Paid Sick Leave

Posted on December 18, 2019 in Consulting

During the holiday season, we think of those in need. In the workplace, the needy are the lowest-tier of the workforce who have no access to paid sick leave.

Paid sick leave is a hot topic in Texas and across the country. There is merit to both sides of the debate, and I certainly understand and respect the business interest in fighting government regulation of wages and benefits. However, I believe Texas ought to adopt some moderate and limited paid sick leave.

A number of states have implemented paid sick leave laws. There appears to be a growing push across the country to mandate this employee benefit. A number of U.S. cities are following this trend. Austin, Dallas, and San Antonio passed similar paid sick leave ordinances in the last few years. The readers of this newsletter already know that enforcement of each of the Texas municipality ordinances has been enjoined or stalled because of pending lawsuits.

The first big decision blocking the Texas cities’ paid sick leave ordinances came out of the Austin Court of Appeals in late 2018. The Court held that a municipality cannot adopt an ordinance that affects wages because it conflicts with the Texas Minimum Wage Act (the “TMWA”). The decision relied upon the Texas Constitution, which bars municipalities from adopting regulations if the State has adopted law that preempts city action on a particular matter. The City of Austin has petitioned for review before the Texas Supreme Court.

In the meantime, during the 2019 Texas legislative session, the senate passed a bill designed explicitly to preclude city mandates for paid sick leave. Presumably, the bill sought to avoid the Texas Supreme Court ruling in favor of the City of Austin and permitting enforcement of the sick leave ordinance. The bill died in the legislature.

As with most political controversies, there should be room for compromise. I believe that all employers should consider paying full-time employees at least 3 days of sick leave during a year. Sick leave should be permitted after an employee has worked for some minimum period of time (e.g. 90 days). Sick leave should not be carried over to the next calendar year and is not paid upon separation of employment. Finally, to balance the conservative interest, perhaps mandatory sick leave paid to non-exempt employees at a lesser rate (i.e., some percentage of the worker’s regular rate of pay). This way, employees are less likely to pretend an illness and more likely incentivized to use sick leave only when necessary.

I recognize this is a somewhat controversial subject. However, I am confident beyond a doubt that no one reading this newsletter worries about being denied pay for missing a few days of work. The needy in the workforce deserve further thought and consideration into mandated paid sick leave.

Leave a comment

Keeping Quality Employees

Posted on October 18, 2019 in Consulting

 The unemployment rate sits at a very low 3.5%. Employers are not going to find the best new hires in this tiny percent of the population. Rather, Companies poach employees from each other, and the low unemployment rate will only intensive the competition. Just the other day I saw this well done video on how to advertise for a competitor’s employees: https://www.applicantpro.com/articles/how-to-attract-experienced-applicants/ Here are my tips on keeping your quality employees from jumping to the competitor.   

Assess your Compensation Structure

Retain quality employees with conscious, periodic attention to pay practices. Businesses need to analyze and reassess their salary scale to know where they fit in the market place. In frugal times, employees earned less and were happy with cost of living adjustments. Now, in an employee-favorable wage market, employers need to make sure to adjust pay of existing workers to be consistent with the pay offered to new hires. This sometimes reveals itself in signing bonuses. Employers justify a signing bonus as a quick way to attract new talent. Yet, don’t forget about your existing employees. Consider that with few secrets in the workplace existing employees will learn about sign-on bonuses.

Deliverable on intangibles

Companies love publishing their core values. It is less clear that they live by them. If you claim to provide a work-life balance, you better show it. For example, adopt and enforce rules that preclude managers from pestering employees when they are off work. Consider my 7 to 7 rule. See https://theemploymentmatters.com/consulting/my-7-to-7-rule/. If your business promises professional growth and advancement, assign employees a mentor. The designated mentor should prepare (with the employee) a written plan to chart and map goals. This is not a variation of a performance review. Rather, this is a growth session in which the employer helps shape an employee’s future with the organization. The mentor’s role should emphasize realistic and achievable targets with employer supported incentives (e.g., how to get a promotion). None of this works without scheduled and sacredly maintained meetings. Concepts do not achieve reality without begin set on a calendar.

Conduct meaningful exit interviews to police against jerks

A quality in-person exit interview with a form of questions to answer is a very useful tool in exposing a bad boss. Too many people tolerate a bad boss because they believe the company endorses the behavior. Employees quit rather than complain to avoid being the target of retaliation. The departing employee can be brutally honest as they have little to lose by speaking their mind. Conduct meaningful exit interviews to ensure you do better to keep your employees happy.

