Category: Commentary & Opinion

Posted on

If you’re tired of reading about the Worst Employer voting, you can now hear me talk about it

Marc Alifanz and Kate Bischoff are two of my favorite people. They also happen to host one of my favorite podcasts, Hostile Work Environment. I promise that I’m not just dishing out these high praises because Marc and Kate invited me to guest on this week’s episode to discuss the 10 nominees for this year’s Worst Employer poll.

You can listen to the episode on Apple Podcasts, Spotify, or wherever you choose to get your podcasts. (And while you’re there do us all a favor and click that subscribe button if you already haven’t.)

This post also serves as your final warning to get in your vote for this year’s nominees. Polls close at 11:59 p.m. Wednesday, Dec. 16. Over 1,000 of you have already voted (thank you!), and the margins (at least in the COVID-19 category) are razor-thin. A few votes either way could literally decide this year’s winner. Make sure your voice is heard. No whining about the results if you don’t vote.

Voting is available at this link. Remember that this year’s vote is different than years past in that we have two categories — Worst Employer and Worst Employer COVID-19 Edition. In each category, you rank each of the five nominees from 1 (worst) to 5 (least worst). Ranking all five is important because the relative rankings count in the final tally.

The polls are open until 11:59 p.m. Wednesday, Dec. 16, and I’ll announce the winners (err … losers) early next week. Continued bad luck to all of this year’s very worthy nominees.

Posted on

‘Maskual harassment,’ Part 2

workforce management 2020, mask, COVID-19

“I wish I could see your pretty lips if they match ur eyes.”

“Come on, sweetie. Lemme see that pretty face under there. Take it off for me, will you? Just a quick flash.”

“I can be covid and make you short of breath.”

“I don’t wear a condom; I sure as hell aren’t going to wear a mask!”

“Social distancing? My pocket rocket can still reach you.”

“I’ll take your mask off and stick my tongue down your throat.”

These are just a few of the hundreds of awful and offensive comments to which service industry workers reported being subjected while working during COVID (report here).

As I recently pointed out, unlawful harassment is unlawful harassment, regardless of the alleged perpetrator. An employer cannot treat sexual (or other illegal) harassment of an employee by a non-employee any differently than harassment between employees. Indeed, in the words of the Ohio Administrative Code:

An employer may also be responsible for the acts of nonemployees (e.g., customers) with respect to sexual harassment of employees in the work place, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action. In reviewing these cases the commission will consider the extent of the employer’s control and any other legal responsibility which the employer may have with respect to the conduct of such nonemployees.

What should an employer do when a customer is harassing an employee? Take the same five steps it takes when an employee is harassing another employee:

  1. Separate the victim from the alleged harasser.
  2. Promptly and fully investigate the allegations.
  3. Evaluate the evidence and make a reasoned conclusion as to what happened.
  4. Take prompt and effective remedial steps, if necessary.
  5. Use the complaint as an opportunity to retrain employees about your anti-harassment policy.
“The customer is always right” still holds true for most things, but not if the customer is unlawfully harassing your employee.
Posted on

Tipped restaurant and other service workers at high risk for ‘maskual harassment’

construction, mask, mobile technology, COVID-19
Everyone has been hit hard during the COVID-19 pandemic. Service industry employees, however, have been hit particularly hard. Many are out of work. And those who are able to work are working fewer hours and earning less in wages and tips.
Moreover, according to this survey (h/t: NPR), a majority of service industry workers are being forced to choose between earning valuable tips and staying safe by wearing a mask.

Consider these statistics regarding tipped employees:

  • 78 percent report experiencing or witnessing hostile behavior from customers in response to staff enforcing COVID-19 safety protocols.
  • 83 percent report that their tips have declined during COVID-19, with two-thirds reporting a decline of more than half.
  • 58 percent report feeling reluctant to enforce COVID-19 protocols out of concern that customers would tip them less.
  • 67 percent report actually having received a lesser than usual tip after enforcing COVID-19 protocols.
  • 84 percent report being within six feet of at least one person who is not wearing a mask in every shift, and one-third report being within six feet of 30 or more maskless individuals on every shift.

The kicker: 37 percent of tipped workers reported that their employer had not conducted mandatory training on COVID safety protocols and 69 percent reported that their employer is not consistently following all COVID safety protocols.

This is unacceptable. Restaurant workers are on the front lines of this virus working inside one of this pandemic’s most dangerous spreading environments.

