“The health of your employees has little to do with your health insurance costs – and the cost of health care has little to do with the health of your employees.” –Dr. Wendy Lynch
This issue discusses:
- Editor’s Column: How Many Bad Jokes Does It Take to Get You Fired?
- Summer Interns: To Pay or Not To Pay?
- Safety Bonus Programs: Pros and Cons
- ADA and FMLA: Symbiotic Interaction
- Employment Practices Risks: Reality Check
- Toys ‘R’ Us Sued For Alleged Discrimination Against Deaf Job Applicant
We have also provided you with the Form of the Month.
Please click here to view the newsletter in PDF.
Editor’s Column: How Many Bad Jokes Does It Take to Get You Fired?
I recently reported on a California case in which a manager was fired partly because he and his buddies would tell off-color jokes after work in one guy’s office, out of the earshot of others. A female attorney who was investigating a claim brought by a poorly performing employee felt that such conduct violated the company’s sexual harassment policies, even though it had nothing to do with the claim being filed.
I say, only in America!
I realize that many people today are hypersensitive to finding their rights violated. The complaining employee in this case seemed to be such a person. If, for some reason, someone feels ostracized by society or the demographics of the company where they work, they will constantly be filtering events to show that others are discriminatory and insensitive. Of course, at the family picnic next week, this “offended” employee will be laughing when their uncle tells the same jokes they found so offensive in the workplace.
Today’s workplace has changed. Mad Men is a period piece. Whether you like the great cleansing of the American workplace or not, it’s reality. So, if you want to give an employer an excuse to fire you, tell some off-color jokes on the job – or you might realize that’s probably not worth it and tell them outside the workplace. Things have gotten to the point that Prairie Home Companion jokes can be deemed offensive when uttered in the workplace. Are we so stressed that we’ve lost all sense of humor?
I’ll leave you with a safe joke my 11-year old told me that you can share in all sorts of company: “What did the green grape say to the purple grape?” Answer: “You gotta breathe, man!” As I see it, there are too many hyper-sensitive folks in the workplace that could do some breathing as well.
Summer Interns: To Pay or Not To Pay?
Now that summer season is here, it’s time to review your payment obligations to interns.
The DOL’s Test for Interns and Trainees
Although the Fair Labor Standards Act (FLSA) doesn’t define intern or provide an exemption from minimum wages or overtime for interns, it recognizes that not everyone who performs duties for an employer is an “employee,” and thus entitled to compensation under the wage and hour laws. Generally, the FLSA provides that if a company benefits from using interns, it must pay them at least minimum wage. However if the intern isn’t doing anything that directly benefits your company but is just observing or learning, you might be justified in not paying him or her.
Whether student interns are considered employees under the FLSA depends on the circumstances surrounding their duties and activities. The U.S. Department of Labor (DOL) uses a six-part test to distinguish interns or “trainees,” from employees:
- The training, even though it includes actual operation of the employer’s facilities, is similar to what would be offered in a vocational school.
- The primary benefit of the training is for the intern.
- The trainees don’t displace regular employees, but work under close observation.
- The employer derives no immediate advantage from the activities of the interns, which on occasion might actually be counterproductive.
- The intern is not guaranteed a permanent job at the end of the program.
- Both parties understand that the intern is not entitled to wages for the time spent in the internship.
Who Benefits: Intern Or Company?
Although courts will use these factors to analyze a worker’s status, they don’t necessarily weigh all of them equally. In fact, judges will often find that the most important criterion for determining whether someone is subject to the FLSA involves which party enjoys the primary benefit from the internship.
Essentially, if the intern benefits primarily from the arrangement, she will be considered a volunteer, rather than a paid employee. However, if the company is the primary beneficiary of the intern’s work experience, this person will be considered an employee who must be paid at least the minimum wage.
In one case involving a company’s use of trainees, McLaughlin v. Ensley, the Fourth U.S. Circuit Court of Appeals held that the owner of a snack foods distribution business had to pay trainees for route jobs. Before being formally hired for such a job, trainees were required to participate in what was usually five days of exposure to the tasks they would be expected to perform. They traveled an ordinary route with an experienced route man, loaded and unloaded the delivery truck, received instruction on how to drive the truck, restocked stores with the employer’s product, were introduced to retailers, learned basic maintenance on snack food vending machines and occasionally helped prepare orders of goods with financial exchanges. However, the employer did not pay the trainees during their training week.
