Archive for January, 2010

TIME TO FIX OVERTIME . . . .

Here we go again. How many times are we going to have to read about this company or that company being sued for violating the FLSA? According to the Atlanta Journal Constitution “AT&T’s overtime suit only latest Company’s exempt rule questioned when set for some 1st-level managers”. According to the article AT&T is faced with . . . are you ready for this . . . “$1 billion” yes that is billion with a “B” in potential damages for allegedly misclassifying some of its employees as exempt when they should have been paid overtime.  You can see the article at http://www.ajc.com/business/at-ts-overtime-suit-278860.html

Lets be clear about something here.  I have not read the complaint, but if you read the article it looks like what AT&T allegedly did was pay some employees a salary when they should have been getting overtime and that’s it.  So this wasn’t a big bad employer making people work off the clock or paying less than minimum wage. 

So, why did the employees sue you ask?  Now we all know why this happens. Some disgruntled employees who have been paid a salary for a bunch of years, who have called in sick on numerous occasions, and who have taken advantage of being called “salaried” for as long as they worked for the company got fired or quit or got in trouble. Some slick class action factory found out and talked those employees into acting as class representatives for another bunch of employees, many of who would probably, if you asked them, rather be salaried than hourly anyway and don’t really want to sue. Now AT&T is faced with defending itself against a law that is outdated despite the recent amendments to the regulations.  And when this is all over, pay damages or not, AT&T will have to make a bunch of people who I’m willing to bet would rather be salaried, hourly instead. And on top of that, the class action lawyers are going to get millions in fees and the people who were allegedly wronged, if this works the way it usually does, will get a couple of hundred (thousand if they are lucky) bucks each.

So I have a suggestion for Congress. They are going to have some time on their hands now that Teddy Kenndy’s Senate seat has been filed by a republican and the chance of getting any health care reform out of the Senate anytime soon has just dropped to somewhere right around “No chance in . . . ” well, you get it. How about we fix this antiquated system to let people elect to be salaried. It really wouldn’t be that hard. Now we are not talking about doing this for all classes of jobs, for example; factory jobs, out, manual labor of any kind, out. We know how to classify these jobs, we do it for minors now. So how do we do this? Well, we start by amending the system so that the employee has to make more money for certain jobs in order to be salaried. For example, the current floor for a salary based employee is $455 per week. That’s $23,660 per year, not much. How about we say if you don’t qualify for the executive or professional exemptions, but you work in an office environment and make say $675 per week (that’s $35,100 per year according to my calculator), you can be exempt.

Now of course we will have to put some restrictions on this so the the big bad employers can’t take advantage of the poor little employees: for example, no deductions, just like for the salary basis now. If you are sick for two days you still get your full salary for the week. Another thing Congress may want to consider is an hour’s cap.  Say, not more than 50 hours per week. After that the employer pays overtime. Finally, how about employee consent. The employee, before they begin working for an employer, would have to consent to being classified as salaried and they would have to do so without coercion. Now how do we do that? How about making the employer post a notice, and having the employee sign a DOL drafted release before they can be paid a salary. Not that hard after all, is it?  I’m sure if the bright people in Washington put their heads together they could come up with something that is better than what we have now. . . . couldn’t they? 

Now, not everyone will think this is a good idea, after all, what are the class action factories going to do? Think of all the fees they won’t get if we make it easier for people to do what they want to do anyway. But then again, you can’t please all of the people all of the time.

UNDERCOVER BOSS, REALLY?

So, according to CNN “U.S. job satisfaction hits 22-year low.” CNN says “Fewer than half of U.S. workers are satisfied with their jobs, the lowest level since record-keeping began 22 years ago, said a report released Tuesday. The Conference Board’s survey polled 5,000 households, and found that only 45% were satisfied in their jobs. That’s down from 61.1% in 1987, the first year the survey was conducted.”  CNN goes on to say “Even though one in 10 Americans is out of a job, those who are employed are increasingly dissatisfied.”  See http://money.cnn.com/2010/01/05/news/economy/job_satisfaction_report/

