Are you still struggling with how to handle your currently exempt employees who,
Let me offer a suggestion you may not yet have considered — the fluctuating workweek.
As an employer, you have two options to pay salaried, non-exempt employees:
Under the standard method, you calculate the employee‘s weekly rate based on the salary divided by the number of hours worked that week, and then pay the employee 1.5 times that rate for all overtime hours. Thus, if a non-exempt employee earns a salary of $1,000 a week, and works 50 hours in a week, the employee would earn an additional $30 per hours worked over 40 ($1000 / 50 = $20 per hour base weekly rate x 1.5 = overtime premium of $30). Thus, in this week, the employee would earn an additional $300 for the 10 hours of overtime, rendering his total pay for that week $1,300, not the customary $1,000 salary.
Under the fluctuating workweek method, you include the base-rate part of the overtime premium in the employee’s weekly salary, and only pay the 0.5 premium kicker as overtime. Using the same example as in number 1 above, the employee would still have an hourly rate of $30, but would only earn an additional $100 for the week, as under this method, $20 of the $30 overtime rate has already been paid as part of the base salary.
As you can see, there is a clear economic advantage to employers using the fluctuating workweek calculation to pay overtime to salaried non-exempt employees. You’ll realize a 66 percent savings on your overtime pay.
Under the FLSA, however, an employer cannot unilaterally implement the fluctuating workweek calculation. Instead, to pay salaried, non-exempt employees via this advantageous method, you must meet these four elements:
the employee clearly understands that the straight-salary covers whatever hours he or she is required to work;
the straight-salary is paid irrespective of whether the workweek is one in which a full schedule of hours are worked;
the straight-salary is sufficient to provide a pay-rate not less than the applicable minimum wage rate for every hour worked in those workweeks in which the number of hours worked is greatest; and
in addition to straight-salary, the employee is paid for all hours in excess of the statutory maximum at a rate not less than one-half the regular rate of pay.
Recently, the 11th Circuit court of appeals, in
What are the takeaways?
If you haven’t yet determined how you will handle your currently exempt employees earning less than $913 per week, time is running out. You have 30 days from today to figure out and implement your strategy.
If you have non-exempt salaried employees who work hours fluctuate from week-to-week, give strong consideration to implementing a fluctuating work week, via a written agreement that explains, in plain English the arrangement.
With the presidential election quickly approaching, the International Foundation of Employee Benefit Plans surveyed 486 human resource and benefits professionals on the campaign issues impacting benefits — that is, issues that have been mentioned on either of the presidential platforms.
I spoke with Julie Stich, associate vice president of content at the organization, about the noteworthy findings in the survey, which spanned from large and small companies, both public and private, across industries.
Stich also noted that there’s so much uncertainty around this election, it’s difficult to make a good prediction about which benefits could go forward. Also, we don’t know what the majority of Congress will be, and employee benefits haven’t been at the forefront of any of the debates. That being said, certain benefits or benefit reforms are popular on the bipartisan level.
96 percent of participants support increased health care provider price transparency.
84 percent support increased access to mental health care.
76 percent oppose the Cadillac tax.
75 percent support tax-exclusions for child-care expenses.
68 percent support legalized prescription drug importation from other countries.
“So many employers as well as workers are frustrated that they just don’t know what a particular procedure is going to cost, or how much they’ll get billed after the fact,” said Stich. “It’s not surprising that we saw such strong support.”
Issues like mandated paid family leave and increased minimum wage were less agreed on. The minimum wage argument wasn’t shocking, but that only 53.3 percent of these survey participants supported paid family leave surprised me. As much as I’ve noticed the big presence of paid family leave throughout research and interviews in the past few months, and even though both Hillary Clinton and Donald Trump have proposed (albeit, very different) paid leave plans, support was still pretty much split in this survey.
Something else I found interesting. Of course, health care issues are big, and employers continue to support things like continuing to have the elimination of pre-existing conditions exclusion, or getting rid of the Cadillac tax, or even covering adult dependents up to the age of 26.
Julie Stich, associate VP of content, International Foundation of Employee Benefit Plans.
“When that provision first came out in the law, there was a lot of grumbling in the employer community about it, but it’s turned out to be a provision that employers as well as workers have embraced,” said Stich.
So, I wonder: What current controversial health care related benefits will be embraced in the future? Is it something stirring up controversy in this election cycle? Just a thought.
Finally, I want to briefly mention the high support of increased mental health care.
“We’re hearing more and more about the struggles that individuals with mental health distress are facing, and being able to have access to care that is affordable is critical to their wellbeing,” said Stich. “And not just their own, but family members and those who support them. And even in the workplace, if you have a co-worker suffering from mental distress, that can be challenging in how people get along, how they work together, productivity.”
It’s encouraging that employers are seeing the importance of providing mental health benefits at the same level as they provide other types of health benefits, she added and I agree wholeheartedly.
