Monthly Archives: March 2016

THE UBERIZATION OF ARBITRATION CLAUSES: ARE THEY WORTH THE PRICE OF THE PAPER THEY’RE PRINTED ON?

This blog post is part five of a six part series on the impact the Uber business model is having on employment laws across the nation.

Arbitration has long been treated as an inferior method of resolving disputes, despite pronouncements to the contrary from the U.S. Supreme Court.  However, arbitration does serve a purpose.  The process is less formalized, so it moves much faster than the court system.  That means less disruption to business.  It’s also less expensive than bringing a civil action, making it easier for individuals to assert their rights or air their grievances.  For these reasons and more, many businesses have incorporated arbitration provisions into their contracts and handbooks.  The Federal Arbitration Act was enacted in 1925, yet these types of contractual agreements to arbitrate still get shot down in certain courts and by certain administrative authorities. Read More »

PAYROLL DEBIT CARDS COULD BE COSTLY TO EMPLOYERS

How do you pay your employees?  Although payroll debit cards can be attractive to employers and employees, employers should proceed with caution when utilizing them.  Employers cannot require their employees to receive wages on a payroll card; other alternatives, such as paper checks and direct deposit, must also be offered, and these requirements vary from state to state.-1x-1 Read More »

EMPLOYEE BENEFITS: WHAT IS THE OFFICIAL PLAN DOCUMENT?

We have previously discussed The Importance of the Official Plan Document including the uncertainty of whether one document could perform double duty as “the Plan document” and the summary plan description (“SPD”). While it is still “not a sure bet” as to how the U.S. Supreme Court would rule, a recent ruling has held that the SPD can, in fact, be the governing plan document. Read More »

UBERIZATION OF THE WORKPLACE, PART 4: UBERIZATION OF EMPLOYER/EMPLOYEE/INDEPENDENT CONTRACTOR RELATIONSHIPS – IT’S NOT ALL SUNSHINE IN CALIFORNIA

This blog post is part four of a six part series on the impact the Uber business model is having on employment laws across the nation.

All eyes and ears have been turned toward the courtroom of the Honorable Edward M. Chen, sitting the in the United States District Court for the Northern District of California, where Uber has been mired in litigation.  Some Uber drivers, claiming to be employees rather than independent contractors, have been attempting to institute a class action on behalf of some 160,000 California Uber drivers.  A subset of these drivers was granted class action status on September 1, 2015, with thousands more added a few months later in December.  Read More »

ANOTHER DENT IN EMPLOYMENT-AT-WILL IN PENNSYLVANIA?

Historically, Pennsylvania has been a strict employment-at-will state. Very few employee attempts to create a cause of action have been found to implicate a public policy of the Commonwealth and, thus, give rise to a private right of suit. Recently, a former employee was permitted to use the Pennsylvania Prohibition of Excessive Overtime in Health Care Act as a vehicle for such a claim. Read More »

EEOC RELEASES NEW PROPOSED RETALIATION GUIDANCE

On January 21, 2016 the EEOC released Proposed Enforcement Guidance on employee retaliation claims under numerous federal equal employment opportunity laws, including Title VII, ADEA, ADA, GINA, and more.  Because it’s the first time since 1998 that the EEOC has proposed a new set of guidelines in this area, it is imperative that employers have a good understanding of the Guidance.Employee_Retaliation

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ARE YOU IN COMPLIANCE? BE PREPARED! FLSA RULE CHANGES AND OSHA PENALTY INCREASES WILL HAPPEN IN 2016

Two seemingly unrelated developments in the U.S. Department of Labor (DOL) will affect employers in 2016: The First, the over 100% proposed increases in threshold amounts of salaries that qualify for “salaried exempt” status under the FLSA; The Second, congressionally mandated increases in OSHA penalties at a minimum of 80% by August 1, 2016. Read More »

IS YOUR WORKPLACE A MCGREW’S ZOO?

