The guidance, which replaces the EEOCâs older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOCâs companion Q&A and small business fact sheet.
Let me point out, however, one area of contentionâthe issue of âperceivedâ national origin discrimination.
According to the EEOC, âNational origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,â and âTitle VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.â
The federal courts, however, have a different view.
Consider, for example, Longoria v. Autoneum N. Am. (N.D. Ohio 9/13/16), which concerned whether one of American dissent could pursue a Title VII national origin discrimination claim based on his employerâs perception that he was Mexican. The court said no:
Longoria cites no Ohio case law that has validated, or even discussed, this theory of liability. Because Ohio courts generally took to Title VII cases when applying O.R.C. § 4112.02, I conclude that the Ohio courts would not recognize a perceived-national-origin discrimination claim, given its widespread failure in the federal district courts.
Thus, if an employee sues you based on claim of perceived national origin discrimination, it is highly likely that I will be able to win that case (EEOC guidance notwithstanding).
Legal or illegal, however, the issue of perceived inclusion in a protected class raises a deeper issue. What kind of employer do you want to be? Do you really want to be the employer who condones calling a Mexican employee a wetback, yet wins in court because sheâs really American? Or, the employer who win the lawsuit brought by your Indian-American employee who was repeatedly called âISISâ?
Racism and xenophobia are still racism and xenophobia, and legal technicalities do not justify them having place in your workplace, period.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Today is Cyber Monday, the biggest online shopping day of the holiday season. In fact, it is estimated that today will be the biggest online shopping day ever, withÂ
And guess what? Given that most of those doing the shopping will be spending the majority of their prime shopping hours at work, from where do you think they will be making most of their Cyber Monday purchases.
49% use their personal smart phones or tablets to shop at work.
Yet, only 11% of employers have fired someone for holiday shopping on the internet.
In other words, more and more companies are allowing employees to shop online from work.
Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employeesâ online shopping habits, not just today, but across the board? Or, should you permit more open access?
I am big believer in open internet access (within reason). I advocate for fewer restrictions for personal internet use at work (including Cyber Monday shopping) for two reasons: it provides a nice benefit to employees, whom we ask to sacrifice more and more personal time; and itâs almost impossible to police anyway.
We no longer live in a 40-hour a week, 9-to-5 world. Employees sacrifice more and more of their personal time for the sake of their employers. Thus, why not offer some internet flexibility both to recognize this sacrifice and to engage employees as a retention tool?
Moreover, it is becoming increasingly difficult for employers to control what their employees are doing online during the work day. Even if an employer monitors or blocks internet traffic on its network, all an employee has to do to circumnavigate these controls is take out his or her smartphone (which the CareerBuilder survey shows more employees are doing anyway). By trying to control employeesâ internet habits, employers are fighting a battle they cannot win. The smartphone has irreparably tilted the field in favor of employees. It not worth the time or effort to fight a battle you cannot win.
Instead of fighting a losing battle by policing restrictive policies, I suggest that employers treat this issue not as a technology problem to control, but a performance problem to correct. If an employees is otherwise performing at an acceptable level, there is no harm is letting him or her shop online from work, on Cyber Monday or on regular Wednesday. But, if an employee is not performing, and you can trace that lack of performance to internet distractions or overuse, then treat the performance problem with counseling, discipline, and, as a last resort, termination. Just like you wouldnât bring a knife to a gun fight, donât bring a technology solution to a performance problem.
As for me, I did most of my online shopping over the weekend. So, itâs back to work for me.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
One law firm for which I used to work provided each staff member an annual Thanksgiving turkey as a holiday thank you to its employees. With the hindsight of two decades of employment-law experience, hereâs my question â should the fair market value of that turkey been included in the employeesâ regular rate of pay? Because if it was, the company would have to include its value in the calculation of employeesâ overtime rates.
Thankfully, the FLSA excludes such gifts from the regular rate of pay. Employers, your Thanksgiving turkeys and supermarket gift cards are safe from the clutches of the DOLâs Wage and Hour Division.