Leave a comment

Recordings at Workplace

Posted on September 10, 2019 in Consulting

I often get calls from clients concerned about employees secretly recording conversations. In fact, I recently wrapped up a case that involved nearly six hours of surreptitious audio recordings. This was far from the first time I have had a plaintiff secretly audio or video workplace communications. It reminds me of some lessons to share on this topic.

1. A primer on the law

Federal law permits recording telephone calls and in-person conversations with the consent of at least one of the parties. 18 U.S.C. 2511(2)(d). Most states, including Texas, adopt the same rule. However, some states require all parties to the conversation to give consent to the recording. These are the “two-party” jurisdictions. Approximately twelve states fit this group. Big surprise, California is a two-party consent state. However, and this point cannot be understated, it is illegal for someone to record communications between other parties when the person making the recording is not a participant in the conversation.

2. Technology makes recordings more likely

The convenience of modern technology makes it all too easy to record conversations. Gone are the days of flip phones and the microcassette device. With smart phones glued to our hands any conversation can be recorded without detection. Smaller more sneaky devices can be purchased too. See https://spycentre.com/collections/spy-voice-recorders.

3. Act impeccably and you have no fears

Supervisors should have nothing to fear if they communicate effectively and professionally in the workplace. Perhaps the simple lesson is to train managers to think that they are being recorded. I experienced some of this in the practice of law. When I was young, long ago, I struggled to watch video depositions where I was the questioning lawyer. I quickly changed my perspective. Being recorded makes me very aware of my role and might actually help me perform at a higher level.

4. Don’t fret: recordings usually favor the employer

Most people regret the recording. Most employment-lawyers (including the plaintiffs’ bar) would say that ninety plus percent of secret recordings portray the plaintiff poorly. I have listened to some hilarious conversations of a plaintiff recording them saying something they would always regret. Usually, as a defense lawyer, I have to ask the plaintiff to produce any secret recordings because they do not want to share what they captured.

5. Pick up on the tells of employee recordings

Although not uniformly true, there are a few warning signs before an employee plans to surreptitious record a conversation with a supervisor. Typically, the employee has requested a meeting to discuss a matter already concluded. The point is obvious: the employee wants to rehash the conversation in a different light hoping for a Matlock moment and capture some confession. Second, and as corollary to point one, the employee oddly works the previously resolved topic into the new conversation. When you pick up the signs, go back to point three: act impeccably and you have no fears.

Leave a comment

Coaching versus Discipline

Posted on June 26, 2019 in Compliance

Balancing coaching and discipline is a challenge in the workplace. I thought about this recently during a trip to Cooperstown, New York, home of the Baseball Hall of Fame and week-long summer baseball tournaments. My son played on his team (the Oilers) of twelve boys age 12 to 13 in a tournament of 104 teams from across the U.S. Standing, and often pacing, watching boys play baseball, I was consistently impressed by how the coaches managed the team of vastly different personalities, skillsets, and tendencies to follow rules. The experience caused me to reflect on how employers should distinguish between coaching employees to improve and disciplinary action to correct misdeeds.

Distinction One: Purpose Coaching teaches improvement.

Coaching is mentoring. We coach employees on how to get something done best; manners of efficiency; how best to work through a task; when to ask for help. Coaching opportunities focus on skill development and increasing productivity. Coaching works best when an employee’s positive intentions would be graded as a low B with the thought that mentoring achieves the desired solid A. In contrast, discipline addresses a violation of a policy typically that results in harm to the Company or others. Prime examples include insubordination, bad attitude, and workplace confrontation. None of these situations are resolved by mentoring. Rather, they concern violation of rules that should have been mastered sometime during puberty… we should hope.

Distinction Two: Method of Delivery

How we communicate coaching versus discipline distinguishes our meaning. Discipline must be in writing. Level one discipline, although sometime couched as “verbal warning”, should be and most often is reduced to writing. As we all know, a reasonable person would assume that if the behavior warranted discipline the employer would utilize its recognized disciplinary forms. On that note, email cannot be used for disciplinary action. If the Company has a discipline form, which all do, than it should be used when discipline is being enforced. Coaching typically comes in the form of one-on-one conversation. The boss and employee discuss how a project could have been performed best. Coaching should, however, be reflected in annual performance reviews as a form of encouraging continued improvement and success.

