Fantasy Football - The Cost To Employers

It's almost fall, and football enthusiasts are eagerly awaiting for the college and pros to begin their seasons.

Over the past decade, fantasy football leagues have proliferated - especially since the advent of the internet. More and more people checking player and team stats; proposing trades; and tracking their team performace - and that's OK - unless it's being done at work.

According to Challenger, Gray & Christmas, fantasy football leagues cost U.S. employers about $9.2 billion annually in lost productivity.

It's a simple fix: internet use at work is for business use only. Fantasy Football (and anything else personal, for that matter) can be done from home, on one's own time.

Courtesy Newsday.

Non Competition Agreements Really Unenforceable

Lots of our clients request Non-Compete Agreements for their employees. I generally try to talk them out of trying it, and if they insist, I refer them to their employment lawyer.

The reason I discourage Non-Competes is that the courts change the covenants so frequently, there's no real way to have a solid template to develop one.

Now comes the latest California Supreme Court ruling, which has established a 'bright line' rule in the case of Edwards v. Arthur Andersen. The ruled on August 7 that California employers cannot enforce agreements limiting competition by former employees, except within very narrow statutory exceptions.

If you really believe you need a Non-Compete Agreement for your employees, please consult your attorney. And read this excellent article from Cooley Godward & Kronish LLP.

2008's Most Popular Employee Perk?

The cost and hassle of transportation (in addition to the poor economy) is leading employers nationwide to consider 4-day workweeks, car pooling and the like.

Yet the employee who must drive on company business is left out in the cold...unless...

According to a survey by SHRM (The Society for Human Resources Management) says that the most popular perk this year is raising mileage reimbursement to the current IRS limit (which is now 58.5 cents per mile).

A small price to pay for maintaining employee satisfaction.

Courtesy Clarksville, TN Leaf Chronicle.

Consequences of the Brinker Decision

Last month, a California appellate court made a significant (although sure to be appealed) ruling regarding rest and meal breaks.

For years, the California DLSE and courts have interpreted the term "provide" to mean employers must require employees to take their mandatory meal periods or be liable to the employee for one extra hour of pay.

The court determined:

The appellate court’s ruling included the following major points:

1. Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.
2. Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.
3. Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.
4. Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.
5. Liability For Known Off-Clock Work. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.
6. Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.

The Department of Labor Standards of Enforcement has issued the following memo that explains their position on this ruling. Read it here.

Employer Liability for Violence in the Workplace

An altercation at an Autozone store in Orange County California has put employer liability for violence in the workplace back in the news.

A customer was at the store to buy motor oil when he whistled at an employee in order to get his attention. The employee, a sales manager, took the whistling as an insult, and after a verbal exchange, hit the customer with a metal pipe.

The customer filed a lawsuit, contending that AutoZone was negligent in hiring, retaining, and training the employee, in light of his allegedly violent background. In particular, the sales manager had a juvenile delinquency record for attempted murder, although AutoZone was unaware of it. And, AutoZone had previously given the manager a written warning for raising his voice to a customer.

The CA appellate court ruled that the customer-victim can take his vicarious liability claim to trial.

Under California law, an employer is vicariously liable for its employees’ wrongdoings that are committed within the scope of the employment, and an employee’s willful, malicious, and even criminal acts may fall within the employment scope.

The appeals court, however, went on to reject the negligence accusations. According to the court, AutoZone had no duty to do a more-thorough background check before hiring the employee—and even had the company done more, it still might not have uncovered the juvenile record. What’s more, the prior incident in which the manager raised his voice with a customer wasn’t a red flag that he might be violent.

Avoid Liability

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

What can employers do to avoid liability—either vicarious or because of the employer’s own negligence—stemming from an employee’s violent outburst?

• First, be sure to investigate job applicants’ backgrounds before they’re hired. This is especially true if the worker will have unsupervised conduct with third parties or the public.

• Second, take care to monitor employees’ conduct, particularly, if given the nature of the job, there’s a possibility that violence could erupt. If you don’t, you could be liable for negligently supervising an employee who ends up assaulting a customer or co-worker.

• Third, promptly respond to complaints or warning signs. If you become aware of a possible problem with an employee, you will face bigger legal risks if you don’t investigate and take action.

Flores v. AutoZone West, Inc., Calif. Court of Appeals (Dist. 4, No. G038322 (2008))

Courtesy Business & Legal Reports, Inc.