In determining whether this practice was legal, the Fourth Circuit explained that the key question involved whether the employer or the trainees received the principal benefit from the orientation. The court held that the employer enjoyed a greater advantage than the trainees because they were, in fact helping the company distribute snack foods. The skills they learned in training were either so specific to the job or so general that they had practically no transferable usefulness. As a result, the appeals court ruled that the trainees who participated in the orientation program were entitled to receive minimum wages.
Ensuring FLSA Compliance
If you offer unpaid internships, structure the position so that the intern is the one who will receive the primary benefit of the work experience. Unpaid internships should concentrate on exposing the intern to a particular career field and offer a mentoring experience. The focus should not be on production – do not use interns as a free source of labor!
Also, if you use unpaid interns, document the nature of the relationship, explain that both parties intend the arrangement to be an unpaid internship that will provide the intern with practical learning experience. The intern’s actual duties should comply with the terms set forth in this s written documentation.
The Bottom Line
Having interns can be a great experience, not only for the intern but also for your company. Interns can bring a fresh perspective to your business and allow you to assess potential employees. Employees often get their proverbial foot in the door by starting as summer interns while in school and then becoming full-time workers after graduation.
Safety Bonus Programs: Pros and Cons
I recently received this hotline inquiry:
Q: We have a safety bonus program that gives a $25 gift card each quarter for all groups that have no lost-time accidents and at the end of the calendar year provides them with a share in an $8,000 bonus check. In researching this, I found that OSHA has stated that safety bonus programs which give monetary rewards to employees for no-lost time accidents can be seen as creating incentives to not report accidents or to pressure fellow employees not to do so. However, I read in a SHRM article that the Secretary of Labor stated that there would not be a fine for keeping such programs. Should we stop our incentive program it or leave it as is and wait for the DOL to prohibit it?
A: We’ve seen this memo from OSHA on HR That Works. Incentives always have their shadow side. If management makes it clear they want injuries reported, the next step is to approach your employees and ask how the company can use these incentives in a way that does not encourage non-reporting? They might well have some better ideas than what you’re using. There’s no law prohibiting safety incentives – just concerns about possible negative results from using them.
ADA and FMLA: Symbiotic Interaction
These case summaries, courtesy of Worklaw® Network firm Shawe Rosenthal, spotlight the symbiotic interaction between these two leave laws.
A federal court in Alabama held that an employer had no duty under the Family and Medical Leave Act (FMLA) to restore the employee to her job with an accommodation under the Americans with Disabilities Act (ADA). In Brown v. Montgomery Surgical Center, the employee who sought to return to work after FMLA leave provided a doctor’s note with lifting and standing restrictions. The employer refused to reinstate her without a full release. She then sued under the FMLA and ADA. The employee’s ADA claims were dismissed as untimely filed. With regard to her FMLA claims, the Court observed that the right to reinstatement under the act is not absolute, and held that an employee who is unable to perform an essential job function is not entitled to reinstatement. The FMLA does not require an employer to provide a reasonable accommodation that will enable the employee to return to work at the end of FMLA leave. The reasonable accommodation obligation arises from the ADA, not the FMLA.
More on the ADA and FMLA
In another case exploring the interaction between the ADA and the FMLA, a federal court in Pennsylvania held that an employee was not entitled to reinstatement under the FMLA to a pre-leave position that the company had given her as an accommodation for a temporary disability under the ADA and to provide better accommodation of her need for intermittent leave under the FMLA. In Karaffa v. Montgomery Township, a pregnant employee who was usually assigned rotating morning, evening, and overnight shifts was reassigned to morning shifts only as an accommodation for her gestational diabetes. Following her FMLA leave, the employee sought to return to the morning shift assignment. The court noted that she had been assigned the shift in connection with her need for intermittent FMLA, and thus it was not a position that she held “when leave commenced.” Moreover, under the ADA, this morning shift assignment was an accommodation for her temporary disability of gestational diabetes, which no longer existed after the birth of her child. Thus, both laws required the employer only to reinstate her to the original rotating shift assignment.
Employment Practices Risks: Reality Check
I just finished listening to an interesting podcast by the Freakonomics authors about the risks that gun use presents. For example, they indicated that the odds of a gun causing a person’s death are about 1 in 10,000, while the chances of a backyard swimming pool causing a death are some 100 times greater. Does this mean that we should focus on swimming pool control and forget about gun violence? Although I doubt that anyone would suggest this, it does give food for thought.
