Andie Burjek, Author at Workforce

August 20, 2020June 29, 2023

Restaurant workforce management tips to reduce turnover

The restaurant sector sees one of the highest turnover rates, at 81.9 percent as of 2019. But proper restaurant workforce management practices can help managers move the needle in the right direction and motivate employees to work harder and stay longer.

Even keeping restaurant employees a little longer can help restaurants out, according to Lil Roberts, CEO and founder of fintech company Xendoo. Lower turnover ensures that managers spend less time training new employees, which also ultimately saves money on training costs.

Also read: Boost your managers’ effectiveness with an essential mobile clock-in tool

Here are six restaurant workforce management tips to help owners and managers keep good employees longer and keep them engaged with the job.

Find the right team members that will be consistent and dependable

Most restaurant employees don’t understand that their job can become their career, Roberts said. Moving higher up the ladder at the restaurant or moving to a higher-tiered establishment can be a potential career path for them.

Managers must more carefully consider how to hire right, Roberts said, suggesting that they create scorecards unique to the establishment that allow them to vet candidates for job duties, culture fit and job expectations. Conversely, when they make a bad hire, they should “find the door they came through and nail it shut,” she said.

For example, if a restaurant sees many employees who are inconsistent about showing up to work on time, managers can consider how to add behavioral-based questions into the traditional interview process.

Also read: Knock out the practice of buddy punching for good

These behavioral questions shouldn’t be too direct, which might ultimately give a manager a yes-or-no answer that isn’t helpful. The question “Are you organized?” would give a more generic answer versus something like “If I opened your closet and looked left, what would I see?” Roberts said. A more organized candidate might end up being a phenomenal host or hostess, she added, while someone with different strengths may be a better server.

Talk to employees about their future and career goals

People often see restaurants as a workplace with few benefits and low pay, but the reality is that benefits and compensation depend on what level of the restaurant someone works at, Roberts said. It also depends on the dining establishment itself. A waiter at a casual sit-down restaurant may value flexibility and making enough money to get by until they move on, but at a more family-oriented restaurant managers have the opportunity to have meaningful conversations with wait staff, Roberts said.

Questions include: What are your life goals? Are you going to school? Would you like to use this job as a stepping stone to a career in the restaurant industry?

High-end restaurants like Morton’s Steakhouse with good wait staff jobs will hire based off skills and years of experience, Roberts said, and managers at more casual eateries can use the appeal of these higher tiered restaurants to retain employees longer. They can teach these workers skills needed to work at a high-end restaurant and give them the experience years needed to be eligible for those jobs.

Also read: Employee performance shines bright with valuable, continuous shift feedback

Not only do employees benefit in this situation, but employers in the restaurant industry can save money by reducing turnover.

Keep temporary employees just a little longer

Not every wait staff member wants a career in the industry, and that’s OK. Restaurants can still benefit from enticing them to stay a few months longer than they originally planned. Managers can do this by learning what drives workers, Roberts said.

If someone wants a fun workplace, one way to keep them engaged is creating contests that keep them entertained and happy, she said. If someone wants stability in their schedules because of other responsibilities that limit when they can work at the restaurant, managers can honor that and give them the same days and times each week.

“Then your life is easy, and theirs is easy,” Roberts said. “And it all stems from behavioral hiring and hiring the right people. If you’re a business owner and you’ve got a revolving door, you need to not say ‘Oh, the workforce is bad.’ You need to look internally and say, ‘What process can I change?’”

Invest in the latest technology

Restaurants have been notorious laggards when it comes to adopting new technology, according to Sam Zietz, CEO of payment technology company GRUBBRR, adding that the COVID-19 pandemic has in part exposed what companies have embraced technology versus those that have been stuck in the past. Fast-food establishments like Chipotle, Chick-fil-A and McDonald’s had invested in technology before the pandemic, and they’re leading the pack, he added.

Technology that makes restaurant workforce management simpler falls in a broad range, from self-ordering kiosks that allow former cashiers to find more satisfying jobs at the restaurant to shift-swapping software that gives employees a simpler way to trade shifts.

Meet employees where they are

Regarding communication, managers should consider employee preferences, whether that’s texting, calling, emailing or something else. It’s simple, and respecting employee preference goes a long way, Roberts said.

“As long as the employee is doing their job and fitting the culture of the company and the responsibilities of the job, pick what matters most,” she said. “Don’t try to have your whole team that just represents you and the way you move through the world.”

Promote a culture where team members feel comfortable approaching management

It’s very important to make sure managers create a safe workplace, Roberts said. According to Equal Employment Opportunity Commission data, hourly employees in the restaurant and retail industries are some of the most susceptible to harassment. Managers need to know how to deal with this.

“As owners, you have to train your manager team how to deal with these kinds of situations. The manager can’t just fly off the handle and yell at the employee who called an employee a name. That’s not going to solve anything,” Roberts said. “ You have to be very careful. One thing I will say is if a restaurant doesn’t have an HR person, find a fractional HR person that is HR certified who can help you handle that.”

August 19, 2020

41,214 reasons not to fire employees who request FFCRA leave

A San Jose, California, manufacturer has reached an agreement with the Department of Labor’s Wage & Hour Division to pay 17 employees $41,214 for wrongly denying their requests for paid coronavirus sick leave under the Families First Coronavirus Response Act. Specifically (and much worse than that description sounds), the employer terminated each of the 17 employees after they requested paid leave under the FFCRA.