March 2nd was Dr. Seuss Day and in honor of the Great Seuss, I want to spend a little time reflecting on the workplace zoo.  We know Dr. Seuss, the environmentalist (e.g., The Lorax).  We know Dr. Seuss, the equal rights advocate (e.g., Horton Hears a Who).  But, what about Dr. Seuss, the Human Resources guru?  The wondrous world of Dr. Seuss may seem like pure make-believe.  But, then again, maybe it’s not.  In my View, you can find many of his fantastical creatures right in your own workplace.

So I’d open each cage.  I’d unlock every pen.

Let the animals go, and start over again.

And, somehow or other, I think I could find

Some beasts of a much more un-usual kind.

If I Ran the Zoo (1950)

The Human Resources department is a key component in the collection and categorization of employees.  Searching far and wide for people with diverse backgrounds and unique qualifications can make yours the “gol-darndest [workplace] on the face of the earth.”  It worked for Gerald McGrew.  It can work for you, too.

In fact, Human Resource managers could take a few tips from Gerald McGrew.  For instance, he looked at the typical zoo and decided “a few changes” would make it something special, something better.  He searched all over the world for the most unique animals, each having special characteristics.  That’s what Human Resources can do to diversify their workforce.  So, when you consider your workforce and the folks you will be dealing with, who are the characters you might find?

The Rep

“Mister!” he said with a sawdusty sneeze, “I am the Lorax. I speak for the trees.

I speak for the trees, for the trees have no tongues. 

And I’m asking you, sir, at the top of my lungs” –

he was very upset as he shouted and puffed –

“What’s that THING you’ve made out of my Truffala tuft?”

The Lorax (1971) 

Human Resource personnel may interact with employees at a personal level, as well as in a more formal manner.  The Rep may be a union steward, and the interaction governed by a collective bargaining agreement.  He may be the go-between – an employee trusted by co-workers and management alike to share ideas and start discourse on issues affecting the workforce.  Or, he may be the friendly face accompanying an employee who is working through the grievance process.  Regardless, the Rep is most certainly in your workplace, so make sure you follow the policies and procedures in place when dealing with this individual.  He will know the rules of engagement, be they peaceable or not, from the get-go.  Communication with the Rep should not be viewed necessarily as a bad thing, either.  When The Lorax could not get the Once-ler to talk through the problems he was creating, everyone suffered great loss.  It would be a shame not to make such an effort in your workplace, unless, of course, that person is actually . . .

The Stirrer 

“I know some good games we could play,” Said the cat. 

“I know some new tricks,” Said the Cat in the Hat.

“A lot of good tricks.  I will show them to you. 

Your mother will not mind at all if I do.”

Then Sally and I did not know what to say.

Our mother was out of the house for the day.

The Cat in the Hat (1957)

The Stirrer likes to cause trouble.  He is an HR nightmare, unless you shut him down.  The key to this is communication with your employees.  The Stirrer enjoys creating discomfort and chaos in the workplace.  He will bend words and filter events in the least positive light just to see what happens.  If you can discuss the subject of The Stirrer’s current focus with your employees, do so.  If you give your workers the facts, you take away one of the arrows in The Stirrer’s quiver – misinformation.  Once you’ve done that, talk to The Stirrer, and explain why his behavior is unacceptable.  State your expectations for improvement, and follow up to make sure he’s received the message.  It’s possible a little re-direction is all he needs.  After all, the Cat cleaned up his mess in the end.

The Dumper 

Sighed Mazie, a lazy bird hatching an egg: 

“I’m tired and I’m bored and I’ve kinks in my leg

From sitting, just sitting here day after day.

It’s work! How I hate it! I’d much rather play!

I’d take a vacation, fly off for a rest

If I could find someone to stay on my nest!”