For the past dozen years, I’ve been in a catbird seat observing the incident of employment practices liability exposures and lawsuits. My conclusion: Employment Practices Liability Insurance cannot cover the major personnel practice exposures facing businesses. For example, there’s no risk mitigation for making poor hires, fostering low productivity, triggering high turnover, or failing to have workers play like a team. The frequency of such exposures, and their expense, far exceed those associated with employee lawsuits.
Let me share another statistic. In 2012 the U.S. had one of the worst years ever for mass shootings, with approximately 700 fatalities (four times the annual average toll). As you might expect, these sensational and painful cases grabbed plenty of headlines. However, in the same year, roughly 20,000 Americans committed suicide using guns, killing some 11,000 other people in the process – and garnering little, if any, media attention.
The same thing holds true for workplace risk exposures. How many articles are you going to read about the impact of bad hires or productivity left on the table every day? Where’s the drama in that? However, a juicy lawsuit in which a sexual harassment claimant gets a multi-million dollar verdict will get plenty of press.
Likewise, more than half of the discussions at any HR conference will involve compliance exposures. Meanwhile, the greatest risk to your company’s survival has little or nothing to do with compliance litigation. In my 30 years as an attorney, I’ve seen only a handful of small businesses go under because of employee lawsuits – and hundreds of companies of all sizes go out of business because of poor management practices.
As with the gun/swimming pool example, we need to understand the relative probabilities of the various risks employers face.
None of us need the horror of mass shootings or nasty employee lawsuits. These events make for good press (as they say, “if it bleeds, it leads.”) When we run 75 mph as a society, it’s hard for us to connect without doing so through a mass pity party. The media taps into this social reality on a daily basis with sensational headlines and lead stories, making it all too easy to divert business owners and managers from focusing on significant employment risk management issues.
Food for thought…
Toys ‘R’ Us Sued For Alleged Discrimination Against Deaf Job Applicant
The U.S. Equal Employment Opportunity Commission has sued Toys “R” Us, Inc. for alleged disability discrimination under the Americans with Disabilities Act. A deaf woman applied for a job at the toy retailer’s store in Columbia, MD. She was denied a sign language interpreter for her interview and the store refused to hire her despite her qualifications and ability to do the job, with or without a reasonable accommodation. I asked JAN expert Linda Batiste some questions about this case:
- Is the implication that it’s reasonable for a company to hire an interpreter any time a job applicant needs it?The implication is that under the ADA providing an interpreter is a reasonable accommodation which a company must consider on a case-by-case basis. The ultimate goal is effective communication during the job interview, and in some cases this means an interpreter, if no undue hardship is involved.
The problem that Toys “R” Us ran into was flat out refusing to provide an interpreter for the job interview without offering an alternative method of communication. Instead, the applicant was instructed to provide her own accommodation. I saw no indication that Toy “R” Us claimed undue hardship.
- What if a company interviews 10 people for a low wage job and hires only one. What if two of the applicants are deaf? Do they need to provide one for each candidate?
In some cases, an employer might have to consider hiring an interpreter for each applicant who is deaf. The Toys “R” Us case involved a group interview, and perhaps in such a situation only one interpreter would be needed. However, whether it’s one or multiple interpreters, most job interviews don’t last more than an hour, so the actual expense might not be that much, especially for a large company.
- If hired, what would be the company’s obligation to provide an interpreter then? That interpreter could cost more per hour than the employee.
If hired, the employer would have to assess the need for an interpreter on a case-by-case basis. For some jobs it might be minimal; others it might be more extensive. Again, the key would be effective communication; and, for some jobs, that can be done in other ways besides an interpreter. Under the ADA, employers should probably not try to make the argument that an interpreter would get paid more an hour than the deaf applicant. This isn’t generally accepted as meeting the undue hardship defense.
My take: Nothing drives employers nuts more than the ADA’s “case-by -case” analysis. Although larger companies might absorb such expenses readily, it could be an undue burden on smaller firms. The best answer is to get professional advice in such circumstances.
Form of the Month
Assess Your HR Quotient (PDF) – See how well positioned you are for taking the next step in your HR Career.
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©2013 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.
