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Posted on March 4, 2019June 29, 2023

HR Leaders Re-evaluate Termination Policies After Workplace Shooting

termination, covidiot, workplace violence, gun, weapon

Human resources professionals are assessing termination procedures following the February workplace shootings at the Henry Pratt Co. manufacturing plant in Aurora, Illinois.termination workplace violence

Michelle Lee, HR director for the Wynright Corp. in Elk Grove, Illinois, noted, “While we review and evaluate our policies on a regular basis, this situation emphasizes the importance of protecting our employees. We are going to partner more with local law enforcement to ensure they understand the make-up of our facilities and employee population. In some cases, we may have them on premises for risky terminations.”

Courtney Templin, president of the Chicago chapter of the Society for Human Resource Management, said, “Our jobs as HR professionals are never easy and it’s at times like this when we feel the real weight of our roles.”

The Feb. 15 shooting by a 15-year employee being terminated that day killed five employees, including the HR director and an HR intern on his first day on the job, and wounded five police officers.

According to federal government statistics, there were 458 workplace homicides in 2017, of which 351 were committed with a gun.

Melissa Boyce, Xpert HR

Melissa Boyce, an attorney and legal editor for XpertHR, said employers should review what they can and cannot do to lawfully restrict employees’ weapon possession on workplace property.

Virtually all workplace shootings fit the category of targeted violence, said Randy Van Dyne, a consultant for the University of Findlay’s All Hazards Training Center in Ohio, which offers workplace violence prevention programs.

The shooter’s main motivation is to get even with a person or organization for perceived injustices, said Van Dyne, adding such events are often preventable because the perpetrator presents signs including ideation, planning, preparation and implementation.

Communication with volatile employees is key, said Charles Krugel, a Chicago-based management-side labor and employment lawyer.

Michelle Lee
Michelle Lee, HR director, Wynright Corp.

When no threats are present, respond quietly and calmly. Don’t take the employee’s behavior personally. Asking questions respectfully demonstrates that aggression isn’t necessary, he said.

“An apology may calm the person and encourage cooperation,” Krugel added. “Say, ‘I’m sorry to hear this happened. What can be done to solve the problem?”

Summarize the employee’s comments.

“In a crisis, a person feels humiliated and wants respect and attention,” he said. “Focus on areas of agreement.”

Ask an upset employee calmly and firmly to lower their voice and state, “There will be no disruptions here. Please be patient so I can understand what you need and try to help you,” Krugel added.

In continued disruption, tell the individual they can be disciplined or prosecuted, state that the discussion is over, and ask them to please leave or the police will be summoned, Krugel said.

If the individual seems dangerous, find a quiet, safe but not isolated place to talk.

Also watch the video: How-to HR: Offboarding—Terminations

“Maintain a safe distance, do not turn your back,” said Krugel. “Leave the door open or open a closed door. Sit near it.”

Ensure a co-worker is near to help if needed.

Using a calm, non-confrontational approach, allow the person to describe the problem.

Ensure the employee’s hands are on the table, said Van Dyne.

Avoid touching the individual to remove them from the area; a gentle push or holding their arm can be misinterpreted as assault by an agitated individual who may respond with violence or a lawsuit, Krugel said.

“Use a prearranged distress signal to have another staff member alert a supervisor and/or police,” said Krugel. “If you fear a violent response, do not mention discipline or the police.

“If the situation escalates, find a way to excuse yourself. Say, ‘You’ve raised some tough questions. I’ll consult my supervisor to see what we can do.’ ”

Who is present at a termination meeting depends on the situation.

HR directors set a neutral and consistent tone, deflect high emotions and ensure company procedures are followed to help ensure others’ safety and maintain the security of confidential information, Lee said.

The Aurora case also was influenced by labor union representation, said Krugel, adding there are laws and rules that apply regarding the National Labor Relations Act and the plant’s collective bargaining agreement.

At Lee’s company Wynright Corp., managers and HR role play before termination meetings to ensure they are fair, consistent and concise, said Lee.

HR consultant Carol Semrad of C. Semrad & Associates in Chicago and Chicago SHRM chapter treasurer, suggested the presence of one person “who can most influence that person being let go. Sometimes people in different positions have different amounts of social currency with somebody.”

Termination has always been one of the most uncomfortable and cautious situations employers have to approach, said Monika Bowles, HR director for the Village of Royal Palm Beach, Florida.

