Posted on June 10, 2021 in Consulting

On nearly a daily basis, we all see articles about employees protesting a return to work and demanding to work from home or some hybrid arrangement.  Battle lines have formed over the issue.   I am not surprised, but I have a very difficult time empathizing with those fighting to stay home.   I hate traffic as much as anybody and can see the value in reducing wasted commute time.  However, from my perspective, the best thing about going to work is the people I work with and the comradery and teamwork that flow from working near and next to people.

So today I propose my tips on how employers motivate workers to want to be at the office.  My suggestions stem from observations at WKPZ watching my colleagues make our workplace an attractive place to be physically present.

Tip One:          Meaningful In-Person Collaboration.

I try hard to be a good boss.  I model my behavior on how my mentor Bob Bettac interacted with me.   A good boss (like Bob) spends quality time in-person with his team listening, strategizing, and teaching.   My favorite time each work day was when Bob walked past my door and said, “Let’s go take a smoke break.”   I don’t smoke and never have.  But I honestly did not mind inhaling a little of Bob’s passive smoke standing outside the building — even in July and August – as we spent 20 minutes or so chatting up the cases or just visiting.

I see really good mentors around me who make presence at the office rewarding and a necessary component of successful employment.  Take my law partner Jason Johns for example.  Jason truly enjoys working as a team.   Undeterred by any pandemic, Jason worked up his construction law docket with an associate, paralegal, and assistant gathered in his office (spread about) talking through strategy.   (He also provides at his own expense ample snacks, an excellent selection of non-alcoholic beverages, and a selection of coffee.)  Jason makes working a collective effort to deliver excellent results that his entire team can and does celebrate.

People who build a collaborative in-office workplace compel others to come to work to share in the collaboration.

Tip Two:          Positive Personal Environment.

An employer needs to provide employees a physical workspace that is comfortable and personal.   The office workspace has to rival a home office to create the desire to be at work. I have a perfectly nice home office setup, but at work I have a desk that rises up and down and a super great chair and the physical amenities that provide an atmosphere to focus and be highly productive.

Employer should encourage employees to personalize their workplace to make it comfortable and enjoyable space.    My favorite things in my office are my photos from European travel, which you have seen on any Zoom call with me, and an art piece that my kids made years ago with substantial help from a professional artist.

Let employees have some freedom to personalize their work area and spend the money to make their work space an enjoyable and desirable place.

Tip Three:        Make the Office Fun.

As many of you know, I had my own law practice for seven years before I joined WKPZ in April 2011.   The first thing I noticed after joining WKPZ was how lonely I had been for so long in my smaller practice.  I quickly discovered how much I enjoyed being around colleagues.  My six months at home during the start of the pandemic reminded me of everything I did not like about being out on my own as Levine & Associates.

In August, my law partner Murphy Klasing announced “COVID Relief Hour.”   Murphy enjoys wine and does a very nice job explaining wine.   So on random Friday’s at around 4:30, Murphy coordinated a WKPZ wine tasting with some light snacks.   The pours were modest, and we kept the event short sending everyone home at their normal leave time.  (We obeyed my basic rules on work and alcohol.  See   I admit to missing the first one or two, but then decided I needed to see my colleagues.  I quickly remembered how much I liked being at the office and visiting with co-workers.  These social gatherings are so appreciated, after months of isolation, there are always firm wide emails praising Murphy.

I hope you enjoyed this newsletter and welcome your thoughts on how we bring the workforce back to the office.

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Remote Work Policies

Posted on May 21, 2021 in Consulting

Remote work has never been my thing. I struggled through the work from home arrangement for six months at the outset of COVID. Returning to the office felt great and even more appealing when we moved into our new office space. (See Side Panel.) I hope to see you soon at our new digs!

But some surveys suggest I am in the minority on the remote work option. Some data demonstrates that we have emerged from the pandemic with a workforce that likely expects employers to offer remote work options.  A recent survey by Owl Labs makes this abundantly clear:

·         92% of people surveyed expect to work from home at least 1 day per week;

·          80% expected to work at least 3 days from home per week;

·          81% of those surveyed believe their employer will continue to support remote work after COVID-19;

·          59% of respondents said they would be more likely to choose an employer who offered remote work compared to those who didn’t.

These data points prove that employers need to develop a strategy and policy on remote work. The policy might be that remote work will only be offered in limited circumstances or discouraged entirely. Yet, every employer needs to think through their position on remote work, and they need to do so soon because the topic is on everyone’s mind.