Under the FLSA, âregular rateâ does not include âsums paid as gifts; payments in the nature of gifts made at Christmas time or on other special occasions, as a reward for service, the amounts of which are not measured by or dependent on hours worked, production, or efficiency.â
To qualify under this exclusion, âthe bonus must be actually a gift or in the nature of a gift. If it is measured by hours worked, production, or efficiency, the payment is geared to wages and hours during the bonus period and is no longer to be considered as in the nature of a gift.â
If the bonus paid at Christmas or on other special occasion is a gift or in the nature of a gift, it may be excluded from the regular rate under section 7(e)(1) even though it is paid with regularity so that the employees are led to expect it and even though the amounts paid to different employees or groups of employees vary with the amount of the salary or regular hourly rate of such employees or according to their length of service with the firm so long as the amounts are not measured by or directly dependent upon hours worked, production, or efficiency.
So, what does one have to establish such that a turkey or other holiday gift is excluded from the regular rate calculation?
It is a discretionary gift.
Its value is not measured by hours worked, production achieved, or efficiency attained.
It can be provided with sufficient regularity such that employees expect it (i.e., an annual tradition), provided that it remains discretionary and not tied to hours worked, production, or efficiency.
Iâm off the rest of the week to enjoy my turkey and fixings with my family. I hope you enjoy yours too. And, I hope you take you at least a few moments to reflect on that which you are thankful. So often we get bogged down in the everyday, which can prove to be both negative and mundane. One of the reasons I love Thanksgiving so much (other than my mother-in-lawâs turkey) is because it gives you the chance to stop and reflect on all of the good that you have in your life. And we each have a lot of it.
Cheers.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
There are many parallels with Frasier, including A) the practice of psychology in, you guessed it, Seattle; B) the use of some modern audible medium to get the message across (talk radio in the 1990s vs. podcasts in 2016) and C) the celebrity cameos from people like Halle Berry, Macaulay Culkin and Kevin Bacon. NO! That last oneâs a joke ⌠.
A recent podcast I listened to was titled âDepression.â Dr. Honda had an expert on depression (not Kevin Bacon) talk about the clinical illness. Some takeaways were:
Even if somebody with depression isnât showing the symptoms, it doesnât mean theyâre not going through it.
Depression can have serious social implications. For example, if somebody tries opening up to somebody else who has not experienced depression, they may get advice like, âJust try not to think about it,â or something that really doesnât help. A person might remedy this by finding other people experiencing the same thing. On one hand, this is positive, because it doesnât allow one to âmarinateâ in their own depression alone. One the other hand, surrounding yourself with equally sad people may cause a double whammy of depression.
So, how does this translate to the workplace?
The other day I received a new study, âDepression Among Demographics,â which looked at professions and lifestyles that have the highest levels of depression.
âOur study helped us look at the prevalence of depression across industries and lifestyles,â wrote a spokesperson at MentalHealth.net in an email interview. âThe signs of depression can be hidden, and the stigma that often comes along with mental illness can make it tough for those suffering from depression to speak up about their struggles.â
Certain findings were of special interest to me: First, the professions with the highest rates of depression are public and private transportation, real estate, social services and manufacturing. One commonality that connects these very different industries is that these are âoften thankless jobs in which workers experience the best (and worst) of society on a daily basis,â according to the study.
Second, and not surprisingly, people with private health insurance see a depression rate of 5.3 percent, compared to 7.8 percent with no coverage and 12 percent with Medicaid or CHIP. So, based on these findings, the type of health care an employer can offer may play a big role in depression among employees.
Based on these findings, what are suggestions of improving mental health from both the organizational and the individual perspective?
