The Williamson Difference: HR Answers That Work

Five Acts That Violate the Overtime Provisions of the FLSA

November 13, 2018

By Michael Haberman

CNN Money published a list of the top 10 industries that violate the overtime provisions of the Fair Labor Standards Act. These industries include full-service restaurants, fast food restaurants, janitorial services, daycare, hotels and motels, convenience stores, nursing homes, security services, grocery stores, and doctor’s offices. Many of these are franchises, smaller companies, single owner locations or locations that have little oversight by an HR department. Here are some of the violations these industries have been charged with and thus made to pay.

Violation 1- Paid only straight time for all hours work.

The FLSA states that all non-exempt employees that work more than 40 hours in a week must receive overtime based upon their “regular rate of pay”, which is not always equal to their state wage rate for straight time. (See here for a great explanation.) Some of these industries had people working 65 hours a week or more and not getting paid a cent in overtime.

Violation 2- Working in two different offices during a week but hours not combined.

If an employee works for one employer but happens to spend time in two different offices the company may be tempted to pay the employee out of different accounts. Since in most cases the employee is not going to have worked more than 40 hours in either location neither will then pay overtime. Sorry Mr. Employer, it doesn’t work that way. That employee is working for one employer and is working overtime. Pay up. There are situations where the employees are working different jobs at different rates and that is ok, but you still have to calculate overtime based on the blended rate and pay at 1.5 x the hours worked over 40.

Violation 3- Automatically deducting for a meal period, even when not taken

The beauty of having a time system is that it relieves supervisors of the responsibility of keeping track of time worked. The bad thing about that system is that it is not artificial intelligence (not yet anyway) and it does not know if the employee actually took the lunch. The FLSA states that you can only deduct for a meal period of 30 minutes or more when the employee is FULLY RELIEVED of their duties. If they are not, and the time system deducts for that time you are violating the FLSA by not paying for time worked. And if they are actually working then that kicks them into an overtime situation typically.

Violation 4- Working off the clock

This one happens even in big companies. Supervisors or owners are pinching pennies and don’t want to pay overtime, yet the work is not done at the end of regular time. So either by relying on the good graces of employees or by intimidation tell the employee to clock out and then to return to finish the work. Sorry, can’t do this.

Violation 5- Paying by the room

This was a violation by hotels and motels where they paid their housekeeping staff by the room cleaned. This was essentially a piece-rate type of system and is not really a violation of overtime, though it could be, it was more of a violation of minimum wage rules. It is fine to pay employees on a piece-rate or flat-rate type of system as long as the end result is that they are earning minimum wage for the number of hours they are working. Tipped-rate employees are the same way. If the restaurant was slow and the servers did not make enough in tips to bring their hourly wage up to the current minimum wage the employer has to make up the difference.

Conclusion

I have just really covered the bare bones here and have only concentrated on Federal law. Many states have different overtime and minimum wage provisions, so you need to pay attention to the locale in which you do business. Back payment of wages for many of these companies resulted in amounts of $131,000; $273,000; $544,900; $138,000; with a couple getting away for just $64,000 and $41,000. Do you want to write one of these checks to the Department of Labor?

A special word to franchisors, you need to make sure your franchisees understand these rules. When employees complain and it makes the news it is the company name that gets dragged through the mud and not the franchisee’s name.


Michael Haberman is cofounder and senior HR consultant of Omega HR Solutions, Inc., which offers compliance reviews, wage and hour guidance, supervisory and managerial training, strategic guidance, executive advisement, and more. He also contributes articles to the Blogging4Jobs website. He can be reached at mhaberman@omegahrsolutions.com.

4 Ways to Leverage Positive Psychology at Work

November 13, 2018

By Lynne Levy

How many of us love going to work? How many of us find joy in our work? The reality is we spend more than half our waking hours at work. How can we cultivate a state of positivity and wellbeing?

When you think about positive emotions, what comes to mind? Positive emotions can be high-energy states, such as joy or elevation or lower-energy states such as relaxation.

In the workplace, leaders can benefit from increasing positive emotions for several reasons. People in a positive state feel safer, and therefore are more open to learning and new experiences. They may be more creative and collaborative. People thrive when they are happier. When our mood becomes brighter we set higher goals and persist longer toward them.

Positive psychology, which provides insight into tools to build a culture of positivity and happiness, is based on the principle that people want to live purposeful lives, be happy, and be their best selves in all aspects of their lives. When an organizational culture is based on positivity, then innovation, productivity, and creativity abound.

How can organizations leverage the concepts from positive psychology to build a happier and more human culture?

Express Gratitude

One positive psychology tool is to “count our blessings” to increase happiness and wellbeing. University of Pennsylvania found that when we count our blessings and have gratitude, there is increased activity in the part of the brain associated with happiness. How can an organization cultivate a gratitude mindset?

  • Build a culture of recognition. Just saying “thank you” fuels a sense of gratitude for the receiver of the recognition, the giver of the recognition, and others who know about the recognition moment. Through recognition, you are “counting your blessings” by saying thank you to others.