The Occupational Safety and Health Administration (OSHA), a division of the Department of Labor, has issued an interim final rule implementing Section 1558, the Affordable Care Act’s (ACA) anti-retaliation provision. Section 1558 expressly prohibits an employer from retaliating against an employee for engaging in any of the protected activities under the statute, which includes, among other things, receiving a federal tax credit or subsidy to purchase insurance coverage. OSHA has also issued a fact sheet that outlines how employees may file a retaliation complaint under the ACA.
- Section 1558 provides that an employer may not discharge or in any manner retaliate against an employee because he or she:
- received a premium tax credit or a subsidy to purchase health care coverage;
- provided or caused to be provided (or is about to provide or cause to be provided) to the employer, the federal government, or the attorney general of a state information relating to any violation of, or any act or omission the employee reasonably believes to be a violation of Title I of the ACA;
- testified, assisted, or participated, or is about to testify, assist, or participate in a proceeding concerning such violation;
- objected to, or refused to participate in, any activity, policy, practice, or assigned task that the employee (or other such person) reasonably believed to be in violation of any provision of Title I of the ACA, or any order, rule, regulation, standard, or ban under Title I of the ACA.
Title I of the ACA includes a range of insurance company accountability policies such as: the prohibition of lifetime dollar limits on coverage, the requirement for most plans to cover recommended preventive services with no cost sharing, the prohibitions on the use of factors such as health status, medical history, gender, and industry of employment to set premium rates, and, starting in 2014, protections against pre-existing condition exclusions.
The interim final rule establishes the procedures and timeframes for handling retaliation complaints, including OSHA’s investigation, hearing, and appeals procedures. The anti-retaliation provision adopts procedures similar to those used by OSHA to enforce other whistleblower statutes under its jurisdiction. Under the ACA, an employee has 180 days from the alleged retaliation in which to file a whistleblower complaint with the Secretary of Labor. The employee need only have a subjective, good faith, and objectively reasonable belief that the complained-of conduct violates the whistleblower protections. The employee does not, however, need to prove that the conduct complained of constitutes an actual violation of law.
Section 1558 also includes an employee-friendly burden of proof. The employee must prove by a preponderance of the evidence that his or her participation in a protected activity was a contributing factor to the employment action taken against him by the employer. The burden then shifts to the employer to prove by clear and convincing evidence—a much more difficult burden of proof—that the employer would have taken the same action against the employee if the employee had not engaged in the protected conduct.
OSHA will investigate the complaint and make a determination. OSHA’s findings become final unless appealed within 30 days. Either party may request a hearing before an administrative law judge, whose decision may be appealed to the DOJ’s Administrative Review Board. An employee would be entitled to file a complaint in federal court if a final agency order is not issued within 210 days of the filing of the initial complaint, or within 90 days after the employee receives OSHA’s findings.
If a violation is found, remedies include reinstatement, compensatory damages, back pay, as well as all costs and expenses (including attorney’s fees and expert witness fees) reasonably incurred in filing the complaint. If the Secretary deems the complaint to have been brought in bad faith, it may award the employer up to $1,000 in reasonable attorney’s fees.
Employee rights in Section 1558 cannot be waived and are not subject to arbitration, regardless of whether or not the employee has signed a mandatory arbitration agreement.
The ACA’s anti-retaliation provision adds another layer of concern to employers’ efforts to comply with the ACA’s confusing and often inconsistent obligations. Additionally, the recent trend has been for federal agencies to aggressively enforce and expand coverage under the respective statutes they administer. With healthcare being the Obama Administration’s leading policy initiative, this trend is likely to continue with enforcement of ACA protections.
For example, it is possible that the agencies will use this provision to combat employers’ attempts to reduce their workforce or reduce employees’ hours in an effort to manage employer mandate related costs. Because the ACA’s anti-retaliation provisions create additional classes of protected individuals who did not previously receive special protection, employers should make it a priority to train supervisors regarding the practical employee relations issues related to the ACA.
Article courtesy of Worklaw® firm Lehr Middlebrooks & Vreeland (www.lehrmiddlebrooks.com)
Heat illness can be deadly. Every year, thousands of workers become sick from exposure to heat, and some even die. These illnesses and deaths are preventable.
This webpage is part of OSHA’s nationwide outreach campaign to raise awareness among workers and employers about the hazards of working outdoors in hot weather. The educational resources on this website give workers and employers information about heat illnesses and how to prevent them. There are also training tools for employers to use and posters to display at their worksites. Many of the new resources target vulnerable workers with limited reading skills or who do not speak English as a first language. OSHA will continue to add information and tools to this page throughout the summer.
