Commentary & Opinion – Page 2

April 27, 2021

Why would a company wait a year to implement an anti-harassment program?

sexual harassment prevention requirements

McDonald’s has lots of secrets. What’s in its sauce? What part of the chicken do the McNuggets come from? How come every time I crave a cone the soft-serve machine is out of order? Why do their soft drinks taste better than anyone else’s?

Something that’s not a secret, however, is that McDonald’s has a serious sexual harassment problem.

From CBS News:
Young women from across the country with remarkably similar accounts of workplace abuse and harassment at one of America’s largest, most iconic fast-food restaurant chains: McDonald’s: ”

“He would make comments on my body, and other workers’ bodies, saying, like, ‘I would have sex with you, I wouldn’t have sex with her,'” said Emily Anibal.

“First he was like, ‘You have nice hair,’ started touching my hair,” said Jamelia Fairley. “Then he was like, physical; then he actually started grabbing my butt.”

Kat Barber said, “Any woman that he could get his hands on or be near, he was taking advantage of that moment.”

Kimberly Lawson said, “It kind of made me feel isolated. I thought I was the only one this is happening to right now, you know what I’m saying? So, I just felt, like, completely alone.”

Lawson, Fairley, Barber and Anibal have all either filed discrimination charges or filed suit against McDonald’s corporate restaurants or their independently-owned franchises. Each tells a story of persistent and unwanted harassment from male co-workers.
In response, CEO Chris Kempczinski said the following:
Let me say plainly: every single person working under the Arches must have a safe and respectful work environment. Sexual harassment in the workplace is an affront to everything we stand for as a System. It has no place in any McDonald’s restaurant, and it will not be tolerated.
If, as Kempczinski added, McDonald’s takes “these allegations very seriously,” and “must acknowledge our mistakes and make them right,” why then is the company waiting until next year to mandate a new anti-harassment program?

Per ABC News, beginning January 2022 the company will mandate new employee training to combat harassment, discrimination, and violence in all 39,000 of its restaurants worldwide. According to Kempczinski, the details are still being worked out, but he expects training at the time of hire plus annual training for all employees.

While this is all makes sense, why does it take nine months to implement this training? McDonald’s has a serious problem that it needs to solve, and all waiting until next year won’t solve anything. McDonald’s is not some rinky-dink company.

It’s a $5 billion corporation with more than enough resources to fund a quick and thorough solution to this problem. A nine-month wait is simply not acceptable, especially considering this training is something it should already have in place and should have been providing to its employees for decades.

April 26, 2021

Another reason not to mandate the COVID-19 vaccine for employees

I’ve not hidden my belief that employers should not be mandating that their employees receive the COVID-19 vaccine as a condition of employment. Now, OSHA offers yet another reason why employers should recommend, but not mandate, the vaccine.

Per OSHA, if the vaccine is mandatory, then an employer must record an employee’s adverse reaction or side effects on its OSHA log.

If I require my employees to take the COVID-19 vaccine as a condition of their employment, are adverse reactions to the vaccine recordable?

If you require your employees to be vaccinated as a condition of employment (i.e., for work-related reasons), then any adverse reaction to the COVID-19 vaccine is work-related. The adverse reaction is recordable if it is a new case under 29 CFR 1904.6 and meets one or more of the general recording criteria in 29 CFR 1904.7.

I do not require my employees to get the COVID-19 vaccine. However, I do recommend that they receive the vaccine and may provide it to them or make arrangements for them to receive it offsite. If an employee has an adverse reaction to the vaccine, am I required to record it?

No. Although adverse reactions to recommended COVID-19 vaccines may be recordable…, OSHA is exercising its enforcement discretion to only require the recording of adverse effects to required vaccines at this time. Therefore, you do not need to record adverse effects from COVID-19 vaccines that you recommend, but do not require.

A few more points that OSHA made about this issue.

1. To avoid reporting, the vaccine must be truly voluntary and an employee cannot suffer any repercussions from that choice. For example, an employee’s choice to accept or reject the vaccine cannot affect a performance rating, bonus payment, or professional advancement. An employee who chooses not to receive the vaccine cannot suffer any repercussions from this choice.

2. The method by which employees might receive a recommended vaccine does not matter. This rule also applies even if an employer makes the COVID vaccine available onsite or otherwise makes arrangements for employees to receive it offsite. As long it the employee’s choice is voluntary, side effects and reactions are not recordable.

