Author Archives: Vanessa L. Towarnicky

‘TWAS THE HOLIDAY SPIRIT COME ROUND AGAIN, AND JUST IN TIME.

‘Twas the month of November, the holiday season

December ‘round the corner, my mind taxed beyond reason.

 

The workplace has been digitized down to an app.

My records and files appear with a tap.

As do Pidgey and Horsea and even Hypno,

My millennials have got me playing Pokémon Go.

 

But never during work, we all know the rule.

Use your own time to catch Tentacruel.

Or so our policies say about mobile devices,

For productivity suffers when Eevee entices.

 

The months passed by quickly, a really smooth ride.

I finally thought, “Hey, we’re hitting our stride.”

When what to my wondering eyes should appear,

But an OSHA inspector in full hazard gear.

 

“That’s really not necessary,” I say with a smile.

While calling our attorney on my speed dial.

“We come when we want. We need no complaint.”

Another surprise and I swear I will faint.

 

The tweeting! The posting!

The Clinton! The Trump!

Oh, Trans-Pac! Obama!

Just get through this bump.

To the polls we will go.

It’s time to decide.

Appoint a new justice

‘Cuz Scalia died.

 

The DOL clearly hates we HR reps

Implementing tough standards without giving us the steps.

Non-exempt status has caused quite a fuss,

Leaving me to explain to Valerie and Gus,

“You’ll be paid by the hour and make overtime.”

“No more salaried exempt; no more reason or rhyme.”

 

When the EEOC ruled on work wellness plans,

We double-checked our policy on medical exams.

The program’s voluntary, with biometric screening.

My skyrocketing blood pressure gives “stress” a new meaning.

 

Now, I’ve let loose the reins on the holiday party,

Delegating the task to Helga and Marty.

It seems that their plan for spreading good cheer

Has something to do with that hidden beer.

 

Not to worry, no matter, I’ve got just the thing.

Little do they know, they’ll be Ubering.

And, I’ll hear them exclaim as they’re driven out of sight:

“Happy holidays, y’all. Peace out and good night!”

DON’T TAKE IT FOR GRANTED: WHAT YOUR NEW HIRES MAY NOT KNOW

My oldest son will be heading to college in a year. This has caused me to think about all of the things he doesn’t know how to do that I simply take for granted. He’s never had to sew on a button or remove a stain in his clothing. He’s never had to get along with a stranger who shares his same living space. He’s never had to get a loan or manage his money. My job will be to teach him how to navigate these waters. Well, there are many things that your newly graduated (whether high school, college, or grad school) employees don’t know that you may take for granted. Your job is to make your onboarding process both informative and realistic by addressing both the specifics of your organization and the basics of the workplace in general.

Let’s start with the basics. What attire is appropriate in your workplace? If you use a company uniform, this may be a simple issue. If you work in a business like a law office, for instance, different attire may be appropriate for different occasions. Going to court and certain client meetings demand business suits. Everyday office work may be acceptable in khakis and dress/golf shirts. Casual Friday may allow for jeans. Quite likely, those first few days of work, when orientation is being conducted, permit a more relaxed dress code. Spell this out for your new employees. That’s one less thing for them to be nervous about when they come to work that first day, and they will be nervous.

Another thing you can do to allay those first day jitters, and to make your onboarding process go smoothly, is to tell your new employee what to bring to work that first day/week. Do they need to bring supplies? Own a briefcase? Pack a lunch? Make a list of the documentation you will need from them when they fill out those monstrous forms required by the law – things like birth certificates, drivers’ licenses, or social security cards. You have to assume they’ve never done this before.

With regard to work itself, make sure your new employees understand the hours they will be expected to work. Shamefully, I laughed out loud when a young relative, new to the workforce and the concept of being salaried, commented on how he was going to be working a 40 hour week. He was stunned to learn that he might have plenty of 50 and 60 hour weeks in his future – at that same salary. Let your new employees know the realities of their job. If there’s one thing we learn in college – well, it isn’t how to do our jobs.

Tell your recent graduate/new employee what must be done to request a day off or to take a vacation. And, believe it or not, you have to tell them how holidays are handled. I had my first real job over the summer of my sophomore year of high school. When the 4th of July holiday weekend came around, I was dutifully sitting on the front stoop of my employer’s business on Friday, July 3rd waiting for the shop to open. I had no idea that people were given the day before a holiday off when the holiday was on the weekend.