The U.S. Department of Labor (DOL) announced a new Web tool to help employers understand their responsibilities to report and record work-related injuries and illnesses under Occupational Safety and Health Administration (OSHA) regulations.
The OSHA Recordkeeping Advisor helps employers and others responsible for organizational safety and health quickly determine whether an injury or illness is work-related; whether a work-related injury or illness needs to be recorded; and which provisions of the regulations apply when recording a work-related injury or illness. To help employers in making these determinations, the OSHA Recordkeeping Advisor relies on their responses to a series of pre-set questions.
Here is some helpful info from OSHA on keeping workers safe during flood and tornado recovery operations:
The DOL issued a press release which provides plenty of sound advice “If you’re working outdoors, you’re at risk for heat-related illnesses that can cause serious medical problems and even death,” said Secretary Solis at stops in Anaheim, Calif.; Tucson, Ariz., and Las Vegas, Nev. “But heat illness can be prevented. This Labor Department campaign will reach across the country with a very simple message – water, rest and shade.” Each year, thousands of outdoor workers experience heat illness, which often manifests as heat exhaustion. If not quickly addressed, heat exhaustion can become heat stroke, which killed more than 30 workers last year. Heat can be a real danger for workers in jobs ranging from agriculture and landscaping to construction, road repair, airport baggage handling and even car sales. OSHA has developed heat illness educational materials in English and Spanish, as well as a curriculum to be used for workplace training.
When disasters strike, the Occupational Safety and Health Administration transforms itself and swings into technical assistance mode for affected areas. This week, after devastating storms pounded a large number of southern states, OSHA deployed teams of technical advisors to the affected areas of Mississippi, Alabama and Georgia. OSHA staff contacted incident commanders at the various county emergency management centers, as well as power companies that will be involved in the cleanup. They also do assessments of the safety needs for recovery workers. Dangers from downed electrical power lines and fallen trees are only two of the many hazards facing workers. “Storm recovery work encompasses a wide range of safety and health hazards, which can be minimized by knowledge, safe work practices and personal protective equipment, ” said Cindy Coe, OSHA’s regional administrator in Atlanta.
HR That Works Members should also review the many tools in the Disaster Planning section.
In light of the recent snowstorms in the east and in anticipation of more winter storms, OSHA wants to remind workers, employers and the general public of the hazards associated with snow removal and recovery work. Common hazards can include: electric shock from contact with downed power lines or the use of ungrounded electrical equipment; falls from snow removal on roofs, or while working in aerial lifts or on ladders; being struck or crushed by trees, branches or structures that collapse under the weight of accumulated snow; carbon monoxide poisoning from gasoline-powered generators in inadequately ventilated areas or idling vehicles; and lacerations or amputations from unguarded or improperly operated chain saws and power tools or improperly attempting to clear jams in snow blowers. Information on hazards and safeguards associated with cleanup and recovery activities after a storm or other major weather events are available on OSHA’s website in English and Spanish.
“Objectives are not fate; they are direction. They are not commands; they are commitments. They do not determine the future; they are means to mobilize the resources and energies of the business for the making of the future.”
- Peter Drucker
This issue discusses:
- Editor’s Column: Asking the Right Questions
- Labor History Quiz
- Diploma Mill Scams
- Beware of Punishing Employees Who Complain About Wages Owed
- Create a Fun Workplace
- Moving Down Maslow’s Hierarchy of Needs
- A Review of the 2008-2009 Supreme Court Term
We have also provided you with the Form of the Month
Editor’s Column: Asking the Right Questions
My years as a litigation attorney provided me with excellent insight into failed business and employment relationships. Here are a few critical questions business owners, managers, and employees can ask themselves to make sure that their thinking is on the right path:
- Is it in the best interest of the team? There’s no substitute for playing with a win/win attitude. As they say, “A rising tide floats all boats.” Putting the team first does not mean that you have to settle for mediocrity – or that you decide simply on a consensus basis. Putting the team first means that you ask the critical question: “Is this in the best interest of the team (or company, nation, family, etc.)?”