Why is this, I wonder? Well, TV might just have the answer. TV you say? Yes, TV. I was watching some television last night and saw a commercial for a new show that is going to premier on CBS after the Super Bowl. It’s called “Undercover Boss.” Like most “reality” shows these days it looks like this one started in England and has now made its way to the U.S. I was intrigued by the 30 second spot, so I did some searching on the web to see what this thing is all about. According to the “The Wrap”, which bills itself as “Covering Hollywood” . . . “CBS executives believe they’ve got a winner in ‘Undercover Boss,’ a documentary-style show that moved some advertisers and other audience members to tears when it was previewed last May at the network’s upfront presentation.” The Wrap goes on to describe the show as following “CEOs from major companies as they go undercover to see how their companies really work.” Yes, I added the bold.  I’m stunned.  Tears?  Really? A show about executives doing the “dirty work” moved people to tears? Really?  Undercover?  They are kidding right? You can see The Wrap post at http://www.thewrap.com/ind-column/super-surprise-cbs-slots-undercover-boss-after-big-game-12049

To say the least, I was intrigued. So I searched some more. The CBS website has some previews of this new show.  http://www.cbs.com/primetime/undercover_boss/ The extended preview, which is about 5 minutes long, shows a CEO of well known company taking off his $2,000 suit, getting into some jeans and a tee shirt, letting his beard grow for a couple of days and then learning how to sort cardboard, clean portable toilets and ride a garbage truck with his employees. In the short preview it seems he is not very good at it. It also seems he does not really know what is going on in his company. One employee rushes to the time clock to keep from getting docked “2 minutes for every minute she is late” and another seems to be doing at least three jobs while being paid for one. By the end of the clip, when the boss reveals his “true identity” to his employees he is handing out promotions and bonuses to these deserving employees.

Other than my normal gag reflex when it comes to reality TV I have nothing against this TV show.  I haven’t even seen a whole episode yet. At least the executives gave it a try. Good for them. And no, I don’t expect the CEO to know what is going on every day with all of his or her employees. But it is a real shame it took a TV show to get these CEOs out to see the operations they are in charge of. No wonder people were crying.

And no matter what else you might thinks of the show, it sure points out a glaring problem with at least some companies in this country.  I mean come on, really, if you are a CEO or any other kind of boss, and I don’t care how big your company is or how many people you employ, and you can walk into one of your plants, stores or hospitals and not have at least one of your employees recognize you immediately, YOU ARE NOT DOING YOUR JOB! Now, I don’t care if you haven’t shaved in a couple of days, or if you are wearing jeans and a tee shirt instead of a suit or if you are dressed like BOZO THE CLOWN. Every employee who works for you should at least know your face. I mean really, how does a CEO go “undercover” in his own company. And we wonder why employee job satisfaction is at a 22 year low?

 I know you are busy. So are the people who work for you. Get out of your chair and go see them. They can’t come see you. You can hire someone else to do your paperwork for you. You can’t hire someone else to be you and say hello and acknowledge the people who make your company work.

My last job was for a family-owned company. It was founded by two local guys in a garage. It grew to be a multi-billion dollar company with thousands of employees in the span of a generation. When I worked there people told stories about how they would be sitting in their office working and look up and see one of the founders of the company standing at the door asking them what they were doing. It would be impossible to this day for these men to go “undercover” in their own company and it is equally impossible for their sons, who have now taken over to do so today.  It just couldn’t happen, everyone who works for the company knows who they are and most of the employees have met and talked to them.  And it seemed to me, at least when I was there that most employees liked their jobs.

I’m sure there are a lot of reasons why employees are not satisfied with their jobs. Some of the reasons, let’s face it, in these hard economic times you won’t be able to fix. There is no money for raises or bonuses or benefit plans. So let’s fix what we can. If you are a leader, be a visible one. Talk to your employees, give them a voice, and make the members of your management team do the same. After all, isn’t that a big part of your job if you are an executive? 

You don’t have to wait for a TV show to introduce you to your employees. Go out and do it yourself.

YOU CAN PAY ME NOW . . .

If you are my age or a little older you may remember a series of TV commercials that used the tag line “You can pay me now or you can pay me later.” I think the ads were for an oil filter for your car. The message in the ads was that you can spend a little money on a new oil filter now or spend a lot of money on new engine later. Must be a lot of people were deciding to forego oil filters.  Funny how things stick in your mind even after all these years.