How Not To Lead In a Bad Economy

The down economy stresses everyone in the workplace - including the boss.

But unless you are implementing an overall reduction in force, the last thing you want to do is threaten employees. It costs a substantial amount of money to replace an existing employee.

Yet that's what's happening in many businesses right now - here are some examples:

• Managers are more reluctant about granting sick leave or holiday pay.
• Employee reviews are more negative than usual, perhaps due to the fact that managers are paving the way for a justified firing (so they don't have to do a layoff).
• Employees are forced to do the work of two people without getting additional compensation.

Not the way to lead!

Find ways of making employees work better - and more efficiently. Consider any of the following:

• Flex scheduling that accommodates school visits, doctor appointments-or just personal time
• Telecommuting, from one day a week to full time
• Compressed workweek (for example four 9-hour days, or three 12-hour days)
• Job sharing (where typically two people share one full-time job, often overlapping for 1 day)
• Part-time seasons for full-time workers (that is, like a school schedule—work full time most of the year, part-time or not at all during the summer)

Courtesy Eve Tahmincioglu in msnbc.com

California's "New" Meal & Rest Period Rules

Last month, a California Appellate Court ruled employers don't need to ensure meal and rest breaks - a substantial change from previous policy.

Now comes a succinct analysis of that ruling from the law firm Barker Olmsted and Barnier. The key points as summarized in their article:

The appellate court’s ruling included the following major points:

1. Rest Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking rest periods, they need only “provide,” not ensure, that rest periods are taken.
2. Flexible Timing of Rest Periods. Employers need only authorize and permit rest periods for every four hours or major fraction thereof worked, and they need not, where impracticable, be in the middle of each work period.
3. Meal Periods Must Be “Provided” But Need Not Be Forced. While employers cannot impede, discourage or dissuade employees from taking meal periods, they need only “provide” them and need not ensure they are taken.
4. Flexible Timing of Meal Periods. Employees are entitled to take meal periods when working more than five hours. But employers are not required to provide a meal period on a rolling five hour basis. That is, as long as an employer provides a meal period at some point during a shift, it doesn’t matter if the employee works more than five consecutive hours without taking that meal period.
5. Liability For Known Off-Clock Work. While employers cannot coerce, require or compel employees to work off the clock, they can only be held liable for employees working off the clock if they knew or should have known they were doing so.
6. Class Action Unavailable. Because whether or not employees were provided a meal and rest period, and whether they worked off the clock, cannot be determined on a class-wide basis, but rather must be determined on an individual case-by-case basis, the lawsuit should not be certified as a class action.

Barker Olmsted & Barnier also agree with our assessment: Because this is an appellate court ruling, don't change your practices just yet; the appeals have just begun.

Paying Wages Into Debit Cards

The California DLSE (Department of Labor Standards Enforcement) has approved the payment of wages into a debit card or money check.

This should be a convenience for employees who previously have not had access to direct deposit of their wages. And in any case, it's definitely easier for employers not to have to cut a check (or sign all of them, either).

If you use a payroll company such as ADP or Paychex, contact your representative to get this started.

If you run payroll in-house, we strongly suggest you contact your HR Consultant or employment attorney before you enact this new system.

As usual, California is ahead of the rest of the nation in issues like this - if you'd like to implement this program - call your payroll provider or employment attorney to make sure your state accepts this form of payment.

Courtesy Barker Olmsted & Barnier.

Independent Investigations Can Reduce Your Liability

An employee has accused her supervisor of sexual harassment, and just informed you about it.

Now what do you do?

First, call your employment attorney, who will likely recommend an independent workplace investigator to interview all the relevant witnesses and work with that attorney to develop recommendations as to what, if any, steps should be taken.

Conducting your own investigation is fraught with peril. First, you don't have the experience or knowledge to do so, and secondly - you can avoid liability by having that investigation conducted by a neutral third party.

Of course, the first order of business is to make sure you have non-harassment and non-retaliation policies in writing immediately.

Men Fighting Back in the Workplace

It used to be that sexual harassment claims were made almost exclusively by women. But times have changed. According to the EEOC, men accounted for a record 16 percent of all sexual harassment complaints in 2007, nearly double the 9 percent figure in the early 1990s.

And men are also filing more FMLA Claims as well.

Attorneys believe this trend is caused by the so-called Father's Rights Movement.