Andie Burjek is a Workforce associate editor. Comment below or email at aburjek@humancapitalmedia.com. Follow Workforce on Twitter at@workforcenews.
According to OSHA, “The anti-retaliation provisions were originally scheduled to begin Aug. 10, 2016, but were previously delayed until Nov. 10 to allow time for outreach to the regulated community.” While I hate to be appear cynical, I can’t help but think that the pending lawsuit challenging the legality of these rules has something to do with this delay.
Second, even though OSHA keeps delaying these rules, it continues its efforts to educate employers and employees about them. On Oct. 19, OSHA published both a memorandum and example scenarios interpreting these new anti-retaliation provisions.
So, let’s take a look at the types of scenarios OSHA believes will violate, and will not violate, its new anti-retaliation provisions.
Disciplinary Programs
The rule prohibits disciplining employees simply because they report work-related injuries or illnesses without regard to the circumstances of the injuries or illnesses, such as automatically suspending workers who report an injury or assigning them points that have future employment consequences. The rule also prohibits disciplining an employee who reports a work-related injury or illness under the pretext that the employee violated a work rule if the real reason for the discipline was the injury or illness report.
Illegal Retaliation (according to OSHA):
Employee is injured when he is stung by a bee at work, and he reports the injury to Employer. Employer disciplines Employee for violating a work rule requiring employees to “maintain situational awareness.” Employer only enforces the rule when employees get hurt.
Employee twists his ankle at work but does not immediately realize that he is injured because his ankle is not sore or swollen, and therefore he does not report the injury to Employer. The next morning, Employee’s ankle is sore and swollen, and he realizes he has the kind of injury he is required to report to Employer. He reports the injury to the employer that day. Employer disciplines Employee for failing to report his injury “immediately” as required by Employer’s injury reporting rules.
Non-Retaliation (according to OSHA):
Employee reports a hand injury that she sustained while operating a saw after bypassing the guard on the saw, contrary to the employer’s work rule. Employee’s hand injury required her to miss work for two days. Employer disciplined Employee for bypassing the guard contrary to its instructions. Employer regularly monitors its workforce for safety rule violations and disciplines employees who bypass machine guards regardless of whether they report injuries.
Employee twists her ankle at work but does not immediately realize that she is injured because her ankle is not painful or swollen, and therefore she does not report the injury to Employer. The next morning, Employee’s ankle is painful and swollen and she realizes it is the kind of injury she is required to report to Employer as soon as practicable. However, Employee does not report the injury after this realization, although she easily could have, and instead reports it several weeks later. Employer disciplines Employee for failing to report her injury as soon as practicable after realizing she has the kind of injury she is required to report.
Incentive Programs
The rule prohibits using incentive programs to penalize workers for reporting work-related injuries or illnesses. If an employee reports an injury or illness, and the employer subsequently denied a benefit as part of an incentive program, this denial may constitute retaliatory action against the employee for exercising his or her right to report an injury or illness.
Illegal Retaliation (according to OSHA):
Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which no employee in the work group sustains a lost-time injury. Employee reports an injury that she sustained while operating a mechanical power press. Employee did not violate any employer safety rules when she sustained her injury. Employee’s injury requires her to miss work for two days. Employer cancels the cash prize drawing for that month for Employee’s work group because of Employee’s lost-time injury.
Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection. Employer cancels the cash prize drawing for Employee’s work group that month ostensibly because Employee failed to wear required fall protection. However, Employer’s employees routinely fail to wear required fall protection but the only time Employer cancels the cash prize drawing is when an employee reports an injury.
Non-Retaliation (according to OSHA):
Employer informs its employees that it will hold a substantial cash prize drawing for each work group at the end of each month in which all members of the work group comply with applicable safety rules, such as wearing required fall protection. Employee sustains a lost-time injury when he falls from a platform while not wearing required fall protection, and he reports the injury to Employer. Employer cancels the cash prize drawing for Employee’s work group that month because Employee failed to wear required fall protection. Employer actively monitors its workforce for compliance with applicable work rules and cancels the cash prize drawings when it discovers work rule violations regardless of whether the employee who violated the work rule also reported an injury.
Employer holds a party for all employees who complete a safety training course. Employee failed to attend the training because she was absent from work due to a work-related injury that she reported. Employer excluded Employee from the training-completion party because she did not complete the training. Employer consistently excluded all employees who failed to complete a training course from the training-completion party regardless of why they failed to complete the training, including those who were on vacation or absent because of a non-work-related injury or illness.
Drug Testing
OSHA plainly states that the rule does not prohibit drug testing of employees, including drug testing pursuant to the Department of Transportation rules or any other federal or state law (such as state workers’ compensation law). It only prohibits using drug testing, or the threat of drug testing, to retaliate against an employee for reporting an injury or illness. Employers may conduct post-incident drug testing if there is a reasonable possibility that employee drug use could have contributed to the reported injury or illness. However, if employee drug-use could not have contributed to the injury or illness, post-incident drug testing could constitute prohibited retaliation, as it would discourage injury reporting without contributing to the employer’s understanding of why the injury occurred .