According to the DOL, “The employer’s action resulted in a violation of the FFCRA.”

No kidding!

In announcing this settlement, the DOL reminds employers that they should call the agency for assistance with FFCRA compliance, that it has online educational tools to help avoid violations, that its website contains information to help employers understand the FFCRA, and that it published an FFCRA poster to explain the Act’s requirements.

All of these statements are true. But should an employer really need a website or a poster to tell it not to retaliate against employees who ask for paid leave under a federal statute? 🤦‍♂️

Small employers, if you’re not paying attention to the FFCRA, you should be. The Department of Labor certainly is.

August 18, 2020June 29, 2023

Proper shift coverage requires more communication and better technology

Creating a good schedule can be difficult, and laws in certain states and cities may place restrictions on things like how far in advance you create a schedule or if employees can work back-to-back shifts. Meanwhile, various trends of the 2010s and disruptions in 2020 have shifted some of the scheduling norms that managers used to rely on.

David Kopsch, a principal at Mercer’s Atlanta office, discussed how managers can create well-staffed shifts. Whether in more stable or more uncertain economic times, this guidance can help managers.

Communication is key

At the most fundamental level, there must be clear means of communication between managers and employees about the basics of the shifts like: What are the hours of operation? How early must workers arrive before doors open? How late should workers expect to stay after closing?

Managers should also keep lines of communication open with employees, Kopsch said. They can learn the hours employees want to work and the hours they’re available. Listening to employee input when possible can help employees feel like they have a little more control over their schedules.

An uptick in technology solutions

There has been an increase in the adoption of technology that can help with determining staff coverage, especially in times of major disruptions, like COVID-19, Kopsch said. More organizations are either contracting with vendors or developing their own applications, which helps both managers and employees feel more confident that schedules are accurate and compliant with whatever scheduling regulations may apply to the worksite.

On-call shifts are getting a backlash

While employers may still be interested in on-call shifts to ensure that a shift is perfectly staffed, there’s been pushback recently on this practice, Kopsch said. And some new scheduling regulations have put restrictions on on-call shifts or require employers to pay an on-call employee even if they do not end up working.

More accurate labor forecasting is one solution to make managers less dependent on on-call shifts by more accurately determining how many employees are needed for a given time and making understaffing or overstaffing less likely.

You don’t need to rely on predetermined shift patterns

While there are shift patterns managers have historically relied on, they aren’t necessary for proper shift coverage, Kopsch said. Workers in general are requesting more flexibility with their schedules, when they’re available to work and when they want to work.

In the past employers may have offered an opening shift from 7 a.m. to 3 p.m. and a closing shift from 3 p.m. to 10 p.m. But such set-in-stone shifts may not work for an employee who has to take their children to school in the morning. They may be available for an 8 or 8:30 shift but not the 7 o’clock shift, which is doable if managers rely on a more flexible scheduling system.

The pivot toward more flexible scheduling began about five years ago, Kopsch said. The more rigid shift coverage structure meant employers had a more difficult time finding employees, especially if employees worked second jobs, took classes or had child care or elder care responsibilities. Flexibility allows employees the opportunity to work somewhere they otherwise couldn’t because of these other responsibilities.

Ultimately, flexibility makes employees feel more respected and strengthens the employee value proposition.

This is especially true during times of disruption, like COVID-19. Businesses may now have different hours of operation and sanitation rules that impact an employee’s hours, and employers need to be even more flexible to employees in this new environment, Kopsch said.

Stay competitive even in times of high unemployment

Flexible scheduling is a competitive advantage for organizations interested in creating a high employee value proposition. This competitive advantage is important even when the unemployment rate is high, Kopsch said. While logic presumes that employees want to work more than ever in these times, the reality is that organizations still have to create a compelling experience and a positive environment for employees to want to work for them.

When someone is out of work, it may be because they have responsibilities like child care or parental care that inhibits them from finding a day job to pay the bills, Kopsch said. If an employer is competitive in how they schedule shifts and how much they take employee input into account when creating schedules, workers in situations like this may be able to take the job.

Also, employees appreciate choice. They want to work somewhere they can be themselves, feel safe and, as a result of employment, meet their needs. Then they will feel committed to the job and go to work, Kopsch said.

“But if they perceive that the employer’s brand does not resonate with them or the wages the employer pays are not going to meet their needs, then it’s likely the employer needs to take action on that,” he added.

August 17, 2020

COVID-19 and protected concerted activity

employment law, labor law, overtime records

Let’s suppose you’re a health care organization that terminates an employee after the employee refuses to wear a shared isolation gown and after the employee starts a group discussion with co-workers about the risks and dangers of shared gowns.

If that employee files an unfair labor practice charge with the National Labor Relations Board alleging that the termination unlawfully violate his right to engage in protected concerted activity under Section 7 of the National Labor Relations Act, do you win or lose the case?

According to this recent Advice Memo [pdf] published by the NLRB, the employer wins and the employee loses.