  • Express gratitude during check-ins. When you start out meetings and check-ins, begin with a sense of gratitude for what is going well. This establishes a positive manner and gets the happiness part of the brain to light up, setting up the rest of the meeting with a positive frame of reference.

Build Connections

According to happiness research, our mood is contagious. If you are in a bad mood, it may bring down those you work with. If you are full of positivity, it can lift those around you.

The following are tools based in positive psychology that will help connect employees to those around them in a positive manner.

  • Celebrate. There is nothing better than celebrating events, successes, or personal achievements to increase positive emotions and bolster connections within the organization. These can be personal events like a wedding, or a cultural event like St Patrick’s Day. Celebrating with your peers gets the positive emotions flowing.

  • Seek out your cultural energizers. Some people are naturally more positive in their disposition – those who embrace change, drive innovation, and build positivity throughout the organization. Understand who these people are. Who consistently gives recognition to those around them? Who do others go to for support and problem-solving? Leverage these cultural energizers to support programs and events that build happiness and positivity.

  • Recognize teams. Just like a football team celebrates together after a win, teams should be recognized as a group to create community and connections, demonstrating how working together results in great outcomes.

Embrace Strengths and Values

Leveraging strengths is a key aspect of well-being according to positive psychology.  The potential for growth significantly increases when employees invest their energy into developing their strengths instead of correcting their deficiencies.  When strengths are leveraged it:

  • Enables employees to do their best work. When employees can apply their strengths, research tells us that their wellbeing is enhanced.  Understand how to leverage the strengths of your employees for the benefit of the organizations and the employee. Allow them to explore activities outside their role that leverage both their strengths and the needs of the organization.

  • Creates meaningful opportunities. Leaders should understand what is meaningful to each employee. When day-to-day tasks are aligned with personal values, meaning and positivity increases.

  • Reflects on strengths and goals. When it comes to giving positive feedback or looking at goals, collaborate with your teams on which strengths helped each person achieve the outcome. Which talents were demonstrated when the goal was accomplished? By taking an interest in the strengths of your team members, you can help them leverage these strengths toward organizational goals and developmental challenges.

Instill Purpose and Meaning

When work becomes merely a task or daily transaction, it’s not typically thought of in a positive light. When employees find meaning in their work, it becomes a calling. It becomes part of who the person is. When work is a calling, studies tell us that we become happier, more satisfied, and more engaged. How can leaders create this sense of meaning?

  • Build a mission statement. Your leadership team should outline the true mission of the organization. This isn’t the financials or the product strategy, but the true calling of the organization. Your mission must be aligned with your values. For example, the mission of Apple during Steve Job’s tenure was: "To make a contribution to the world by making tools for the mind that advance humankind.” If an organization has a mission statement aligned to values and social good, then individual, daily tasks become infused with meaning.

Looking at organizational culture through a lens of positive psychology can give leaders and HR organizations insight into how to improve happiness and wellbeing within the organization. This, in turn, leads to increased productivity and engagement.


Lynne Levy is the director of product management at Globoforce.

Half of Your Employees Think They're Underpaid

November 13, 2018

By Suzanne Lucas

Do you pay your employees fairly? Of course! You did your research when making salary offers, you award regular cost of living raises and you pay for their overtime work. Still, according to a recent study, 46 percent of employees feel that they are underpaid.

This, of course, doesn't necessarily indicate the truth about salary, since these particular findings are based on feelings. I'm a fan of dealing in facts, so I'd want to double check everyone's salaries, and, depending on my findings, come back and say, "Yep, even though you feel like you're underpaid, you're not. Now get back to work."

But, that's bad management advice. People's perceptions are their realities. If you simply dismiss their concerns with "I've double checked, and you're not underpaid," it's not likely to fix how they're feeling, which could lead to disengagement over time. Instead, if an employee approaches you to discuss their salary, I'd recommend taking the following steps.

1) Find Out What They Really Do

The job someone does and the job you think they do are often two different things. Good employees, especially, tend to take on additional responsibilities just to make sure the work gets done. You may not know that Jane does an audit by herself because Heidi never gets her half done on time. Steve may be writing code to automate routine tasks.

There may be many things they are doing that you are not aware of, which is not to say that you are a bad manager. On the contrary, it's likely that you are a good manager who allows your employees to work independently and they've risen to the occasion. Just ask, and determine whether they're doing enough additional work to constitute a pay raise.

2) Ask What They Consider Fair Pay

If someone says she's underpaid, it makes sense to ask what she thinks fair pay is and why. After all, she must have some idea of what she wants if she's asking. If she says she'd like a raise "Because I do a good job," that's a less substantial claim than "I know that our competitor pays $5,000 more for this same job."

If there's actual data to support an employee's request for a larger salary–be it intel on competitor salaries, or a documented improvement in output and performance–you should absolutely consider it. If an employee is earning less than she could make elsewhere, there's a good possibility that she'll quit, and you'll have to hire someone new–making the market rate. You're not saving any money not paying someone correctly.