My point of view, as someone who occasionally researches mental health for this blog, is that organizations should treat mental health issues the same as they would physical health issues. That is, they should acknowledge that mental health has the potential to affect a personâs life and performance just as much as physical health and then offer appropriate resources â even though the symptoms may not necessarily be visible. Offering nothing seems like the institutional equivalent of, âTry not to think about it.â
On the flipside, employees going through this need to acknowledge the mental health problem, even if it doesnât manifest in visible symptoms, and take advantage of any resources which their employer may offer.
This is all very basic and obvious. However, American Expressâ Healthy Minds program is one concrete example of a corporate program which deals with the mental health of its employees. Itâs worth revisiting for more specific workplace initiatives.
Andie Burjek is a Workforce associate editor. Comment below, or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at @workforcenews.
Reading those inspired me to write a few of my own.
Workplace harassment
HR ignored her for months
We have to pay, big!
Email from PayPal
Time to update my account
What is ransomware?
HRâs big headache?
An hour here, hour there
Intermittent leave
Exempt / non-exempt?
We owe unpaid overtime
Class lawsuit; oh crap!
How about you? Share your own workplace haiku in the comments below, or on Twitter, with the hashtag #haikuatwork.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Workforce has named the winners of its 26th annual Optimas Awards.
Released during a special edition of the video series â5 Minutes of Management,â hosts Frank Kalman and Rick Bell revealed the Gold and Silver winners in 10 categories, as well as the winner of the Optimas Award for General Excellence.
Since 1991, the Optimas Awards have been a source of ideas, direction and inspiration for human resources professionals. The Optimas Awards celebrate HRâs success at solving some of the biggest business challenges of our time. The awards are given by Workforce magazine to recognize human resources and workforce management initiatives that achieve outstanding business results for the organization.
The winners are:
General Excellence: AbbVie.
Benefits: Gold â Devon Energy Corp.; Silver â Retrofit.
Business Impact: Gold â Four Winds Interactive; Silver â Paycor.
More compelling than the decision, however, is the concurring opinion written by Judge Patricia Millett, in which she calls on the NLRB to carry out its mission to protect the rights of all employees, not just those who happen to be walking a picket line. How can a picket line magically convert misconduct that is âillegal in every other corner of the workplaceâ into the âunpleasantries that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity,â she asks?
Her opinion is so well written, Iâve excerpted almost all of it below for your reading and consideration.
I write separately, though, to convey my substantial concern with the too-often cavalier and enabling approach that the Boardâs decisions have taken toward the sexually and racially demeaning misconduct of some employees during strikes. Those decisions have repeatedly given refuge to conduct that is not only intolerable by any standard of decency, but also illegal in every other corner of the workplace. The sexually and racially disparaging conduct that Board decisions have winked away encapsulates the very types of demeaning and degrading messages that for too much of our history have trapped women and minorities in a second-class workplace status.
While the law properly understands that rough words and strong feelings can arise in the tense and acrimonious world of workplace strikes, targeting others for sexual or racial degradation is categorically different. Conduct that is designed to humiliate and intimidate another individual because of and in terms of that personâs gender or race should be unacceptable in the work environment … .
Nothing in the Boardâs decisions has offered any plausible justification, and I can conceive of none, for concluding that the rights of workers â all workers â are protected by turning picket lines into free zones for sexually or racially abusive and demeaning conduct. Instead, the Boardâs rulings dismiss such abhorrent behavior as âunpleasantriesâ that are just part and parcel of the contentious environment and heated language that ordinarily accompany strike activity … .
There is no question that Emily Post rules do not apply to a strike … .
So giving strikers a pass on zealous expressions of frustration and discontent makes sense. Heated words and insults? Understandable. Rowdy and raucous behavior? Sure, within lawful bounds. But conduct of a sexually or racially demeaning and degrading nature is categorically different. Calling a female co-worker a âwhoreâ or exposing oneâs genitals to her is not even remotely a ânormal outgrowthâ of strike-related emotions. In what possible way does propositioning her for sex advance any legitimate strike-related message? And how on earth can calling an African-American worker âniggerâ be a tolerated mode of communicating worker grievances?