Horton Hatches the Egg (1940)

This is the employee who has a last minute emergency on a regular basis.  She’s the employee who’s eager to team up and then sloughs off all the work onto others (while managing to be there for all of the credit).  The Dumper sucks the camaraderie out of your workplace.  Your treatment of The Dumper may have more impact on the rest of the workforce than on the The Dumper herself:  “That’s only small trouble.  I know it.  But, brother, one small bit of trouble will lead to another!”  [How Officer Pat Saved the Whole Town (Oct. 1950)].  So, train your managers to recognize effort, as well as results.  When doling out assignments to The Dumper, stay task oriented with set deadlines to the extent possible.  Should discipline be necessary down the line, you’ll have a paper trail of your efforts to change The Dumper into . . .

The Do-Er 

“You do not like them.  So you say. 

Try them!  Try them! And you may. 

Try them and you may, I say.”

Green Eggs and Ham (1960)

Was there ever a more persistent, more positive go-getter than Sam-I-Am?  This employee is the one who gets things done.  For Human Resources, The Do-Er is your superstar, and you want to keep him.  You want to groom others to be like this employee.  With The Do-Er, you and your managers should be looking for what motivates him.  Recognition and money may not be enough.  Autonomy, upward mobility, even working in an environment that does not suffer fools (see The Dumper) may be factors impacting whether you can keep your Do-Er happy and on the payroll.

The Hawk

Oh, the jobs people work at!  Out west, near Hawtch-Hawtch,

there’s a Hawtch-Hawtcher Bee-Watcher.  His job is to watch . . .

is to keep both his eyes on the lazy town bee.

A bee that is watched will work harder, you see.

Did I Ever Tell You How Lucky You Are? (1973)

The Hawk is a manager who presents different challenges for Human Resources.  She may be the micromanager who can’t let anything go.  She might be the manager who believes her employees are inherently lazy and must constantly be watched.  Either Hawk can damage workplace morale.  In Hawtch-Hawtch, a Hawtch-Hawtcher Bee-Watcher was employed, and another, and another, with the bee never working any harder.  Manager training can help The Hawk tone down her management style to the level of supervision commensurate with the job being done.

Point of View 

Oh, the sea is so full of a number of fish,

If a fellow is patient, he might get his wish!

McElligot’s Pool (1947)

If your wish is a happy, productive workforce, then knowing the employees you’re likely to meet can help make that wish come true.  Dr. Seuss introduced us to a lot of these types, including the Nerd, I might say.  But, we’ll save that one for some other day.

UBERIZATION OF THE WORKPLACE, PART 3: UBERIZATION OF EMPLOYER/EMPLOYEE/INDEPENDENT CONTRACTOR RELATIONSHIPS – VIEW FROM THE DOL

This blog post is part three of a six part series on the impact the Uber business model is having on employment laws across the nation.

It’s probably plain by now that we may be on the precipice of a new era when it comes to workplace relationships.  One in which a new type of worker is recognized.  Or perhaps one in which (*gasp*) arcane methodologies are replaced with workable standards.  Technology is allowing people to better their lives and those of their families in ways we never imagined even twenty years ago.  These advances come with growing pains, as Uber has learned.  Are its drivers employees or independent contractors?  That’s the question that will be decided in the near future, possibly as early as this June in the California litigation.  The Wage and Hour Division of the U.S. Department of Labor (“WHD”) has weighed in on this question both by issuing a new Administrator’s Interpretation on July 15, 2015, and by entering into Memoranda of Understanding with the IRS and various states to combat employee misclassification through coordinated enforcement efforts. Read More »

THIRD CIRCUIT ADOPTS PREDOMINANT BENEFIT TEST FOR COMPENSABLE MEAL BREAKS

For most employers, knowing whether employees should be paid or not paid for lunches or breaks is a fairly straightforward determination.  However, some nuances in this area pose landmines, if you aren’t careful.  In Babcock v. Butler Cty., the United States Court of Appeals for the Third Circuit – the federal appellate court with jurisdiction over Pennsylvania – was recently faced with one of these nuances in evaluating compensable meal time under the Fair Labor Standards Act (“FLSA”), and the Court’s determination is something which all employers who have various types of ‘on-call’ practices or who otherwise place contingent demands on their employees during breaks should probably have an understanding. Read More »