When considering remote work policy provisions, businesses should address:

·         What positions would be eligible for remote work;

·         Will eligibility be driven by individual factors like past performance;

·         Will supervisors be able to make case by case decisions;

·         Under what circumstances will an employee be required to return to the office.

For a well-written remote policy, look at the William & Mary University’s policy.

I strongly recommend that any policy have certain rules. My rules would include:

·         A requirement that all employees spend a certain amount of time per week or every other week in the office. Even remote workers should engage with their colleagues on a scheduled, routine basis.

·          Management must be at the office more than their subordinates and certain executive positions should be office-only jobs.

·          Remote work should not translate to sporadic schedules. If the office hours are 8 to 5, a remote worker should keep the same or very close to the same hours.

Because I think the remote work issue is so important, in the weeks to follow I will write on related topics including:

·         How an employer makes the office more attractive than a remote work environment

·         Remote Work and Overtime: Beware of FLSA compliance

·         Insurance Issues and Remote Work: Worker’s Comp and other Insurance considerations

I hope you enjoyed this newsletter and am excited to see you soon at the new WKPZ offices. Let me know if you want to discuss your remote work policy.


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Employer Mandated Vaccines

Posted on December 15, 2020 in Uncategorized

In mid-February a client called and told me that they wanted to adopt a rule that barred their employees from travel and attending events with more than a 100 people (e.g., no Houston Rodeo). I thought the plan was reactionary and premature. The Coronavirus was in China, not Houston. Clearly, I did not foresee COVID-19’s dramatic impact. In hindsight, my client made the bold decision that helped its business.

Now, business owners and management will ask the bold question: can I make employees get a shot? Human resource personnel and legal departments need to get up to speed. Only yesterday the EEOC issued some guidance on the topic. See

You won’t find all the answers you need in the EEOC’s recent publication – rarely do we. But on January 7, 2021, I will host a webinar and address the key issues for employers as they consider mandating their employees get a COVID vaccine.

Please feel free to email me at (prior to January 2) with specific topics or questions you would like me to address during the webinar.

I look forward to seeing you on January 7, at noon.

Be safe, have a wonderful holiday and New Year’s!

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REMOTE WORK AFTER COVID: Getting back to the office

Posted on September 28, 2020 in Consulting

For years, I hated the idea of working from home. Still, from mid-March to recently I worked remotely. I surprised myself during the first few months of telecommuting. I adopted rules and habits to force productivity. I ironed my shorts (no joke) and self-imposed a collared shirt policy. We converted a room filled with insignificant junk (including a large cat tree) into a nice work space where I stayed put during traditional work hours.

But then things slipped. I found myself in the kitchen more than necessary and saw the impact on the waist-line. (I now own a Peloton.) I started working all the time and going into the home-office Saturday and Sunday. I held myself accountable for unproductivity during the day by working nights. My work and home separation grew very fuzzy. I also realized that managing remotely was far less than desirable and, that over time, it became seriously challenging. Finally, communicating by Zoom beats the telephone but ranks well below in-person interaction.

I made the recent decision to return to the office. I confess I should have done it a month sooner. I put on professional attire and felt more like a lawyer. I also made sure to follow the rules: lots of hand sanitizer, masks all the time, and appropriate distancing. It feels so good to be back.

My own experience motivated me to host a webinar on October 22, 2020, focused solely on remote work now and after COVID. During this webinar, we will address and discuss:

1. Remote Work after COVID: How employers prepare for employee requests for long-term remote arrangements. What rules and criteria should businesses impose on remote work.

2 Key Provisions for Remote Work Policies: Everyone needs a remote policy. Is your policy adapted to today’s environment?

3. Remote Work and the ADA: Does the law require an employer provide remote as a reasonable accommodation?

I hope you will join us.

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What Black Lives Matters Means for the Workplace

Posted on July 16, 2020 in Consulting

We all watched the media coverage of protests following the tragedy in Minneapolis. For a few days, the focus shifted from the pandemic and attention was devoted on a very different struggle in America. In the weeks that followed, I spoke with many clients who report how social conflict has bled heavily into the workplace. Outstanding employers will distinguish themselves in these challenging times by taking bold steps. Here are three simple suggestions:

1. Ban Certain Words

I have written and reviewed countless policies on harassment and discrimination. Honestly, I wish I had addressed this long ago. Every employer should have zero tolerance for the use of racial epithets. No excuses, no exceptions.