Although Charging Party discussed the gown issue with Charging Party on March 30, 2020, prior to drafting letter to the Employer, there is no evidence that the object of the conversation was initiating or inducing or preparing for group action in the interest of employees, as opposed to simply discussing that the nurses now had to share gowns. Further, Charging Party letter is solely focused on personal disgust at the notion of sharing gowns and fear for own and family’s safety, which believed to be at risk. …

Even if we credit Charging Party that a group discussion and plan of action to not share gowns that evening occurred, there is no evidence that the plan went any further than that.… [T]he employees here never took their concerns to management as a group. And, although Charging Party spoke to Charging Party about discharge which appears to have motivated Charging Party to take a stand that evening during shift, there is no evidence that they formed a plan of action together. Nor is there evidence the Employer considered Charging Party’s solo speech and refusal to work to have been concerted.

Furthermore, although Charging Party discussed the gown sharing issue with coworkers on March 30, Charging Party alone confronted management regarding the issue on March 29 and 30 and did not claim on those dates to be speaking on behalf of anyone. While Charging Party invited two employees in the parking lot to join a protest that evening, Charging Party informed them that it … would move forward with or without them. Nor is there evidence that any other employee formed a plan with Charging Party to refuse to work.… No employee requested Charging Party to act on their behalf or authorized to do so; simply decided on their own to represent coworkers.

These conclusions are consistent with the Board’s latest statements on lone-wolf activity, that a “lone wolf” can only engage in concerted activity, that “the totality of the circumstances … support[s] a reasonable inference that in making the statement, the employee was seeking to initiate, induce or prepare for group action.”

That said, employers should tread very carefully before terminating an employee for raising safety-related issues related to the current pandemic (or otherwise). The termination could violate OSHA. It could violate state law. And, in the correct circumstances, it could violate the NLRA (this case notwithstanding). It also sends the wrong message to your employees—that you don’t care about their safety, which is the absolutely wrong message to send while we are living with COVID-19.

August 5, 2020July 13, 2022

The risks of not utilizing labor forecasting

Labor forecasting promises many benefits to employers with a large amount of hourly workers. Still, many organizations have yet to utilize this process to inform their decisions on scheduling shifts.

The risks of overstaffing or understaffing are very real, and organizations should be aware of what exactly they’re risking by not trying to create smarter schedules.

Also read: Labor analytics: A how-to guide for company leadership

Exempt vs. non-exempt workers

Understaffing poses a significant risk pertaining to exempt/non-exempt classifications under wage-hour law, said Gary Pearce, chief risk architect at risk reduction platform Aclaimant. This is especially relevant when exempt, salaried staff members are working long hours because not enough people have been scheduled to work that day.

“These people will be far more willing to challenge their exempt status, and there will be no shortage of attorneys ready to convert their case to a class action,” he said.

Employers cannot silently stand by and knowingly allow wage-hour law violations to happen, Pearce added. They have the responsibility to do something about it.

Also read: Labor analytics add power to workforce management tools

“If frazzled employees are too busy to take uninterrupted meal or rest periods that they are entitled to, or the culture of the workplace is that it is acceptable for non-exempt workers to be asked to finish up work off the clock at home, or stay late but not record all work time in exchange for some future promise, then the employer is again highly susceptible to a class-action lawsuit,” he said.

Workers’ compensation concerns

Understaffing often leads to overworked and tired workers, which can increase the likelihood of people getting hurt on the job, Pearce said. Not only is this a worker safety risk, but it can open up the employer to workers’ compensation costs that could have been avoided.

Overstaffing also introduces its own risks. “Inexperienced workers are time and again shown to be far more susceptible to injury, and an overstaffing situation might make this more likely,” Pearce said.

He added that as staffing levels rise, employers need to spend more on workplace costs like training, protective equipment, benefits and whatever other support HR offers employees.

Impact on unemployment costs

Pearce said that the impact of staffing levels on unemployment insurance costs can be significant. Understaffing can cause turnover when workers start feeling stressed or burned out and overstaffing may lead to a situation where employees don’t feel they’re being challenged. In cases like this, an uptick in unemployment claims may follow, Pearce said.

“While truly voluntary resignations can be challenged, the system is structured to give claimants the benefit of the doubt and many employers lose challenges either because they are too busy to show up for hearings, or they don’t have sufficient documentation to back up their claims, or they fail to recognize the claimant’s side of the story,” he said. “Unemployment systems vary but there is an experience rating aspect to all of them, meaning that employers with higher claim volume will pay more in unemployment taxes than those with lower volume.”

Complying with the WARN Act and predictive scheduling laws

There are a few ways in which overstaffing or understaffing can get employers in a difficult situation regarding various laws, Pearce said. With overstaffing, an employer may face a situation where headcount is too high and they must do a mass layoff — thus triggering employer obligations under the WARN Act, which requires employers to provide advance notice in qualified plant closings and mass layoffs.

Understaffing may inspire a whole different range of legal hurdles with predictive scheduling laws. When managers want to bring people in with short notice due to headcount shortages, employers may have to pay penalties for unexpected schedule changes, for example.

Keeping workers engaged

Worker alienation is at the heart of these risks, Pearce said.

“If an organization is materially understaffed or overstaffed, it is promoting this alienation and risking becoming nothing more than a commoditized counterparty to be financially optimized in the short run, since the employee has no stake in the long run,” he said, adding that how a company treats its employees can make a difference. “Engaged, happy workers aren’t as likely to obsess with real or perceived harms or seek legal redress for their grievances.”

Here’s where labor forecasting software comes in, by making it easier for employers to avoid these legal risks and by making it more likely that employees can have an appropriate workload and feel satisfied with their schedule.