“You don’t really know the mind of the person you’re dealing with,” said Bowles. “When you terminate someone, do it without demoralizing them. There are huge repercussions and consequences to terminating somebody that has far more reach into their lives than we tend to think about.”

Supportive measures might include offering outplacement services, resume writing and if appropriate, a letter of reference.

Lee keeps terminations brief and schedules them at the day’s end when fewer employees are on site to minimize the employee’s embarrassment.

“Don’t have anyone near the terminated employee they may want to get even with,” said Van Dyne. “Wish them best and get them on their way.”

Semrad advises clients that if they believe a termination may involve risk, notify building security and potentially law enforcement to alert them of the meeting time.

Posted on February 28, 2019June 29, 2023

Ensuring #MeToo Movement Advances Diversity in Leadership

Progress has been made in terms of women’s equality and protection over the past 10 years.metoo anniversary

In fact, it was recently the 10th anniversary of the Lilly Ledbetter Fair Pay Act, the first bill signed into law by President Barack Obama in 2009.

While there have been significant strides in reducing gender bias, harassment and sexual misconduct, clearly there is still work to be done. The #MeToo movement has been an important driver in bringing to light numerous cases of sexual abuse and misconduct.

However, it has also had the unintended consequence of causing men to refrain from interacting with women for fear of retaliation. Considering that male executives play a key role in advancing women into higher levels of leadership, this fear must be taken seriously because if unaddressed it leads to workplaces where there are fewer opportunities for women’s career advancement and informal coaching. Bloomberg recently conducted interviews with more than 30 senior executives that suggest many are startled by the #MeToo movement — some for good cause while others succumb to fear and retreat from supporting leadership diversity.

This is a huge problem for women, men, the companies they work for and society as a whole. When men shy away from mentoring women and helping them advance in their careers, it hurts everyone. Likewise, it is shameful and unacceptable when women are objectified, threatened or harmed.

In both cases no one wins. The outcome of the #MeToo movement should not be that we reverse progress on increasing diversity in leadership but that we are creating opportunities for women and men to thrive.

This shift needs to happen at the organizational level with changes implemented by leaders so that men can invest in the career advancement of women without fearing they will be classified as #MeToo participants and so that women will have confidence that they are working in a safe environment. These changes should include:

  • Providing sexual harassment and communications training for men and women. Employees and managers need to understand what is acceptable and what is not. Men and women respond to nuance differently, and everyone needs to understand what behavior crosses the line. Insight on how to be friendly, kind and foster appropriate relationships will benefit both men and women at all levels within the organization.
  • Ensuring there are confidential reporting protocols in place. All employees need to have a clear and confidential venue to report misconduct so they will not be retaliated against by their colleagues. Similarly, they need to know that because they are empowered to report any misconduct (perceived or overt), their concerns will be taken seriously and senior leadership will take appropriate and supportive action. By formalizing the process, men will feel confident that if a woman retaliates and misuses her power in a destructive way there is a recourse. Both men and women should not be driven by fear but rather they should understand that if they adhere to clearly specified boundaries and are treated unfairly, they will be supported.
  • Making evaluations less ambiguous. We know that when there is ambiguity in assessments it can lead to bias. An article in the Harvard Business Review sums it up as, “Without structure, people are more likely to rely on gender, race and other stereotypes when making decisions — instead of thoughtfully constructing assessments using agreed-upon processes and criteria that are consistently applied across all employees.” When managers use comparable data to evaluate employees and include insight from subordinates, peers and other leaders as well as self-evaluations it will help ensure that constructive criticism relayed to a subordinate is not viewed as subjective, but in fact is based on data and information gathered from multiple sources.
  • Rewarding positive behavior and swiftly addressing inappropriate or illegal actions. By recognizing men and women who serve as successful models of mentoring colleagues, leaders will gain confidence and others will better understand the best way to help both men and women advance in their careers. Likewise, punishing the bad actors will improve working conditions for everyone.

Men and women are asking some important and tough questions about the workplace. Women have earned a seat at the management table and are rightfully demanding it. The #MeToo movement has been a powerful force for change in bringing to light sexual harassment and misconduct and removing perpetrators from positions of power. It’s time to capitalize on that momentum and change our workplace policies — starting from the top down — so that we can turn the #MeToo era into a movement that is constructive, encourages human interaction and supports appropriate career advancement.