2. Meaningful Orientation & Explanation of Rules

Employers need to spend quality time explaining rules to new employees and articulating new rules to all employees. Nothing good comes from sliding an employee handbook across a conference room table and instantly receiving an acknowledgment page. Few employers walk through and explain a handbook with a new hire. We instead assign the handbook out as if leisure reading. With the environmentally friendly move towards web-based policies, we no longer even witness the exchange of acknowledgment for handbook. A few clicks on a computer and the rules are allegedly covered.
Businesses can improve their workplace if they just spent 10-15 minutes explaining EEO policies, rules, and consequences of misconduct.

3. Do the Right Thing: Recognize Juneteenth as a Paid Holiday

It’s well past time we respect African-Americans and recognize Juneteenth as a national holiday and a work holiday. The emergence once again of our country’s struggles with race relations makes it all the more important that employers take this simple step.

4. Upcoming Webinar

Join me for a webinar on Thursday, August 6 from 12 p.m. to 1 p.m. to discuss Race Relations: What Black Lives Matters Means for the Workplace. I will present my practical guidance on how employers confront and address the racial tensions that have emerged once again in our country.

Please feel free to send me questions or topics you would like discussed. I will also try my best to entertain questions submitted during the webinar.

I look forward to seeing you on August 6 to work through tough issues and develop practical solutions.

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Posted on May 27, 2020 in Consulting

Today more than ever we need leaders to emerge in our workplace. Chris Akers, my executive coach, sparked this newsletter in a conversation about the concept of “a non-anxious presence.” The “non-anxious presence” stems from the teaching of Edwin Friedman and a book called Leadership in the Age of Quick Fix: A Failure of Nerve. See Friedman, Edwin H. A Failure of Nerve: Leadership in the Age of the Quick Fix, Church Publishing Inc.

The book challenges conventional thought on leadership. It’s not an easy read but offers some great ideas at a time when every workplace needs strong leaders to help us persevere through COVID.

Leaders make bold decisions without the need for consensus

The best businesses will emerge strong from the current crisis because they have leaders who take bold actions not necessarily popular at the moment. Likeability does not define a leader; leadership should never be a popularity contest. Steve Jobs made this point clear: “If you want to make everyone happy, don’t be a leader, sell ice cream”. Leaders embrace that significant decisions make some people upset.

Human Resource professionals need to support our leaders through tough and unpopular decisions. We need to ensure our leaders stay true to their values and give them all the tools they need to succeed.

Remember, consensus does not mean a decision, policy or practice is good. Governing to make everyone happy means the weakest will set the standard. Instead, we should lead by making strong decisive actions.

Leaders must refuse to allow weak team members to set the agenda

Leaders remove negative people from their organization. Times are tough. Yet, we should embrace the fact that difficult, cost-cutting economics creates the opportunity to rid a business of those who hold it back.

Recalcitrant and passive-aggressive people preclude change and growth. These negative personalities stop new ideas from fruition with protests and excuses: “we can’t do that” and “we have never done it that way”. The same people dominate a company’s time and energy. These are the problem-child employees who create a sink hole of time-suck and wasted resources. These negative characters set the agenda forcing management to work through troubles created by the weakest links in the organization.

When we return to a job-growth economy, leaders will preclude negative influencers from joining their organization.

Few people can lead

Too much effort is exhausted trying to train every worker to be a leader. We drain resources on team building with people who are emotionally unwilling to be teammates. Employers would be more successful if they focused on finding and developing the select few in the ranks for grooming.

Skills and leadership training has been cut across the board in the current economics. When training resumes, companies should focus their time and effort developing only the select few.

We will get through this together. Stronger leaders will emerge having overcome the challenge.



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Summary of the Family Medical Leave Act Expansion Act

Posted on March 23, 2020 in Compliance

Summary of Employee Rights under the Emergency Family and Medical Leave Expansion Act of 2020

Covered Employers. The Emergency Family and Medical Leave Expansion Act (“Emergency FMLA”) applies to employers with less than 500 employees.

Employee Eligibility Requirements. Employees who have worked for the Covered Employer for 30 calendar days.

New Additional Leave Entitlements. Covered Employers must provide Family Medical Leave (FML) to:

  • An employee who is unable to work (or telework) due to a need for leave to care for the son or daughter under 18 years of age of such employee if the school or place of care has been closed; or
  • An employee who is unable to work (or telework) because the child care provider of the employee’s son or daughter is unavailable, due to a public health emergency.

