Author Archives: Vanessa L. Goddard

UBERIZATION OF SAFETY: IS IT REALLY THAT BAD???

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

District Attorneys for Los Angeles and San Francisco recently amended their complaint in another existing lawsuit against Uber – this one about consumer protection.  You’ve probably seen the headlines, screaming about drivers with histories of murder, assault, child abuse, and countless other criminal horrors.  One issue in the suit concerns the background checks conducted by Uber and other representations regarding safety it has made on its website.  One of the District Attorneys contends that Uber has misled consumers by performing background checks that do not go far enough.  The initial lawsuit was filed in December, 2014, and since that time, Uber has scaled back the statements on its website and has continued to make improvements geared toward safety for both its riders and its drivers.  Is Uber really as unsafe as the headlines and district attorneys would have you believe?  In my View, the answer is a resounding “No.”   Read More »

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 »

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 »

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 »

UBERIZATION OF THE WORKPLACE, PART 2: UBERIZATION OF EMPLOYER/EMPLOYEE/INDEPENDENT CONTRACTOR RELATIONSHIPS – AN INTRODUCTION

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

Living in a state that still prohibits Uber from operating within its borders (at least as of the time of this writing), my experiences with the company are fairly limited.  That being said, I spent my time on every Uber ride learning a little bit about my driver and came away with a very positive view of the experience each time.  One reason I wanted to get to know my driver is because I know I will be asked to rate my ride after reaching my destination.  This is very important to the driver because their continued relationship with Uber depends upon the feedback received.  Here’s what I’ve learned from my Uber experiences:  Read More »

UBERIZATION OF THE WORKPLACE, PART 1: WILL THIS RADICAL INNOVATION CHANGE THE FACE OF EMPLOYER/EMPLOYEE RELATIONS?

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

Have you Ubered? If you haven’t, then you should try it before you weigh in on whether it is a good or bad thing.  At its most basic, Uber is an alternative to calling a cab (and there are progressively pricier and flashier versions of Uber if you prefer to travel in style).  All you do to Uber is download an app to your smartphone, provide your credit card information, and then request a ride.  Uber has conducted background checks and insurance checks on folks who use their personal vehicles to pick you up and take you to your destination.  No cash is exchanged.  The cost of the ride is charged to the credit card on file.  Read More »

THE LAW IS AN IDIOM

Here’s a little fact that may knock your socks off:  according to the EEOC, retaliation is the most frequently alleged civil rights charge in the federal sector and has been for nearly a decade.  In West Virginia, retaliation claims comprise approximately one third of such cases, and that’s nothing to turn a blind eye to.  Retaliation claims tend to hitch their wagons to claims for other forms of discrimination or harassment; yet, it’s pretty common for the underlying discrimination claim to disappear in a puff of smoke while the retaliation claim keeps on trucking.  This is a tune we’ve been singing for years on this blog, but with the EEOC taking a closer look at retaliation, we’ve got a few tricks up our sleeves to help stop retaliation in its tracks.

While it may be as obvious as the nose on my face, step one would be to reduce discrimination claims.  While some folks seem to always have an ax to grind, employers can do something about employees who have a real beef.  You probably (hopefully) have a company anti-discrimination policy, so use it.  Make sure your employees are treated consistently and in accordance with this policy.  Remember too: actions speak louder than words when it comes to zero tolerance for harassment and discrimination.  So, make sure that elimination of discrimination is a value held from the top down in your organization.  Fewer discrimination claims = fewer retaliation claims.

The next step you can take is to go the extra mile when you investigate complaints.  Document what you do and when you do it.  Certainly, I’m preaching to the choir when I remind you of the importance of keeping the investigation as confidential as possible, within the bounds of what the law permits.  This is particularly vital with regard to claims of retaliation because the fewer people who know about the complaint and the investigation, the fewer people who could possibly retaliate.

Make no bones about it:  you must have a written company policy prohibiting retaliation.  You will remind the complainant at the conclusion of the investigation not to keep mum if s/he experiences what they believe to be retaliation for their complaint.  You will remind the accused and witnesses that retaliation is prohibited.  Don’t beat around the bush with your employees; instead, train them on what retaliation is so they can spot it and stop it dead in its tracks.  Remember, the EEOC boils retaliation down to three key phrases:  retaliation occurs when an employer takes an adverse action against a covered employee for engaging in a protected activity.  For example, an adverse action can run the gamut from telling an employee to hit the road to moving him to the graveyard shift.  It all depends upon the circumstances.  A covered employee can be someone who has requested leave or a reasonable accommodation or may be the person we’ve been talking about who made a complaint about something she reasonably believed to be an unlawful practice.  Protected activities are usually as simple as you might expect:  filing a charge of discrimination, participating in an investigation of discrimination, or requesting a reasonable accommodation based upon disability or religion.

Finally, with retaliation claims, timing is EVERYTHING.  In most cases, timing is the best evidence a plaintiff has of retaliation.  It goes like this:  a complaint is made, investigated, and resolved under the company’s policy.  Before the complaint was made, however, the employee was treading water at the company, and his career was on its last legs.  If you’re lucky, your supervisor was on the ball, documenting the problems, the counseling, and the warning to shape up or ship out.  So, when the last straw finally breaks the camel’s back, you will have the documentation to support the adverse action you are about to take with the employee.  In each instance, you must look before you leap into taking an adverse employment action against an employee who has recently been involved in protected activity.  If the timing, documentation, or past practice do not support the decision you are about to make, put the brakes on it before it costs you an arm and a leg in court.  Assuming the conduct is not something that must be immediately nipped in the bud, get your ducks in a row by going back to the drawing board with the employee and documenting it properly the second time around.

While you should be glad to see the end of any claim for discrimination or harassment, the remaining retaliation claim can prove to be a tough customer to defend.  As they say, an ounce of prevention is worth a pound of cure.  Whether we see eye to eye on the matter, or maybe you think I’m off my rocker, I’d love to hear your Views about how you dodge the bullet of retaliation claims.

‘TWAS THE HOLIDAY SEASON: HERE WE GO AGAIN.

‘Twas the holiday season upon us once more,

Not a single employee was at HR’s door.

The silence was heavy; I was starting to freak.

I hadn’t a complaint in more than a week.

 

No lawsuits or grievances were pending at all.

Instead of unease, I should be having a ball.

Our lawyer thinks I’m dead – I haven’t made a call.

Yet, all I know to do is wait for the other shoe to fall

 

Employees were trained as required by law.

Not to grope, fondle, or otherwise paw.

The handbook was updated, acknowledgments signed.

That NLRB Guidance almost blew my mind.

 

I took out the language that was certain to chill,

Because wages and hours can be discussed at will.

Our handbook was given a complete overhaul.

Revising conduct rules was the hardest of all.

 

And speaking of conduct, where has everyone gone?

Are they suddenly (eerily) getting along?

I take a deep breath and head to the break room.

The postings are current, not a single cartoon.

 

Then what to my wondering eyes should appear

But all my employees and staff I hold dear.

“We all want to thank you for all that you’ve done.”

“Let’s start the holidays by having some fun!”

 

“No beer! No liquor! And no copying our bums!”

“No mistletoe smooching!  We’re just having fun!”

My heart swelled with pride, as tears blurred my sight.

Merry Christmas to all.  Let’s do this party right!