Posted on February 27, 2019June 29, 2023

Globoforce Renames Itself as Workhuman

This year, Globoforce celebrates 20 years of providing employee rewards and recognition solutions. Workhuman

And 2019 also marks another milestone as co-founder and CEO Eric Mosley said that Globoforce is renaming itself Workhuman.

Headquartered in Framingham, Massachusetts, and Dublin, Ireland, Workhuman also is the name of Globoforce’s annual conference, which this year is scheduled March 18-21 in Nashville. The conference features actors George Clooney and Viola Davis as keynote speakers.

“I’m thrilled to announce that our company name now clearly reflects the power of bringing gratitude into the workplace,” Mosly said in a Feb. 27 press statement. “We are Workhuman. This evolution acknowledges both the traction and effectiveness of our Workhuman Cloud platform and the demand from progressive global organizations who want to motivate and empower their people to do the best work of their lives.”

Some 4 million people in more than 160 countries access Workhuman Cloud, according to the press statement.

“Great leaders instinctively know that the more gratitude in a company, the better it performs,” Mosly said in the press statement. “Turnover is cut in half for employees who receive a moment of gratitude from a fellow employee at least once every 60 days. And safety records are more than 80 percent better for teams that express gratitude.”

Workhuman
Workhuman CHRO Steve Pemberton

In December 2017, Globoforce named veteran human resources leader Steve Pemberton as its chief human resources officer.

Pemberton, the former chief diversity officer for Walgreens Boots Alliance, the well-being enterprise of the drug-store giant, was brought on to work with Globoforce HR leaders and senior management executives worldwide to help them create relationships with their employees so they feel recognized, respected and appreciated, according to a statement from the company. Pemberton also was assigned to manage Globoforce’s WorkHuman movement.

Companies including JetBlue, the Hershey Co. and Procter & Gamble Co. utilize Workhuman’s recognition programs, according to the annual Workforce magazine Hot List of Rewards and Recognition Providers.

Along with a new name, Workhuman also announced their newly expanded $4.5 million headquarters expansion in Dublin along with the creation of 150 new jobs, the press release stated.

Posted on February 25, 2019June 29, 2023

You’re Never Too Small to Have an HR Department

Jon Hyman The Practical Employer

Some 43 percent of American employees work for companies with 50 or fewer workers.

I raise this statistic because it is almost a guarantee that many of these small businesses operate without a dedicated HR department or HR personnel.

Earlier this month, the EEOC settled a sexual harassment and retaliation lawsuit it had brought against several IHOP franchises operating in New York and Nevada. The allegations were truly awful, including misbehavior such as unwanted touching of female employees’ buttocks and genitalia, graphic comments about sexual genitalia, invitations to engage in intercourse, and vulgar name calling, perpetrated by both managers and co-workers.

Part of the settlement included a cash payment of $700,000 to the alleged victims. The more interesting part of the Consent Decree requires the companies to create a human resources department (which they were lacking) staffed with professionals knowledgeable about handling and preventing discrimination, harassment, and retaliation.

Within sixty (60) days of the Effective Date, for at least the duration of the Decree, Defendants shall establish and maintain a Human Resources Department with enough staffing to carry out the terms of this Decree. The Human Resources staff shall be comprised of human resources professionals with demonstrated experience in the area of employment law, properly handing complaints of discrimination, harassment, and retaliation, and preventing and correcting such conduct.…

The Human Resources Department shall be easily accessible to Defendants’ employees in person, telephonically, or by email during normal business hours.

That newly created HR department is required to do all of the things you’d expect an HR department to do regarding its EEO responsibilities:

    • Establishing a record-keeping procedure that provides a centralized system of tracking discrimination, harassment and retaliation complaints.
    • Enforcing the employers’ policies, procedures, and practices to foster a workplace free of unlawful discrimination, harassment, and retaliation, including taking measures to ensure that no retaliation is taken against any employee engaging in protected activity.
    • Ensuring proper systems are in place to make certain that proper avenues exist for employees to complain about discrimination, harassment, or retaliation.
    • Receiving and promptly investigating complaints of discrimination, harassment, and retaliation from any employee.
    • Maintaining regular contact with employees who complain of discrimination, harassment, and retaliation.
    • Ensuring appropriate corrective and protective measures are implemented in a timely manner after conducting a thorough harassment investigation.
    • Overseeing the development and implementation of anti-harassment and anti-discrimination training and education.