On the other hand, it's also possible that your employee has wildly unrealistic ideas about salary. She may be new to the workforce and not understand that you don't get a 10 percent raise every six months. Or she may be under the mistaken impression that everyone else earns substantially more. Regardless, if this is the case, you can sit down and show her data to support how you arrived at her current salary. If she still insists she's underpaid, you have to say, "I disagree. If something changes, we can re-evaluate, but until that time, this is your salary and it's fair."

3) Don't Be Defensive and Dismissive

Employees' concerns that they're underpaid often stem from finding out what their co-workers earn. The law allows employees to discuss their salaries, so never punish someone for raising this issue, and don't dismiss their question. In fact, it's worth taking a regular look at what similarly situated employees at your company earn. Are you willing to stand up in court and justify why a woman at your firm is making less than a man in a similar role? Are their jobs really that different?

An employee that comes to you with a salary complaint is much better for you than an employee who goes to the Equal Employment Opportunity Commission, hires a lawyer or leaves to get a new job. Take their question as a gift, and an opportunity to re-evaluate what everyone earns.


Suzanne Lucas spent 10 years in corporate HR, where she hired, fired, managed the numbers, and double-checked with the lawyers. She now focuses on helping people managers manage better and helping employees understand how to navigate the world of work. She can be reached at EvilHRLady@gmail.com.

This article was reprinted with permission and originally appeared on the Cornerstone Blog (www.cornerstoneondemand.com/rework).

OSHA's New Position On Post-Incident Drug Testing and Safety Incentive Programs

November 13, 2018

By David Dubberly

On Oct. 11, 2018, the Occupational Health and Safety Administration (OSHA) sent a Standard Interpretation Memorandum to its regional administrators and to state plan designees clarifying its position on post-incident drug tests and safety incentive programs. According to the memo, such tests and programs are permitted if properly written and implemented.

Background

Federal law and OSHA regulations prohibit retaliation against employees for reporting work-related injuries and illnesses. In May 2016, OSHA published a final rule interpreting the retaliation prohibition broadly. The rule stated that some post-incident drug testing and safety incentive programs may deter employees from reporting injuries and illnesses, thus resulting in unlawful retaliation. It left employers uncertain as to when implementing such testing and programs could result in citations by the agency for alleged retaliation.

The October 2018 memo sets out OSHA’s new policy, stating that “[a]ction taken under a safety incentive program or post-incident drug testing policy would” not violate anti-retaliation requirements unless “the employer took the action to penalize the employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health.”

Post-Incident Drug Testing

OSHA’s new memo specifically states that “most instances of workplace drug testing are permissible.” According to the agency, examples of permissible drug testing include:

• “Random drug testing”;

• “Drug testing unrelated to the reporting of a work-related injury or illness”;

• “Drug testing under a state workers’ compensation law”;

• “Drug testing under other federal law, such as a U.S. Department of Transportation rule”; and

• “Drug testing to evaluate the root cause of a workplace incident that harmed or could have harmed employees. If the employer chooses to use drug testing to investigate the incident, the employer should test all employees whose conduct could have contributed to the incident, not just employees who reported injuries.”

So employers may lawfully implement not only random drug testing programs, but also post-incident drug testing programs, as long as all employees whose conduct could have contributed to the incident – and not just the employees who were injured in the incident – are tested.

Safety Incentive Programs

OSHA’s new memo further notes that “[i]ncentive programs can be an important tool to promote workplace safety and health.” According to the agency, incentive programs that provide positive “rewards [to] workers for reporting near-misses or hazards” and encourage “involvement in a safety and health management system” are “always permissible.”

The memo also says “rate-based” programs that reward employees “with a prize or bonus at the end of an injury-free” period or evaluate managers “based on their work unit’s lack of injuries...are permissible...as long as they are not implemented in a manner that discourages reporting.” “[W]ithholding a prize or bonus because of a reported injury” is allowed “as long as the employer has implemented adequate precautions to ensure that employees feel free to report an injury or illness.” These precautions can include:

• “[A]n incentive program that rewards employees for identifying unsafe

conditions in the workplace”;

• “[A] training program for all employees to reinforce reporting rights

and responsibilities [that] emphasizes the employer’s non-retaliation policy”; and

• “[A] mechanism for accurately evaluating employees’ willingness to report

injuries and illnesses.”

This means employers may lawfully implement safety incentive programs if steps are taken to ensure employees feel free to report injuries and illnesses.

Bottom Line

OSHA’s new memo recognizes the value of post-incident drug testing and safety incentive programs if applied in a consistent and non-retaliatory manner. Employers should review their drug testing procedures and incentive programs for compliance with the agency’s new guidance.


David E. Dubberly is a member of Nexsen Pruet, LLC. David focuses on providing clients with the tools and insights they need to expose potential issues on the front end and shape appropriate responses to keep possible disputes from becoming a reality. He can be reached at DDubberly@nexsenpruet.com.

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