They shouldn’t have to be de facto safety sheriffs, enforcing mask mandates and other health rules. Yet, that is the position in which many of their employers have put them, which, according to the above survey, is often without training or the enforcement of COVID safety rules.

Employees should not be placed in the position of enforcing COVID safety rules with a customer, especially when they risk the loss of tips and revenue as a result. Employers, do your part. Train your workers and set up a system of enforcement that takes your front-line workers out of the enforcement equation.

Posted on

Coronavirus update: Vaccines

COVID-19, vaccine, flu

We are days away from the FDA approving two different COVID-19 vaccines, and it is being reported that the first people could start receiving the vaccine as early as Friday, Dec. 11.

While I covered the topic of employer-mandated vaccines earlier this year, I understand that everyone doesn’t necessarily see or read every post I write. Thus, because of just how important this issue will quickly become for employers, today I’m directing you to my thoughts from three months ago: Coronavirus Update 9-1-2020: Vaccines — can an employer require them; should an employer require them?

The TL;DR: Employers can legally require that employees get vaccinated, subject to reasonable accommodation exceptions under the ADA for disabilities and under Title VII for sincerely held religious beliefs.

But can doesn’t necessarily mean should, and employers should be wary about requiring what employees do with their bodies; instead, employers should be strongly encouraging employees to get the COVID-19 vaccine when they qualify to do so.

Posted on

CDC cuts recommended quarantine period from 14 days to 7 – 10 days (sort of)

COVID-19, coronavirus, public health crisis

Yesterday, the CDC amended its guidance on the duration of quarantine for individuals in close contact with someone else positive with COVID-19. We need to pay close attention to the fine print. All of the headlines are reporting that the CDC has shortened its recommended COVID-19 quarantine period. That’s not, however, what happened.

Previously, the CDC recommended a 14-day quarantine period in all cases for someone in close contact. Now, however, the agency has made available the option to shorten quarantine as follows:
  1. Quarantine may end after Day 10 without testing and no reported symptoms during daily monitoring.
  2. When diagnostic testing resources are sufficient and available, quarantine may end after Day 7 with a negative test and no reported symptoms during daily monitoring.
  3. Persons can discontinue quarantine at these times only if: (a) there is no clinical evidence of COVID-19 detected during daily symptom monitoring during the entirety of quarantine up to the time at which it is discontinued; (b) daily symptom monitoring continues through Day 14; (c) persons strictly adhere to all recommended mitigation measures (masking, physical distancing, etc.) through Day 14; and (d) if symptoms develop the person should immediately self-isolate and contact their healthcare provider.
Despite this optional shortening of the quarantine period the CDC still advises, “Persons can continue to be quarantined for 14 days without testing per existing recommendations,” which “maximally reduces risk of post-quarantine transmission risk and is the strategy with the greatest collective experience at present.”
The CDC made these changes based on scientific evidence of diminishing spread from one percent down to near zero percent during days 11 – 14 without testing and days 8 – 14 after a negative test, and further based on the concern that “a 14-day quarantine can impose personal burdens that may affect physical and mental health as well as cause economic hardship that may reduce compliance.”
That said, in the middle of a deadly surge of this virus I’ll opt to keep the spread as close to zero as we can. Despite this new guidance, I think that in most cases businesses should still keep exposed employees out of work for the full 14-day quarantine. We need to be doing everything we can to slow the current surge. To me, a one-percent risk of transmission is one percent too high if we can reduce it to zero merely by waiting at home for a few more days.
Posted on

Coronavirus update: Congress must extend the FFCRA

Capitol Building, joint session of Congress

The Families First Coronavirus Response Act, the federal law that provides paid sick and family leave to employees for COVID-19-related absences, ends in 29 days. By its terms, the law sunsets on Dec. 31.

On Dec. 1, news broke of a new coronavirus relief bill that Senate Majority Leader Mitch McConnell will put forward. It will include important measures such as the extension of unemployment insurance expansions for another month, another round of Paycheck Protection Program (PPP) small business assistance, and additional funding for the USPS, schools, testing, and vaccine distribution.

What doesn’t it include? Any extension of the FFCRA.

COVID-19 isn’t going to magically disappear on Dec. 31. If anything, we’ll be in the midst of the virus’s current surge and the situation will be worse and more dire come January 2021 than it is now. You will have more employees needing time away from work because of their own illnesses, the illnesses of family members, and the closure of their children’s schools. Yet, they will lack any federal protections for this time off.

Congress needs to extend the FFCRA now. Otherwise, millions of employees will be left without leave and without job protection as they and their families battle this virus.