- Will this increase or decrease the level of trust in the environment? I’ve never seen a failed relationship where the parties trusted each other. Trusting partners even dissolve their relationships in an amicable manner. To make a trustworthy decision means that you have the skills or critical thinking necessary to make this decision and that you do so with good intent. That’s what makes anybody trustworthy to me. They have the skills and desires I can trust.
- Is it in alignment with our vision, mission, and goals? Sometimes there can be a true conflict among these outcomes. For example, NASA wanted to launch its shuttles in both a timely and safe manner. When the goal of timeliness overwhelmed the goal of safety, it resulted in an ethical violation – and lost lives. Because it’s very hard to know if you’re in alignment if you haven’t clearly identified your vision, mission, or goals, you might want to throw in values, commitments, and anything else on which you intend to focus.
- How does the approach feel? Often we make poor decisions because we’re running so fast that we can’t feel what’s going on. This is one reason why I often sleep on major decisions, perhaps even for a few days, before making a major decision. If after three or four days it still feels right, I’ll go for it. Unfortunately, when I forget this lesson, I end up paying the price.
- Is it legal? Are you sure or just guessing about it? What further research should you conduct?
- Should I get outside advice? There’s no substitute for professional help when making decisions. People rely on the Worklaw® Network and I try to answer their Hotline calls as part of the HR That Works program. Knock on wood, but from what I can tell, not a single one of these calls has turned out poorly for a client who followed the advice. It’s important to be able to get outside your own head when making critical decisions.
Conclusion: Follow these steps and you’ll avoid a variety of risk management problems.
Labor History Quiz
Enjoy this fun and informative quiz on labor history, created by the Alabama Department of Labor.
Diploma Mill Scams
The FTC has issued helpful guidelines to help employers avoid the pitfalls of false degrees.
Click here for more information.
Beware of Punishing Employees Who Complain About Wages Owed
IMPCO Technologies found itself in a no-win situation. Just after having moved over to a new time-clock program, two employees approached their manager, Manuel Barbosa, claiming that they were not paid overtime for a couple of hours. Since their manager was also paid on an hourly rate, he realized that if they hadn’t been paid, neither had he — so he submitted a claim for overtime to human resources. An investigation determined that the employees did not work overtime. When confronted with this finding, the manager maintained his good faith belief that he was entitled to overtime. The company, which, in fact, had paid the overtime, dismissed the manager for intending to defraud the company. He promptly sued for wrongful termination.
When the case made its way to trial, the court ruled that the company had terminated the employee for his dishonesty, not for making a claim for overtime. On appeal, the court ruled that if an employee brings forth a wage and hour complaint in “good faith,” they are thereafter protected from termination even if, in fact, they prove to be wrong. The case was reinstated, with instructions to determine if the manager had acted in good faith.
Lesson to employers: Think twice about firing any employee who complains about anything. If such a situation arises, contact the HR That Works hotline or your attorney before making a decision. Remember that, in general, if the matter complained about affects public policy (health, safety, labor laws, tax laws, etc.) the employee is generally protected from a retaliatory discharge.
To read the case (Barbosa v. IMPCO Technologies), click here.
Create a Fun Workplace
Life is short. There’s absolutely no reason why we can’t have fun while making money every day. What follows are 13 suggestions that you might want to employ at your company.
- Set up a fun committee. Put some of the “funniest” people at your organization in charge. Give them a budget — maybe $10 per employee per week and see what they can do with it for a couple of months.
- Have a community service day. Giving back to the community is fun. Whether you coordinate an event for the Boys and Girls Club, a homeless shelter, senior citizen home, a group cleanup project, etc, giving back on a group basis is even more fun.
- Set a red noses day. Whether you wear red noses, Groucho glasses, or silly hats, it’s fun to have a day like that. You simply can’t take each other seriously when you do (I can hear the chorus now, “But I want to be taken seriously!”).
- Ask for kids’ pictures. A number of companies have encouraged their employees’ children to produce pictures that they can hang up in a hallway. One company specifically created slot-like frames for 8.5” x 11” paper, which made it very easy for the parents and kids. You can’t stay in a funk very long walking past a bunch of pictures drawn by kids.
- Bring in a magician. Let them walk around and do some magic tricks for your employees. Sure, they might be distracted for all of five minutes, but they’ll have fun doing it — which is exactly the point!
- Hold theme days. Whether it’s Country/Western, 60s, 70s, or otherwise, it’s fun to not only dress up employees, but the environment as well. This goes great for St. Patrick’s Day, Fourth of July, Veterans Day, and of course, Halloween.