Distinction Three: Tone of the Message

Disciplinary action must be taken serious and be delivered with a firm message. Little comes across worse to a jury than testimony from a supervisor that he handed an employee disciplinary action and told him not to worry about it. Imagine a sexual harassment case in which the reprimanded employee testifies my boss told me this was a “slap on the hand.” Counseling comes with a different tone of voice. The message is a sincere desire to tutor and train so that employees succeed. The meeting should be a positive experience without any feeling of rejection or dejection.

Leave a comment

Navigating Age Discrimination Claims

Posted on April 16, 2019 in Compliance, Consulting

Age discrimination occupied my thoughts recently since turning 50 last month. I remember one of the first cases I worked on with my mentor in the practice of law. Man in his mid-40s claimed age discrimination against his Fortune 100 employer. I still recall my boss’s words: “This can’t be age discrimination, I’m older than him.” After 25 years of practicing law – odd to think now half my life – I understand why age discrimination claims are so difficult to defend and can offer my thoughts on how to avoid these challenging situations.

1. Change comes slowly

Most age discrimination claims are filed by long-term employees, and by the nature of having worked somewhere a long time, the employee typically has little (or no) documented disciplinary action. A new manager enters the picture. He wants quick results and sees himself as a change agent. He blames prior supervisors for never challenging the alleged inadequacies of the older worker. But the failure of no prior discipline means change comes slowly. Indeed, the employer and new boss must proceed with an attitude towards helping the employee succeed and not – as we too often hear – a campaign to paper the file.

2. Never encourage retirement

I often hear employers mistakenly speak of long-term employees who they want to put on a retirement plan. Or, people comment about establishing a company retirement age. However, federal and state law prohibits any form of mandatory retirement, except in the context of certain very well-defined public-sector jobs (e.g., firefighter). Employers should never talk with employees about “how long they plan to work” or “how many years do you think you still have in you.” Simply stated, an employee’s work-life longevity should not enter businesses plans unless the employee volunteers that information. A source of confusion stems from professional service firms set up as partnerships. Partners are not “employees”, and accordingly not covered by the Age Discrimination inml Employment Act (“ADEA”). Thus, a law firm can mandate that its partners (not employees) retire from partnership at a certain age. However, even this proposition has been challenged. In 2007, the EEOC entered a consent decree with the international firm of Sidley Austin that resulted in a $27.5 million payment to 32 firm partners allegedly forced to retire. See the EEOC Press Release: https://www.eeoc.gov/eeoc/newsroom/release/10-5-07.cfm.

3. Longevity = Severance

Most severance plans are structured with a lock-step progression and frequently capped out. These plans typical require execution of a release of claims in exchange for a payment. But a lock-step methodology might spend money unwisely. Severance plans should instead provide modest payouts for short tenured employees and weigh payouts more heavily towards long tenured (often older) employees. Older workers worry more about their next job and need more severance to be enticed to accept a release of claims.

Leave a comment

Harassment, Taxes, and Confidentiality

Posted on March 12, 2019 in Consulting

 The Tax Cuts and Jobs Act (TCJA), what normal people recall as President Trump’s tax law, contained a little know provision inspired by the Metoo# movement. Now, an employer cannot deduct as a business expense any settlement payment related to sexual harassment or sexual abuse if the settlement is subject to a nondisclosure agreement. Senator Menendez (D. NJ) proposed the amendment stating: “Corporations should not be allowed to write-off workplace sexual misconduct as a normal cost of doing business when it is far from normal. That is why I was proud to offer an amendment to the GOP tax bill that would both protect victims of sexual misconduct while ending the practice of taxpayers subsidizing the bad behavior of corporations or executives.” Perhaps Senator Menendez had good intentions, but his attempted quick fix missed the point. (It likely did not help that Senator Menendez’s corruption trial precluded him from being present for the vote on his amendment.) Here are my thoughts on what Congress should reconsider.

1. Sexual harassment should not have special status above race harassment.

I understand Congress’ desire to take a stand against sexual harassment. However, companies remain permitted to secretly settle claims of race harassment and deduct whatever expense they incur. I cannot rationalize a tax law that distinguishes (or should I say discriminates) between race and sex based harassment. I doubt anyone in Congress gave this much thought… unfortunately.

