Archive for the 'Uncategorized' Category

A long overdue update

Or why hasn’t he been posting to this thing?

Hello everybody, I hope you are all staying safe and well during our time at home. I wanted to drop a quick line to let you know why I have not been posting during what would have clearly been a good time to post. Two reasons really. One, as you can imagine, I have been just a bit busy. To say that we are living through some weird times is, as you all know, a bit of an understatement and we Labor and Employment Lawyers have been right in the middle of the legal scramble. I have spoken to many of you about the many issues you are facing and I want to take this opportunity to say thanks to our really good clients for continuing to put your trust in us.

The second reason I have not been blogging is a bit more technical. As you know I work at a law firm and law firms have really tight security on their electronic systems. Given that, I can’t access this blog from my home base. There is probably a way to do it, but those of you that know me know that I am totally and completely technically inept so I am not even going to try.

I know what you are asking, how am I posting this post? Well, I’m in the office. Shhhhh, don’t tell anyone. I have passed my screening by the way and I’m leaving soon anyway, but while I was here doing some basic minimum functions I thought I would post this little update.

The blog will be back soon. In the meantime, we are working hard to get you the answers that you need. Everyone stay safe and healthy.

Steve.

COVID-19. What Employers Can do Now – Part 5.

Late on March 18th, President Trump signed into law the Families First Coronavirus Response Act (HR 6201), which is aimed at containing the widening effects of COVID-19. Among other things, the Families First Act creates several significant new leave and sick pay obligations for covered employers.  Those obligations will go into effect  on April 2, 2020, and expire December 31, 2020.

FMLA Leave

First, the Act creates the “Emergency Family and Medical Leave Expansion Act” which will give eligible employees of companies with fewer than 500 employees the right to take leave from their jobs for certain qualifying needs. An eligible employee is one who has been employed by the employer for 30 or more days and who has a “qualifying need related to a public health emergency.” Both full- and part-time employees are eligible.  A “qualifying need” is defined as being unable to work (or telework) due to a need for leave to care for the employee’s minor child if the child’s elementary or secondary school or place of care has been closed, or a child care provider is unavailable, due to a public health emergency.

Significantly, the provisions in the original version of HR 6201 allowing for FMLA leave due to an employee exhibiting symptoms of COVID-19 or to care for a family member exhibiting symptoms of COVID-19 were removed from the final legislation.

If an employee takes qualifying leave under the FMLA Expansion Act, the employee can take the first 10 days of leave as unpaid leave. The employee may elect to use any accrued vacation, personal or medical or sick leave instead of taking unpaid leave. After the 10 days, the employer shall provide partial paid leave for each additional day of qualifying leave. The payment for leave must be equal to at least 2/3 of the employee’s regular rate of pay multiplied by the number of hours the employee would otherwise have been scheduled to work. For employees without a fixed schedule, the employer can use a 6-month average of their daily hours worked.  Pay is capped at $200 per day and $10,000 in total per eligible employee.  Employees are entitled to take up to 12 weeks for this new qualifying need or the usual FMLA-qualifying reasons.  Employees taking leave would be entitled to job restoration.  Smaller employers (i.e., those with less than 25 employees) may be able to deny reinstatement under certain very limited circumstances provided they make reasonable efforts to offer the employee an equivalent alternative position.  If those efforts fail, the employer must attempt to contact the employee to offer an equivalent position that becomes available within 12 months of when the health emergency concludes or the employee’s leave ends, whichever is earlier.

The Act also gives the Secretary of Labor the right to issue regulations exempting employers with less than 50 employees from the leave obligation if it is determined that the obligation would “jeopardize the viability of the business as a going concern.” It remains to be seen exactly if and how this will be implemented, but it appears that this exemption would be handled on an employer-by-employer basis.

The Families First Act did not change the FMLA’s health benefit continuation provisions, which requires an employer to continue group health coverage for an employee on FMLA leave.  Whether an employee’s other benefits will continue if the employee takes leave for a public health emergency depends on the terms of the benefit plan documents and leave policies. Whether an employee’s benefits will continue during the paid sick leave provided under the Act (discussed below) also depends on the employer’s benefit plan documents and leave policies, so employers should check their benefit plan documents and leave policies. Plan amendments may be necessary to change your benefit continuation policies or procedures. 

