Love Contracts - Making Things Easier

The workplace world is more intense than ever. And the likelihood that a workplace romance will develop is increasing - A 2007 Spherion survey showed that about 40% of U.S. workers have dated a co-employee, and another 40% would consider a workplace romance.

Employers generally cannot prohibit employees from dating one another (although you can prohibit supervisors from dating subordinates) - yet 50% of all sexual harassment cases begin when the relationship was consensual.

A non-fraternization policy in your handbook is a start, but generally isn't good enough. More and more, businesses are starting to rely on love contracts as a method to mitigate the chance of problems when the romance eventually turns sour.

Joseph Gagnon, writing on behalf of Fisher & Phillips LLP, says that

Properly implemented and appropriately drafted, love contracts will reduce the likelihood of litigation arising from workplace relationships.

To my knowledge, love contracts haven't been fully tested in the courts yet - but Gagnon's outline of what should be in a 'love contract' and its benefits are useful reading.

Here's the full article.

Out of State Residents Subject To California Labor Law While Working In State

If you have employees who occasionally work in California, here's some important news for you.

Sullivan v. Oracle Corp, a recently decided federal appeals court decision, found that California labor law applies to nonresident workers. While the decision was based primarily on exempt/non-exempt status of two Colorado-based employees, the ramifications are endless, as outlined by Christopher W. Olmstead:

• Does the company have sufficient ongoing contacts within the state of California, such that under the Oracle court’s ruling, California labor laws should apply to its workers while working in California?

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• Does the applicable California labor law provide superior protection to the out-of state resident? (In most cases, the answer will be “yes” because of California’s more rigorous laws.)


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• What rights under California law apply to the workers? Consider, for example, wage and hour law (e.g. exempt status, overtime, meal and rest periods), and fair employment practices (e.g. disability law).

If you have non-California employees who work in California - even infrequently - contact your employment attorney.

If it can happen to Oracle, it can happen to you.

Courtesy Barker Olmsted & Barnier

Bad Bosses and Your Health

Working for a bad boss is never fun.

Now, Swedish researchers have shown that working for a bad boss can kill you.

Employees who worked for four years with managers who were inconsiderate, opaque, uncommunicative and poor advocates were about 60 percent more likely to suffer a heart attack or other life-threatening cardiac condition.

The study tracked 3,100 men over a 10 year period. And it shows that despite best intentions, what happens on the job doesn't stay at the job - people take it home with them.

Is it really worth a job to be tortured by a bad boss? No. Life is too short.

And if you're a boss who doesn't know if you're good or bad - it's time to find out.

Courtesy Fort Worth Star Telegram.

A "Family Atmosphere" in the Workplace?

I generally get concerned when hearing about a business that cultivates a 'family-like atmosphere'. Although noble in intent, the fact is that you are a business - regardless of your intentions or the size of your operation. I can list case after case where a business owner who wanted to create a 'family' atmosphere ended up getting burned by the eventual employee who becomes disgruntled at work.

And think of the phrase - "we're like a family here". Families have break-ups, problems and issues - and so do businesses.

So when I read this article in the Wall Street Journal, I had reservations.

Decagon Devices, a Pullman, Wash., scientific instruments and sensor maker with about 70 employees, won a Top Small Business Workplace award from the WSJ.

Decagon's CEO, Tamsin Jolley, admits that she had to let some employees go. Although those employees fit in with the corporate culture, they simply weren't doing the job.

It's a short but interesting read. And what I particularly appreciate about Jolley's comments is when she says

"...it has do to with the value we place on employees...I think it also facilitates communication and employee input across all areas of the company, because employees that know each other well are more willing to speak up and share their ideas with each other."

THAT'S a good corporate culture. Not necessarily creating a 'family', but creating a workplace conducive to communication and productivity.

Common Sense

Most human resource issues can be focused into one area: practicing common sense.