Your business is never too small for an HR department, and HR should never be an afterthought. In fact, it’s one of the most important positions to fill in any business of any size.

Your people are your most important asset. No matter your product, service, or mission, without employees to make it, provide it, or carry it out, you don’t exist.

Every company needs HR to recruit and hire, to create and monitor policies, to help ensure legal compliance, to implement benefits, and to strategize. Size may vary, but without any dedicated HR professionals, you are telling your employees they don’t matter, which is never the right message to communicate.

And, further, when it leads to harassment complaints being ignored, it could land you at the receiving end of an expensive lawsuit.

Posted on February 25, 2019June 29, 2023

Clamor Over SHRM Agenda Misses the Point

I’m sharing a ride with a colleague heading back to our hotel after work.

As we pull in to the hotel parking lot, the topic of a struggling restaurant there with service issues comes up.

I offer the following: “If I owned that place, I’d solve all the service issues by hiring nothing but people with criminal backgrounds who were recently released.”

Some of you may think I’m enlightened making that statement, others will think I’m crazy. It’s neither. I’ve just been influenced by the recent agenda of the Society for Human Resource Management. SHRM recently announced a partnership called “Getting Talent Back to Work,” which includes the U.S. Chamber of Commerce, the National Restaurant Association and Koch Industries. The singular goal of this initiative is to encourage companies to take a national pledge to hire workers with criminal backgrounds

The average HR pro might think the controversy would be getting past America’s long-term tradition of refusing to hire those with criminal records. Instead, there was a small to moderate outcry related to presence of Koch Industries in the initiative. Owners Charles and David Koch — the Koch brothers — are active (some would say notorious) fundraisers and influencers in conservative politics.   

Research Koch Industries and you’ll find environmental issues as well. But you’ll also discover an industrial business hurting for employees in a low unemployment/peak economic cycle environment.

Which begs the question: Will those with criminal convictions in their background care about the political leanings of the owners if they get a job at Koch Industries?

I think not. I believe they’ll be thrilled for the chance. But back to the evolving agenda of SHRM.

What should we expect from SHRM related to its agenda and politics? Should we be outraged when SHRM CEO Johnny C. Taylor Jr. shakes the hand of an American president whose tweets spark widespread division? Should we expect that companies with the ownership background of Koch Industries never have the chance to partner with SHRM?

First, you must first understand the reality of SHRM. The DNA of SHRM includes the following components:

• SHRM leans conservative as an organization focused on helping companies perform better through progressive talent practices. SHRM serves its membership in this regard, as any company with strong internal HR talent has a better chance of marketplace success. But make no mistake, SHRM is directly aligned with the business community. Go to any SHRM legislative update and you’ll hear the pro-business focus. This conservative focus attracts partners with deep roots in the business community. SHRM’s affiliations are easy when the partner is a broad, vanilla association like the U.S. Chamber of Commerce. Companies like Koch become harder to evaluate for fit.

• SHRM is at its best when its initiatives merge business need, policy trends and inclusion. “Getting Talent Back to Work” is a good example of this. We’re dealing with the lowest unemployment in decades (business need) and immigration policy trends will continue to put pressure on workforce planning (especially in non-white collar jobs). Any SHRM initiative to relieve this pressure would seem to be a good investment of resources. But the real magic happens when SHRM can create these types of programs with an inclusion element. Rather than teaching HR pros how to recruit existing employees away from competitors, “Getting Talent Back to Work” attempts to bring new candidates into the tent. It’s the not the first example of inclusion most of us would list, but it’s a brilliant program when you step back and evaluate the convergence of business need, policy and demographic in need.

• SHRM doesn’t always move first, but when they move, it matters. SHRM’s a mega-association battleship. With hundreds of thousands of members, you’ll find a cross-section of America including comparable percentages of conservatives, liberals, Christians, atheists and more. Like any other association with demographics that rival the United States at large, SHRM is rarely first on any issue that involves societal change. But when SHRM moves, it matters. Hundreds of thousands of members are influenced by various SHRM media properties monthly, meaning SHRM opens minds on any issues linked to the world of HR.

SHRM’s not perfect. But an agenda that challenges HR pros to rethink traditional views that may be limiting in today’s world matters.