Sick Leave

The Families First Act also creates the “Emergency Paid Sick Leave Act” which requires all employers under 500 employees to provide paid sick time to all employees (even new hires and part-time employees) who are unable to work or telework because:

  1. The employee is subject to a Federal, State, or local quarantine or isolation order related to COVID-19
  2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID-19
  3. The employee is experiencing symptoms of COVID 19 and is seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to a quarantine or isolation order related to COVID-19 or who has been advised by a health care provider to self-quarantine due to concerns related to COVID-19.
  5. The employee is caring for a son or daughter of the employee if the school or place of care of the son or daughter has been closed, or their child-care provider is unavailable due to COVID-19 precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and Secretary of Labor.

Full time employees who qualify for paid sick time are eligible for up to 80 hours of paid leave.  Part time employees are entitled to leave in an amount equal to the average number of hours they work over a two-week period.   Employees must receive full pay, up to $511 per day and $5,111 in total, for time missed due to their own health reasons (reasons 1-3 above), and must be paid two-thirds (2/3) pay, up to $200 per day and $2,000 in total, for time missed to care for a child or another individual, or because they are off work due to other approved “substantially similar conditions” (reasons 4-6 above).  Unused paid sick leave does not carry over from year-to-year and does not have to be paid out upon termination of employment.

Paid Sick Leave is in addition to any other paid leave the employee is entitled to, so for Michigan employers, that means it is in addition to leave time under the Paid Medical Leave Act. 

Other Notable Provisions

The Families First Act will provide dollar-for-dollar payroll tax credits for employers to help offset the cost of paid FMLA leave and paid sick leave. 

The Act prohibits any cost-sharing for diagnostic products for the detection of COVID-19 and for health care provider office visits, urgent care center visits and emergency room visits that result in an order for or administration of the diagnostic product. The law also prohibits any pre-authorization or other medical management requirements for such services.

COVID-19. What Employers Can do Now – Part 4.

None of you are going to be surprised that everybody is publishing something about what is going on with COVID-19. I thought I would take a second to put everything we at good old WN+J have done, from employment information, to benefits information and even some tax and insurance information. So here we go:

COVID-19: Important Employee Benefit Considerations
http://www.wnj.com/Publications/COVID-19-Important-Employee-Benefit-Considerations
HR 6201 – The Impact to Employers and Employees
http://www.wnj.com/Publications/HR-6201-%E2%80%93-The-Impact-to-Employers-and-Employees
HR 6201 to Create Tax Credits to Help Employers Amid COVID-19 Crisis
http://www.wnj.com/Publications/HR-6201-to-Create-Tax-Credits-to-Help-Employers-Am
Coronavirus: Insurance Coverage for Business-Related Losses?
http://www.wnj.com/Publications/Coronavirus-Insurance-Coverage-for-Business-Relate 12
Federal Agencies Issue COVID-19 Guidance and Resources to Assist Employers and Employees
http://www.wnj.com/Publications/Federal-Agencies-Issue-COVID-19-Guidance-and-Resou
Responding to the Threat of COVID-19 in Your Workforce
http://www.wnj.com/Publications/Responding-To-the-Threat-of-COVID-19-in-Your-Workf

So that should be everything we have published so far. Like everything else in this weird time we are living, these things will be changing fast, so I will try to keep this as up to date as I can.

COVID-19. What Employers Can do Now – Part 3. UPDATED

Here is the latest update on what is going on in DC from Brianna Richardson of our Employee Benefits Group.  Well, when things move this fast, we are going to have to do some things we don’t normally do, and I am starting with updating this post.  Brianna did such a good job getting this done that we had it posted before the bill was actually passed.  The bill passed by the House had some changes in it from the proposed Bill Brianna reviewed.  Here is what the Bill as passed has to say about your obligations as an employer.  DON’T’ FORGET, the Senate still has to deal with this and then the President has to sign it, so it may change again.  If it does we will update this post again.