Illegal Retaliation (according to OSHA):
Employer required Employee to take a drug test after Employee reported work-related carpal tunnel syndrome. Employer had no reasonable basis for suspecting that drug use could have contributed to her condition, and it had no other reasonable basis for requiring her to take a drug test. Rather, Employer routinely subjects all employees who report work-related injuries to a drug test regardless of the circumstances surrounding the injury. The state workers’ compensation program applicable to Employer did not address drug testing, and no other state or federal law requires Employer to drug test employees who sustain injuries at work.
Employer requires all employees who report lost-time injuries to take a drug test regardless of whether drug use could have contributed to the injury because the drug testing requirement is included in the collective bargaining agreement at the workplace. Employer drug tests Employee (who is covered by the collective bargaining agreement) when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome. The employer had no reasonable basis for suspecting that drug use could have contributed to her injury and had no other reasonable basis for requiring the test.
Non-Retaliation (according to OSHA):
Employee was injured when he inadvertently drove a forklift into a piece of stationary equipment, and he reported the injury to Employer. Employer required Employee to take a drug test.
Employer drug tests all employees who report work-related injuries to the employer to get a 5% reduction in its workers’ compensation premiums under the state’s voluntary Drug-Free Workplace program. Employer drug tests Employee when she reports a work-related injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.
Employer requires all employees who report lost-time injuries to take a drug test because the employer’s private insurance carrier provides discounted rates to employers that implement such a drug-testing policy. The relevant rate discount provisions in the private policy are identical to those in the applicable state workers’ compensation law. Employer drug tests Employee when she reports a lost-time injury that could not reasonably have been caused by drug use, such as a bee sting or carpal tunnel syndrome.
If OSHA’s new anti-retaliation rules go live, employer will have to study these examples as if they are gospel, as they will help employers navigate the increasingly complex world of OSHA compliance so as to avoid costly and complex retaliation complaints.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Leaders must help establish a balance between politics and the workplace.
With the election just a couple of weeks away, one thing seems certain regardless of the outcome: It’s tough being American right now. Anxieties and tensions are high, and most of us feel threatened by the political rhetoric and what’s at stake, not to mention regular news about police shootings and other violence.
As we grapple with redefining ourselves as a nation, forward-thinking leaders in organizations are wondering: Do I say something about this? Do I do something? If so, what should I do?
The stakes are high and impact tangible. Like it or not, employees and leaders bring their fears and frustrations to the workplace, affecting communication, team dynamics, accountability, productivity and employee engagement. On top of that, organizations are struggling with new laws and policies about bathroom access, same-sex marriage and workplace safety. Add constantly evolving technology and the mandate to serve an increasingly diverse population, it’s a wonder we don’t see more nervous breakdowns and violence at work.
In deciding how to lead in the age of Donald Trump and #BlackLivesMatter, consider the following:
Inclusion means everyone is included. This includes Trump supporters, #BLM supporters, Clinton supporters, Bernie Sanders supporters, former cops and young activists alike. Diversity and inclusiveness isn’t about including only the type of diversity you like.
Inclusion does not mean all behaviors are included. People don’t have to agree on politics or even values to do effective behaviors that are experienced as cordial, respectful, professional and productive by others. Our nation — and others — were founded on this principle, and still strive to put it into practice.
The story you’re telling about conflict and change determines how you lead. Does our societal turmoil signal the destruction of our nation’s fabric? Labor pains of our emerging demographics and shifting values? An opportunity? The story you choose to tell about what this means and what’s possible will guide your decision making, problem solving, employee engagement and financial decisions.
Taking a stand on important issues of the day isn’t necessarily a “partisan” act, but a moral one driven by mission and values. A growing number of organizations (Huffington Post, USA Today, The Atlantic, AT&T, Ben & Jerry’s) have made clear, public statements about race, Donald Trump or #BlackLivesMatter. Doing so may be exactly what your target market and employees — especially millenials — need to hear. Doing so may be an act of integrity in clear alignment with your vision, mission and organizational values. And while endorsing a political candidate might be strategically unwise or violate a core business agreement (as for many nonprofits), many issues that are labeled as “partisan” really aren’t. The #BlackLivesMatter platform is clear and could be supported by any political candidate or party, and one might make a statement about Trump’s behavior without endorsing Clinton.
This is about the legacy you create and the legacy you leave. As a leader and as an organization, how do you want to be remembered? What kind of future are you preparing to thrive in? What future are you creating? We celebrate Martin Luther King Jr. but he was widely unpopular and considered a dangerous radical in his day. What side of history do you want to be on?
If you decide to take a stand:
Articulate the clear business case for your stand in terms of impact on your employees and customers, fulfillment of your mission and values, and the legacy you’re creating.