“Accurate labor forecasting can not only help to control costs while meeting changing customer needs, but [can] also be a key element in controlling unnecessary workplace risks and meeting the employer’s basic obligations to its employees,” Pearce said.

August 3, 2020September 8, 2022

Retail workforce management practices that make employees stay longer

Retail workforce management can be difficult for managers in a high turnover industry. Keeping hourly employees interested and engaged in the job can be an ongoing struggle.

But retaining hourly retail employees a little longer can make all the difference in the success of a retailer. And certain workforce management practices can go a long way in making these meaningful improvements.

Also read: Give managers the time they need to sharpen up their all-around skills

Realize the customer isn’t always right, and act on that

Customer-facing jobs, especially retail, are difficult for employees when they’re expected to act like the customer is always right, said Robert Teachout, legal editor at HR compliance resource XpertHR. What can make a difference here is how managers act. One of the cardinal rules of management is, “Always have your employee’s back,” he added.

The key is to forget everything you ever heard about “The customer is always right,” he said. Customers can be stressed, wrong, rude or, at worst, inappropriate and abusive, and employees appreciate when their manager stands up for them.

“Managers need to step up — and in some cases are legally required to step up — if someone is being abusive to an employee. Like if the employee is a minority or LGBTQ and they’re being harassed, that is harassment and discrimination. it is illegal and the employer has a liability if they don’t stop it,” Teachout said.

“The customer is entitled to the best service you can provide within the policies and practices of your establishment. They’re not entitled to yell at your clerks, not entitled to abuse a coupon program [and] not entitled to throw stuff on the floor and make a scene,” he said. “When that happens, take the employee out [of the situation] and you step in.”

This is also where higher level management needs to have their back, he said. Managers feel safer standing up for the people they supervise when their own bosses are going to support their decision and protect them.

Make even the smallest change in turnover rates

The retail industry sees a 60.5 percent turnover rate, but it doesn’t need to stay that high. Even a small improvement in turnover will produce large dividends for a store and much larger competitive benefits compared to other retailers, Teachout said.

The reality in retail is that these hourly positions are many people’s first jobs, and the expectation shouldn’t be that these employees will stay around forever. But that doesn’t mean managers can mistreat them and act like they don’t want these workers to stay longer, Teachout said.

With seasonal positions, this can be especially helpful. “If you know you have 10 spots to fill every year, would you rather have to hire 10 different people or know that you’ve got two or three people that like working with you, want to come back and have already been trained? That right there is a huge advantage,” Teachout said.

Hourly retail jobs often have low pay, little opportunity for advancement and few if any benefits, and stocking shelves isn’t a personally fulfilling job for many people, he said. But if a manager knows this and considers how they can make the workplace a better place for employees, they may see better engagement and therefore better retention.

Also read: Knock out the practice of buddy punching for good

Fostering employee engagement in retail workforce management

Employees are more engaged when they can take ownership of their work, Teachout said. Managers can help here by allowing employees to do tasks that use their strengths. For example, an organized employee may excel in tasks like restocking shelves, and an extroverted employee may excel working at the customer service desk.

Similarly, hourly workers are more engaged when they feel supported by their coworkers and feel a sense of teamwork. From the moment a manager onboards a new hire, they should introduce and emphasize the concept that “you’re part of a team,” Teachout said. They can explain tardiness or absenteeism policies not in a way that focuses on business impact but in a way that focuses on the impact it has on coworkers.

He also said that managers can help employee engagement by building individual connections with employees. This doesn’t mean they have to form a friendship, but they should know each employee’s goals, priorities and strengths. This could be a part of a formal, scheduled review, but even more important is the casual conversations, Teachout said. Questions could be as simple as “How’s school going?”

Create consistent schedules

Inconsistent schedules are one of the major complaints of retail workers, and more stability in this area helps people balance the rest of their life and responsibilities while still getting enough hours, Teachout said. One of the main reasons recent predictive scheduling laws were passed was to reduce the impact of last-minute scheduling changes, he added.

Managers should make sure they’re being fair while scheduling their retail employees, he said. Make sure everyone has the same opportunities to work the best shifts and the same obligations to work the less desirable shifts or do the less desirable tasks. This ultimately comes down to respect, Teachout said. Employees will feel more respected if they’re treated the same as their coworkers.

Also read: Make managers more successful with the tools to retain and engage their employees

While retail workforce management practices like this may not stop or slow all turnover, they can help create meaningful business outcomes.

“Even keeping someone working another two or three months longer than they would have typically, and at that point they’re already trained, that’s all gravy,” Teachout said. “Even making a small improvement in your turnover rate will provide a bottom line benefit.”

July 31, 2020June 29, 2023

The top 7 recent employment law cases you should know

When March began this year, nobody had any idea what was just around the corner – a global pandemic, a fiscal meltdown, unprecedented unemployment and a national reckoning with the terrible consequences of centuries of racial violence and inequity. Then we all witnessed a historic decision from the Supreme Court, affirming, at long last, that our family and friends in the LBGTQ community are protected from discrimination in employment under federal law.

In this ever-changing landscape, it is increasingly important to keep up to speed on the latest employment legal cases and developments. Below is a brief summary of the seven most significant employment legal cases.

1. U.S. Supreme Court Issues Landmark Civil Rights Decision

Bostock v. Clayton County, 590 U.S. (2020)

The Supreme Court has issued a landmark decision in Bostock v. Clayton County, holding that Title VII prohibits discrimination against employees based upon sexual orientation and transgender status.

