Archive for April, 2010

THE GUEST IS NOT ALWAYS RIGHT

Let’s pretend for a minute.  Let’s pretend that you are the manager of a luxury hotel and a couple comes to the front desk to check in.  And let’s pretend that the couple asks if you can have an ounce of cocaine brought to their room.  What are you going to do?  Don’t forget, this is a luxury Hotel we are talking about, and the guest is always right, right?  Of course you are going to say “No” Right?  I mean, come on?  cocaine is illegal and you wouldn’t do anything illegal even for a guest at a luxury hotel?  Right?

You see sometimes the guest (or client) is not right.  Ok the cocaine thing might be a bit extreme.  Let’s try again.  Take for example the allegations made by a waiter at the Ritz Carleton Hotel in Naples Fl.  Seems, according to the allegations in the LAWSUIT filed by the waiter, a British couple, upon checking into the hotel, informed the manager of the hotel that they did not want to be served by “people of color” (nice of them to be so politically correct, wouldn’t you say?) or “people with foreign accents.”  Seems that the hotel’s computer system has a record of the instructions.  Yes, someone entered into the Hotel’s computer system: “As per Mr. (the managing director Edward) Staros, this couple is very, very prejudice(d) and do like like [sic] ppl of color or foreign accents.”  Then, When Wadner Tranchant, a 15 year employee of the Hotel of Haitian decent tried to serve the family, he was “sent away.”  Mr. Tranchant, you may have guessed, is now suing the hotel.  What a shock!  By the way, if the facts are as he alleged, he is probably going to win.

So what should the Hotel (or more properly the Hotel Manager) have done?  He should have informed the guests that the Hotel would not honor their request.  He should have told them that his entire staff was extremely qualified and would provide the family with top quality service.  He should have told them that the Hotel would not discriminate against its employees or facilitate his prejudices.  And then, if the guest insisted or gave any of the employee’s even a bit of trouble, he should have asked the guests to leave.  You see, the guest is not always right.  You can see the USA Today story at http://content.usatoday.com/communities/ondeadline/post/2010/04/waiter-alleges-hotel-honored-british-couples-request-not-to-be-served-by-people-of-color/1

AS IF THESE KIDS HAVEN’T BEEN THROUGH ENOUGH

A couple of days ago, according to Fox News, a Philly area state legislator held hearings on child labor law violations and “reality” T.V.  You can see the article at http://www.foxnews.com/entertainment/2010/04/14/child-labor-hearings-focused-jon-kate-gosselin-held/  Seems this particular legislator is concerned that the Gosselin Children (you know who I am talking about right, Jon and Kate Plus 8?), are being exploited, at least that is what their aunt and uncle claim according to Fox.  Come on, now who would think such a thing (he said dripping with sarcasm)?

I mean, you really have to feel for these kids don’t you?  Mom and Dad are publicity hounds; you can’t go to the grocery store without seeing one or both of them staring at you from a magazine rack.  Now mom is on TV again showing everyone just how whiney she really is and on top of all of that, she can’t dance a step. 

So, why do I mention this?  Is it that I am starting a grass roots effort to get Ms. Gosselin kicked off of Dancing with the Stars?  No, of course not! (Although now that I think about it, it is a pretty good idea.)

It is because summer is coming and it’s time to start thinking about hiring that fresh faced crop of high school students.  See, child labor violations . . high school students; I can connect anything to labor law.

Some of you have heard me say things from time to time like:  “Nothing in the law requires you to give your employees a break.”  “You can work your employees as long as you want as long as you pay overtime for over 40 hours in a work week.” Well, when it comes to kids (people under 18) those things JUST DON’T APPLY.

You see, there are both federal and state laws that govern things like when a kid can work, how long they can work, when you have to give them a break and what jobs they can do.  Some of this is the same for everyone under 18, and some of it depends on how old the kid is.  These rules are complicated and I can’t fit them all in this blog, so, here are the links.

You can find the federal laws at http://www.dol.gov/dol/topic/youthlabor/index.htm.

You can find the Michigan laws at http://www.michigan.gov/dleg/0,1607,7-154-27673_27679—,00.html.