Provide clear, reasonable expectations for workplace behavior, and hold everyone equitably This includes top leadership. Banning conversations, personal opinions or expressions of support for candidates or movements may suppress energy that could be put to better use. However, behaviors that can be fairly and clearly identified as bullying, sexual harassment, disrespect, workplace violence, creating a hostile work environment or interfering with business operations should not be tolerated. Weigh the pros and cons of your policies and expectations in alignment with your values and business goals, focusing on impact over the intent of a behavior.
Go to the facts whenever there is confusion or disagreement. Research shows which direction our country’s demographics, values and beliefs have long been headed. Just look at Millenials. There are abundant data on what Trump has said and done, and the impact he’s having on kids and our mental health. There’s clear information about whether #BlackLivesMatter is a hate group, and what their goals are. While humans tend not to change our opinions based on facts (regardless of political affiliation), insisting on them may eventually cause a shift, or at least provide clear support for your position.
Listen to fully understand. One of the reasons movements like the tea party and #BlackLivesMatter and candidates like Bernie Sanders and Donald Trump are so popular is because they appeal to a growing number of Americans who rightfully feel ignored, shut out, abused and talked down to by traditional institutions and leaders. When an employee or team has a concern — whether it’s related to the social issues of the day or not — give sufficient time to listen deeply from a place of curiosity, with the goal of fully understanding the person’s feelings and motivations as well as thoughts.
Get curious. Curiosity and anxiety live in the same area of the brain. Getting curious is one of the best ways to reduce your anxiety and increase your creativity. Getting curious about another’s story can reduce their anxiety, build a positive relationship and co-create workable solutions.
As the late author and philosopher Eric Hoffer said, “in times of change, the learners will inherit the earth, while the knowers will find themselves beautifully equipped to deal with a world … that no longer exists.” It’s up to leaders to decide which world we, and our organizations, will inhabit, and learn what’s necessary.
Susana Rinderle is president of Susana Rinderle Consulting LLC. Comment below or email editors@workforce.com.
The plaintiff in Tennial v. UPS [pdf], a former UPS manager, claimed that his manager placed him on a performance improvement plan, and ultimately demoted him, because of his race.
In support of this claim, he relied in part on: 1) his manager’s alleged use of the word “n*****” in referencing another, nonparty UPS employee, and (2) a district president’s use of the word “boys” in reference to Tennial’s black co-workers.
The 6th Circuit concluded that these two stray comments could not stand as direct evidence in support of Tennial’s race-discrimination claim:
Direct evidence consists of facts that, “if believed, require[] the conclusion that unlawful discrimination was at least a motivating factor in the employer’s actions.” In other words, when direct evidence is provided, no inferences are needed in order to conclude that racial discrimination is afoot. …
A finding of racial discrimination based on these comments, moreover, would require us to make inferences. First, we would have to infer that Cochran’s alleged use of the n-word with respect to an urelated employee meant that his decision to demote Tennial was due to a similar racial animus. We would also be required to infer that Harm’s reference to Tennial’s coworkers as “boys” meant that his animus trickled down and influenced the individual decisions of Cochran and Slabaugh to initiate Tennial’s MPIP and demotion process.
So, this employer won, and avoided liability for a manager’s alleged use of the N-word. Just because something is legally defensible, however, doesn’t make it right. Merely because an employer can win a case for a stray racial epithet does not mean that any employer should tolerate this language. If I’m this employer (or the lawyer advising this employer), this manager would have been terminated upon an investigation reasonably confirming the misconduct.
I reach this conclusion for two reasons.
First, it’s the morally correct position. If someone uses the N-word to describe African Americans, even once, that person is a bigot, and bigots have no place in my workplace.
Secondly, if I, as the company’s lawyer, need to defend to a judge or jury my client’s actions, I need to able to argue that one stray comment doesn’t violate Title VII and, more importantly, that my client doesn’t tolerate such bigotry. Not firing the N-bomb utterer is nothing short of condoning the racism, and, if you’re condoning racism, you’re no better than the alleged racist.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
I’ve often thought it might help to curtail police brutality and murder if white and black, or white and some other minority, officers were routinely paired as partners.
Partners spend lots of time together each day. They eat together, travel together, and they act in concert, often in dangerous situations where their safety — and the safety of innocent civilians around them — depends on how well they have each other’s back. Essentially, I thought, if a white officer got to know, intimately, a black or a Hispanic one, it would help to humanize the suspected perps they encounter on the street. Then, when push came to shove, they might hesitate to pull the trigger or to use excessive force.
The point of my theory is, let’s help the white police officers understand how much they have in common with their minority peers, and how much their perceptions and bias impact their behavior. Thanks to technology, there may be a way to achieve the same goal without needing the actual ride along.
Virtual reality startup SPACES Inc. has created an implicit bias virtual reality program that enables participants to embody or to mirror a minority. I spoke to John Singh, a representative for SPACES, and he said basically, participants put on a headset. They see a mirror in front of them, have simple tasks they can perform, but they see themselves as a person of a different color or gender. He said research indicates even relatively short exposure to this kind of mirroring or embodiment can have a measurable impact on efforts to reduce implicit bias.