Yep changes have caught up to this one, Go here.
http://zomichiganemploymentlaw.wnj.com/?p=863

COVID-19: What Employers Can do Now – Part 2.

Well, things have changed just a bit since I last posted on this subject, so here is what we are going to do.  In this post I am just going to give the links to the most up to date information we have from the CDC, OSHA, the DOL and the Michigan Department of Health and Human Services.  In later posts we will talk about what else is happening, including the bill currently before Congress.

So, here are the links to the most up to date information from the various government agencies:

The CDC’s resources for Businesses and Employers is here:  https://www.cdc.gov/coronavirus/2019-ncov/community/organizations/businesses-employers.html

This link to the Interim Guidance for Businesses and Employers is here:  https://www.cdc.gov/coronavirus/2019-ncov/community/guidance-business-response.html

We also have Interim Guidance from OSHA, both generally and for employers, that you can find here: https://www.osha.gov/SLTC/covid-19/controlprevention.html, and here: https://www.osha.gov/Publications/OSHA3990.pdf, respectively.

The current FAQs from the DOL which you can find here: https://www.dol.gov/agencies/whd/pandemic

Finally, you will want to check out the EEOC’s guidance on the ADA, the Rehab Act and the Coronavirus here:  https://www.eeoc.gov/eeoc/newsroom/wysk/wysk_ada_rehabilitaion_act_coronavirus.cfm, which links to the Guidance the EEOC issued during the H1N1 pandemic here:  https://www.eeoc.gov/facts/pandemic_flu.html

Don’t forget, when you are thinking about conducting medical tests, like taking all employees’ temperatures, this guidance says: 

Direct threat is an important ADA concept during an influenza pandemic.

Whether pandemic influenza rises to the level of a direct threat depends on the severity of the illness. If the CDC or state or local public health authorities determine that the illness is like seasonal influenza or the 2009 spring/summer H1N1 influenza, it would not pose a direct threat or justify disability-related inquiries and medical examinations. By contrast, if the CDC or state or local health authorities determine that pandemic influenza is significantly more severe, it could pose a direct threat. The assessment by the CDC or public health authorities would provide the objective evidence needed for a disability-related inquiry or medical examination.

During a pandemic, employers should rely on the latest CDC and state or local public health assessments. While the EEOC recognizes that public health recommendations may change during a crisis and differ between states, employers are expected to make their best efforts to obtain public health advice that is contemporaneous and appropriate for their location, and to make reasonable assessments of conditions in their workplace based on this information.

Which gets us to what is going on at the state level.  That is important too. For those of us in Michigan, the State has a website for here:  https://www.michigan.gov/coronavirus

You should also check out this News Release from the State https://www.michigan.gov/coronavirus/0,9753,7-406-98158-521463–,00.html, which links to a PDF MDHHS, Interim Recommendations for COVID-19 (final).pdf

This last link from the State has the following current recommendations for workplaces:

  1. Encourage employees to stay home when sick and to notify supervisors of illness.
  2. Communicate and reinforce best practices for washing hands covering coughs and sneezes.
  3. Regularly clean and disinfect frequently touched surfaces like doorknobs, keyboards, cell phones, and light switches.
  4. Ensure hand hygiene supplies are readily accessible throughout the workplace.
  5. Encourage staff to tele-work when feasible, particularly individuals at risk of severe illness
  6. Implement social distancing measures as feasible, including limiting in-person meetings.
  7. Limit large work-related gatherings, (e.g., staff meetings and after-work functions).
  8. Limit non-essential work travel.
  9. Cancel or postpone large gatherings, conferences, and sporting events (e.g., greater than 100 people in a shared space).
  10. Discourage employees from eating meals in a large group setting such as a cafeteria
  11. Tailor continuity of operations plans to the COVID-19 threat.

That is it for now, but we will have more as it becomes available.

Help! I’m losing my best people and I can’t replace them! – Part 2.

Last time we talked about why people leave their jobs.