- Require people to provide a joke with their résumé. When one CEO told us about this, we thought it was a brilliant idea. He said reading résumés is one of the most boring things you can do. Requiring a joke certainly makes it more fun. Second, if people can’t follow instruction he won’t hire them. And third, you get an idea of what type of sense of humor they have.
- Run a cartoon caption contest. Get a cartoon, blank out the caption, and then have a contest for your employees to fill in.
- Hold food events. Eating with your friends and colleagues can be fun. Many companies will have food events around a holiday theme. Encourage people to bring a dish native to their heritage. We’ve tasted some of the best — and most unusual — food at these events.
- Stage a murder mystery. A body was just found by the water cooler. Who did it? You can easily hire actors who perform these skits in the evening to come into your company and spend an hour or two some afternoon.
- Throw a sundae party. Bring in a boatload of ice cream, nuts, and cherries and engage in some sugar overload. What could be more fun than that?
- Have story day. Have folks share a humorous workplace story either at your company or a previous employer. Issue some basic guidelines, such as no obscenities and no ridiculing any current employees, to avoid offending them. Keep a time limit of, say, five minutes.
- Get out and do something physical together. Whether it’s a ropes course, bowling, or miniature golf, it’s fun to engage in physical activity. Many companies also have softball, soccer, basketball teams, and the like as well.
There are dozens of other ways to have fun, limited only by your imagination!
Moving Down Maslow’s Hierarchy of Needs
The recent Internet Labor Outlook Survey by the Society for Human Resource Management (SHRM) included a question about the most important aspects of employee job satisfaction. The results, in order, were:
- Job security (63%)
- Benefits (60%)
- Compensation/pay (57%)
- Opportunities to use skills and abilities (55%)
- Feeling safe in the environment (54%)
- Relationship with immediate supervisor (52%)
- Management recognition of employee job performance (52%)
- Communication between employees and senior management (51%)
- The work itself (50%)
- Autonomy and performance (47%)
At the bottom of the list came items such as being in a green workplace, networking opportunities, career development, social responsibility, and so on.
These results show that when we hit tough times, our needs move down the Maslow Hierarchy.
In today’s economy, it’s very difficult to self-actualize when you’ve just been laid off from a job. Survival, security, and belonging are what employees need right now. Their egos are in check — and trying to save the world might have to wait until another day. This is one reason why I continue to support the notion of open-book management. It’s about having an authentic and honest conversation about money (an item in great demand today). Show your employees the black and white of their futures and understand how they can shape it to the benefit of all.
A Review of the 2008-2009 Supreme Court Term
Worklaw Network Member Firm Franczek Radelet’s has provided us with a great summary of recent U.S. Supreme Court cases. Labor and employment-related cases figured prominently in the U.S. Supreme Court’s recently concluded 2008-2009 term. The Court’s conservative Justices continued to play a dominant role, with Justice Kennedy often casting the deciding vote. This trend will probably continue at least through the next term, despite the replacement of Justice Souter by Justice Sotomayor.
During the 2008-2009 term, the Court took these actions:
- Considered whether an employer’s well-intentioned decision to disregard promotional test results and avoid claims of disparate impact discrimination violated Title VII.
- Held that “mixed motive” jury instructions applicable to cases arising under Title VII may not be given in discrimination cases pursued under the Age Discrimination in Employment Act (ADEA).
- Found that a pension plan qualified as a bona fide seniority system and did not violate the Pregnancy Discrimination Act by giving less credit for maternity leave taken before that law took effect than for other medical leave in calculating pension benefits.
- Determined that Title VII prohibits retaliation against employees who participate in an employer’s harassment investigation.
- Held that a collective bargaining agreement can waive employee rights under the ADEA.
- Found that a local union’s charge of litigation fees to nonmember employees was constitutional.
- Addressed the constitutionality of a state law that prohibited the use of union dues deducted from public employees’ paychecks for political purposes.
- Adhered to the “plan documents” rule under ERISA requiring that plan administrators follow the express language of plan documents in all but a very few, narrowly defined circumstances.
Read the entire report here.
Form of the Month
Independent Contractor Agreement (PDF)
If you’re sure you have a proper 1099 arrangement, use this agreement to get it in cement.
(HR That Works Users can access this form in Word format by logging on to the site).
Please click here to listen to the February 2010 Podcast.