And before you say, that’s great, but I’m not biased. I blah, blah, blah, blah. No. Everyone has bias about something, and implicit bias is particularly virulent because people hold stereotypes and perceptions they are often completely unaware of. They’re ingrained.
When we spoke, Singh only mentioned being able to do certain tasks while in the VR program, but if it’s not already part of the package, I’m sure as technology advances the tasks one can engage in will become more complex. Eventually, a black male executive might be able to spend the day or even longer as a white, blonde assistant, dealing with all the things she encounters — the rudeness, the sexism, the insults to her intelligence, the disregard for her time and efforts when it comes time for rewards and recognition — things that shouldn’t be present in a conscious, inclusive workplace.
Or, a white man might be able to spend a few hours as a black man, so he’ll understand just how much privilege insulates him from a lot of unnecessary crap he never realized was so challenging, time consuming and emotionally and physically draining to deal with. It might even do someone like me some good to walk around as a white man. Nah, I might have too much fun.
Initially developed to facilitate academic research on implicit bias, the SPACES program is now available for scientific researchers, corporate trainers and law-enforcement organizations. Singh told me the tool is best used as part of a larger training program to develop greater sensitivity.
But I think sensitivity is just the tip of the iceberg here. Think what a difference this virtual reality body mirroring could make in the workplace. To quote Audrey Hepburn in “Breakfast at Tiffany’s,” “I must say, the mind reels.” If participants were open and willing to act on lessons learned and new information gathered after they step back into their own “skin,” behavioral, even policy changes are right around the corner. Well, one hopes.
But VR can shine a light on how implicit bias affects our world view, our communication styles and the way we work and interact with others. Singh said, “This is a way for someone to truly experience, to suddenly realize that you are different than you imagined.”
Sometimes we need to be shocked or surprised. We need to have those light-bulb moments so that knowledge can stick, and we adapt our behavior accordingly. If we have to virtually step into someone else’s shoes to get there, so be it.
Kellye Whitney is associate editorial director for Workforce. To comment, email editor@workforce.com.
Yesterday, I noted that the EEOC is examining the impact of big data on how employers reach employment decisions.
Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.
In that case, the only purpose the EEOC could hope to serve by looking at the impact of big data on employment practices is to determine whether its use disparately impacts a protected group.
“What is disparate impact,” you ask? A disparate impact claim involves an employment practice that is neutral on its face, but, as applied and to a statistical significance, it falls more harshly on one group over another. It has significant implications in race and sex discriminate claims. One federal appellate court recently and notably, however, called into question its application in age claims.
Unless big data has a disparate impact, the EEOC has no business examining this issue. So, what says the data? For purposes of this post, consider the use of social media as a recruiting tool. If an employer is relying primarily on LinkedIn to source and recruit candidates, does its use disparately impact one race or sex over another?
According to the most recently available data (c/o the Pew Research Center), the answer is no.
If men vs. women, or whites vs. blacks, or whites vs. Hispanics, are using LinkedIn in similar percentages, then, based on the data, it will be difficult to make a disparate impact claim on this big-data issue. Granted, the EEOC examined issues much more broadly than just social recruiting, but at least on this issue, and at least according to the available actual data, it looks like employer should be free to use LinkedIn to source candidates without fear of a discrimination claim.
Kudos to the EEOC for thinking outside of the box in trying to discover new paths of discrimination to address. I wonder, however, if when the EEOC gets around to opening that box, instead of finding Pandora’s evils, it will find a whole bunch of nothing.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
While the Access Hollywood tape has been making news for the last week or so, mainly for what Donald Trump said, there is something else that has stood out: Billy Bush’s ‘role’ in the whole affair. Bush’s attorney reportedly said, “If Billy had been passive or responded, ‘Shut the f— up’ to Trump, Billy would have been out of a job the next day.” This certainly does raise some questions about behavior in the workplace. Is laughing considered a form of agreement with something a supervisor, co-worker or client says? Of course Bush went a step further, he didn’t just laugh along, he also made some comments I think we can all agree are inappropriate (especially at his place of work).
I want to come at this from a different angle than The Huffington Post, which attacked Bush for playing the roll of Trump’s wingman. What do you do, as an employer, when you learn of harassment about which no one has complained?
The short answer is you better do something, and you cannot do nothing. An employee alleging sexual harassment by a coworker must still establish that the employer is liable because it knew or should have known of the harassment, yet failed to take prompt and appropriate corrective action. When does an employer “know or should know” of harassment? Either when: (1) an employee complains or otherwise makes the employer aware; (2) a supervisor or manager witnesses the inappropriate conduct and either reports it or remains silent; or (3) when a workplace is so permeated with harassment that is unreasonable for an employer to claim ignorance.
What steps must an employer take when it learns of harassment, whether or not an employee has complained? These five steps (which I’ve outlined before) are critical:
Be prompt. Upon receipt of a complaint of harassment, a business must act as quickly as reasonably possible under the circumstances to investigate, and if necessary, correct the conduct and stop from happening again.