In the 6-3 Opinion of the Court, written by Justice Gorsuch — who, along with Chief Justice Roberts, sided with the four “liberal” members of the Court — the majority held that a “straightforward” rule emerges from the ordinary meaning and application of Title VII’s prohibition against sex discrimination:

“[F]or an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms — and that should be the end of the analysis.’”

Such discrimination has long been a violation of Massachusetts law, Chapter 151B, but with the Bostock decision, it is now clearly unlawful to discriminate in employment on the basis of sexual orientation or gender identity.

2. Unlawful Employment Practices During the COVID-19 Pandemic

During these uncertain times, employers and employees alike are struggling to understand their legal rights and obligations. To that end, there has been a great deal of COVID-specific guidance provided by state and federal agencies, including the U.S. Equal Employment Commission, Massachusetts Commission Against Discrimination, and Office of the Attorney General.

It is important to remember that neither a global pandemic nor an economic recession can be used as a shield by employers to carry out unlawful employment practices.

Indeed, as the Massachusetts Supreme Judicial Court has noted, just because an employer may be required to “reduce its workforce does not mean that it is free to make its employment decisions on impermissible grounds: ‘even during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons.’” See Sullivan v. Liberty Mut. Ins. Co., 444 Mass. 34, 41–42 (2005).

If you think that you may have been illegally targeted, seek legal counsel as soon as possible and prior to waiving any legal rights.

3. Breach of Contract Damages for the Loss of One’s Life’s Work

Hlatky v. Steward Health Care System, Inc., 484 Mass. 566 (2020)

Following a jury trial, Dr. Hlatky, an experienced cancer researcher, was awarded $10 million in damages in a breach of contract action against her former employer, Steward Health. The $10 million damage award represented the cost of reestablishing her research laboratory, which she lost as a result of Defendant’s unlawful conduct.

On appeal, the Massachusetts Supreme Judicial Court unanimously agreed the damages awarded were not too speculative, noting that the harm suffered by Dr. Hlatky, including the loss of her research laboratory, equipment, and cell samples, constituted her “life’s work.”

The Court was, however, divided regarding whether restrictions should be imposed on how Dr. Hlatky could use the $10 million award. In the six Justice decision, three Justices were concerned that, since the laboratory had not actually belonged to Dr. Hlatky, an unrestricted award might put Dr. Hlatky in a better position than she would have been had there been no breach, e.g., “[n]othing would prevent Hlatky from spending the $10 million on a house or a yacht rather than on the re-establishment of a cancer research laboratory.”

The other three Justice were not persuaded, “Whether she wishes to start again, whether she even could start again after so much time has passed and her faculty position has been lost, whether she wishes to use the money to fund different research or others; research in the same field, or whether she wants to hike the Appalachian trail — these matters simply are not our concern.”

These Justices pointed out that imposing restrictions on such a damage award would open a “Pandora’s box of unknown future harm to the predictability of contract law upon which contracting parties have relied for hundreds of years.”

As the Court was equally divided, the trial court’s award of monetary damages – without restrictions – was affirmed.

4. Non-Competition Agreements and the “Material Change” Doctrine

Now Bus. Intel., Inc. v. Donahue, C.A. No. 17-3732 (Middlesex Sup Ct. Apr. 1, 2020)

A non-competition agreement may become unenforceable if, after execution, the terms and conditions of employment are modified to the point where the parties have effectively abandoned the original employment agreement and entered into a new employment agreement. This is known as the “material change” doctrine which was delineated in F.A. Bartlett Tree Expert Co. v. Barrington, 353 Mass. 585 (1968). The application of the material change doctrine is a highly fact-specific inquiry and will focus on factors, such as promotions, changes in job duties and titles, changes in remuneration, changes to sales area, as well as the associated time periods for such changes.

In the recent case of Now Bus. Intel. Inc. V. Donahue, the Superior Court rejected an employee’s material change defense to the enforceability of his non-compete. In granting Summary Judgment in favor of the former employer, the Court ultimately held that the temporary and short-term changes to the employee’s job duties, without more, did not amount to a material change sufficient to render otherwise reasonable and valid post-employment restriction unenforceable.

5. Anti-SLAPP Motion Revived

Rosario v. Caring Bees Healthcare, Inc., C.A. No. 19-P-1223 (Mass. App. Ct. June 5, 2020)

Retaliatory lawsuits designed to silence one from speaking out are referred to as strategic lawsuits against public participation, or “SLAPP Suits,” and are expressly forbidden in Massachusetts. See the Anti-SLAPP Statute, M.G.L. c. 231, § 59H (the “Statute”). The Statute provides a quick mechanism to dispose of SLAPP suits, and it allows the victim of a SLAPP suit to recover attorney’s fees.

Here, Ms. Rosario had complained (to co-workers, her mother, the MCAD, and, finally, in court) of sexual harassment by her supervisor, Jean Paul Karangwa. In response, Mr. Karangwa counter-sued Ms. Rosario for defamation and intentional infliction of emotional distress. Relying on the Statute, Ms. Rosario moved to dismiss Mr. Karangwa’s counter-claims. The lower court denied her motion, indicating that there was a colorable basis to believe that Ms. Rosario’s statements were defamatory, i.e., false and causing damage to Mr. Karangwa.