Posted on February 22, 2019June 29, 2023

Employees Prefer a Raise, But They’re Also OK with a Promotion

A recent survey conducted by HR consultancy Korn Ferry revealed that 55 percent of employees prefer a raise with no promotion. However, 45 percent of them are just fine with a new title and no salary bump.HR Promotions

The survey, conducted in December and released in January, collected 1,327 responses from professionals. The key components of the survey could offer employers insight to how their employees consider which reward matters most.

Dennis Baltzley, global head of leadership development solutions at Korn Ferry noted, “Appropriate compensation is key to a professional’s job satisfaction, but at least as important as recognition for a job well done. One of the most visible forms of recognition is a promotion.”

When asked what the most likely action would be if they wanted to attain a promotion, 77 percent of respondents said they would have a conversation with their supervisor directly and identify areas of growth. When asked what they would do if they were passed over for a promotion, 66 percent said they would identify the reason(s) and work to improve while 20 percent said they would take on more responsibility.

Professionals are saying that they are willing to improve their workplace performance in order to be recognized. However, bottlenecking, or having nowhere to go, were the biggest likely reasons respondents said they were passed over for a promotion. If passed over, 31 percent of respondents said that they would start searching for other job opportunities.

In order to retain and motivate talent, Baltzley advised that, “Organizational leaders must set expectations of constant learning, and this means development and career plans at all levels, so employees see a path broadening, deepening, or advancing.”

In the next 12 months, half of the respondents said that they will ask for a promotion.

The other half, if they haven’t already received a promotion, said that they are afraid or don’t know how to ask, or they admit that they are not ready to be promoted.

Some 90 percent of respondents said they expected a promotion in one to five years. Of that, 44 percent were in the two- to three-year range. Employers need to be prepared for both cases while also considering how long an employee expects to stay in a role before being promoted.

“They key to job progression is ongoing development and coaching to ensure professionals are receiving feedback in terms of how they are doing in their current role and what they need to do to be ready to take on added responsibility,” Baltzley said. “And even if an employee is not yet ready for the next role, knowing that there is a potential for a promotion to a more challenging role is an excellent way to retain top talent.”

Posted on February 20, 2019June 29, 2023

The 6th Nominee for Worst Employer of 2019 Is … the Diverse Discriminator

Jon Hyman The Practical Employer

How many different ways can one employer discriminate? How about eight?

The EEOC recently settled a national origin and disability discrimination lawsuit against a staffing agency, brought on behalf of a group of Latino employees working at an Alabama poultry plant.

The eight different acts of discrimination alleged by the workers?

    1. They were harassed, which included ethnic slurs, threats, verbal abuse and other abusive working conditions.
    2. They were paid less than they were promised.
    3. They were placed in more hazardous conditions.
    4. They were denied bathroom and lunch breaks.
    5. They received fewer hours of work than their non-Latino co-workers.
    6. They had exorbitant relocation, housing and transportation fees deducted from their pay.
    7. They were denied medical treatment and other accommodations (such as breaks or time off from work to recuperate) after suffering repetitive motion injuries to their hands, forearms and shoulders.
    8. And, when they complained about all of the above, they were ignored.

According to Marsha L. Rucker, regional attorney for the EEOC’s Birmingham District Office, “We cannot allow any employer to prey on vulnerable workers by recruiting them and then subjecting them to such gross mistreatment.” Adds Bradley Anderson, the EEOC’s Birmingham district director, “The EEOC has made combating discrimination against vulnerable workers a strategic priority so that employers cannot profit from victimizing them.”

All of the above cost this employer $475,000 to settle the EEOC’s claims.

It also earned this employer its nomination as the Worst Employer of 2019.

Previous nominees:

The 1st Nominee for the Worst Employer of 2019 Is … the Philandering Pharmacist

The 2nd Nominee for the Worst Employer of 2019 Is … the Little Rascal Racist

The 3rd Nominee for the Worst Employer of 2019 is … the Barbarous Boss

The 4th Nominee for the Worst Employer of 2019 is… the Flagrant Farmer

The 5th Nominee for the Worst Employer of 2019 is… the Fishy Fishery 

Posted on February 19, 2019June 29, 2023

Do You Know How to Spot an Employee at Risk for Violence?