Be thorough. Investigations must be as comprehensive as possible given the severity of the allegations. Not every complaint of offensive workplace conduct will require a grand inquisition. The more egregious allegations, however, the more comprehensive of an investigation is called for.
Consider preliminary remedial steps. While an investigation is pending, it is best to segregate the accused(s) and the complainant(s) to guard against further harassment or worse, retaliation. Unpaid suspensions can always retroactively be paid, for example, and companies are in much worse positions if they are too lax instead of too cautious.
Communicate. The complaining employee(s) and the accused employee(s) should be made aware of the investigation process—who will be interviewed, what documents will be reviewed, how long it will take, the importance of confidentiality and discretion, and how the results will be communicated.
Follow through. There is nothing illegal about trying remedial measures less severe than termination in all but the most egregious cases. A valued employee may be no less valued after asking a co-worker about her underwear, for example. If the conduct continues, however, the discipline must get progressively more harsh. If you tell an employee that termination is the next step, you must be prepared to follow-through.
What you cannot do, however, is bury your corporate head in the sand. Under no circumstances can you, as an employer, ignore harassment that you know about or should know about. It is not a defense for you to bury your organizational head in the sand and hope that it will all be gone when you emerge into the sunlight. If opt for the “ostrich,” all you will see after shaking the sand off your face is an expensive (and possibly indefensible) harassment lawsuit.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
The Fair Labor Standards Act does not require paid lunches for employees. Indeed, quite to the contrary, the FLSA provides that meal breaks (presumptively defined as breaks of more than 20 minutes during which the employee is totally relieved of his or her work duties) can be unpaid.
What happens, however, to an employee’s overtime compensation if the employer pays an employee for non-working lunches? Is the employer entitled to use the extra compensation for the paid lunches to offset other overtime compensation?
Nothing in the FLSA authorizes the type of offsetting DuPont advances here, where an employer seeks to credit compensation that it included in calculating an employee’s regular rate of pay against its overtime liability.
Instead, as the court points out, the FLSA only permits employers to take an offset against overtime payments in three limited circumstances, each of which involves some component of premium pay in excess of an employee’s regular hourly rate:
Extra compensation provided by a premium rate paid for certain hours worked by the employee in any day or workweek because for hours worked in excess of eight in a day or in excess of the employer’s defined maximum workweek.
Extra compensation provided by a premium rate paid for work by the employee on Saturdays, Sundays, holidays, or regular days of rest, or on the sixth or seventh day of the workweek, where such premium rate is not less than one and one-half times the rate established in good faith for like work performed in non-overtime hours on other days.
Extra compensation provided by a premium rate paid to the employee, in pursuance of an applicable employment contract or collective-bargaining agreement, for work outside of the hours established in good faith by the contract or agreement as the basic, normal, or regular workday (not exceeding eight hours) or workweek (not exceeding the employer’s defined maximum workweek), where such premium rate is not less than one and one-half times the rate established in good faith by the contract or agreement for like work performed during such workday or workweek.
Come Dec. 1, the DOL is adding more than four million employees to the doles of overtime eligibility. Employer are doing to look for ways to limit their overtime exposure to keep payrolls under control. Be aware, however, that taking a credit against overtime for paid lunches is one option not available to you.
Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.
Bashing white people does nothing to solve the greater issues around workplace diversity and inclusion.
A white man emailed me recently, a software developer I’ll call Portland, since that’s where he comes from. He gave me permission to post and discuss his email — thank you, sir — but he asked to remain anonymous, which I respect. This is sensitive stuff, and while many of us are open to learning, we don’t need drama.
His words are in italics. My responses are in plain text:
I’m a software developer working for the City of Portland, Oregon; and I recently attended a meeting in my organization entitled “Celebration of Hispanic Heritage.” It was the first time I decided to go to — perhaps — “passively” participate in what the city calls an “Equity in Motion” event in a series of events/meetings meant to empower and help dignify “disenfranchised” members of the community — but really — to educate our own people.
This could be me — a professional wordsmith — reading too much into this, but if those quotes around passive and disenfranchised are your additions, Portland, I’m sensing some skepticism or at least disagreement with the foundation of the gathering. That’s OK. Skepticism can be healthy.
It was not at all what I was expecting. It had nothing to do with Hispanic Heritage nor was it a celebration. At the beginning of the meeting, our lovely host played a video depicting both Whites and Blacks as goofy imbeciles saying all sorts of careless, politically incorrect things in various conversations and settings with a “White Hispanic” woman who’s barely offended and just looks at her offender with a smile. This video was not only offensive to Blacks and Whites; but it was even more offensive to Hispanics because before the video was started, the audience was told the video is just meant in humor [to break the ice]. I thought it was in poor taste because it makes light of the very identity and dignity of Hispanics and sets a tone that equality and equity need not be taken seriously.
