Over the years, I have seen FLSA violators commit silly acts that everyone reading this newsletter knows to be unlawful.  The classic error is paying straight time for overtime, or, the far more aggressive, cash paid off the books for more than 40 hours worked. This newsletter is not for the employer seeking to avoid the law, but rather for those who want to handle it correctly.   So here are three things the honest employer can do to ensure FLSA compliance.

1. Review Lowest Paid Salaried Employees

Employers unknowingly and mistakenly often believe that paying a salary renders a worker exempt from overtime.  This is false.   An employee must also perform specific duties to qualify for exemption under the FLSA.  The Department of Labor has easy to understand guidance on this issue at:  https://www.dol.gov/agencies/whd/fact-sheets/17a-overtime

Even in a workforce familiar with the FMLA, some managers overstate an employee’s responsibilities to try and avoid overtime obligations.  The crafty manager might use broad strokes to describe a very important job; however, the salary the manager wants to pay seems not to match the alleged significance of the role.  The quickest way to catch these misclassification errors is to examine and analyze the lowest paid salaried employees in the workforce.  Depending on the workplace, you might find, by way of example, team leads, entry level managers, accounting staff, dispatchers, and in-house salespersons, who might not perform the duties required for exemption status.

TIP:    Smoke out FLSA concerns comparing the highest paid hourly, non-exempt employees against the lowest paid salaried-exempt.

2. Beware of Creative, Out of Place Job Titles

The law looks to the duties of a position and not the job title.  I find, however, that job titles often lead to unintentional FLSA misclassifications.  Take this common scenario.  An employee wants the grandest job title he can get.  A manager is all to happy to grant that job title if it correlates with what HR typically deems an exempt position that keeps the manager’s costs controlled.   Here the employee and manager are aligned.  But neither the employee nor manager think about the FLSA in this negotiation.  Only when something goes wrong in the relationship does the employee later claim he should have been paid overtime all along.

LESSON:  Review job descriptions for FLSA compliance.

3. Spot Check for Off the Clock

Before COVID-19, employers struggled with work from home arrangements because they present obvious challenges with ensuring all worktime is properly counted.   Now, with hybrid and remote arrangements so prevalent, employers must be very aware of the potential for claims that employees are working off the clock.  Periodic audits should be conducted to confirm all work hours are recorded and compensated.

TIP:    HR should implement semi-annual written questionnaires with remote and hybrid employees to confirm all workhours are reported.

I hope you enjoyed this newsletter!

April Fool’s Day took on a new and special meaning for me because it is my workplace anniversary at WKPZ.  Margo and I joined the firm twelve years ago.  Sort of ironic that I get to celebrate something special on a day I really hate.   I find practical jokes distasteful and mean-spirited, and I think they have no place at work.  Thinking on the topic of foolish workplace antics, I thought in this newsletter I would offer my thoughts on three foolish things employers should avoid.

1.  Never distinguish formal from informal complaints of harassment/discrimination.

After 28 years of practicing law, I still cannot define an “informal” complaint.  But I will do my best to explain the bad explanations offered to me over the years by employers who tried to distinguish informal from formal complaints of harassment and discrimination.     First, an “informal” complaint excuses an employer from investigating the allegations.   Second, an “informal” complaint remains so secretive that management neglects to record the complain as if the conversation never happened.  Third, with “informal” complaints the alleged bad actor faces no disciplinary action.

Tip:  When you hear the term “informal complaint” promptly ensure the matter turns into a formal investigation.

2.  At-will employment does not justify ignoring progressive discipline.

Every employee handbook explains that employment with the company is on an at-will basis, except if you have a contract signed by a Company officer.   Managers frequently distort this statement to quickly fire an employee and ignore the basic notice of progressive discipline.  Fairly often I hear a manager say: “I thought this was at-will employment; why do I have to explain my reason for firing someone?”   Easy answer:  most people (and juries are a collection of 12 people) expect every employee be given a fair chance before termination.   No juror cares about at-will employment.  I have never mentioned “at-will employment” at any trial.   Juries want and expect every employer to have followed some form of progressive discipline unless (and this is rare) someone did something so bad they should be fired on the spot (e.g., serious sexual harassment, assault, drunk driving, theft).

Tip:   A manager who refers to “at-will” employment in a disciplinary discussion might lack a defensible reason for taking the proposed action.

3.   Avoid Bad Timing

Smart employers accept the need to delay a termination when presented with new circumstances. For example, firing an employee for performance reasons should get pushed out when an employee announces they need Family Medical Leave.  Similarly, it would be unwise to issue a PIP to an employee who recently announced she is pregnant.  This all sounds so obvious.  Yet, sometimes a company gets very set in a decision and unwilling to pull back even when a situation clearly warrants a pause.