Why, may you ask, am I mentioning an ancient TV ad? First of all, because I am ancient. Second, and more importantly, because it seems applicable to something I ran across over the New Year Holiday. You see, I had 4 days at home with my wife and teenage kids. After about three days of me at home my wife and kids had clearly had enough “dad time” to last them the rest of 2010.  So, taking the hint, I retreated to a corner with my computer. Being the modern computer-age guy that I am, I have joined several social networking sites over the last year like Facebook (to keep an eye on my kids), LinkedIn (as a business tool) and Twitter (because I like to say I “tweet”), and I thought I would spend some time looking them over. The one that really drew my attention was LinkedIn, probably because it is the one that I have spent the least time on. So, on LinkedIn, in addition to connecting with business contacts, you can join “Groups”. LinkedIn has a lot of great groups that I bet are very valuable resources. As a matter of fact, I am a member of several of these groups, like one called MSU Alumni Association. These things are great—lots of great discussions with lots of great ideas. There is also a bunch of stuff for our HR friends. Again many great groups, some of which I belong to, with many great discussions about benchmarking and best practices and lots of other HR buzz words. What could be better? Answers a few key strokes away. Ask a question and get access to not one answer, but lots of answers. How great is that?!

Not so fast my friends. I also noticed something that is troubling. Let’s face it, if it wasn’t troubling I wouldn’t be writing about it. Many HR folks were asking legal questions about things like the applicability of the FMLA to certain situations and how the FLSA applied to this employee or what do we do about the ADA with still another employee. And sometimes these HR folks were getting answers from other HR folks and sometimes those answers . . . well, they were just flat wrong.

Some people, I am sure, are asking these questions online because the first thing they think of when they have a question is to ask it on one of these sites. That’s how younger people think. Someone thinks, “Oh, I have a question. Why should I ask the guy down the hall when I can ask 10,000 “friends” at once?”  But some do this simply because they don’t want to spend the money on a lawyer. That however is not the pay me now or pay me later part. You see, the reason you are asking the question makes no difference. It doesn’t really matter if you are asking because you lean that way or because you want to save a couple of bucks. What does matter is the kind of question you are asking. There is nothing wrong with being frugal or asking all 10,000 of your closest friends what they think if you are asking about best practices. So what if you really end up with only the second best practice.

But when you are asking about how the law works, especially how the law works in a specific situation, well that is where my trip down memory lane comes in.  First of all, lawyers are not the ones answering these questions, even the questions about the law. Now I know what you are thinking. . . . that’s because lawyers don’t like to give things away for free. Well, that is only partly true.  After all, I do this blog and you don’t pay for that. But then again, this blog is not “legal advice.” (I even have a disclaimer on the blog saying it isn’t legal advice. Click the “About” tab above and you can see it.) And it is also not true that lawyers aren’t answering these questions because they aren’t in the group. I’m a member of many of these groups.

The real reason we don’t answer these questions is because the law and its application is very fact specific.  You see, we need the whole story before we can give you real advice. And you just can’t get the whole story from a question posted on a social networking site. We are going to have questions too. And the questions matter. But none of the non-lawyers who are answering the questions seem to know that. If you take their advice and it is wrong, you don’t just have the second best solution, you have “liability” which can lead to “damages” which you must defend by paying a lawyer “legal fees.”  All of which are nice legal words that mean you can pay me later.

One other thing to keep in mind. When you talk to your lawyer about the application of the law to a particular situation, that conversation is generally privileged and you don’t have to share it with anyone, not even the person suing you. But when you talk to your lawyer, or anyone else over a social networking site that can be viewed by lots and lots of other people, that is NOT a privileged conversation and you get to share that with lots and lots of people, including the lawyer representing the guy suing you. He is going to like that.

Yes, calling a lawyer does cost money. But you see, paying a lawyer to try to help KEEP YOU OUT OF TROUBLE is a whole bunch cheaper than paying one to GET YOU OUT OF TROUBLE. So, “you can pay me now or you can pay me later.”  It is up to you.