Archive for November, 2009


Do you know anyone that actually has a goose for Christmas?  Me either.  Turkey, Ham but Goose?  I don’t think so, not any more.  Probably, in this economic crisis not many people are getting a bonus for Christmas either.  If you are giving a bonus this year there are some things you need to know about how some bonuses might affect how you pay overtime to non-exempt employees.  That’s right, certain bonuses must be included in the computation of the regular rate for non-exempt employees that will effect how much overtime these employees are entitled to receive.  These kinds of bonuses include, Production bonuses, Attendance Bonuses and Cost-of-Living Bonuses.  On the other hand, the regulations implementing the Fair Labor Standards Act also state that certain types of bonuses can be excluded from the regular rate.  So, what are the kinds of bonus payments that can be excluded?  Well, they include Discretionary Bonuses, Gifts and Payments in the nature of gifts on special occasions (like Christmas bonuses), Profit Sharing, Thrift and Savings Plans, Contributions to Welfare Plans, and Percentage of Total Earnings Bonuses.  If the bonus is excluded because it is discretionary it has to be discretionary as to both the fact of the payment and the amount of the payment.  That means that if you have a bonus plan that has predetermined criteria for earning the bonus or for how big the bonus will be it is not discretionary.  If the bonus isn’t excluded, how you have to compute the regular rate for bonuses that must be included is a bit complicated.  So if you are giving a bonus this year, good for you.  Be sure you do it right.   

I CAN’T . . .

Guess what? (For those of you who know me none of this will come as a big surprise but . . . ) I can’t jump very well. I can’t run an 11 second 100 yard dash and I can’t hit a golf ball 300 yards.  I certainly can’t wear the same jeans I wore in college and I can’t stay up all night like I used to. I can’t do calculus and I can’t speak Chinese. I can’t type as fast as my mother or write as well as my wife. I can’t hit a curve ball and I can’t dunk a basketball. As a matter of fact, the list of things that I can’t do, or at least can’t do well, is as long as my arm and none of those things has anything at all to do with what I can do.

Another thing it seems that I can’t do is keep track of what “National this and National that” month it is. Did you know that October was National Disability Employment Awareness Month? Neither did I. I wish I would have known. Maybe then I would have known that while the national unemployment rate is running at about 10%, about 16.2% of people with disabilities are unemployed. Unfortunately, for people with disabilities, employers are often more interested in what they can’t do instead of what they can.

When I was hired for my last couple of jobs, no one asked me what I couldn’t do. I don’t think they really cared.  They asked me what I could do. And what I can do is what makes me good at what I do for a living. Last time you interviewed someone, did you ask the same?

So, the next time you hire someone, look past what they can’t do and find out what they can.

Click the link and see what I’m talking about.

Despite the Slump The Best Keep Getting Better.

The U.S. Hotel Industry is having some hard times. “The U.S. lodging industry finds itself in uncharted waters due to a global economic and financial crisis that has taken a severe toll on the net operating income (NOI) of hotel owners, setting the stage for a wave of loan defaults and foreclosures. Why such a dire prediction? PKF Hospitality Research forecasts a 39.1% decline in NOI for the typical U.S. hotel this year, the biggest drop on record since it began tracking hotel data in the 1930s.”  See

And it’s not just U.S. Hotels that are suffering. Hotels from Berlin to Bangkok are expecting a rough couple of years.

Despite this slump, the very best hotels can be an example of surviving the economic downturn.

You see, the very best Hotels are holding on to coveted 5 Star and 5 Diamond ratings. According to USA Today: “A year of sagging hotel staffing and rates has translated — surprisingly — into more top-ranked lodgings. Fifty-four lodgings in the USA, Canada and China just attained coveted five-star status from the former Mobil Travel Guide (renamed Forbes Travel Guide under a new licensing agreement). The number of five-stars, announced Monday night, is up five from last year. More top-ranked properties also sparkled in AAA’s diamond awards, which were unveiled Friday. Its 113 five-diamond hotels and resorts in the USA, Canada, Caribbean and Mexico number 10 more than last year.” 