Tip:   Act promptly with disciplinary and termination decisions to avoid new circumstances that may complicate a situation

In the 28 years of practicing employment law, I have never recommended an employer demote an employee as a form of corrective action.  I have many times said what I’m telling you now: never demote.  While demotion may be an effective tool in the military, in my opinion, it has no productive place in the private sector.  Here are my three reasons employers should avoid and reject demotion as a form of disciplinary action.

1. Demotions sets bad precedent.

My job involves telling a story to the jury that explains, first, why an employer terminated the plaintiff, and second, how the decision was consistent with company policy and practice.  The task can be difficult without good written records.  But imagine the elected challenges if the employer has a practice or history of considering demotion as an alternative to termination.  In that situation, the employer not only has to prove termination was supported by the facts but must also explain why it did not consider demotion.

Tip:  If an employer eliminates the demotion option, it makes the choice between final written warning and termination easier.

2. Demotion is a way of kicking the problem down the road.

A demoted employee nearly always gets a new boss.  The theory is that maybe under different management and a new role the employee will emerge successful.  It’s a nice thought but not a realistic result.  A boss, unwilling to make the difficult termination decision recommends the employee get a new job in the form of a “transfer”.  As you might imagine, when the story gets to me, the employee is on their third boss who got snookered into thinking the employment relationship could be salvaged.

Tip: The manager who recommends demotion typically needs coaching on how to successfully manage the employment relationship.

3. Nothing good for the employee.

I cannot imagine a more humiliating way to treat an employee other than demotion.  Reprimands are private.  A termination removes the employee from the workplace.  Demotion tells everyone that an employee was not suitable for a role.

Thought:  Demotion might make a boss feel better about not firing an employee, but it does little for an employee’s long-term success.

A business positions itself best to avoid employee-related claims by hiring strong managers. Good supervisors are the key to helping employers avoid the courthouse. And, when the suits happen, as they do, the winning cases have a common feature: a good manager at the center of the case prepared to defend the company.
Based on all my experiences meeting the managers accused of being “evil” discriminators, I formed my thoughts on who employers should entrust with management authority. Here are my tips for selecting managers who help you avoid employment problems.

1. A PLEASANT, RESPECTFUL TEMPERMENT

Some people naturally possess a temperament suited for supervisory responsibility. Good managers reserve judgment until they know the facts. They tend to be patient as well as good listeners. They let employees talk, share their views, and even rant a bit. Only after listening carefully, they calmly – never yelling — explain a course of action with reasonable and achievable requests. Finally, they show respect to all and never speak ill of others in public settings.
This all sounds so simple, right? But not many people inherently possess these qualities. So what are we mere mortals supposed to do? The answer centers on training and coaching. A good employer can work with the rest of us – me included – to help normal people who get frustrated, irritated, and jump to quick conclusions to find ways to slow down, listen better, and think through best practices and smart decisions.
But the real tip here is not to promote into management a person who you believe fundamentally lacks the proper temperament or the ability to be coached to develop this critical trait.

2. GOOD JUDGMENT CALLS

Quality managers make decisions and stand by them. They give the team credit for wins, and they share responsibility when their leadership resulted in a less than desirable result. The distinction between good and weak managers is not necessarily making mistakes but errors in judgment. Mistakes occur because of an oversight or misunderstanding of facts. Usually, mistakes can be fixed.
In contrast, errors in judgment spur the reaction: “What were you thinking?” or “What possibly caused you to make that decision?” (Think 15-16 year old boys who do dumb stuff seemly instinctively.) Mistakes can be explained by missing some pieces to the decision. Poor judgment rarely can be explained.
The Tip: People possessing poor judgment traits nearly never work well in a supervisory role.

3. SKILLS, NOT SENIORITY

Some workplaces assume seniority as a right to promotion. Yet, on its own, seniority does not justify promotion to management. An employee may be great in a job, but the character traits for managing others rarely flow from doing good work for a long time.
My tip is simple: Tenure should not in itself be the reason for promotion to management. To avoid the notice that tenure justifies promotion, I suggest employers clearly articulate – in writing – that while seniority may be considered in the promotion to supervisory positions it will never be a decisive factor and that skills, more than tenure, will be key factors.

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 https://www.employment-matters.com/consulting/mind-your-manners/)   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.

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 https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws?utm_content=&utm_medium=email&utm_name=&utm_source=govdelivery&utm_term

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 mlevine@wkpz.com (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!

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.

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.

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.