Such language and behavior have nothing to do with attempted persuasion about the strikerâs cause. Nor do they convey any message about workplace injustices suffered, wrongs inflicted, employer mistreatment, managerial indifference, the causes of employee frustration and anger, or anything at all of relevance about working conditions or worker complaints. Indeed, such behavior is flatly forbidden in every other corner of the workplace because it is dangerously wrong and breathes new life into economically suffocating and dehumanizing discrimination that we have labored for generations to eliminate. Brushing that same behavior off when it occurs during a strike simply legitimates the entirely illegitimate, and it signals that, when push comes to shove, discriminatory and degrading stereotypes can still be a legitimate weapon in economic disputes.
And by the way, the Board is supposed to protect the rights of all employees covered by the Act … . Holding that such toxic behavior is a routine part of strikes signals to women and minorities both in the union and out that they are still not truly equals in the workplace or union hall. For when the most important labor/management battles arise and when the economic livelihood of the employer and the employees is on the line, the Boardâs decisions say that racial and misogynistic epithets, degrading behavior, and race- and gender-based vilification are once again fair game … .
Nor do the Boardâs decisions grapple with the enduring effects in the workplace of such noxious language and behavior. The assumption that such gender- and race-based attacks can be contained to the picket line blinks reality. It will often be quite hard for a woman or minority who has been on the receiving end of a spew of gender or racial epithets â who has seen the darkest thoughts of a co-worker revealed in a deliberately humiliating tirade â to feel truly equal or safe working alongside that employee again. Racism and sexism in the workplace is a poison, the effects of which can continue long after the specific action ends … .
Accordingly, if the Boardâs decisions insist on letting the camelâs nose of racial and gender discrimination into the work environment, the Board should also think long and hard about measuring the âthreatsâ associated with such sexually or racially degrading behavior from the perspective of a reasonable person in the targetâs position, and how nigh impossible it is to cabin racismâs and sexismâs pernicious effects … .
To be sure, employeesâ exercise of their statutory rights to oppose employer practices must be vigorously protected, and ample room must be left for powerful and passionate expressions of views in the heated context of a strike. But Board decisionsâ repeated forbearance of sexually and racially degrading conduct in service of that admirable goal goes too far. After all, the Board is a component of the same United States government that has fought for decades to root discrimination out of the workplace. Subjecting co-workers and others to abusive treatment that is targeted to their gender, race, or ethnicity is not and should not be a natural byproduct of contentious labor disputes, and it certainly should not be accepted by an arm of the federal government. It is 2016, and âboys will be boysâ should be just as forbidden on the picket line as it is on the assembly line.
Bravo. I couldnât have said it better myself.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
Dinner is always a bit of cluster in my house. We are a home of two working parents, and, with music lessons and band rehearsals three nights a week, it seems that we are always scrambling for our evening meal. More often than not, we end up eating out, which is neither good for our wallets nor our waistlines.
Yet, winter is coming, which means crockpot season. The problem with some crockpot recipes, however, is that they cook for far fewer than the 10-plus hours we are out of the house every day. Wouldnât it be great if there was a way to connect your slow-cooker to your WiFi network and control it via an app from your phone? That way, I could start the meal at 2 p.m. and not not worry about coming home to a tarry, burnt mess of chicken and sauce (yes, this has happened, and, yes, we ate out that night).
âTodayâs your lucky day,â you say. âBehold, the Wifi-Enabled Slow Cooker. Thereâs just one drawback. Cyber criminals can seize control of it to take down websites and access your smartphones and home networks.â Yikes!
If you have an internet-connected home appliance, such as a crock-pot, a lightbulb, or a coffee maker, you can control it from the comfort of your smartphone. But a bug in the Android app that controls some of those devices made by a popular manufacturer also allowed hackers to steal all your cellphone photos and even track your movements.
Security researchers found that the Android app for internet-connected gizmos made by Belkin had a critical bug that let anyone who was on the same network hack the app and get access to the userâs cellphone. This gave them a chance to download all photos and track the userâs position ⌠.