How can this be? It seems like these top end properties are doing more with less. But why? Everybody understands that times are hard and it’s ok for client service to slip a bit right? Wrong. When your brand is quality, you understand that you have to protect your brand no matter what. It’s all about client service and frankly, good client service is free. In the same USA Today article, Steve Winn, the billionaire hotelier famous for one of the very best Las Vegas Hotels says:  “It’s hard to do, and it shows that in hard times you have to protect your assets — which is your staff and service levels, . . . . So when things do get better, you haven’t damaged your brand.” 

Interesting what Mr. Winn referred to as “assets”, isn’t it? Not the buildings, not the name, but the staff and service levels. True, you may need to have less staff when times are hard, but if so, you need to make sure that the staff you do have is well trained and fully understands the stakes. And frankly, client service is free. A smile, a cordial greeting, treating people who use your services or buy your goods like they are the most important people in the world is always important. And when times are tough that attitude is essential for survival. So how do you as a supervisor make sure that your staff understands this? Well, who are your clients? That very same staff that’s who. And success is in the details. Treat your staff like VIPs and they will treat your clients like VIPs. Train them, work with them, set an example for them. Now is not the time to be downhearted or let your guard down. Now is the time to be the very best you can be. And your staff will follow your example.

To all who serve and have served . . .

Thank You.

Today is Veterans Day.  The day was originally celebrated as Armistice Day when President Wilson proclaimed November 11, 1919 (hostilities ceased in WWI on 11/11/1918 at 11 am) as the first Armistice Day saying:

“To us in America, the reflections of Armistice Day will be filled with solemn pride in the heroism of those who died in the country’s service and with the gratitude for the victory, both because of the thing from which it has freed us and because of the opportunity it has given America to show her sympathy with peace and justice in the councils of the nation. . . .”

On June 4, 1926 the U.S. Congress officially recognized the end of World War I in a concurrent resolution saying:

“ . . Therefore be it Resolved by the Senate (the House of Representatives concurring), that the President of the United States is requested to issue a proclamation calling upon the officials to display the flag of the United States on all Government buildings on November 11 and inviting the people of the United States to observe the day in schools and churches, or other suitable places, with appropriate ceremonies of friendly relations with all other peoples.”

In 1938, by Act of Congress November 11 was made a legal holiday called Armistice Day.  The Act was amended in 1954 to make the day “Veterans Day” to honor American veterans of all wars.

So today is a day to honor those who have served and it is appropriate that we do so.  Particularly while we sit safe and free while others, all of whom volunteered, go into harms way to protect and preserve the freedoms that we so often take for granted.  

 To all of you, Thank You.

 You can see the full history of the day at


First let me say that my prayers go out to the injured soldiers and their families and to the families of the soldiers and the civilian killed in Texas last week.  What an unspeakable tragedy for the men and women who have volunteered to serve their country and for their families.  It is incomprehensible to me that a person could consider such a despicable act and think that it was a better option than whatever else was going on in his or her life.

Second, let me say that I thought long and hard about writing this post. I was afraid that some of you might take it the wrong way.  In fact, I originally wrote it on Thursday night while watching the events unfold on TV.  I was going to post it on the spot.  Instead I called a good friend who’s husband is currently serving and about to be deployed and waited. I hope it was a good choice, because ultimately I think that it was important to draft this post. That it is simply too important that we all know how to recognize and hopefully prevent something like this from happening again.   

Make no mistake, this was workplace violence and unfortunately, it is all too common.  According to data from the U.S. Bureau of Labor Statistics of the Department of Labor, of the 5,071 workplace fatalities in 2008, 16% were a result of assaults and violent acts with 10% being classified as homicide.  In addition, women are almost three times as likely as men to be murdered in the workplace.  You need to be prepared to deal with, and if at all possible prevent, violence in your workplace and you need to recognize the signs of potential workplace violence.

Of course, given the vagaries of human behavior there is no real way to predict who will and who will not be violent, but there are some things you can look for.  Potentially violent employees tend to share some common characteristics:  They have often suffered from recent stress, they have access to or a fascination with weapons, they tend to hold a grudge, they may be abusers of alcohol or drugs, they often refer to violent acts committed by others and tend to be empathetic of others who resort to violence.