These eligibility criteria are in addition to existing FML leave entitlement provided under the Family Medical Leave Act of 1993.

Benefits and Protections.

First 10 Days of Leave

The first 10 days of leave shall be unpaid, subject to the employee’s right to utilize sick, vacation or paid-time-off under employer policy or other law, including the recently enacted Emergency Paid Sick Leave Act. Employees may elect to substitute any accrued paid leave to cover some or all of the first 10-day period.

Leave After 10 Days

A Covered Employer shall provide paid Emergency FML leave for each day of leave after the 10th day of leave.

Amount of Pay

Full Time Employees. After the first 10-day period, the Covered Employer shall pay full-time employees at two-thirds the employee’s regular rate for the number of hours the employee would otherwise be normally scheduled subject to the limits set by the Emergency FMLA not to exceed $200 per day and $10,000 in the aggregate.

Non-full time employees. Employees who work a part-time or irregular schedule are entitled to be paid on the average number or hours the employee worked for the six months prior to taking Emergency FMLA. Employees who have worked for less than six months prior to leave are entitled to the employee’s reasonable expectation at hiring of the average number of hours the employee would normally be scheduled to work. Again, subject to the limit not to exceed $200 per day and $10,000 in the aggregate.

Requesting Leave. Employees should notify the Covered Employer as soon as possible and, generally, follow the Covered Employer’s usual procedures. Employees must provide sufficient information to the Covered Employer so it can determine if the leave qualifies for Emergency FMLA protection. The Covered Employer may require a certification or periodic recertification supporting the need for leave.

Covered Employer Obligations. Once the Covered Employer becomes aware that an employee’s need for leave is a reason that may qualify under Emergency FMLA, the Covered Employer will notify the employee if she or he is eligible for Emergency FMLA leave and, if eligible, will provide a notice of rights and responsibilities under Emergency FMLA. If the employee is not eligible, the Covered Employer will provide a reason for ineligibility.

The Covered Employer will notify employees if leave will be designated as Emergency FMLA leave, and, if so, how much leave will be designated as Emergency FMLA leave.

Job Restoration. A Covered Employer with fewer than 25 employees is not required to restore the employee’s employment if certain conditions and efforts are undertaken but fail. Those conditions are: (A) the employee takes Emergency FML leave; (B) the position held by the employee when the leave commenced does not exist due to economic conditions or other changes in operating conditions of the Covered Employer (i) that affect employment; and (ii) are caused by a public health emergency during the period of leave; (C) the Covered Employer makes reasonable efforts to restore the employee to a position equivalent to the position the employee held when the leave commenced, with equivalent employment benefits, pay, and other terms and conditions of employment; and (D) if the reasonable efforts of the Covered Employer under subparagraph (C) fail, the Covered Employer makes reasonable efforts during the leave period to contact the employee if an equivalent position becomes available.

Enforcement. Employees may file a complaint with the U.S. Department of Labor, Wage and Hour Division, or may bring a private lawsuit against an employer.

The Emergency FMLA does not affect any federal or state law prohibiting discrimination or supersede any state or local law or collective bargaining agreement that provides greater family or medical leave rights.

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Posted on February 13, 2020 in Consulting

I want to share a few quick thoughts on how to make Valentine’s Day work appropriate so that romance remains out of the workplace.

1. Practice workplace TMI Some topics should never be discussed at work: romance, dating, and (of course) sex. Sure, we can think of exceptions — not on “sex”. Friends might discuss weekend plans. But we don’t need to hear a report on how the date went. Nor do we require a follow-up on how the relationship is progressing. Some subject matter should always be private and kept away from water cooler gossip. Funny but true story: I discovered one client took this rule exceptionally seriously. The company placed restrictions barring the word “sex” from incoming email, this included my communications as their lawyer. We learned of the issue only after the client never received my email related to work on a sexual harassment claim.

2. Being friends at work is not a license to share every thought Many discrimination and harassment claims begin with a failure to appreciate that friendship is not permission to share every thought. This is easy to envision. The closer you get with someone the more you feel you can share. A man thinks a woman is his friend, so he seeks her advice on dating and his relationships. He goes further and makes comments about wishing she was single. He takes it a step further and buys small gifts. You see where this is going… nowhere positive for the business.

3. No roses at the office Leave the flowers for the wife, significant other, or romantic interest — preferably, who does not work with you.