Jessica De Vault, a columnist for the Fayetteville Observer, went to a corporate holiday party as a guest of an employee. She'd never been to such a party before. After attending, she was moved to write this column outlining ways to behave at a company party.

Ms. De Vault is not a human resources professional nor employment attorney (as far as I know). But her advice is absolutely spot on.

Most of the time, common sense (if actually practiced) is the best way to develop and follow guidelines for good professional behavior.

Wal-Mart Settles A Wage & Hour Lawsuit

Over $54 million to settle a lawsuit to workers in just the state of Minnesota.

What did Wal-Mart do this time?

Allegedly, the cut their workers' rest breaks and didn't prevent workers from working 'off-the-clock' in a 10-year period ending last month.

Employees read articles like this and see an opportunity to win the lottery. It's especially prevalent in bad economic times. (In good economic times, it tends to be only disgruntled employees who look to cause trouble).

If Wal-Mart, with a huge staff of human resource professionals, can have this happen - it most certainly can happen to you.

Review your Wage & Hour practices as part of a comprehensive employment audit of your operations.

Courtesy msnbc.com

Wage & Hour Issues Engulfs Tom Colicchio

Tom Colicchio, owner and chef at the Craft restaurant empire, is the latest in a never-ending line of employers who have been sued for wage and hour issues.

This time, it's misappropriating employee tips and withholding overtime pay that's alleged in a lawsuit filed by a former employee.

I cannot more highly recommend that any restaurant owner immediately contact an employment attorney or qualified human resources consultant to review tipping practices

Craftsteak Restaurant at the MGM Grand Las Vegas

and all wage and hour issues. It's happening to restaurants like Craft to Starbucks, and it can happen to you.

Who Should Produce Your Employee Handbook?

It's that time of year again - when businesses need to update their employee handbook - or begin to create one from scratch.

There are 4 ways to do an employee handbook:

1. Have your attorney do it
2. Do it yourself
3. Borrow someone else's (a truly bad idea);
4. Get a qualified consultant to do it.

In this new video release (just a minute long), I discuss the pros and cons of these four alternatives.

Porn in the Workplace

A new report in Newsweek shows than employees watching internet pornography at work has risen 23% in the past year.

The article quotes several thoughts on the rise:

• Employees are looking for 'an escape';
• The huge proliferation in "adult" websites;
• A younger workforce that believes porn is 'not that big a deal';

Porn Star Valentina Vaughn

The last reason resonates with me - maybe porn is (or isn't) that big a deal to individuals - but it certainly must be for employers.

There's the lost productivity; increased chances of sexual harassment lawsuits; and the potential for viruses that infect many porn websites.

All businesses should have a written policy stating the internet and company-e-mail is for business use only. And discipline needs to occur immediately when violations are found.

Finally, consider having sexual harassment training at your business. The examples many of us have for the lost revenue to employers around the country should result in a sobering experience for everyone.

Newspaper Settles Sexual Harassment Lawsuit

I mean, really. As if newspapers didn't have enough problems these days, the Minneapolis Star-Tribune will now have to pay more than $300,000 to two women who accused the paper of sexual harassment.

The charges included vulgar comments, dirty jokes and sex-based statements, according to the EEOC (which filed the lawsuit).

The Star Tribune also agreed to:

• Take steps toward preventing sexual harassment or retailiation against female employees in the mailroom;
• Ensure it employs a mailroom supervisor or manager for every shift;
• Employ a human resources representative responsible for mailroom functions, including monitoring and resolving any complaints; and to
• Also will provide annual sexual harassment training.

Wouldn't it have been cheaper to do all that before?

From the Minneapolis/St. Paul Business Journal

Tip Pooling and the Las Vegas Casino

Among the most prevalent wage & hour issues in the concept of tip pooling - where employees eligible for tips have all their tip money collected and then distributed - based on factors such as hours worked, time off, etc.

Tip pooling can go horribly wrong (Starbucks was recently ordered to pay $100 million) or it can go well for employers.