So there you have it. Yet another reason not to mandate that employees receive the COVID vaccine — the administrative burden of recording reactions and side effects, and the risk of potential OSHA citations and fines for failing to do so.

April 19, 2021

How to identify and handle an employee at risk for workplace violence

termination, covidiot, workplace violence, gun, weapon

It’s been four days since Brandon Hole returned to the Indianapolis FedEx facility at which he previously worked, and killed eight people.

I’ve previously written about how to spot an employee at risk for workplace violence. And while I’m not sure FedEx could have done anything to prevent what happened here, this tragedy nevertheless is a reminder of what employers need to do when they suspect an employee presents a risk of violence.

Here is my post from Feb. 18, 2019, following a workplace shooting in Aurora, Illinois.

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 — six 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 recommended 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.

April 15, 2021

OSHA finally gets real about COVID-19 safety

Consider the following COVID-19 safety and health violations OSHA recently uncovered at a Massachusetts tax preparation business.

Employees and customers were prohibited from wearing face coverings in the workplace despite a statewide mask order that mandated the business to require employees and customers to wear masks.
Employees were required to work within 6 feet of each other and of customers for multiple hours while not wearing face coverings.
Adequate means of ventilation in the workplace were not provided.
Controls such as physical barriers, pre-shift screening of employees, enhanced cleaning, and other methods to reduce the potential for person-to-person transmission of the virus were not implemented.

What did these violations cost this employer in OSHA penalties? $5,000? $10,000? $25,000?

How about $136,532!

According to OSHA Regional Administrator Galen Blanton in Boston, “This employer’s willful refusal to implement basic safeguards places her employees at an increased risk of contracting and spreading the coronavirus. Stopping the spread of this virus requires business’ support in implementing COVID-19 Prevention Programs, and ensuring that staff and customers wear face coverings and maintain physical distance from each other.”

This appears to be the first company cited under OSHA’s recently launched national emphasis program focusing on COVID-19 enforcement efforts. If you’ve waited for the past 13 months without taking COVID safety seriously in your business, you better do so now. OSHA is watching, and based on this one example, violations are going to be quite expensive.

April 14, 2021

Labor Department reopens the floodgate to liquidated damages in wage and hour investigations

restaurant industry employees, wage and hour compliance for employers

The Department of Labor’s breakup with liquidated damages in wage and hour investigations lasted only four years.

Late last week, the agency announced that it would again seek liquidated damages (an amount equal to the unpaid wages themselves) in investigations, undoing a policy change made by the Trump administration.

According to the DOL, it will “return to pursuing liquidated damages from employers … in its pre-litigation investigations provided that the Regional Solicitor of Labor or their designee concurs with the liquidated damages request. … Liquidated damages shall not be assessed by WHD where the employer has set forth credible evidence of a good faith defense or the where the RSOL deems the matter inappropriate for litigation.”

What does this mean for your business? You have twice the financial stake in getting your wage and hour house in order as soon as possible.

If the DOL investigates, you should expect to pay double what you would have in the past four years. Your $X in unpaid wages will take $X*2 to settle with the DOL.

If your only defense to these liquidated damages is “credible evidence of good faith,” you better take steps to create that good faith now, such as by having your employment lawyer sign off on how you classify and pay your employees.

Once the DOL comes knocking, it will be too late.

April 12, 2021May 17, 2022

It’s time to end pandemic PTO hesitancy

I haven’t taken a proper vacation in 25 months. We were supposed to go to Portugal last March, but then COVID-19 happened. In the 13 months since, there’s been little point in taking off from work for any length of time because I haven’t been able to go anywhere. “I can’t go anywhere, so I might as well work,” has been a popular pandemic refrain (me included).

Americans were bad at vacations before COVID. The pandemic certainly hasn’t helped our PTO hesitancy.

Consider the following from The Atlantic.

Americans are good at lots of different things, but going on vacation is not one of them.… Guess which industrialized country is the only one that doesn’t guarantee time off to its workers? Guess which country left 768 million vacation days on the table in 2018?