So where does this all get us?  If we know that it is the soft skills that matter and if we know that managers frequently do things that cause good people to quit, how do we fix that?  What do we do?  There are tons of articles out there on what to do to engage employees and they all have some variation of providing a good onboarding system, and a mentorship program, and fostering teamwork, and having a training program for employees.  That is always the solution, right?  It has been a long time since I got my business degree and, granted, it is a BA and not an MBA, but it seems to me business schools shovel this stuff out like . . . well, you know what they shovel it out like.  You have all heard it before and some of you, myself included when I was still managing people, have said it.  “Our performance management system isn’t working?  Let’s buy a fancy new and really expensive ‘tool’ to track performance, that will fix the problem.”  And five years later we still have the same problem with a fancy tool.  I want to go back to something Mr. Peters said was part of the problem:  “too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.”

Now look, I am not saying that fancy new tools to track performance are not valuable – they are.  But there is an old saying, I think it started in the computer industry:  “Garbage in, garbage out.”  And in this context, what that really means is that we are putting our resources in the wrong place.  If we assume Dr. Bradberry and Ms. Branham are correct and a majority of people who leave their jobs are really leaving their managers, and if we believe that Dr. Bradberry’s and Ms. Branham’s lists are at least close to the mark, what that should tell us is we need to put our resources in our managers and supervisors.

“Now we are talking.  Finally we are into the meat of it.  1300 words for Palazzolo to finally tell us how to keep our people!”  Relax, don’t forget Mr. Peters said, “Soft is hard.”  But I’m going to try to simplify so we all have some things we can start on right away.  I’m going to focus on three main topics:  Selection, Training and Measurement.

Selection

Now it all starts with figuring out what management’s job really is.  Far too often, when we need somebody to supervise widget makers, we promote the best widget maker. That, my friends, is exactly the wrong thing to do.  Being a good widget maker does not mean that you are a good supervisor of widget makers.  I wrote about this a long time ago, too.  I want you all to stop and go read that article.  You can find it here.  I’ll wait. . .   Ok, I’m glad you’re back.  Pretty good article if I do say so myself, right?  Anyway, back to making widgets or at least supervising those who do.

So if being the best widget maker does not make you a good supervisor, what does?  Well, that may vary from organization to organization, and it may depend on who is being supervised, right?  I mean a good plant supervisor on the production floor is not necessarily going to have the same skills as a manager in the accounting department, right?  Not so fast, my friend.  There may be slight variations, but what I am saying is that being a good supervisor or manager does have a common set of skills or, as my HR friends like to say, competencies that are common to all good supervisors.    Let’s go back to Dr. Bradberry’s and Ms. Branham’s lists of why people leave their jobs.  Dr. Bradberry says one reason people leave their jobs is managers “Hire and promote the wrong people.”  Ms. Branham says, “There is a mismatch between the job and person.”  So given that, one competency we need in a good manager is the ability to assess and evaluate talent.  Then we have, “They fail to develop people skills,” or put another way, “There is too little coaching and feedback.”   Don’t we then want somebody who knows how to communicate and give constructive feedback?  Maybe somebody who can manage conflict?  And finally, bad managers do “Not recognize contributions and reward good work” or make their “Employees feel devalued and unrecognized.”  Now I could go through both lists, put them all down here and ask you the same question.  How many of you have a supervisor job description that has any of these things as a competency or job duty or even mentions these?  If you do, good for you, you are ahead of the game.  If you don’t, why not?  But that is not the end, now is it?  Remember, “Garbage in, garbage out.”  So you have a nice shiny new job description that requires your managers to be able to communicate, and assess talent and deal with conflict in a fast-paced manufacturing environment blah, blah, blah!  Are you actually hiring people that have these skills?  Not if you are just hiring the best widget makers.  And this is where our friends from HR come in – are you helping management to see and assess these competencies?  Are you getting good candidates?  And when you get good candidates, do recognize this and hire them?  Promoting from within is a great goal, one all companies should aspire to.  But you have to promote the right people, with the right skill set.

Training

OK, we have the right people in the door and they have all the skills we are looking for.  Now what do we do?  What we do is we make sure we have a culture that values and rewards enhancing and developing those skills.  And the only way to do that is train, train, train.  And here is where you know that I am serious.  I’m not talking about having us in to train about the law.  Yes, that is important and I want you to do that too, but that is not the most important thing.  We are talking about training supervisors and managers, and I mean all supervisors and managers, all the way up to the top.