I agree with you wholeheartedly, Portland. It’s important not to buy into and feed stereotypes — especially negative ones — even among members of the same group. Always, always, always portray strong, realistic, positive, diverse images so we can change the narrative, and constructively challenge the bias and ideas that pigeonhole minorities. Only then can we broaden the collective mindset with diverse thoughts, ideas and accurate, three-dimensional human portrayals. We don’t need to coon and perform to break the ice. A hello might work just as well.
You have to understand I work in a relatively professional environment where everyone is generally courteous to each other. That is, the City of Portland really doesn’t have a problem with employees with different backgrounds getting along. The real problem is people over socialize, but that’s another story. No less, it’s not like we’re running a failing trucking business with a bunch of disgruntled workers saying hateful things about each other and their boss behind their backs. Although the racial diversity of Portland is relatively low compared to other metropolitan areas, and the diverse makeup of our organization in fact relatively proportional to the population and more diverse than the population; the Office of Equity still makes a good effort to get the word out in an effort to hire more minorities.
Then the complete opposite occurred. The rest of the meeting took a 180 and consisted of the few Hispanic employees we have sharing where they’re from, how they got here, and then depressing instances of hate and/or discrimination they’ve suffered [from White people]. I put “White people” in brackets because the offenders were not always racially identified but implied to be White. This is the part that got me angry, because I felt like it was an attack on White people — to shame us — and, alas, on myself (as a White person).
Portland, I’m not being flip here, but this was a meeting for Hispanic people. Is it appropriate for you, a visitor, to deny them an opportunity to get some issues off their chest? The Hispanic people who were airing their concerns were upset too, and they are entitled to talk about why — just as you are — since they feel they’ve been mistreated. This was an appropriate venue for them to share their stories.
Therefore, listen; and listen to learn without taking things personally. Unless someone was talking to you, this isn’t about you. That’s easier said than done, I know. But part of creating inclusive cultures where diversity is truly a business advantage requires that we become comfortable with discomfort.
Discomfort is natural in any environment where there is difference, so we who appreciate diversity must therefore become agile, even diplomatic in how we deal with those differences. It would be wonderful if every meeting was candlelight and roses, but that doesn’t happen in most meetings, let alone one for an employee resource group. We can’t reasonably expect that minorities won’t have grievances, and then if they do, not to air them in an appropriate venue because there’s a white person present who might be offended.
But if there was no follow up, no discussion of action items, no learning, no takeaways or anything after the grievance airing, I query the group leader’s effectiveness. Or, I query the purpose for the meeting.
I think the audience had been duped with a bait and switch, if you will. People coming to the event were expecting some celebratory content such as, say, the historic triumphs of Mexican-Americans with the help of Cesar Chavez and perhaps a proud cultural exhibit.
I think you were expecting celebratory content. But I wonder if the other participants were. I know what the title was, what theme was advertised, but somehow I doubt most of the attendees were actually expecting a cultural exhibit. Employee resource groups have traditionally been opportunities to promote community and support for specific groups within the workplace. The best ones also have keen business connections, and they contribute with new products, services, process improvements, etc.
However, Portland, I can totally understand your shock when the content veered so sharply off course. It was quite natural to think there was something underhanded going on. To bill something as a historical celebration, for instance, and then not talk about historical celebrations at all is essentially a lie. At best, the meeting’s origins and purpose were not well conceived or thoughtfully constructed.
But it turned out to be a session of indirect bashing. I was very emotional by the end and when the host asked for feedback, a co-worker spoke for me saying the same. The host’s response was very callous: “Maybe you shouldn’t take it so personally,” she said, as she was turning away and continued on with the conclusion of the meeting. It seemed as if for an instant she was making a subtle statement, “That’s what you get for hurting us.” The host is a much older, nearly elderly African woman (actually from some country in Africa).
Her response does seem short. It wouldn’t have hurt her to address your concerns, at least suggest that you guys talk afterwards. But the personal comment, I’m afraid I agree with that. The meeting wasn’t for you. It also wasn’t about you. Therefore, it shouldn’t have been offensive to you. Easier said than done, I know, but this was no deliberate “attack on Portland day.” Consider the source, the venue, the unwritten purpose of the meeting. It could be it should have been renamed, “Get crappy treatment off your chest at 4 p.m.” But if it were, I doubt there would have been meeting space available.
As soon as I got home I started researching this phenomenon of diversity training in the workplace and what I’m discovering is a convenient indirect tactic of beating up on White people which is growing in popularity. As someone who came to that event willing to champion the cause of diversity, I felt betrayed and that an injustice had been done. On the other hand, if the host had prepared us by letting us know beforehand the intent is not to shame; then I would have been much more understanding and accepting of the content. But it seems the audience was tricked.
This wasn’t diversity training. It was an employee resource group meeting. And you can look up and find support for almost anything on the internet. Further, if you’re a true champion for diversity, one bad meeting won’t throw you completely off course. If anything, it will fire your passions even more because you’ll see the work that needs to be done, and you’ll gird your loins to do it because it’s not easy. It’s a battle, uphill, and for every success there are a dozen failures.