The pandemic has not been great for America’s vacation malaise. When there are few new places to go and few new things to do, what’s the point of asking for time off? Yes, many Americans who have made it through without losing their jobs have taken a break to discover nature or their apartment balconies, but largely, we do not seem to be PTO-ing our way through this god-awful year. In February, time-off requests on the HR platform Zenefits were down 26 percent from the year before, a spokesperson told me, in line with what the company has seen since July.

I’m ending my vacation moratorium this summer with a week in a cabin in the Blue Ridge Mountains. I suggest that you strongly encourage your employees to do the same, lest you risk the burnout I warned about last week.

Here are four tips to help push your employees to use their PTO and take a vacation.

1. Teach your employees the benefits of taking a vacation. Make it a part of your wellness education. Communicate the health and wellness benefits of taking a vacation. If employees understand that vacations lead to improvements in performance productivity, they will be more likely to leave work behind for a few days.

2. Take your own time off. If the boss never takes a vacation, employees won’t either. If you want your employees to take time away from work, do so yourself. Leadership and messaging start at the top. If you make vacations a priority, your employees will, too.

3. Ease employee back to work. When asked why they don’t take time off, most employees historically cite the fear of returning to a backlog of work and thousands of emails to which to respond. COVID hasn’t helped, as fewer are away from work. Plan for coverage when employees are out, and provide a day upon their return for them to catch-up, so that they won’t fear the return-to-work ambush or avalanche.

4. Prohibit vacation shaming. No one should be permitted to discourage or tease employees who take a vacation. If you send or permit negative messages about vacations, your employees won’t take them. They will fear letting the team down, or the time-off impacting their employment. This form of bullying cannot and should not be tolerated.

April 6, 2021

Is work from home not all it’s cracked up to be?

coronavirus, remote work, COVID-19, remote workforce

Three weeks ago I returned to the office. That return matched my start date at Wickens Herzer Panza. I decided that it’d be difficult, if not impossible, to learn a new firm and its systems, and build camaraderie and teamwork with my new co-workers, if I’m working remotely. Thus, I made the decision to break free of my self-imposed COVID-19 cocoon and start working most days in person in the office.

I thought about this decision as I read this article in the Wall Street Journal: After Covid, Should You Keep Working From Home? Here’s How to Decide.

Consider these conflicting stats.

54 percent of employees say that they would want to work remotely if permitted post-COVID-19.
Yet, over 60 percent of employees report that remote work has increased their time spent in meetings and their work hours, and nearly 50 percent report that it has decreased their work-life balance.

In other words, employees are in favor of remote work as a concept, but in practice, they may not understand that it is doing more harm than good.

Without a real physical separation between work and nonwork, people won’t ever stop working. They will be on the clock 24/7, ultimately burning themselves out at great cost to themselves and their employers. The most recent episode of Depresh Mode with John Moe expertly addressed this issue.

What does this mean for your remote employees? It means that they are likely working too much, some to the point of burnout. If you value your employees’ mental health and wellbeing, factor it into your decision when and whether to bring your employees back to your physical workplace, at least part time. They might think they want to keep working remotely, but they may not necessarily know what’s best for them.

In the meantime, if your employees are going to continue working remotely, consider these tips to help them maintain the balance they need to avoid overworking and burning out.

1. Set a schedule for your employees and strongly encourage them to stick to it. Alternatively, make available technology that allows employees to designate when they are available and not available. In either case, it must be clear to managers, supervisors, and coworkers that these boundaries must be respected except in the case of a 911-level emergency.

2. Require that employees take breaks during the workday, including a lunch break.

3. Prioritize days off so that employees can recharge their batteries.

4. Remind employees who might be struggling with their mental health of the services you have available for them, including an EAP and counseling and other mental health services via your health insurance plan.

April 5, 2021

Employers, the COVID-19 lawsuits are coming

essential workers; workers' compensation, mask

Thirteen months into the pandemic, the COVID-19-related employment lawsuits are starting to roll into courthouses. Consider the following, all of which made headlines over the past couple of weeks.

A former crew member who worked for Universal TV is suing his former employer claiming discrimination stemming from his termination after his COVID-19 diagnosis.

A COVID-19 long hauler is suing her former employer after she was fired for missing too many days of work while recovering from her illness.

A doctor is suing after he was fired over his vocal opposition to his employer’s COVID-19 response.

And these lawsuits don’t even scratch the surface of employees fired for other COVID-related reasons, such as those fired for refusing the vaccine or complaining on social media about unsafe working conditions.