In addition to these potential warning signs, you need to take immediate action when you see people deliberately destroying property, carrying or displaying weapons, threatening others, exhibiting obsessive behavior toward a coworker or doing anything that can be interpreted as weird, bizarre or menacing toward other employees.

You need a process for dealing with this behavior.  First, set up a team consisting at a minimum of members of management, HR, medical staff (say a nurse) if you have them and representatives from the union if you are unionized.  This team should be responsible for writing and enforcing your policy along with assessing and dealing with reported issues under the policy. Second write a policy prohibiting threatening behavior and publish it to all employees.  You all know how I feel about zero tolerance policies so I won’t repeat it here. Third, publish a procedure for your supervisors and managers on how to recognize and what to do when they recognize potentially violent behavior.  Finally, get everyone trained in recognizing and dealing with potentially violent employees.

I hope you found this helpful.  Again, my prayers go out to all of those affected by this tragedy.


If you have heard me speak lately on the topic of the amazing increase in wage-and-hour claims you have heard me say that one of the reasons for this increase, particularly the increase in wage-and-hour class action lawsuits, can probably be traced directly to the fact that the FLSA has an attorney’s fees provision.

I know this is going to come as a big suprise to you but, lawyers, me included, like attorney’s fees.  So, I’m willing to bet that the lawyers who just reached an $85 million settlement to settle 39 consolidated wage-and-hour claims filed against Wal-Mart in Nevada must just be giddy.    According to the ABA Journal on line, U.S. District Judge Phillip Pro approved an award of up to one third of the total settlement amount Wal-Mart has agreed to pay in the consolidated cases that cover some 3 million employees.  

According to the Journal article, plaintiff’s lawyer, Carolyn Beasley Burton says that “Hundreds of thousands of the company’s workers can expect to see checks in the range of $150 to $1,000 in the next few months, . . .”  By contrast, the ABA Journal reports that more than 135 attorneys from 45 different law firms will share the awarded fees which could be as high as $28 million. Now if my math is right that means that if the lawyers share the fees equally (and they probably won’t) they will get $207,407.40 each. That’s just a bit more than the actual employees of Wal-Mart who were the people who were supposedly wronged.

What is the moral of this little story?  Well for one it seems to me it is better to be a plaintiff’s lawyer suing Wal-Mart than it is to actually work for Wal-Mart.  Second, you better get your wage-and-hour ducks in a row.  You see, just because the damages to one employee are small, that does not mean that a bunch of them won’t get together and end up costing you a bunch.  And it only takes one disgruntled employee to get this ball rolling.

2010 Defense Budget Expands FMLA for Military Families

Last Wednesday President Obama signed the National Defense Authorization Act for Fiscal Year 2010.  The new law primarily deals with the budget for the military.  Also contained in the voluminous new law are two provisions unrelated to military spending.  The first is the Matthew Shepard and James Byrd Hate-Crimes Prevention Act.  The second is a provision that expands leave rights for military families under the FMLA.  The major changes to the FMLA include expanded leave for military exigencies and expanded caregiver leave. 

Under the prior changes to the FMLA, which added the military leave provisions, Qualifying Exigency Leave was only available to family members of those serving in the National Guard or reserve components of the Armed Forces.  Under the new law, qualifying exigency leave is now also available to family members whose “spouse, or son or daughter or parent” is serving in the regular armed forces when the qualifying exigency occurs.  The qualifying exigencies, you will recall from our seminars are the eight different things listed in the regulations, including child care activities, post deployment activities, counseling and short notice deployment, among others.

The second major change to the FMLA is that “service member care giver leave” under the Act (you remember from our seminars that this is the 26 weeks to care for a veteran who is undergoing medical treatment, recuperation or therapy for a serious injury or illness incurred in the line of duty and applied only to current not former members of the armed forces) has been expanded to include a veteran who is undergoing treatment for an injury or illness incurred in the line of duty and who was a member of the armed forces at any time in the 5 years preceding the time the veteran is undergoing treatment. 