Jon Hyman The Practical Employer

Early Friday afternoon, Henry Pratt Co. informed one of its employees, Gary Martin, of his termination.

Shortly thereafter, he opened fire with a .40-caliber Smith & Wesson, killing five of his co-workers and wounding five police officers. Martin himself was the sixth casualty, killed in a shootout with police.

After the news of this tragedy broke, reports surfaced of Martin’s history of violence —s ix prior arrests by the local police department for domestic violence, and a decades-old felony conviction for aggravated assault.

All of which begs the question, should this employer have known that Martin was prone to violence, and, if so, should it have taken added measures in connection with his termination.

A criminal history of violent arrests and offenses is not necessarily a predictor of workplace violence. Still, there are certain warning signs for which an employer can look to help determine whether an employee is at risk for potential violence.

According to ESI Group, these warning signs include:

  • A chronic inability to get along with fellow employees
  • Mood swings and anger control issues
  • Expressions of paranoia or persecution. Being a “victim”
  • A history of problems with past jobs and and/or personal relationships
  • An inability to get beyond minor setbacks or disputes at work
  • A fascination with guns, weapons, or violent events
  • A sudden deterioration in work habits or personal grooming
  • Signs of stress, depression, or suicidal ideation
  • A major life problem, such as divorce or legal problems

If one more of these red flags surface, it is recommend that you refer this employee to an employee assistance program, for assessment and treatment.

If you are compelled to fire an employee who you think poses a risk of violence, it is recommended that you take further steps to mitigate against the risk of your termination transforming into a workplace tragedy.

ESI Group recommends the following:

  • Consider a professional threat assessment
  • Consider using a neutral manager or outside security consultant to carry out the termination
  • If there is manager or supervisor who has been the object of threats or anger, that person should not be the person to conduct the termination
  • Have security nearby—not in the same office, but close enough to hear signs of a problem and to act
  • Do not take a break. There are numerous instances of an employee asking for a bathroom break or time to compose him- or herself, and using the break to retrieve weapons
  • Wait until the end of the workday to terminate, if possible. This protects the dignity of the fired employee and minimizes the number of employees on hand should a situation escalate
  • Minimize any reasons why the employee would have to revisit the workplace. Mail a check; have uncollected belongings sent to the person’s home via a delivery service
  • Allow the person as much dignity as possible, but be brief and to the point. Do not get into a back and forth
  • Emphasize any severance benefits and outsourcing help that may be available. Some organizations decide they will not contest unemployment or offer the option of resigning.

As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against these kinds of tragedies, a few preventative steps can go a long way to putting you in the best place to deter and respond.

Posted on February 13, 2019June 29, 2023

How We Work Might Be Changing But Independent Contractor Risks Remain the Same

Jon Hyman The Practical Employer

The way we work in America is changing. The relationships between companies and their workers are more fluid and varied than in decades past. Our task in this appeal is to apply traditional legal protections to one such relationship. 


So starts the 6th Circuit’s opinion in Acosta v. Off Duty Police Servs., which applies the traditional “economic realities” test to determine whether private security and traffic control officers are employees or independent contractors.

One would think that with such a pronouncement at the head of the 6th Circuit’s opinion, the court would be making a startling pronouncement broadening the landscape of who qualifies as an independent contractor.

Those making that assumption, however, are sorely mistaken.

The “economic realities” test balances six factors:

  1. The permanency of the relationship between the parties
  2. The degree of skill required for the rendering of the services
  3. The worker’s investment in equipment or materials for the task
  4. The worker’s opportunity for profit or loss, depending upon his skill
  5. The degree of the alleged employer’s right to control the manner in which the work is performed
  6. Whether the service rendered is an integral part of the alleged employer’s business

In balancing the factors, the court determined that all of ODPS’s private officers were employees, and none qualified as independent contractors.

1. Permanency of the Relationship

This factor examines the length and regularity of the working relationship between the parties. While some ODPS workers accepts jobs intermittently and for short terms, many worked for ODPS long-term, and some for decades without interruption. In addition to length, many ODPS workers did so with regularity (e.g., 20 – 25 hours per week, or even up to 50 hours per week). These facts mitigated against the fact that many ODPS was not many workers’ primary job or their primary source of income. Yet, according to the court, multiple sources of income is not dispositive, and using such a fact to deny employment status would ignore the “economic reality” that many workers need two (or more) sources of income just to make ends meet. Thus, the court concluded that this factor weighed in favor of employment status.

