the session on Hospitality Included – One Year In, featuring my partner, Carolyn Richmond, who Co-Chairs our Hospitality Practice Group and practices in New York. Carolyn is also presenting on two wage-and-hour issues: The “Unconference”: FLSA Legal Think Tank and The New Wage and Hour Regulations.

Cornell HR in Hospitality Conference

I will be participating in the 8th Annual Cornell University Executive Summit on Wednesday, where I get to debate the most topical HR issues facing hospitality today with other employment law attorneys and top executives. Stay tuned for my annual top ten lessons learned from the Conference.

I hope to see you there!