And upper level management has to live that training too. You see, the only way to create a culture of excellence, one that values the skills we are looking for in our managers, is for upper management to support the training.  They have to show up.

The second thing we need to do is make this mandatory.  Knowing your job and developing the skills that you need to do it well should never be voluntary, it is part of your job.  So no “I’m too busy on the line” or “the month end report is due” excuses.  You show up and you participate or it will cost you.  Because we are evaluating you on this stuff.  And we will talk about that in a second.

And the final thing we need to do is make sure we are training on the right things.  Now as I said above, I am not talking about compliance training or harassment training here, although as we all know that is important too.  Especially in this climate.  What I am talking about here are the soft skills that Mr. Peters called so hard.  I’m talking about communication training, I’m talking about teaching managers to give constructive feedback.  I’m talking about teaching active listening skills.  And that is hard.  And the only way to make sure it sinks in is to practice it and make it an ongoing process.

Measurement

Now we have the right people in the door and we have them trained on the right things. What do we do to wrap this all up?  We measure our progress.  And here is what I am talking about here. We evaluate our managers and supervisors on these skills.  Over the years, this has been one of the things that has confounded me the most about communicating with employees.  We have these expensive evaluation processes that I talked about – you know, the shiny new tool.  And because it is so expensive and because it is so hard to actually evaluate employees, we try to make these tools one size fits all.  You know what I mean, often there is a set of goals that we sit down and talk to employees about at the beginning of the year.  And then we have some competencies that are supposed to relate to what the employee is doing.  And not once in this whole process do we take into account the employee’s job description or even what the employee is doing.  So we end up with a review that does not take into account what the employee is really doing, that measures a set of competencies that may or may not even be important to the employee doing his/her job and that in the end spits out a bunch of data that is of limited use at its best.  Employees don’t like this process, it is demoralizing.  Supervisors don’t like this process, it is a pain.  And worst of all, we tie compensation to this farce of a process.  So why do we do it?  Great question, and if you don’t have a good answer, then stop.  Doing a performance review once a year is a pain, but it is a pain only once a year.  It is also, for the most part, a complete waste of time.  Unless you are going to do it right.  Get rid of your fancy tools and use the job description as the basis for your reviews.  Yes, that will be hard.  Remember, “Soft is hard.”

Or scrap the whole process.  Want your employees to be engaged and stick around?  Give them constant feedback.  It’s important, especially to the younger generation.  When they do something good, tell them.  When they do something not so good, tell them.  Then tell them why it was either good or bad.  And then talk with them about what they can do better or what they should keep doing well.  That’s really hard.

And finally, make sure you are giving them feedback on what matters.  How is the turnover rate?  When you do a 360, how is the supervisor rated by the people he/she supervises?  I know, no one likes these, but that is because before we did not give our supervisors the skills they needed to be successful.  Now that we have done that, we should not be afraid of the dreaded 360 review.  Now I know what you are all saying, “That’s great, but what about production goals and deadlines and all that stuff?”  Yeah, I get it, that is important too.  But if your managers are being good managers, then those numbers will follow.

Let me just wrap this up with one final thought.  It is going to seem a bit cliché, but I think it is true.  We have to give our managers and supervisors the tools they need to be good managers and supervisors.  And for the most part, we have not done that.   Because it is hard.  It is way easier to train supervisors on how to run the machine or how to do the report.  As we try to shift this, let me give you a place to start.  Let’s start to train our supervisors to treat people the way they want to be treated.  You know, the good old Golden Rule.  Hey, it’s a start.

 

 

 

 

 

Help! I’m losing my best people and I can’t replace them! – Part 1.