Regardless of the cause, the monetary impact to employers is significant. One man successfully sued his employer for $11.65 million - he charged he was retaliated against for taking time off under the FMLA to care for his aging parents. Schultz v. Advocate Health, No. 01C-0702 (N.D. Ill. June 5, 2002). The case settled for an undisclosed amount in 2003.

Make sure to establish gender-free retaliation and harassment policies in your workplace. It's not just women who are suing anymore.

Courtesy law.com.

Workplace Respect

Here are the most common workplace 'pet peeves', as identified in a Fast Company 2006 survey:

1. Being condescended to, 44 percent
2. Being reprimanded publicly, 37 percent
3. Micromanaging, 34 percent
4. Loud talkers, 32 percent
5. Cell phones ringing, 30 percent

We've talked at length this week about issues that increase employee turnover. Note that the first three items on this list directly relate to poor management.

Employees want to enjoy their work; and if there is disrepect from the boss, there's going to be problems in the workplace.

Bosses: make sure you show your employees respect (remember the golden rule); and if you see disrespect in your workplace, do not allow it to continue.

Courtesy Maureen Moriarty in the Seattle Post-Intelligencer.

Source:

Humor in the Workplace

Times are tough. And when economic uncertainties prevail in the workplace, one of the first casualties is a sense of humor, which I consider a critical component of a successful work team.

That’s bad news for productivity, creativity and the general well-being of workers, say HR and humor experts.“It’s a natural tendency for some folks to tighten up during tough times, but we need to lighten up,” warns Joel Goodman, founder of The Humor Project Inc.

There's a need to toe the line for political correctness, of course; but humor - and having fun at work - increases productivity and morale, thus reducing turnover and gloom.

As an employer, it's critical to always remember that a workplace that's fun is a good workplace. And if you're working for a company and it's not fun: why would you spend at least a third of your life not having fun?

Thanks to Eve Tahmincioglu's article in msnbc.com

Flex Time's New Popularity

The increased cost of gas is one of the reasons for the increased use of 'flex time'. Employers are starting to squeeze the 40 hour/5 day week into a 40 hour/4 day work week - with the approval of both employees and employers.

Bosses say that flex time increases productivity.

The 2008 National Study of Employers shows that there is an increase in the use of flextime (79% of employers now allow it, as opposed to 68% in 1998).

Besides the cost savings of gasoline, employees perceive flex time or a reduced work week as a benefit - and the advantage for employers is reduced turnover.

Courtesy Christian Science Monitor & the Miami Herald.

Nine Steps To Reducing Your Wage & Hour Liability

Yesterday, we wrote about the incredible proliferation of wage & hour claims and lawsuits spreading over the country.

Today, some tips to reduce your chances of being at the wrong end of a filing:

1. Audit all positions classified as exempt from overtime;
2. Re-write your job descriptions, even if they were last done within the last few years;
   
3. Review your policies to determine whether steps can be taken to eliminate or substantially reduce the possibility that an employee can claim to have been working, including reviewing such things as “automatic deductions for lunch,” rounding, and similar practices.
4. Analyze policies and procedures to review deductions from wages and salaries to ensure that they comply with the minimum wage and overtime requirements of state and federal law. These are the first steps toward minimizing liability.
5. Train Managers. Making sure managers understand the rules is paramount. Managers can avoid costly mistakes and spot problems before they become too costly.
6. Think Exempt - Non-Exempt, Not Just Salary - Hourly. Too many employers pay employees a salary and then believe that relieves them from any obligation to pay overtime. Employees need to make sure those employees are properly classified as exempt (someone who is typically not paid overtime) or non-exempt (someone that is generally entitled to overtime).
7. Take Complaints on Wage Issues Seriously. You want to treat wage and hour complaints just as seriously as employment issues including harassment or discrimination. In fact, these wage and hour lawsuits could be more costly to your business.
8. Do Not Retaliate. Never, never, never retaliate against someone that makes a complaint for wage and hour issues.
9. Develop strong policies on pay practices and employee hours. Make sure employees work those hours assigned and do not work off-the-clock. Above all, properly document the number of hours worked because just like in baseball where a tie goes to the runner - if the employer has not documented the hours worked by the employee - the benefit of the doubt will go to the employee.