Employers, you need to understand that if you fire someone related to the pandemic, their first stop likely might be the office of their friendly neighborhood plaintiff attorney. Do yourself a favor a don’t go this alone.

Take the time to vet these terminations pre-termination. The time you spend on the phone with your employment lawyer will be time and money well spent if it helps you not to walk in front of a runaway lawsuit.

March 31, 2021

COVID-19 vaccination cards will be required to do lots of things — possibly even working

According to the Wall Street Journal, COVID-19 vaccination cards are our only proof of vaccination status and will soon be as essential as a drivers’ license or passport. With no national or statewide centralized databases of vaccination records, the piece of paper you receive with your vaccine dose is your only proof of vaccination.

The article suggests that we’ll need this record to do lots of things moving forward, such as travel. What about returning to in-person work? Can employers ask for or require that employees provide proof of vaccination?

According to the EEOC, the answer is yes as to the ask.

Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?

No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be “job-related and consistent with business necessity.” If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.

The question then becomes what does an employer do if an employee cannot provide proof of vaccination? If the vaccine is mandatory and a condition of employment, it can deny access to the workplace or even terminate, provided that it is considering exceptions for employees’ disabilities and sincerely held religious beliefs, practices and observances. If the vaccine is not mandatory, why ask for the vaccine record in the first place?

We are entering a very interesting era of privacy, including employee privacy. If you are not mandating the vaccine, while you are within your legal right to ask about vaccination status, why would you? Do you really want to catalogue your employees’ vaccination status and for what purpose?

March 30, 2021

Let’s meet employees where they are on their pronouns

In Meriwether v. Hartop, the 6th Circuit recently decided that a state university cannot force a professor to use students’ preferred gender pronouns, and permitted the prof to proceed with his lawsuit challenging the school’s discipline for his misgendering.

The plaintiff, Nicholas Meriwether, a philosophy professor at Shawnee State University and a devout Christian, challenged the school’s decision to discipline him for violating a policy that instructors were to use a student’s preferred pronouns after a student accused him of refusing to properly identify her as a woman or with she/her pronouns. Meriwether claimed the policy violated his First Amendment free-speech and religious freedoms. The 6th Circuit agreed enough to re-institute his claim.

Traditionally, American universities have been beacons of intellectual diversity and academic freedom. They have prided themselves on being forums where controversial ideas are discussed and debated. And they have tried not to stifle debate by picking sides. But Shawnee State chose a different route: It punished a professor for his speech on a hotly contested issue. And it did so despite the constitutional protections afforded by the First Amendment. The district court dismissed the professor’s free-speech and free-exercise claims. We see things differently and reverse.

Unless you are a public employer governed by the Constitution and the First Amendment protections it guarantees, Meriwether has limited applicability to your workplace, your rules and your employees. Moreover, after Bostock v. Clayton County, it’s likely a Title VII violation to intentionally misgender an employee.

Nevertheless, legal or illegal, Meriwether can teach us some important lessons about meeting employees where they are. Here are some things to think about regarding gender, pronouns, and your employees.

1. Educate yourself about the use of pronouns. When I went to school I learned that “he” refers to a singular male, “she” to a singular female,” and “they” to plural wo/men. That is no longer the case. A man can identify as “she” and a female as “he,” and they/them pronouns are used for individuals who identify as non-binary, gender-fluid, or whoever chooses to use them.

2. Do not assume what pronouns your employees use. Just because someone presents a particular way doesn’t mean they their pronouns fit match that presentation.

3. If you’re unsure, ask. Your employees who use alternate pronouns will be more than happy to help you.

4. Avoid gendered language. For example, use “y’all” instead of “you guys” and “everyone” or “people” instead of “ladies and gentlemen” or “men and women.”

More to the point, if you insist that you must refer to someone born with a Y chromosome as “he” and two X chromosomes as “she,” why do you care? If an employee identifies as female (regardless of whether she was born a male), why do you care what pronoun she uses?

This issue is nothing more than a solution in search of a problem. You are doing way more harm to the mental well-being of your employees if you misgender them than you are doing to other employees by having them rethink how they use pronouns.

Any other answer to this issue is bigotry, period. And, in 2021, we should be well beyond bigotry of any kind.