Employers, you need to assume that the FFCRA is going away to start 2021 and spend some time over the next few weeks figuring out your own plan for your employees.

  • Will you grant your own paid sick and family leave in lieu of the federal benefit?
  • Will you merely rely on your existing PTO/vacation/sick leave benefits?
  • Will you grant unpaid leaves of absence but not offer any additional paid leave to employees?
  • Will you do nothing and force these employees out of your business?
These are difficult choices to make during difficult economic times. But you need to make them and you need a plan, as it appears that Congress will not provide one for you for 2021.
Posted on

Vote for the Worst Employer of 2020

It’s officially election season for the Worst Employer of 2020.

Since it is 2020, however, this can’t be a normal Worst Employer election. This year we have two categories: Worst Employer, and Worst Employer COVID-19 Edition.

Here’s how voting will work. Each category has five nominees. You’ll rank each from 1 (worst) – 5 (least worst). Simply drag and drop into your preferred ranking. You should rank all five because positions count in the tabulation.

The nominee with the most points wins (or loses, depending on your perspective). Polls are open until 11:59 pm on December 15, at which point I’ll count the votes, certify the results, and announce the winners.

Follow this link for a refresher on this year’s 10 nominees.

The poll is available via this link, or via the embed below. Happy voting, and good luck to all of the nominees. May the worst employers win.

Posted on

Coronavirus update: Thankful

thanksgiving, soup

It’s clear that 2020 has certainly been a year like no other. People are sick and dying. Hospitals are filling up. Our essential workers are stressed and tired.

I’m tired, too. Part of what’s making me tired is continuing to hear people complain about “2020” when we have so much for which to be thankful.

Here’s my list of everything for which I have been and continue to be thankful during the pandemic.

  1. That no one in my very immediate world has become severely ill with COVID-19, or worse has died from it. I pray every day that I can still say this six months from now.
  2. That my wife and I remain gainfully employed.
  3. My daily lunches and walks with my wife, the absolute best perk of us both working from home.
  4. My kids, who have endured the pandemic, and being stuck in the house with mom and dad, as best as they can.
  5. My dogs, who will have absolutely no idea what to do with themselves when we finally go back to work outside of the home.
  6. The slower pace of life and all of the family time I’ve been able to enjoy as a result.
  7. That I’ve been able to work from home since March without anyone batting an eye.
  8. Fast WiFi.
  9. Zoom, which has allowed me to stay connected to family and friends even though I can’t visit with them IRL, and to continue to conduct business without the risk of in-person meetings, hearings, and depositions.
  10. A dry spring, summer and fall, which allowed me to see some family and friends IRL and in small groups.
  11. Democracy.
  12. My renewed love of cooking.
  13. My kids’ school, and its commitment to safety and remaining open for full-time in-person instruction.
  14. The Rockin’ the Suburbs Friday Night Hootenanny, which continues to provide my daughter a valuable virtual outlet to share her music weekly with a group of very appreciative listeners. (Pro tip: it’s free to join, and you can just sit back and listen if you have no music to share.)
  15. The scientists who worked tirelessly to deliver the COVID-19 vaccines we desperately need.
  16. Essential workers who risk their lives every day so that we can continue to live ours.
  17. Season 2 of The Mandalorian, the best show currently on TV and a Friday bonding ritual with my son that I very much look forward to.
  18. Jackbox, which has provided hours upon hours of entertainment on family game nights while allowing my kids to demonstrate their mastery of four-letter words in the safe space of our home.
  19. Curbside pickup.
  20. Red wine, gin, and bourbon.
I’ll be off the remainder of this week, and will return after the Thanksgiving weekend to open the polls for voting for the Worst Employer of 2020.
Everyone, please have a healthy and safe holiday. If you are considering getting together with family or friends for a meal or otherwise, please reconsider. I live in abject fear that if we do not behave with the appropriate level of respect for this virus, responsibility for our role in limiting its spread, and care for others we will lose all hope of controlling this virus until vaccinations reach a critical mass sometime in mid-2021.
By then, a half million of us will be dead, millions will be grieving those losses, and millions more will be suffering long-term debilitating health issues. We can still beat this virus, but it will take a concerted effort from all of us to do so.

 

Posted on

The 12th nominee for the “Worst Employer of 2020” is … the Bad Bettor

Do you remember that scene from The Deer Hunter where Christopher Walken plays Russian roulette in a betting parlor, while the patrons place bets on whether he’ll live or die with every pull of the revolver’s trigger? That’s what I thought of as I read the allegations in Fernandez v. Tyson Foods, and not in a good way.