As most of you know, the lawyers at good old WNJ go to a lot of events that you all attend, and sometimes we are presenting at those events.  We do things like panel discussions and programs on everything from Terms and Conditions to protecting your Intellectual Property.  And we talk about the law and take questions.  Lately we have been hearing a common theme in these questions, something that is clearly on your minds.  Whether you work in communications or human resources or purchasing, you are telling us:  “I can’t find and keep talented people.”  From the skilled trades to engineers, talented proficient employees are in short supply.  Now WNJ can’t make more engineers for you and we can’t teach employees to be electricians or welders –  we are exceptional lawyers, but we are not magicians.  So let’s focus on what we can help you do.  What we can help you do is retain the talent you have.  And no, this is not another employment lawyer telling you to sign all of your employees to covenants not to compete, although in some cases that might be a good idea.

(And by the way, I wrote about this about two years ago.  Must be we were having a talent shortage then too.  You can read that article here.  Some of this is going to sound strangely familiar after you do, but that is only because I cut and pasted from that blog post.)

Instead, we are going to focus on other ways to retain employees.  Soft skills, if you will, that might help you keep your really good employees.  What do you do?  I know, just pay them more.  Easy enough, right?  Of course that is not easy and that is not the answer.  The answer is a whole lot harder than that.  Tom Peters, who I am sure you know is a highly respected author and leadership consultant, is known for saying:  “Soft is hard.”     What does Mr. Peters mean by that?  Well, let’s use his words:

Yet a closer look reveals that for every quality program success    there were scores of misfires—programs, often absorbing vast amounts of time and sums of money, that produced little or nothing in the way of better quality or improved financial results, and in some situations made a slumping organization even more sluggish.

Though it’s dangerous to make such an assertion, in my view there was a singular reason for the mixed bag of results; and it was predictable from our excellence research—too much reliance on the apparently ‘hard’ procedures of, say, six-sigma programs and not enough attention to those underlying, apparently ‘soft’ attributes such as the respect for and engagement of the workforce.

*  * *

In the end: Hard is soft. Soft is hard. The traditionally viewed ‘soft’ variables such as ‘institutional culture’ and ‘inspired leadership’ are the principal keys to success—or failure.

You can see Mr. Peters’ whole paper here.  It is worth a read.  So Mr. Peters, back in 2012, was talking about things like “institutional culture” and “inspired leadership” and he has built on these ideas over the years.  But he is not the only one.

In order to retain employees, seems to me the first thing we need to know is why do people leave their jobs?  Again, we can go back to “they can make more money someplace else” but that can’t be the answer.  Dr. Travis Bradberry, coauthor of the No. 1 bestselling book, Emotional Intelligence 2.0, and the cofounder of TalentSmart, in an article he originally published on LinkedIn, gives nine primary reasons why people leave their jobs, and pay is not to be found among them.  Dr. Bradberry first says that “People don’t leave jobs, they leave managers.”  Now I think that might be a bit too broad of a statement – clearly, some people do leave jobs where they have a manager they really like.  But this does raise a good point.  It is not always about the money.  In fact, it is rarely about the money.  Let’s go back to those nine things that Dr. Bradberry says are the worst things managers do that cause people to leave.  He says managers who lose good people tend to:

  1. Overwork good people.
  2. Not recognize contributions and reward good work.
  3. Don’t care about their employees.
  4. Don’t honor their commitments.
  5. Hire and promote the wrong people.
  6. Don’t let people pursue their passions.
  7. Fail to develop people skills.
  8. Fail to engage their employees’ creativity.
  9. Fail to challenge people intellectually.

You can see Dr. Bradberry’s whole article here – again, it is a good read.

In addition, in that blog post I wrote in 2015, I noted:

In her article Strategies for Retaining Employees and Minimizing Turnover, Sarah K. Yazinski, an Admissions Counselor at the University of Scranton, cites strategic planning consultant Leigh Branham, SPHR, who claims:

88% of employees leave their jobs for reasons other than pay: However, 70% of managers think employees leave mainly for pay-related reasons.  Branham says there are seven main reasons why employees leave a company:

  1. Employees feel the job or workplace is not what they expected.
  2. There is a mismatch between the job and person.
  3. There is too little coaching and feedback.
  4. There are too few growth and advancement opportunities.
  5. Employees feel devalued and unrecognized.
  6. Employees feel stress from overwork and have a work/life imbalance.
  7. There is a loss of trust and confidence in senior leaders.