2. Degree of Skill

The evidence showed that the workers required little skill to render services. Workers only need four hours of training, and many have no background in law enforcement whatsoever. The workers described the jobs as either sitting in their cars with their lights flashing, or patrolling a parking lot spotting potential problems. Thus, this factor weighed heavily in favor of employee status.

3. Investment in Equipment and Materials

This factor compares the worker’s total investment to the company’s total investment. While the officers needed to buy their own equipment and provide their own vehicles, each only invested between $3,000 and $5,000 of their own money, compared to the hundreds of thousands of dollars ODPS spent to operate the business. Thus, this factor weighed in favor of employee status.

4. Opportunity for Profit and Loss

Courts evaluate this factor by asking if workers “could exercise or hone their managerial skill to increase their pay.” ODPS argued that workers could do so, because they had the discretion to reject assignment, thereby limiting their ability to increase their pay. The court, however, was not persuaded. That discretion, according to the court, is not managerial skill. Moreover, because the workers worked a set shift when they accepted work, they had no control over how much they earned based on how long they worked. They could not earn more by completing the job more quickly and moving on another assignment. Their skill did not increase their ability to complete their jobs and accept more, it merely gave them discretion to say yes or no to jobs when offered. Thus, this factor weighed in favor of employee status.

5. Alleged Employer’s Degree of Control

This factor asks whether the company “retains the right to dictate the manner” of the worker’s performance.” ODPS maintained policies and procedures, which addressed: (1) the type and color of uniform that may be worn, (2) vehicle and light requirements, (3) rules for exchanging job assignments with other ODPS workers, and (4) general rules on workplace presentation and conduct. ODPS also represented to its customers that it would inspect the work sites and supervise its workers.Workers testified that ODPS disciplined them for violating work rules, such as declining jobs. ODPS set the rate at which the workers were paid, would tell the workers where to go for the job, when to arrive, and whom they should contact when they got there, and had supervisors to whom they reported. Workers were also required to sign non-compete agreements, and ODPS had sued former workers to prevent them from working for competitors. Thus, for the majority of ODPS’s workers, this factor weighed in favor of employee status.

6. Integral Part of the Alleged Employer’s Business

ODPS built its business around the security and traffic control services provided by its workers. It could not function or service its customers without them. Therefore, this factor weighed heavily in favor of employee status.

Balancing the evidence, the 6th Circuit had little difficulty concluding that ODPS’s workers were its employees, and not independent contractors: “Taking all these factors into consideration with an eye on the ultimate question of economic dependence, ODPS’s workers … were employees entitled to overtime wages under the FLSA.”

Off Duty Police Servs. serves as a stark reminder for employers that in all but the clearest of cases, businesses take a huge wage-and-hour risk by classifying workers as anything other than employees. The way we work might be changing, but the risk you take by misclassifying employees as independent contractors is staying exactly the same.

Also read: Identifying Independent Contractors Vs. Employees

Posted on February 6, 2019June 29, 2023

President Trump Calls for Federal Paid Family Leave During State of the Union

Jon Hyman The Practical Employer

February 5 was the 26th anniversary of the Family and Medical Leave Act being signed into law.

During last night’s State of the Union Address, President Trump called for Congress to make paid family leave a federal law.

I am also proud to be the first president to include in my budget a plan for nationwide paid family leave — so that every new parent has the chance to bond with their newborn child.

The devil is very much in the details. We have zero idea what this law would look like.

  • Who will pay for the leave — employers, directly via payroll, or employees, indirectly via a tax the funds a government benefit pool?
  • How much paid leave will the law provide — 6 weeks, 12 weeks, more, less?
  • What family issues will be entitled to paid leave — just childbirth, the same scope as the FMLA, or will be it broaden protections to other parental issues such as school-related events?
  • Which employers will it cover — those with 50 more more employees, 25 or more, or even smaller?

Before we heap too much praise on this effort, we need to know details. Still, the United States remains the only industrialized nation that does not guarantee working mothers paid time off after childbirth, and we lag behind most of the rest of world on other paid family leave.

Frankly, it’s embarrassing, and it’s high time we joined the rest of world on what appears for everyone else to be a non-controversial issue. Anything that moves this debate forward is an effort worth applauding.

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