2. Confidentiality means less these days.

Companies should reconsider whether confidentiality provisions deliver the desired result. We live in a time of very few secrets. People access information off the Internet with ease. It takes very little time with a Google search to find how much Fox News and O’Reilly (secretly) paid to his various victims. Confidentiality clauses sometimes cause unintended harm. I learned that lesson early in my career. It was in the mid-1990s and I defended a man in his early 60s against a claim of sexual harassment brought by two women. The allegations never amounted to much and we settled the case on very favorable defense terms with a confidentiality provision. The payout was a total of $17,000 made by the company to a charity of the plaintiffs’ choice. The plaintiffs took home nothing. The next calendar year the same man came back to me accused by two different women again of sexual harassment. In deposition testimony, we learned that the second-suit plaintiffs heard a rumor that the prior litigants settled “confidentially” for $1.7 million. I always wondered if the second suit would have been filed if the settlement of the first suit had not been confidential.

3. Ban confidentiality provisions.

If Congress really wants companies held accountable for discrimination or harassment, it should adopt a law that bars confidentiality provisions in settlements of discrimination and harassment claims. Honestly, what good comes from a confidentiality provision? Just ask Michael Cohen.

Leave a comment

Adopt a Social Media Policy

Posted on January 4, 2019 in Compliance, Consulting

In November, Hilton Grand Vacations fired an employee who posted a picture on a Facebook group page that depicted lynching Florida State head coach Willie Taggart following FSU’s 41-14 loss to Florida. The administrator of the Facebook page determined the individual worked for Hilton off his LinkedIn profile and filed a report with his employer. Hilton determined – in a public statement – the conduct violated a number of its policies and exited the employee.

Experiences I have had with clients demonstrates justice is not always so efficient or swift. Some years ago a client called me when it received an internal complaint that an employee had extremely bigoted images and statements on his Facebook page. I saw the page and will refrain from describing images that were so bad I have not forgotten them. The client went a different direction than what I recommended: they gave the employee a second chance. I preferred he be fired. The decision not to terminate was influenced largely because the person in large part because they never adopted a social media policy. Thus, the obvious lesson: implement a social media policy.

While there are many good form policies available from public sources (e.g., attendance, EEO, wage and hour), the nuances of a social media policy must navigate the muddy waters created by the National Labor Relations Board. The NLRB has brought legal action against many employers contending that their social media policies interfere with an employee’s right to engage in concerted activity under the National Labor Relations Act. More specifically, employers cannot adopt any language in a social media policy that might suggest an employee will be punished for making comments about the terms and conditions of their employment. On the other hand, employers can advise employees that they may be reprimanded for posting on social media that constitutes bullying, harassment, or is otherwise offensive based on race, religions, disability, age, gender or national origin (or other status protected by law. An employer should retain a lawyer to help draft a robust social media policy that avoids attention from the NLRB.

For those who like reading government position statements, you may find a summary of the NLRB’s position and links to more detailed case rulings at: https://www.nlrb.gov/rights-we-protect/rights/nlrb-and-social-media. I hope you enjoyed this newsletter and look forward to seeing you at my lunch and learn (see side panel). I promise it will be enlightening and fun.

Leave a comment

Politics at Work

Posted on December 12, 2018 in Consulting

On election night, Weycer Kaplan celebrated our partner Tanya Garrison’s victory as the new judge of the 157th Harris County District Court.   Tanya joined the firm out of law school and has been a tremendous advocate and leader for 18 years. We know she will serve our community well, but the firm will sorely miss her.

It was easy for our firm to rally around Tanya, I mean, the Honorable Judge Garrison.  But this was a rare example when political discussion was cohesive and unified around our colleague and friend.  Most often, however, political discussion creates disruption which leads to tension in the workplace.   Here are some easy tips for employers who want to avoid politics contaminating the workplace.

Avoid Television News at Work

Years ago we installed a television in the firm lobby.  We debated what news station would be broadcast: Fox or CNN.  We quickly settled on Bloomberg News thinking – at the time — it was unbiased or at least less obviously lopsided.  Fortunately, our receptionist settled the matter and now permanently plays HGTV.  It was a smart decision. Remodeling and gardening spark no meaningful controversy.

Limit the Political Signage

During the election, we had too much political material in offices and cubicles.   Campaign shirts, political signs, or election buttons should stay away from the office.  Our firm like any other workplace has its progressives, conservatives, and even some moderates.  Each of them is entitled to their opinion without being confronted with a barrage of reminders that their views might not be shared by others.

Respect other Views

Remember, your co-workers’ political party affiliation is unlikely to have any bearing on their ability to perform their job.      Try not to judge colleagues based on opinions that will not impact the workplace.