However, the Massachusetts Appeals Court reversed and remanded. The Court reiterated that the legal issue was not solely whether Mr. Karangwa’s claims were “colorable” but also, if so, whether or not they were retaliatory, i.e., “primarily brought to chill [Ms. Rosario’s] legitimate petitioning activities.”

In considering whether or not Mr. Karangwa’s counterclaims were retaliatory, the lower court should consider, among other things, (1) whether the claims are ‘typical’ SLAPP claims, e.g., claims that one would not likely bring on their own, (2) the temporal proximity of when the counter-claims were brought to when Ms. Rosario engaged in escalated protected activity, e.g., when Ms. Rosario filed her claims to court, and (3) the chilling impact on such activity by, for example, increasing the cost to Ms. Rosario of complaining about sexual harassment.

The case was remanded to the lower court for a sequential application of the correct anti-SLAPP standard.

6. Enforcement of Arbitration Agreements

Theodore v. Uber Technologies, Inc., C.A. No. 18-cv-12147 (D. Mass. Mar. 3, 2020)

Many executives (and employees generally) are subject to arbitration clauses of which they are unaware until a dispute arises. The enforceability of such clauses is often hotly disputed. This is particularly true in civil rights cases, pitting two established principles against each other (i.e., the preference for arbitration under federal law against a strong public policy against discrimination). Enforceability is often fact-specific, such as whether the agreement to arbitrate and the waiver of judicial remedy are sufficiently obvious and clear.

Although Theodore is not an employment case, its analysis may be useful, especially regarding on-line forms that invite a user to follow one or more links which can be easily bypassed. The US District Court’s analysis involved not only a review of the text itself but also a discussion of the font size, layout, and background color on the page. The Court went so far as to include screen-shots in the decision.

Ultimately, the Court refused to compel arbitration where Uber invited a customer to click to “CREATE ACCOUNT” without “reasonably communicating” the impact of doing so.

7. The Process – and Not Just the Final Decision – Matters

Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S.Ct. 1009 (2020)

In Comcast, the Supreme Court of the United States unanimously held that the but-for causation standard applies to claims of racial discrimination raised under 42 U.S.C. § 1981, a statute which guarantees all persons the same right “to make and enforce contracts . . . as is enjoyed by white citizens.” However, the Court expressly declined to decide an issue raised by Comcast, i.e, whether § 1981(a) guarantees only the right to equivalent contractual outcomes, as Comcast argued, or if it also guarantees the right to an equivalent contracting process, as the law has been interpreted for years.

In her concurrence, Justice Ginsburg addressed Comcast’s argument directly:

“I write separately to resist Comcast’s attempt to cabin a ‘sweeping’ law designed to ‘break down all discrimination between black men and white men” … Under Comcast’s view, § 1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate § 1981by requiring prospective borrowers to provide one reference letter if they are white and five if they black. Nor would an employer violate § 1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way … That view cannot be squared with the statute. An equal ‘right … to make… contracts’ … is an empty promise without equal opportunities to present or receive offers and negotiate over terms … It is implausible that a law ‘intended to secure … practical freedom’ … would condone discriminatory barriers to contract formation.”

As Justice Ginsburg recognized, and recent events have made abundantly clear, we must remain vigilant to protect and expand, not erode, our civil rights laws.

July 29, 2020

SAFE TO WORK Act would offer employers a significant shield from employee COVID-19 lawsuits

COVID-19, coronavirus, public health crisis

Earlier this week, Senate Republican introduced their $1 trillion COVID-19 economic stimulus package. Among other proposals the bill contains the SAFE TO WORK Act [pdf], which would provide employers a significant shield from liability for lawsuits related to coronavirus exposure by requiring gross negligence or willful misconduct that actually causes a personal injury before liability could attach.

Employers would receive significant protections from employment-related COVID-19 lawsuits brought by employees.

If passed, the law would provide significant protections to employers under OSHA, the FLSA, the WARN Act, Title VII, the ADEA, the ADA, and GINA.

Generally, in any action, proceeding, or investigation resulting from or related to an actual, alleged, feared, or potential exposure to coronavirus, or a change in working conditions caused by a law, rule, declaration, or order related to coronavirus, an employer would not be subject to any enforcement proceeding or liability if the employer—

Was relying on and generally following applicable government standards and guidance
Knew of the obligation under the relevant provision; and
Attempted to satisfy any such obligation by: (i) exploring options to comply with such obligations and with the applicable government standards and guidance (such as through the use of virtual training or remote communication strategies); (ii) implementing interim alternative protections or procedures; or (iii) following guidance issued by the relevant agency with jurisdiction with respect to any exemptions from such obligation.

The law would also provide liability for any workplace coronavirus testing, except for personal injuries caused by the gross negligence or intentional misconduct of the employer or another person.

The law would prohibit a finding of joint employment status or of an employment relationship under any of the above noted statutes and the NLRA, ERISA, and the FMLA, if an employer provides or requires—

Coronavirus-related policies, procedures, or training
Personal protective equipment or training for the use of such equipment
Cleaning or disinfecting services or the means for such cleaning or disinfecting.
Workplace testing for coronavirus.
Temporary assistance due to coronavirus, including financial assistance or other health and safety benefits.

Finally, the law would amend the WARN Act to make clear that employers are not required to provide WARN notices for shutdowns or mass layoffs that are “a result of the COVID–19 national emergency.”