And there is a nice summary of all the state laws at http://www.ncsl.org/IssuesResearch/EmploymentWorkingFamilies/ChildLaborLaws/tabid/13388/Default.aspx.

Or you can give us a call and we will by happy to answer any questions you might have, even if you don’t have your own reality show.

THE PITTER PATTER OF (UNPAID?) LITTLE FEET

Or how to violate the FLSA.

Summer is coming!  Yippee!  For those of us that live in Michigan there are not 3 better words.  After a long winter of snow and wind and cold we get to see the sun (at least once in a while over here in Grand Rapids).  It gets warm, and by warm I mean above 40 degrees.  Things turn green.  And at work we get to hear the pitter patter of eager little feet running around the office.  And those eager little feet are attached to eager little interns. And those eager little interns are very quick to tell us all how old and stupid we are and how they are just brilliant and given half the chance they can straighten out our company.  In fact, to hear some of them tell it, the whole industrial revolution was a myth and nothing actually happened before they were born in 1990 something.  Yes, I said 1990 something.  All around your office you will have people born in 1990 something.

Here at good old WNJ they are a bit older because we don’t hire interns, we hire summer clerks.  Summer clerks are a peculiar breed of intern who . . . well, to avoid any trouble I’m just not going to get into it here.

So here is the big question?  Does your summer internship program violate the Fair Labor Standards Act?  How can that be you say?  Internships are not paid?  It is a right of passage.  Oops.  Wrong.  If you work for a regular old for profit company it is almost impossible for you to have an unpaid internship program without violating the FLSA.  That’s right, I said it, YOU HAVE TO PAY THOSE EAGER LITTLE INTERNS.  Now you don’t have to pay them a lot, actually only minimum wage if you want, but you’ve got to pay them.

WH Publication 1297, published in 1985, before most of your little eager interns were born, and Section 10b11 of the DOL Field Operations Handbook lays out 6 criteria for when you DON’T have to pay what the DOL calls trainees.  Here they are:

1. The training, even though it includes actual operation of the facilities of the employer, is similar to what would be given in a vocational school or academic educational instruction;

2. The training is for the benefit of the trainees;

3. The trainees do not displace regular employees, but work under their close observation;

4. The employer that provides the training derives no immediate advantage from the activities of the trainees, and on occasion the employer’s operations may actually be impeded;

5. The trainees are not necessarily entitled to a job at the conclusion of the training period; and

6. The employer and the trainees understand that the trainees are not entitled to wages for the time spent in training.

Miss one of these requirements and you can be found liable.  Liable for what you ask?  How about double back pay for all unpaid interns going back up to 3 years and you get to pay the interns’ attorney fees.  

By the way, yes, we pay our summer clerks.

Update:  The Department of Labor just issued a fact sheet on when interns need to be paid.  You can see it at http://www.dol.gov/whd/regs/compliance/whdfs71.htm

WE REALLY CAN HELP

The New York Times ran an editorial on Tuesday about a new program being launched by the Wage Hour Division of the Department of Labor.  http://www.nytimes.com/2010/04/07/opinion/07wed3.html The We Can Help Program is designed to get workers “particularly those in construction, janitorial fields, hotels, food services and home health care,” to report “abuses.” The Department of Labor has gone all out including adding a new website dedicated to this program, http://www.dol.gov/wecanhelp/, a toll free number for workers to report abuses and public service messages in both English and Spanish from actors like Esai Morales and Jimmy Smits.  So how come now?  Well, all of this comes on the heels of a number of reports and studies that suggest that low-wage workers, particularly those in metropolitan areas, are frequent victims of what is now being called “wage theft.”  Wage theft, as the term is now being used, means that an employee is being paid under the minimum wage, not being paid overtime or is being required to work off the clock.  The Department of Labor is pulling out all of the stops.  According to the Times, they have even added 250 new investigators.

So, if you are a business owner or a manager or an HR pro, who is going to help you?  Well we are of course.  Why do you think I am writing this thing?  But how can we help, you ask?  Well, let’s see?  So, what if you have a manger who is trying to save some money in his budget and decides the way to do that is to give comp time instead of paying overtime?  Is he “stealing” from your employees?  Or what if you have a policy that requires all overtime to be “preapproved,” so your manager does not pay employees for overtime that wasn’t pre-approved?  Is he “stealing” from your employees?  Of course he isn’t, he just made a mistake.  But correcting mistakes does not sound nearly as sexy as preventing “theft” now does it? So we will leave the whole “theft” thing to the DOL. Here is the bottom line, when your manager does this stuff, no matter how well intentioned you, or more accurately, your company, is violating the law..  And your company will have to pay the price for that violation.