This problem is not small or inconsequential. The White House is even paying attention. Just yesterday, it issued sweeping guidelines for IoT (Internet of Things) Cybersecurity [pdf]. The paper calls for an engineering-based approach that bakes security systems directly into Internet of Things devices and technology.
Research before purchasing your smart home products. Consumers need to research the security protocols that their connected devices follow, and pay attention to how device makers issue security updates for devicesâ software.
Update the firmware of your devices. The WSJ recommends regularly updating devices, even new ones, as security updates could be released or change on a daily basis.
Change the password for your smart home devices. Most hackers attempt to obtain a universal password for users so they can hack into all of the connected devices in the home.
Secure your router. This means updating your firmware more frequently or simply setting your router to the WPA2 security setting, which can help a great deal.
Create a separate network for your devices. By setting up a separate router and network for smart home devices, users can prevent them from being hacked by PCs.
Point connected cameras in the right direction. Your connected cameras can be among the most easily hackable devices. Because of this, consumers should not have connected cameras pointed in the direction of their bedrooms, living rooms, or other very personal areas of the home.
Ask your service provider about device security. They are the ones that should know all of the security precautions that users of their devices should be taking.
Buy new devices, especially if your connected devices are older models.
If one good thing came out of the 2016 presidential election itâs that cybersecurity came to the forefront and entered our collective consciousness. If people were not previously aware of cyber-risks, they are now, thanks to Wikileaks. Employers should take advantage of the moment and capture employeesâ attention with cyber policies and training.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
The one employment-law question Iâve been asked most since waking up last Wednesday to the reality that The Donald will be The President (aside from, âHow did this happen?â and for that I direct you toÂ
The short answer? âNo, it does not mean that.â
Beginning Dec. 1, the salary level for white-collar FLSA exemptions will increase to $913 per week, period. After all, the new regulations roll in on Dec. 1, and President-elect Trump does not become president until 51 days later. So, even if he wants to stop them from taking effect, heâs powerless to do so, and any legislative efforts would die at the hands of the current presidentâs veto.
The long answer, however, is a bit more complicated.
If you take a look at Trumpâs campaign website, he has an entire page dedicated to âRegulations.â And Trump does not like regulations. What did his campaign promise heâd do to regulations once becoming president?
Ask all department heads to submit a list of every wasteful and unnecessary regulation which kills jobs ⌠and eliminate them.
Reform the entire regulatory code to ensure that we keep jobs and wealth in America.
Issue a temporary moratorium on new agency regulations that are not compelled by Congress or public safety in order to give our American companies the certainty they need to reinvest in our community, get cash off of the sidelines, start hiring again, and expanding businesses. We will no longer regulate our companies and our jobs out of existence.
Decrease the size of our already bloated government after a thorough agency review.
If you ask any small business owner, the FLSAâs new salary test checks each of these Trumpian boxes.
Yet, this issue was not one on which Trump focused during the campaign. In the only campaign interview I could locate that touched on this subject, he did not call for repealing the upcoming FLSA changes outright, but instead called for âa delay or a carve-out of sorts for our small business owners.â
One possible solution? Take a look the bipartisan H.R. 5813, which would phase in the new salary test over four years, and eliminate its triennial re-indexing. If you are looking for potential models Trump might adopt, you could do a lot worse for a starting point.
The bottom line. You cannot, and should not, hope for a reprieve from these rules at the 11th hour. The new salary test is coming, regardless of what Trump may choose to do after the fact.
In other words, if youâre not prepared for these new rules, you better get prepared, and quickly, because in 16 days they become the reality of every business.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hymanâs blog at Workforce.com/PracticalEmployer.
I was invited to a party last week. A gathering of like-minded folks intending to celebrate our winning presidential pick, or to mute our disappointment with wine and cheese. I didnât go.