This law will put a premium on employers understanding, implementing, and enforcing required and recommended COVID-19 safety rules and protections. If you don’t already have these in place your workplace, (1) why not, (2) what are you waiting for, (3) you now have quite the incentive to do so, and (4) you really shouldn’t need this economic incentive to protect the health and safety of your employees.

July 29, 2020June 29, 2023

Global workforce management is complex but more relevant in the remote workplace

It’s easier for companies to operate internationally, thanks to various technology innovations. But for organizations that want to go international, global workforce management is not a task to be taken lightly.

So many details go into hiring just one person from another country, including compliance with a different set of laws and setting up a management structure that allows workers across the globe to be managed efficiently. But with remote work becoming more prevalent during the pandemic and sounding like more of an acceptable option after the crisis ends, learning the realities of having a truly global workforce will help organizations decide what the right decision is for them.

Also read: Unify those far away workplaces with global mobility tools

Global workforce management is more complicated than simply managing a local or national workforce. But for some organizations, it may be worth the extra complexity.

The expansion of the remote workforce

Remote work has allowed organizations to expand who they can consider an employee. The more widespread switch to remote work makes the labor markets thicker, meaning that employers have more options for employees and that employees have more options for employers, said Brian Kropp, chief of research in the Gartner HR practice.

While many organizations have thought about expanding to other cities and states in the U.S., others have realized they can cast their net even wider. In the past it could be difficult to get international candidates to move to the United States or American candidates to move internationally, Kropp said. Dealing with employment visas could get complicated.

Also read: The most pressing workforce management issues of 2020

Remote work from outside the United States, alternatively, allows American employers to not worry about visas, Kropp said. They could have access to high quality international talent that require less compensation than American employees, which is undoubtedly a good thing for employers, he added.

The complications of a globally dispersed workforce

Collaboration can be difficult with workers in several different time zones. This is one of the more intuitive difficulties, but employers should not underestimate it, Kropp said. The number of overlapping hours between coworkers and team members can be limited when they live in different countries.

Further, employees in different countries have varying leave policies and vacations schedules. At worst, this could breed a sense of unfairness among employees who get less time off than others. Ultimately, what’s important is that team members in different geographies keep each other in the loop and let people know when they’re taking time off, Kropp said.

In addition, while most companies get excited about a wider talent pool and potential cost savings, what they forget about is how a dispersed workforce might impact company culture and employee engagement, Kropp said.

While employees are generally just as productive working at home versus in an office, many employees find it more difficult to form a relationship with their coworkers and managers when they are remote. Managers may have a concern that these employees don’t have the same company loyalty or that they’re more likely to quit.

There’s an enormous social component to work, Kropp said, and the decision to leave a company may be different if someone is thinking about leaving their friends rather than leaving coworkers.

“When you’re more broadly expanding who can work for you in your work from home approach, it’s harder to create loyalty amongst those remote employees, and it’s even harder if they’re in different countries, let alone in the same country. There’s even less social attachment from that perspective,” he said. “The key thing you have to think about if you’re going to radically expand your work from home strategy is, ‘How do you build social connections and emotional ties to your organization?’ ”

“The last thing you want to do is hire these employees and spend a lot of time and energy training them, and then they quit,” he added. “The advice we have for companies trying to expand their work from home strategy internationally is that the strategy must have a huge retention component.”

Workers’ rights and benefits in different countries

Benefits and workers’ rights are dependent on the geography where the employee lives, not where the company is headquartered. Companies need to make sure they’re partnering with third parties that know the labor laws in the cities and countries where new international hires live. There are, for example, companies that help with this, Kropp said. These companies help not only with the benefits and rights but also with tax systems and compensation rules.

A company will have to have a unique infrastructure based on these rules for each separate country in which they find a new employee, Kropp said. Creating this infrastructure is time-consuming and may require outside expertise. He suggested that an organization looking to expand starts by choosing one or two countries they’d like to hire talent from, build infrastructures from there and don’t fall in the more complicated trap of hiring people from anywhere in the world.

Management structure

While differing laws and time zones may make successful global workforce management difficult, a well thought-out management structure can help.

Also read: How to improve manager effectiveness

Kropp has seen companies that hire both a work manager and a person manager. The person manager lives in the same geography as the international talent and has knowledge of the local situation. The work manager manages the work itself — whatever tasks or projects the international talent is working on.

This is the most common way for companies to address this, Kropp said.

Kropp also has seen companies have managers supervise more people, which may not be a positive trend for organizations going global.

“You can accomplish that if your employees are more similar in terms of jobs, roles and responsibilities,” he said. “But manager performance starts to struggle when they have a greater complexity of the type of person they’re trying to manage, and [managing] people in different geographies just makes that harder.”

“From a manager perspective, you want to think about it as not just the number of people they’re managing but the variability and needs of all the [employees] to get a good sense of how much harder you’re making it for your managers,” he added.

As organizations consider whether going global works for them, there are a few questions and considerations to help make the decision.

One metric organizations can look into is how much time a manager is spending on solving problems versus providing support, Kropp said. Especially as management duties expand as the talent pool does, it’s important to consider how to minimize the frustrating work managers have and maximize the productive work they do.

“You don’t want your managers caught up in frustrating details. You want them caught up in overseeing the big picture,” he said.