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Paid Sick Leave

Posted on December 18, 2019 in Consulting

During the holiday season, we think of those in need. In the workplace, the needy are the lowest-tier of the workforce who have no access to paid sick leave.

Paid sick leave is a hot topic in Texas and across the country. There is merit to both sides of the debate, and I certainly understand and respect the business interest in fighting government regulation of wages and benefits. However, I believe Texas ought to adopt some moderate and limited paid sick leave.

A number of states have implemented paid sick leave laws. There appears to be a growing push across the country to mandate this employee benefit. A number of U.S. cities are following this trend. Austin, Dallas, and San Antonio passed similar paid sick leave ordinances in the last few years. The readers of this newsletter already know that enforcement of each of the Texas municipality ordinances has been enjoined or stalled because of pending lawsuits.

The first big decision blocking the Texas cities’ paid sick leave ordinances came out of the Austin Court of Appeals in late 2018. The Court held that a municipality cannot adopt an ordinance that affects wages because it conflicts with the Texas Minimum Wage Act (the “TMWA”). The decision relied upon the Texas Constitution, which bars municipalities from adopting regulations if the State has adopted law that preempts city action on a particular matter. The City of Austin has petitioned for review before the Texas Supreme Court.

In the meantime, during the 2019 Texas legislative session, the senate passed a bill designed explicitly to preclude city mandates for paid sick leave. Presumably, the bill sought to avoid the Texas Supreme Court ruling in favor of the City of Austin and permitting enforcement of the sick leave ordinance. The bill died in the legislature.

As with most political controversies, there should be room for compromise. I believe that all employers should consider paying full-time employees at least 3 days of sick leave during a year. Sick leave should be permitted after an employee has worked for some minimum period of time (e.g. 90 days). Sick leave should not be carried over to the next calendar year and is not paid upon separation of employment. Finally, to balance the conservative interest, perhaps mandatory sick leave paid to non-exempt employees at a lesser rate (i.e., some percentage of the worker’s regular rate of pay). This way, employees are less likely to pretend an illness and more likely incentivized to use sick leave only when necessary.

I recognize this is a somewhat controversial subject. However, I am confident beyond a doubt that no one reading this newsletter worries about being denied pay for missing a few days of work. The needy in the workforce deserve further thought and consideration into mandated paid sick leave.

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Keeping Quality Employees

Posted on October 18, 2019 in Consulting

 The unemployment rate sits at a very low 3.5%. Employers are not going to find the best new hires in this tiny percent of the population. Rather, Companies poach employees from each other, and the low unemployment rate will only intensive the competition. Just the other day I saw this well done video on how to advertise for a competitor’s employees: Here are my tips on keeping your quality employees from jumping to the competitor.   

Assess your Compensation Structure

Retain quality employees with conscious, periodic attention to pay practices. Businesses need to analyze and reassess their salary scale to know where they fit in the market place. In frugal times, employees earned less and were happy with cost of living adjustments. Now, in an employee-favorable wage market, employers need to make sure to adjust pay of existing workers to be consistent with the pay offered to new hires. This sometimes reveals itself in signing bonuses. Employers justify a signing bonus as a quick way to attract new talent. Yet, don’t forget about your existing employees. Consider that with few secrets in the workplace existing employees will learn about sign-on bonuses.

Deliverable on intangibles

Companies love publishing their core values. It is less clear that they live by them. If you claim to provide a work-life balance, you better show it. For example, adopt and enforce rules that preclude managers from pestering employees when they are off work. Consider my 7 to 7 rule. See If your business promises professional growth and advancement, assign employees a mentor. The designated mentor should prepare (with the employee) a written plan to chart and map goals. This is not a variation of a performance review. Rather, this is a growth session in which the employer helps shape an employee’s future with the organization. The mentor’s role should emphasize realistic and achievable targets with employer supported incentives (e.g., how to get a promotion). None of this works without scheduled and sacredly maintained meetings. Concepts do not achieve reality without begin set on a calendar.

Conduct meaningful exit interviews to police against jerks

A quality in-person exit interview with a form of questions to answer is a very useful tool in exposing a bad boss. Too many people tolerate a bad boss because they believe the company endorses the behavior. Employees quit rather than complain to avoid being the target of retaliation. The departing employee can be brutally honest as they have little to lose by speaking their mind. Conduct meaningful exit interviews to ensure you do better to keep your employees happy.

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