This election ⌠letâs just say, I knew I would feel more strongly about it than any other in which Iâve cast my vote to date, and I wanted the luxury of freely expressing those emotions in private.
Election night I watched the state tallies roll in one by one, and after a while, I went to sleep. I woke at 4 a.m., checked my phone, and well, the rest is history. I sent my sister a text. She replied instantly. She was also up, and we talked for a good long while.
Actually, it wasnât so much talking. The conversation alternated between talking, hollering and crying out in that hands-to-the-ceiling type way that goes beyond plebian tears. I wanted to get it out of my system, or as much as I could, before I got to work. We talked about what to expect, how did it happen, how would it affect us, our families and friends, what should we do now?
I told my sister one thing, the same thing I told my mother and everyone else whoâs asked me similar questions or expressed even a hint of vulnerability or fear: Tighten up. Take that how you like, but I mean: build good money habits, accustom yourself to discipline and enjoy life, for this too shall pass.
Honestly, what shocked and surprised me the most was not the outcome of the election â my gut told me how things would play out before they actually did â it was how my workplace reacted to the election outcome. I spent almost two hours hollering into the phone at my sister early in the morning on Nov. 9 because I wanted to be composed and professional when I got to my office.
I suspect more than one person had the same idea because my commute was eerily quiet. Even when people spoke, they whispered rather than talk in normal tones. The people I passed in my building, the mood was somber â just a little too quiet, if you know what I mean. It was as though everyone had a tight rein on themselves. That or there was some sort of informal gag order at play, muzzling the inhabitants of various offices lest they burst with emotion of one type or another.
But my boss shocked me. In our weekly editorial staff meeting he opened the floor to a conversation about the election. He literally gave us that forum in which to safely air our feelings about whatâs happening â or what may happen â in the country, and it was surprising. Welcome, but surprising. I donât recall ever having such a conversation before, nor feeling the need for one. This time around? Letâs face it â thereâs little to no way a working American wonât feel some type of way about the outcome of the 2016 presidential election
So, we sat around the table, with the door closed, and we talked. We shared general impressions, debated implications for our work as journalists and how we planned to cover various aspects of related content for our readers. We shared personal ondits on how things might go for us, and we were fervently appreciative for the opportunity to speak freely. It was refreshing, it was a relief, and it was completely unexpected.
There are backgrounds and beliefs that we donât bring to work because they just arenât part of our jobs. Political beliefs are a prime example. They are often too unexpected, too judgmental, too personal, or too potentially explosive if the mantle of professionalism that most of us wear should grow thin or brittle. Employers donât encourage political discussion â many actively forbid it â for this reason.
Whatever side of the political fence you may be on, once the election hubbub has died down, we still have to work together. Anything said in the heat of the moment, political passions expressed, unusual or unexpected beliefs aired, these things wonât be forgotten, and an otherwise valuable working relationship could be damaged. That my employer should voluntarily open this particular Pandoraâs box and invite us all to unpack its contents said much for our welcoming stance on diversity of thought.
It spoke volumes about our culture and how inherently generous, collaborative and respectful our workplace is. It also cast a bright new shine on the phrase freedom of speech, and not just because as journalists we live and die by those weighty words. For some this activity might not work as well.
For instance, if your organization depends on customers. Grubhub CEO Matt Maloney found himself on fire after he sent out a memo clearly weighing in on one side of the presidential coin vs. the other.
That likely didnât happen at my company because no one explicitly said, pro this, con that. There was no debate over right or wrong. We just talked, and we did so privately. There was no outward or public declaration.
I can only hope in the months and years ahead that other employers, that other people, adopt that same generosity of spirit and action as we navigate this new political landscape. I think they will. I can already see it.
For some, right now itâs colored with resignation, muddied by disbelief, disappointment and even anger. But the sentiment seems widespread: with open hearts, minds and mouths, we will overcome and advance together.
Kellye Whitney is associate editorial director for Workforce. To comment, please email editor@workforce.com.