Recently, the Wynn Hotel & Casino won a Nevada Supreme Court decision. Wynn made significant changes to their tip pooling program in 2006 (a year after the resort opened) - because supervisors were making less than dealers. The dealers sued, but in an affirmation of an employers' ability to make policy changes with at-will employees (Wynn is not a union shop) - the Supreme Court said the dealers could not pursue their lawsuit.

An excellent summary is from our friends at Jackson Lewis.

Flexibility During An Economic Crisis

Some of the best advice I've seen for employers during this economic crisis is the need to immediately become flexible.

It's not as easy for large, entrenched companies as it is for smaller companies used to moving and changing rapidly.

But businesses that have adopted flex-options have saved real money by redistributing willing workers’ time. They’ve seen:

• Increases in both worker and client satisfaction;
• Retention of well-trained and productive employees; and
  
• An increase in employee morale.
  

Flexibility means creating a cohesive relationship between you and your employees. Before doing a knee-jerk reaction (eliminating jobs altogether), consider what alternatives are available. After all, when the economy rebounds eventually, you're going to need your best employees to help lead the way. Hiring a bunch of new employees when business picks up will not result in proportionately great results.

Consider, the following - as suggested by Dr. Malcolm Smith in the New Hampshire Business Review:

• Flexible hours that allow workers to get their job done and still have time for family and personal life needs;
• A compressed workweek that enables employees to work allotted hours over fewer days;
• Flexible leave, which allows for paid time off to care for children or aging parents, personal illness, personal issues and parental leave for birth, adoption or care of a foster child (this is required for all businesses in California and businesses with more than 50 employees nationally); and
  
• Flexible career-planning, which allows for phased–out retirement, as well as professional-development leaves and sabbaticals.

Most importantly - make sure to communicate frequently with your employees on your intentions - get their input. You'll be surprised what happens when everyone works together.

IRS Lowers Standard Mileage Rates

Gas prices are plummeting, and the IRS has responded by lowering the 2009 Standard Mileage rates.

Effective January 1, the standard business rate will be 55 cents per business mile, down from the current 58.5 cents per mile.

If you reimburse your employees for business travel, I strongly encourage you to put a policy in your handbook that says something along the lines of "Business mileage will be reimbursed at the IRS standard mileage rate." (Make sure this policy, as well as all handbook policies, are legally reviewed).

You don't want to be too specific with the mileage rate; otherwise, you'll be changing your handbook too frequently (this is the third IRS mileage rate change in the past year).

Read the IRS announcement here.

Car Wash Employees Get $450,000

Many employers believe that only the 'big companies' can get into trouble with Wage & Hour issues. This belief is usually supported by the media - it's always good copy when a large employer gets hit with a multi-million dollar fine.

But that's not true! All businesses - regardless of size - are liable for violations of wage & hour issues. Like the car wash in Redondo Beach, California.

Turns out the car wash was paying about 60 employees for the first four hours of work, and then letting them work for 'tips only' for the rest of the day.

Big problem.

The California Labor Board conducted an investigation starting in 2006, which resulted in a lawsuit in 2007.

The award, announced in November 2008? $450,000 for those 60 employees.

Can your business survive a fine like that? If not, make sure you're intimately familiar with all wage and hour issues. Get a consultant or employment attorney to audit your practices to ensure you're in compliance.

Retaliation on the Rise - Again

In 1997, retaliation claims comprised about 23% of all cases filed with the EEOC. Last year, that number jumped to 32.3%.

Why the increase?

For one, employment attorneys advise that it's much easier to prove retaliation than the underlying cause (say, sexual harassment). While harassment may often boil down to 'he said, she said', retaliation is often black-and-white.

I've conducted workplace investigations where we were convinced there was no harassment, only to find out an employer retaliated against that same employee. In other instances, I've seen an employee's attorney not contest the harassment only to focus on the retaliation.

Robin Shea, writing in Costangy, Brooks & Smith's corporate newsletter, does an excellent job of summarizing the issues with retaliation.