Courtesy Rush on Business (we wish he was in California!), Elarbee Thompson, Monster.com

Wage & Hour Issues: The Trial Lawyers Dream Come True

More wage claims were filed in federal court in 2006 than in 2003/04 combined. Through April 2008, those claims are on pace to outdo 2007. Entire law firms are being formed to litigate wage and hour claims.

That's because about 70% of all businesses are out of compliance with wage & hour laws.

One Rochester, NY attorney switched from defense to plaintiffs work, saying, "I can hit a company with a hundred sexual harassment lawsuits, and it will not inflict anywhere near the damage that [a wage and hour suit] will."

It’s estimated that corporate America pays out more than $1 Billion a year to settle and resolve wage and hour claims.

We're mostly talking about exempt or non-exempt employees, from not taking meal breaks to tip credits, and overtime. From Starbucks to Oprah Winfrey, no employer is immune.

Tomorrow, we'll talk about ways to prevent these lawsuits and claims from occurring.

Courtesy Rush on Business; Ethics & Legal Compliance Training; Business Week; New York Times (registration required)

Workplace Wellness Programs

Even in this down economy, workplace wellness programs are on the increase. The advantages are numerous - lower health care costs; increased attendance and improved morale.

Employee Assistance Programs (EAPs) are also an inexpensive way to obtain these advantages - and in some cases, spouses and dependents can participate as well.

Wellness programs also increase the attractiveness of an employer. Companies with wellness programs that touch on the physical and emotional needs of staff and their families show the employer's interest in keeping everyone healthy, and keeping them happy.

Courtesy East Indiana Star Press.

When You're Ready For Management

"It's good to be the King," said Mel Brooks in History of the World Part I.

Lots of employees envy the boss; the boss is the one who sets the agenda, enforces the rules, and gets to make the decisions the rest of us must implement.

From the outside looking up, management seems like a great job. Telling others what to do, instead of being told what to do, is really the essence of what many people aspire to.

Yet from the perspective of managers, there's no job more humbling. Making decisions - no matter how benign - that affect people's lives is difficult. The balance between managing and doing is a fine one.

For example, the best salesperson does not necessarily make the best manager. The attributes needed to succeed in sales - supreme self-confidence, self-motivation and determination along with a strong measure of independence - are not those which are desired in a great manager.

Management requires a huge team concept, the ability to admit you've made incorrect decisions and immediately change course.

A very good checklist on "Are You Ready For Management" is available here - written by Jackie Harder in the Miami Herald.

Keep Politics Out of the Workplace

We've written before about the need to keep political discussions out of the workplace. The best practice is to discourage it - emotions can simply get to volatile, and there's no real need to have that discussion in the workplace, anyway.

And don't let anyone throw the first amendment at you, either: political speech at work is generally not protected by the First Amendment.

Where the political issues get troubling is when employees bring political buttons, signs, bumper stickers, etc. into the workplace.

Make sure to review and/or update your employee handbook to make sure these activities are prohibited (usually through a non-solicitation policy).

And, make sure to read this excellent article on the topic from our friends at Jackson Lewis.

Insult Your Boss Day

Happy "Insult Your Boss Day". No, I'm not kidding. It must be official - it even has a website: http://www.insultyourbossday.com/.

It better be tongue-in-cheek. I find very few bosses who appreciate being insulted.

There's a difference, though, between insulting your bosses and legitimate criticism.

Think about a major difference you have with your employer. The best managers invite a contrary opinion; just be careful about how and where you express that opinion.

I never object to an employee who has a difference of opinion. But I would strongly prefer to be criticized in my own office than in front of a number of employees; my initial reaction to the latter situation would be hostile.

Don't insult; do express your opinion - but know where and when to do it the right way.

Courtesy Winston-Salem Journal.

Employers Do Not Need To Ensure Meal Periods

In a decision that California employers have been waiting for, a California Court of Appeals today ruled "...while employers cannot impede, discourage or dissuade employees from taking meal periods, they need only provide them and not ensure they are taken."

In Brinker v. Superior Court, the Court analyzed what California Labor Code § 512 means when it requires an employer to "provide" meal periods to its non-exempt employees. (California Labor Code § 512 requires that an employer "provide" an employee with a meal period if the employee works five (5) hours or more.)

For years, the California DLSE and courts have interpreted the term "provide" to mean employers must require employees to take their mandatory meal periods or be liable to the employee for one extra hour of pay.

It would be a mistake to immediately change any policies you have in place regarding meal breaks; the decision will almost certainly be appealed to higher courts.