Your feeling of injustice is just that — your feeling. It’s not this group’s responsibility to pat you on the back and congratulate you for wanting to be open-minded. Also, you say the audience was tricked? But you only mention one other person who was upset. I don’t know if it’s appropriate for you to speak collectively for this group or audience.
However, I agree with you that a bit of context could have alleviated some ill feelings. A preface like, “I see we have some new visitors today. Please don’t be alarmed if we get a little personal. This is a safe space for us to share our workplace concerns,” would have been appropriate.
How do you feel about this tactic of White-bashing to audiences who are caught “off-guard?”
I think white-bashing stinks, Portland. It’s callous, silly and purposeless. It does nothing to solve the greater issues around workplace diversity and inclusion. On an individual level it barely gives you even momentary satisfaction. Organizationally, it may actually contribute to the very problems that lead to white bashing to begin with.
As for you being caught off guard. This was your first employee resource group meeting. Maybe you should attend a few more. Make some notes. Absorb what’s being said critically, and consider the speakers’ positions, concerns and how you might feel or behave in their shoes. Ruminate, and let your emotions cool. Then come forward and objectively state your opinions and offer suggestions on how the leader could make the meetings more productive, and more importantly, more inclusive.
Portland did talk to the employee resource group leader and share his suggestions to allow all groups involved to be able to comment and to keep the material at least as positive as it is negative. This is a follow up email he sent to me:
My final suggestion (kindly expressed) was to seek out an education in intergroup dynamics (social psychology) and intergroup conflict reduction. I don’t think my message got through, though. She insisted that an event for a certain group is their “space” and that it would be wrong to have White people controlling/changing up the material.
My first thought when I saw the phrase “kindly expressed” was, unasked-for assistance, no matter how well intended, is in fact interfering patronage. Portland, you may think the leader needs conflict reduction skills training, but that’s a sweeping judgment based on your attendance at one meeting. Further, you didn’t actually detail any conflict within the group. The conflict was with you and your reaction to the group’s activities.
The group does seem to have some issues: It was wrongfully billed/labeled, there were offensive images and activities, and on the whole it was not inclusive of other cultures or of diversity of thought.
Employee resource groups should be about teachable moments. Here, there were missed learning opportunities on both sides. But the dialogue has started, which is great. Now it’s time to do the work to find some consensus.
I get her point, but I don’t think she quite gets mine — that White people are being inadvertently demonized. I think she wants the White audience to go away feeling badly perhaps as a strategy. But most of us have been victimized by persons of another race or gender or sexual orientation. Seems like Whites are being singled out anymore based on the historical misgivings of the rich and powerful (who happened to be White). I can deal with the history lesson, but I’m not convinced of the suggestion of the case in today’s environment that Whites consciously oppress non-Whites (which is what these events are really suggesting). Really? Is it 1971 still?
Portland, I think your intentions are good. But you seem to have some pretty healthy skepticism about the purpose for the employee resource group or maybe about diversity and inclusion work in general? You say you’re not convinced that Whites consciously oppress non-Whites “which is what these events are really suggesting.” So, does that mean the opinions or experiences you heard from the Hispanic employee resource group members are untrue or exaggerated?
For many minorities it is very much still 1971. Our feelings about the reality of our lives and experiences are routinely denied. Many experts — of which I am not one — say that’s why racism, sexism, gender bias and all the rest of the -isms have not been successfully routed from life and from the workplace, because so many — particularly those who have power to change things — deny they actually exist.
Remember, just because these things are not a part of your daily reality — or your family, friends and even your community’s reality — doesn’t mean they aren’t incredibly real for others.
Discrimination is not happening like it used to. I would, for example, love to work with a team of Black co-workers but there aren’t hardly any Black computer programmers because they’re not going to college for that. What’s really going on here? Are we addressing the real, root problems? Or just scratching at the surface?
No, discrimination is not happening like it used to. Some things are not as prevalent, but it’s also happening in new ways now. It is still very much alive. We’re fighting many of the same battles we’ve been fighting for the past 40-plus years.
So, please, Portland, be careful with blanket statements. You don’t actually know what Black people are going to school for, do you? I have covered quite extensively the issues that women and minorities face not just pursuing and then advancing in tech careers, but even thriving in the academic environments they need to learn necessary job skills.
I’m grateful Portland was brave enough to write and that he gave me permission to share his words. He was open about his experience and his feelings around diversity, and that is important and rare — not just for a white man but for most of us. I hope I was reasonable and objective in how I addressed different points in his letter.
Some learning needs to take place. Not just for him, but for the employee resource group leader too. But he’s right to question: What’s really going on here? Are we just scratching at the surface when it comes to workplace diversity?
Kellye Whitney is Workforce’s associate editorial director. Comment below, or email editors@workforce.com.