Remember, it is here.

Now look at these two lists:  Quite a bit of overlap, right?  Could be we are on to something here.

Next time we will talk about what to do about all of this.

Leave it to the DOL to publish the regulations when I’m out – the Final Overtime Regs are here.

Well, leave it to the Department of Labor. They wait until I’m out of the office to issue new Regulations. That’s right, yesterday afternoon, the Department of Labor announced that the long awaited final Regulations under the FLSA will be issued today. I’m not going to read them today because I’m going to a baseball game. So let me give you the highlights that the DOL provided yesterday.

We all knew the salary level test was going up. The big question was how much. Would it be the 40th percentile/$970 per week that was in the proposed regulations or something else? How about a little of both. The Department of Labor stuck to its 40th percentile measure, but to throw a small bone to employers the final Regulations set the 40th percentile based on earnings of full-time salaried workers in the lowest wage census region instead of the 40th percentile of full-time salaried workers in the US. And that means . . . . drum roll please . . . the new salary level test is $913 per workweek. Annualized that’s $47, 476 per year.

The highly compensated test remains the same as in the proposed Regulations. It’s set at 90th percentile of full-time salaried workers in the country and comes out to $134,004 annually.

There is also an automatic updating provision in the Regulations. Beginning on January 1, 2020. the salary level tests will be reset every three years. The final Regulations also allow employers to include non-discretionary bonuses and other incentive payments including commissions to satisfy up to 10% of the salary level as long as the bonuses and incentive payments are paid at least quarterly.

The new Regulations go into effect December 1, 2016. So if you haven’t started thinking about what you’re going to do already, now is the time to do it.

You can find the DOL Fact Sheet here and the Q & A here. Or you can give us a call.

New Michigan Law Allows for Veterans’ Preference in Employment.

Wait a minute, it’s not Friday and this is not the FLSA, what is going on? Why am I sitting at my desk on a Saturday writing a blog post? Well, let me tell you. Late yesterday I got an email from one of our partners, Rob Dubault, a brilliant labor lawyer by the way, notifying me (and the other members of our practice group at good old Warner Norcross and Judd LLP) that Governor Snyder had just signed into law a new piece of legislation that applied to Michigan employers. I didn’t have time to read or write about it last night, so here I am.

So what is this new law that brings me into the office on a snowy Saturday in Michigan? It’s House Bill 5418, which will now be “known and cited as” the “Private Employer’s Veterans’ Preference Policy Act.” Well, what does this new law do? I’ll tell you what, it is so short that I’m just going to type the whole thing right into this blog post.

The People of the State of Michigan enact:

Sec. 1. (1) This act shall be known and may be cited as the “private employer’s veterans’ preference policy act”.

(2) As used in this act:

(a) “Private employer” means a sole proprietor, corporation, partnership, limited liability company, or other private entity with 1 or more employees.

(b) “Veteran” means an individual who meets 1 or more of the following:

(i) Has served on active duty with the armed forces of the United States for a period of more than 180 days and was discharged or released from active duty with other than a dishonorable discharge.

(ii) Was discharged or released from active duty with the armed forces of the United States because of a service‑connected disability

(iii) Was discharged or released from duty with other than a dishonorable discharge from service as a member of are serve or national guard component of the armed forces of the United States under an order to active duty, excluding active duty for training.

(c) “Veterans’ preference employment policy” means a private employer’s voluntary preference for hiring, promoting, or retaining a veteran over another equally qualified applicant or employee.

Sec. 2. (1) A private employer may adopt and apply a voluntary veterans’ preference employment policy.

(2) A veterans’ preference employment policy shall be in writing and shall be applied uniformly to employment decisions regarding the hiring or promotion of veterans or the retention of veterans during a reduction in the workforce.

This act is ordered to take immediate effect.

So here is what it does: It allows a private employer to put in place a written policy that gives preference to veterans in hiring, promotions and retention during a reduction in force.

Three things I want you to notice here: First, this law goes into effect immediately. I’m not going to bother with the why of governmental procedure in Michigan, just know that the law is now law. Second, a policy giving preference, if you are going to do one, has to be in writing. No unofficial policy that you can rely on, a written policy. And finally, take notice of the word, “MAY”. That’s right, the law does not require an employer to give preference, it allows an employer to do this.