This is where we come in.  Some of what the DOL is calling “theft” is just that, a company intentionally exploiting its workers.  But a lot of these so-called “thefts” are really just good-intentioned managers or supervisors who don’t understand the law.  Mistakes, just well-intentioned mistakes.  Too bad the mistakes are going to get lumped in with the “thefts.” 

What can you do to avoid these problems?  How about let us audit your practices?  We can look at how the practices are used and implemented before some well-intentioned manager gets you in trouble.  We can help you train your managers and supervisors on the law and how to apply it.  We can make sure your employees are classified correctly.  We can help you avoid the DOL’s so-called “help.”

See, we  really can help.

HOW MUCH DO YOU REALLY LIKE FRENCH FRIES?

 

Seriously, how much do you really like french fries?  Now we all know that french fries are not the best food in the world for us.  In fact, the government (I’m not sure which one, could be state, could be federal, could be the local school board) has determined that they are so bad for kids that they have taken real french fries out of my kid’s high school cafeteria.  I’m not kidding; they have so called “baked” fries, but not real french fries.  You know what I mean when I say real french fries, right?  I’m talking about the deep fried, salt covered yummy goodness that has so much fat on it you can feel your arteries starting to harden with the first bite!!!!!  Man, I’m making myself hungry.  Of course, despite all that fatty goodness, no one can seriously question how bad these things are for you, can they?  In fact, Bodybuilding.com has an article that explains why you should NEVER let your kids eat french fries.  You can see the article at http://www.bodybuilding.com/fun/depew7.htm  Seems fries have “bad fat”, “bad carbs” and expose you to “carcinogens!”  Wow.  Who knew?

Well your friendly neighborhood federal government knew that’s who.  It seems Congress has also apparently discovered that french fries are bad for you.  In fact, buried deep in the brand new Patient Protection and Affordable Care Act , way way down on page 900 and something, is a 10% excise tax on. . drum roll please. . yes, french fries.

The Act states:

SEC. 10907. EXCISE TAX ON FRENCH FRIES.

(a) IN GENERAL.—The provisions of, and amendments made by, section 9017 of this Act are hereby deemed null, void, and of no effect.

(b) EXCISE TAX ON FRENCH FRIES.—Subtitle D of the Internal Revenue Code of 1986, as amended by this Act, is amended by adding at the end the following new chapter:

‘‘CHAPTER 49—FRENCH FRIES

‘‘Sec. 5000B. Imposition of tax on French Fries.

‘‘SEC. 5000B. IMPOSITION OF TAX ON FRENCH FRIES.

‘‘(a) IN GENERAL.—There is hereby imposed on any business that sells French Fries a tax equal to 10 percent of the amount paid by the consumer for the French Fries (determined without regard to this section).

Ok, ok, ok, STOP THE PRESSES, you caught me, the Act does NOT really impose a tax on french fries but I had you going for a second didn’t I?  Come on, admit it.

Instead, it puts a tax on “Indoor Tanning Services.”  That’s right, the health care reform act taxes tanning services and you can basically take french fries out of the section above and put in Indoor Tanning Services.  Not the kind you get at the beach (although I am sure that if they could have figured out a way to do that they would have) but the kind you get at the salon.  So what you say, indoor tanning is bad for you, it causes skin cancer.  And it just might, but then again, french fries are bad for you too. So, what is the lesson in this little fable?   No, it is not that I am losing my mind.  It is stop listing to what the people on TV are telling you and Go read the Act and in the mean time, we will try to keep you up to speed on some of the other stuff in it.  Despite my little joke, you can trust us to get it right way more than the people you see on TV.  In fact, we are doing a webinar on the new Patient Protection Act and what it means for your health plan on April 21, check out our website at http://www.wnj.com/newsevents/ for details.  In the meantime you can hope that you are not in some business that the next Congress decides is bad for people.