The Act does not specifically state when the FMLA changes take effect, but the Defense Budget as a whole was effective when signed.

We can expect the regulations to be modified to reflect these changes in the law


In the short life of this blog I have taken time on two other occasions to write about zero tolerance policies. You can read those posts here and here.  I wonder if three times is a charm?  Hope so, because I am going to try again.

Let me start by saying this: It is not the policies that I have a problem with so much as the incredible, no, ridiculous results that come from applying them without thinking.  

Again we go to the wonderful world of academia to get what turns out to be a really silly result.  According to a USA Today, article: “Schools’ zero-tolerance policies tested.”  The article deals mostly with 6 year old Zachary Christie who was suspended when he brought a Swiss army knife to school.  It seems he brought it to school to use to eat his lunch.  He was proud of the “knife” because he won it for something he did as a Cub Scout as I recall.  Originally, Zachary was suspended and told he could not return to school until he completed at least 45 days in an alternative school. Let me repeat that because it needs repeating:  HE COULD NOT RETURN TO SCHOOL UNTIL HE COMPLETED AT LEAST 45 DAYS IN AN ALTERNATIVE SCHOOL!” 

Remember, this is a 6 year old Cub Scout. He had no history of misbehaving (that I am aware of) and is I suppose as good a student as a 6 year old can be.

School officials defended this result by saying “strict and consistent policies are needed to create a safe environment for students, . . . . “  OK, I’m with you on that:  we need safe schools. An administrator was also quoted as saying “we’re starting to see gangs of young men that are more violent than they were many years ago, . . . . We have to make sure that kind of behavior doesn’t have weapons involved in our schools.”  OK, I’m with you on that too: No gangs with weapons in school.

But here is the problem with this and many other zero tolerance policies:  Managers get it in their heads that they don’t have to think anymore. The punishment didn’t really fit the crime in this case, did it? 45 days for a Swiss army knife by a 6 year old kid?!  How does that make the school safer or keep weapons out of the hands of gang members? But that is what the policy said so that is what the school did. Easy. No thought, no consideration of circumstances. Nothing. Violate the policy, implement the punishment. Only this time, parents did not sit still. After stating their son’s case and calling for reasoned thinking, the school changed the policy and altered the “sentence” from  the original 45 days in an alternate school to a 3 to 5 day suspension. 

That is better, but it still does not solve the problem does it?  We can still simply apply the policy and not have to think, or in our case manage. 

Here is what really irritates me when I read stories like this. It isn’t the policy or the punishment itself. It is the people who use these policies as an excuse to avoid thinking or to avoid taking a stand or to avoid recognizing the shortcomings of a procedure like this before they apply it. 

David Resler is the vice president of the Board of Education for Zachary’s school district. Mr. Resler is quoted in the article as saying: “I’m sure we’ve got many other devious kids in the district who are trying to figure out how to duct tape a spoon and fork to their switchblades right now.” 

Now, I have done many interviews and have from time to time been misquoted or had statements taken out of context so I am willing to give Mr. Resler a break. But come on, really?!  This is a perfect example of exactly what I am talking about. Yes, a Swiss army knife and a switchblade are the same kinds of tools, but does anyone really think they are the same thing? And does Mr. Resler really think that some kid taping a spoon and fork to his switchblade is the equivalent to bringing a Swiss army knife to school to use to eat lunch?  If so, it does not seem to me that this school district needs a new policy. It seems to me they need a new vice president of the school board.

In a perfect world companies would have one policy and it would read, “Don’t do anything stupid.”  That’s it.  No more, no less. Of course we don’t live in a perfect world. We need policies and sometimes we need zero tolerance policies. Workplace violence comes to mind. Drug use is another area where they have value. But zero tolerance should never mean “Violate this policy and get fired—period.”  It should mean, “Violate this policy, get punished and we will decide what the punishment is.”  No matter what, your managers still have to manage and they still need to think before they act.  Your employees (or your students) deserve at least that much.