July 28, 2020August 3, 2023

Headcount planning strategies to consider, even in the face of disruption

A vital part of any organization’s talent management strategy, headcount planning, or labor forecasting, ensures that it has the right number of employees with the right skills. But hiring more staff isn’t always an option. External forces or internal budget constraints may deter organizations from making the talent and staffing decisions it wants to make.

Workplace experts explained headcount planning strategies, how disruption informs future plans and how hiring someone new isn’t always necessary.

Also read: Labor analytics: A how-to guide for company leadership

Hiring from within

There are times when an organization should hire someone new, but with budget constraints, they need to rely on a current employee rather than a new hire, said Emily Rose McRae, a director in the Gartner HR practice. This is doable when certain units or teams at the company are moving more slowly, therefore giving them space to give up a team member to a different unit.

In many workplaces there is resistance to hiring from within, McRae said. Managers may have a long list of qualifications in mind for the person who will fill a particular role, and they may believe no internal hire meets those requirements.

Sometimes that may be true, she said, but a current employee often can do a new job with a reasonable amount of reskilling.

She suggested that companies find a current employee with a similar skill set who can take over the role for two weeks. This could be someone on a different team who has a lighter workload for the time being. Based on their experience in this new role, they can inform the manager from an outsider’s perspective what skills a candidate needs from day one versus what skills can be taught over time.

Regarding the long list of requirements and skills managers seek for a candidate, McRae also encouraged managers to realize that many skills are transferable. A candidate or current staff member who knows one spreadsheet software can easily learn another one.

Also read: Labor forecasting requires a stronger analytics skillset

While reskilling can be a valuable tool and can help workers move to roles in the company that weren’t an option before, it’s generally difficult to get people to reskill simply by making resources available, McRae added. Employees are busy and have responsibilities outside of work.

One effective way around this is to approach specific employees — like those in a department that’s at risk of being downsized — and offer them the opportunity to reskill with a specific new role in mind, McRae said. This strategy may motivate workers to learn new skills, since it’s difficult to get people to reskill with no end goal in mind.

Staff planning in a time of uncertainty, disruption and innovation

McRae suggested that managers and leaders do scenario planning — considering what possible outcomes are and having strategies mapped out to address these different possibilities.

For example, if demand for the product dropped by 50 percent due to various factors, what would happen to the business, and how could it address that? If a company discovered that the delivery service in their supply chain was disrupted in some way, how would it impact business? Essentially, what are the biggest risks and the possible outcomes of those risks?

Sometimes the way a business addresses these scenarios may be costly, like hiring more people to address new business needs, McRae said. In other cases, cross training employees may help fill necessary gaps.

Check out our white paper: Learning Alignment in an Uncertain and Disrupted Business Climate

Certain disruptions, like the COVID-19 pandemic, prompt organizations to feel the need to react right away and be short-sighted in the decisions they make, she added. But it’s important to remember that the immediate actions companies take with employees will have long-term consequences on how people view the employer and whether this workplace is viewed as one that cares about employees.

For example, redeployment programs — the process of moving employees to a different role in the organization rather than letting them go — will help contribute to a positive employer brand, McRae said.

“Organizations that are doing this — that are actively building redeployment programs and didn’t already have them before — they’re going to be much stronger coming out of this recruiting talent than the organizations that don’t,” she said. “While it’s not possible for every organization necessarily to do this for all their employees, the more organizations look to find the degree to which they can, the more successful they’ll be.”

Considerations for HR leaders

As organizations consider their headcount planning strategies, there are questions HR leaders can ask to inform decisions about the strategy. Depending on what catalyst event or disruption may happen, will it make talent more or less expensive? Will it change the skills the organization needs in its workforce?

Sometimes macro changes that happen in the market don’t directly impact an organization’s demand for talent but still affect its workforce in some way, McRae said. For example, during a recession, even if the company is doing well, employees may feel anxious about their job.

The potential of predictive analytics

Broadly speaking, predictive analytics allow organizations to collect and assess information on the external labor market. It can allow companies to get insights on what competitors are doing, McRae said. Maybe a competitor is hiring for new skill sets that would be valuable for any organization in the industry and could help inform their talent strategy.

Predictive analytics may also allow organizations to identify where there’s room to explore new opportunities, she said. For example, an observation that remote work is becoming more widely acceptable can lead to a company being more open to hiring talent from different geographies.

Also read: Labor analytics add power to workforce management tools

Other headcount planning tools

John Lacy, chief operating officer at Dallas-based technology marketing agency Idea Grove, said his organization is constantly working through these questions. It’s vital to ensure they have the right people with the right skills necessary to support the different services they provide clients.

Idea Grove uses several tools to help conduct this recurring analysis, Lacy said.

First, they are rolling out the “open-book management” style of running the company, which essentially means that employees are engaged in the process of forecasting key numbers and that they ultimately share in whatever rewards the company earns from better performance.

Lacy expects that this will help create a business full of employees who think and act like owners.

“At that point, the client-facing personnel will start to take responsibility for ensuring we have the right number of people to service the business, as well as ensuring that we have the right amount of each skill required to service our clients,” he said.

The organization also has a go-to pool of contractors that help serve clients when there are skills gaps to cover or when there’s more work to be done than expected.

“Once we know we have the appropriate level of business to support a person full time, then and only then will we bring a person on board, full time, to cover that need,” Lacy said.