 

Leave a comment

TEAM BUILD THROUGH VOLUNTEER WORK

Posted on September 25, 2018 in Consulting

 

Recently, I participated with the firm at a Houston Legal Aid Clinic where we evaluated potential cases for pro bono legal aid services. Tanya Garrison, my partner and (plug) candidate for Judge in the 157th Harris County District Court, organized this effort as she has for many years lead the Firm to participate in pro bono work.   Tanya has earned the firm repeated honors driving us to do what is right. Likewise, Margo recruited a group to sign-up for Habitat for Humanity early next month. I expect it will be a similarly rewarding experience for me and our firm participants.

 

What I took away from the Legal Aid Clinic and most assuredly will gain from the Habitat for Humanity project — in addition to feeling good about serving community – was the camaraderie developed in volunteerism. We gathered after for lunch talking about our experience of the day. The project took us out of our day to day law-firm environment into a setting without the pressures that come with work.

 

Volunteer work is also a far more productive and useful vehicle for engaging with co-workers than gathering for happy hour. Those more typical activities often focus on venting about work frustrations. And, people congregate for lunch and join in drinks (after work) within the same clique. None of that fosters team work. Indeed, it probably has an unintended consequence of isolating the excluded.

 

Volunteer activities help co-workers interact who might never otherwise speak. Even in a small company there is little time to visit with a colleague whose office is located on the other side of the building. Bringing co-workers together on a unified, non-professional effort creates a more personal connection and opportunity to learn about others.

 

Let employees select the activity rather than have a corporate directive. I jumped at Margo’s volunteer initiative because I enjoy physical labor and home projects. I have not volunteered at a Habitat House in many years. I remember well, however, how much fun I had shingling a roof years ago. (Not sure my current age permits me to engage in such effort.)

 

Colleagues must be careful not to judge or shame someone for not participating in a volunteer project. A valued co-worker might feel uncomfortable in a selected volunteer activity or simply have other commitments on the date selected. Others might dedicate their personal time to faith-based volunteer work. We have a right to volunteer or not, at whatever activity we chose.

 

Bear in mind, it is not “volunteer” work if an employer directs a non-exempt employee to volunteer. DOL regulations require employees be paid for any time spent in work for public or charitable purposes at the employer’s request, or under the employer’s direction or control. An employer must also pay employees for any activity in which the employee is required to be present irrespective of whether the employee is performing work for the employer.

 

See 29 C.F.R. § 785.44. and DOL Opinion Letter: https://www.dol.gov/whd/opinion/FLSA/2006/2006_01_27_04_FLSA.htm

 

One final comment, team building works best when the bosses participate.

Leave a comment

My 7 to 7 Rule

Posted on June 1, 2018 in Consulting

 

I adopted a new “7 to 7 Rule” some time ago after realizing that I let work spill over into the personal time of my family and colleagues. Simply, I choose to engage my associates between 7 a.m. and 7 p.m. during workdays. Any time outside that window, including weekends, are off limits.

That my family is the biggest fan of the Rule is no surprise. If I am thinking about work, I am not engaging with my family. Everyone needs a break and an opportunity to relax so that they are better prepared to fully engage the next day. If you want to read more on this concept, then check out The Power of Full Engagement by Jim Loehr and Tony Schwartz. I generally hate anything on the self-help aisle, but I love this book. Its message is straight-forward: we should first manage our energy rather than our time. In all aspects of life, therefore, we should focus, dedicate, and then take breaks so that we can begin each day stronger and more engaged. In other words, we should think of life as a series of sprints as opposed to a marathon.

There is another great rationale for this rule and the teachings in The Power of Full Engagement: namely, to be our best is physically and mentally impossible when we are tired and unfocused. My late-night texts and emails often turn into digressions and diversions. Bosses usually offer nothing genius in late-night communications. And sadly, late-night supervisor communications are more often associated with inappropriate intentions and very bad messages. See the demise of Roseanne. Only TV stars can blame Ambien; the rest of us live with significant personal impact for insipid comments. If a light-bulb really turns on, supervisors should take note and address the issue during normal business hours. The habit I have been developing is to send myself an email whenever a work thought surfaces; then, I can have a personal reminder during the next business day to address my thought with colleagues.

Most obviously, inconvenient urgencies arise affecting our teams. But the term “urgent” should be used literally and sparingly. If everything is urgent, then nothing is urgent and priorities get confusing. And when true urgencies arise, supervisors must contribute at the same level as their teams.

Leave a comment


A PaperStreet Web Design