So if you want to do this, give Rob or me a call.  You can find Rob here.

Screening your employees to see if they are stealing isn’t stealing time.

You have a bunch of employees that work in your warehouse. You also have a bunch of really cool stuff that you ship from your warehouse. Apparently, you don’t trust your employees, because at the end of each shift you require your employees to wait around while you conduct security screens of each employee to make sure that they are not walking out of the warehouse with your really cool stuff. Do you have to pay your employees for the time they spend (up to 25 minutes each day by the way) waiting to go through your security screen? According to the Supreme Court the answer is a big old NO!

Yesterday, SCOTUS issued its opinion, a unanimous opinion by the way, in Integrity Staffing Solutions, Inc., v. Jesse Busk et al., 574 U.S. __ (2014). You can see it here.

“Integrity Staffing Solutions, Inc. provides warehouse staffing to Amazon.com throughout the United States. Respondents Jesse Busk and Laurie Castro worked as hourly employees of Integrity Staffing at warehouses in Las Vegas and Fenley, Nevada, respectively. As warehouse employees, they retrieved products from the shelves and packaged those products for delivery to Amazon customers.”

Id.

According to the opinion, at the end of each shift Integrity requires its employees to pass through a metal detector. From the sounds of it, it was like boarding a plane without the pat down or full body scan. You know, you take your keys and wallet and stuff out of your pockets and walk through a metal detector. We do that all the time now, don’t we, at airports, going into stadiums, even at some schools. No big deal, right? Seems like it was a big deal for the employees. They filed suit claiming that the failure by Integrity to pay for the time it took for these screens, up to 25 minutes per day according to the plaintiff’s, should have been paid under the FLSA. They argued that the screenings were to prevent theft and thus “solely for the benefit of the employers . . . .” Id.

SCOTUS disagreed. First, the Court pointed to the Portal-to-Portal Act and reminded us that “activities which are preliminary to or postliminary to said principal activity or activities” are excluded from the FLSA’s coverage. We talked about this a while ago. Remember Donning and Doffing? Check it out here. Then the court reminded us that principal activity includes activities that are an integral and indispensable part of the principal activity. The question, according to the Court, “Was the waiting time for the screen an ‘integral and indispensable part of the principal activities’ of the employees?” If it is, it is paid time. If it is not, it is unpaid time.

The Court then said that an activity is “integral and indispensable to the principal activities that an employee is employed to perform if it is an intrinsic element of those activities and one with which the employee cannot dispense if he is to perform his principal activities.” Like, the Court said, “showering and changing clothes” after working with toxic chemicals, or “sharpening knives” in a meat packing plant but not “donning protective gear” in a poultry plant.

Ultimately, the Court held that the security screenings at issue were not compensable. In short, the company does not have to pay the employee’s while they wait for their turn to go through the metal detector.

SCOTUS said, quite logically, screenings were not “principal activities” pointing out that the company did not employ the employees to be screened. They employed them to ship products. Then the Court noted that the screenings were not “integral and indispensable” to shipping products. The Court stated that the employees could have very easily continued to ship products even if the screenings stopped. They also could have walked off with a bunch of really cool stuff form the warehouse. The Court didn’t say that I did and Integrity must be worried about it of why do the screens?

Then the Court noted that the 9th Circuit erred when it focused on the fact that the employer required the screenings stating: “If the test could be satisfied merely by the fact that an employer required an activity, it would sweep into “principal activities,” the very activities that the Portal-to-Portal Act was designed to address.” Id. Makes sense again right? I mean like I said before, who would drive to work if their employer didn’t make them do it? Especially today when so many jobs can be done remotely. And finally, the Court rejected the employee’s argument that they should get paid for waiting simply because the employer could, if they wanted, shorten the waiting time. Basically, the court said deal with it at the bargaining table it is not covered by the FLSA.

Again, you can see the whole opinion here if you are interested.  Oh and by the way, I wrote this one, we will get back to Emily next time.

Next Page »