One skill you need to consider immediately addressing with your recently-graduated, new employees is proper business communication. Mentoring is one of the most effective ways to do this. The ways in which we communicate with our peers while in school differ greatly from how we should communicate with our colleagues, management, and customers in the business world. The newest generation entering the workforce is somewhat accustomed to over-sharing and informality in their communications, which is not a good business habit. Pair your new employee with someone who knows the ropes so that s/he can learn proper email etiquette and the art of conversation and listening. Make opportunities for your new employees to interact with their new co-workers. Not only is this a great way to work on those communication skills, it indoctrinates those employees into the company culture.

Do not forget to teach your new employees how to deal with your customers. This skill is not taught in college. Ask your teenager or young twenty-something if they know what you mean by the phrase “The Customer is Always Right.” Our kids have been raised with hand-held computers that enable them to prove who is right and who is wrong in any conflict. A frustrated young friend recently told me about his day at work which was spent arguing over the phone with his client about the value that had already been added to his work product and the inefficiency of expending many more hours on the product for what would be a marginal gain at best. His manager had to take over the conversation; and of course, the client got what it wanted. My friend could not understand why the manager had just “caved in.” He did not know that engaging the customer in an argument over the work product for which it was paying was not the appropriate way to handle the situation. But, he had never been taught any different.

One final area I offer for your consideration is adding a cyber-security segment to your orientation program. This new generation of employees knows how to use their computers, tablets, and phones, but they’ve likely not been trained in safeguarding company information on these devices. They probably already have apps they like to use to find information. Your IT department should make sure those apps are compatible with your security program or provide incoming employees with a list of approved applications. And, I know most of us have gotten weird looking emails claiming to be from our manager or our CEO. New employees need to be shown how to identify legitimate company communications from bogus ones.

I’m sure there are many “givens” in business that we who have been in the job market for a while do not realize are “unknowns” to the incoming workforce. You’ve probably thought of a few of your experiences while reading this. One final suggestion to help you help your new employees: ask your current employees who have been through the onboarding process in the past three years what they wish they had been told about the job on that first day. Their views may provide you with some keen insight that you can apply to your onboarding process.

WILL UBER SOON BE DRIVING COUNTRY ROADS?

If you’ve been following my series on the “uberization” of the workplace, you’ve probably cued in to the fact that I’m a huge fan of the services Uber provides.  I love the on-demand economy.  I used VRBO for my honeymoon.  I ubered around beautiful Asheville, North Carolina for my birthday (a 15-minute ride cost me $15 – seriously!).  And, now the West Virginia Legislature has made my little heart go pitty-pat by passing a law that will let Uber help me travel some country roads.

Effective July 1, 2016, “transportation network companies” (feel free to think Uber – I know I do) may use technology to link drivers and riders in our great State.  The transportation network company (or “TNC”) will have to get a permit from the Division of Motor Vehicles to operate in West Virginia.  The TNC must provide proof that it has an agent for service of process in this State (which would enable it to be sued if appropriate).  In addition to an annual $1,000.00 permit fee, the TNC will also have to provide: (1) proof of insurance, (2) a copy of its zero tolerance for drugs and alcohol policy, (3) a copy of its policy prohibiting solicitation or street hails for rides, and (4) a copy of its nondiscrimination policy with respect to riders.

The Legislation puts several safety measures into place.  In addition to the zero tolerance policy and insurance coverage (by both the TNC and the driver), the TNC’s app must show the potential rider a picture of the driver and his or her license plate number.  The TNC must conduct, and all drivers must pass, a background check that includes:

  • A search of a multi-state, multi-jurisdictional criminal records locator or similar nationwide database with validation
  • A National Sex Offender Registry search
  • A driving history research report.

And, drum roll, the West Virginia Legislature has addressed the legal relationship between the TNC and the driver head on by setting forth five requirements that, when met, establish an independent contractor/employer relationship.

  1. The TNC does not prescribe the specific hours of work for the driver, i.e., when he or she must be logged in to its digital network.
  2. The TNC does not prohibit the driver from using other TNC networks, i.e., the driver can use other apps.
  3. The TNC does not assign the driver a particular territory.
  4. The TNC does not prohibit the driver from holding other employment or conducting another business.
  5. The TNC and the driver agree in writing that the driver is an independent contractor of the TNC.

In my view, this test reinforces the mainstay of the independent contractor analysis in West Virginia:  CONTROL is the key factor.  The Wage and Hour Division of the U.S. Department of Labor (“DOL”) announced its disagreement with the significance that should be accorded the control factor in an Administrator’s Interpretation issued last year (for more information see the fourth installment of my uberization series – link here).  If our new law is any indication, the DOL is going to be receiving a lot of push back from the states where “control” reigns supreme.  In the meantime, I hope that Uber accepts our invitation to do business and take me home country roads.

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 »