According to the lawsuit, while COVID-19 was running rampant through Tyson’s Waterloo, Iowa, facility, the Plant Manager “organized a cash buy-in, winner-take-all betting pool for supervisors and managers to wager how many employees would test positive for COVID-19.”

That’s just the tip of the iceberg of allegations in this wrongful death lawsuit, originally filed by the family of the late Isidro Fernandez, one of at least five employees who died of the virus. Indeed, according to their local health department, more than 1,000 workers at the plant, representing over one-third of the total workforce, contracted the virus. The lawsuit claims that Tyson Food demonstrated a “willful and wanton disregard for workplace safety.”
The recently filed amended complaint, which includes allegations concerning the betting pool, adds even more meat to the bone of these unsafe working conditions.
  • Despite the rampant spread of the virus within the plant, Tyson Foods required its employees to work long hours in cramped conditions without personal protective equipment and without following other workplace-safety measures.
  • In mid-April, just before the betting pool was created, the county sheriff visited the plant and reported that the working conditions inside “shook [him] to the core.”
  • An upper-level manager directed employees and supervisors to ignore COVID-19 symptoms, not to get tested, and to continue working, and supervisors falsely denied the existence of any confirmed cases or positive tests among the workforce.
  • Tyson paid $500 attendance bonuses, which actually incentivized sick employees to continue working.
  • All the while, managers avoided the plant floor for fear of contracting the virus, and executives lobbied Iowa’s governor for COVID-related liability protections.
For it’s part, Tyson Foods vehemently denies these allegations and suspended all managers accused of taking part in the betting pool (seven months after the fact).
If you place bets on which of your employees will contract a deadly virus, while you continue to take active steps that expose them to a greater risk of contracting that virus, you might be the Worst Employer of 2020. And thank you to all of my readers who sent me this very worthy nominee.
Posted on

Breaking down my county’s four-week coronavirus stay-at-home advisory

sick, stay at home, coronavirus

Yesterday afternoon, Cuyahoga County, Ohio’s largest, issued a four-week stay-at-home advisory. It took effect immediately, and is in addition to the 21-day 10 pm – 5 am statewide curfew Governor DeWine implemented yesterday and which takes effect tonight.

Let’s examine why it was issued, what is says and what it means for your business.

Why was it issued?

  • The county is experiencing a dramatic increase in the number of COVID-19 cases.
  • The positivity rate within the county has increased to 15 percent and is rising.
  • The county suffered 50 COVID-19 fatalities during the first two weeks of November.
  • The county is currently reporting 500 – 600 new COVID-19 cases per day over the past week, and modeling predicts it could rise as high as 2,000 new daily cases in the coming weeks.

What does it say?

  • All county residents are advised to stay at home to the greatest extent possible, and should only leave their homes for work, school, essential needs.
  • Employers are strongly encouraged to identify and accommodate as many employees as possible to work from home.
  • Businesses should transition as many functions as possible to an online format.
  • Schools that are currently implementing a hybrid or full in-person learning are advised to transition to online remote learning after the Thanksgiving holiday.
  • All  public or private gathering, meeting, or social event occurring outside of a residence or living unit is limited to no more than 10 individuals.
  • Parties, receptions, celebrations, and other similar events should be postponed.
  • Residents are strongly advised not to conduct or attend any indoor gatherings with guests who are not members of their household in a home or place of residence.
  • Residents that are exhibiting any signs and symptoms of COVID-19 must shelter in their place of residence, and people should otherwise follow CDC guidelines for isolation and quarantine.

What does it mean?

  • If your employees live in Cuyahoga County, more and more will need time off because their children will be home from school.
  • If your business is located in Cuyahoga County, you should give serious consideration to shifting to an all-remote model if possible, or at least permitting every employee who can work remotely to do so for at least the next four weeks.
  • This is just the beginning. We should expect similar advisories by local or state governments in the coming weeks as COVID-19 continues to surge out of control. Indeed, other counties in Ohio (e.g., Medina and Frankin) also issued their own stay-at-home advisories for residents and businesses, although neither of them recommends closing schools.
What are the penalties?
  • There aren’t any.
  • It’s an advisory, not an order.
Finally, I cannot mean this more clearly or earnestly, if everyone would have just behaved responsibly and with an ounce of compassion and empathy for their fellow humans from the beginning, we wouldn’t be in the position we now find ourselves.