Apple Employees Win Suit

A quick post to relay the results of a California court ruling.  

The California Supreme Court recently ruled in favor of Apple employees allowing them to be paid for after shift security searches. Apple requires employees of their product stores to be searched after their shift, checking for stolen company products. Employees filed a class action suit claiming that they should be compensated for the time required to complete the searches. Failure to comply with the search policy can lead to being fired.

A federal district court had earlier ruled in favor of Apple. Stating that the employees had to prove that they were being restrained from leaving. The case then went to the U.S. 9th Circuit Court, who returned the case to state court for an interpretation of state law regarding compensation. The California Supreme ruled in favor of employees and the case now returns to the U.S. 9th Circuit Court. The ruling, as of now, does not affect other states as it was not a federal court decision. However, once the U.S. Circuit Court considers California's Supreme Court decision it may rule in favor of employees. Compensation for requirements after an employee is "off duty" may be interpreted differently and cause a ripple effect through the U.S. regarding employee pay and overtime.

This is not the first time a California ruling has affected employee compensation. In 2018, The California Supreme Ruled that employers must pay employees for "off the clock" activities such as locking up, setting alarms, and other administrative duties. There is a federal rule called the de minimis rule that says that employees can be required to work small amounts of time, less than ten minutes say, that would be difficult to track administratively. However, California courts ruled that the federal rule had not been adopted under California wage laws and, therefore, did not apply.

De minimis Rule

The "de minimis" rule came from the Supreme Court in 1946, stating that employers, when considering amount of time worked, may disregard time worked over shift when it amounted to seconds or minutes. The U.S. Department of Labor adopted a similar rule under 29 C.F.R. § 785.47, which states, insubstantial or insignificant periods of time beyond the scheduled working hours may be disregarded. 

Under the Fair Labor Standards Act (FLSA) regulations, 29 C.F.R. § 785.11, if an “employer knows or has reason to believe that the work is being performed, he must count the time as hours worked.” The Portal-to-Portal Act, 29 U.S.C. §§ 251-62, amended the FLSA and relieves employers of the obligation to compensate an employee for activities such as: traveling to and from the actual place of performance of the principal activity and activities which are preliminary to or postliminary to the principal activity, which occur either prior to the time on any particular workday or subsequent to the time on any particular workday. 

This is a just a small sampling of the laws and precedents that would go into any court’s decision on compensation of employees after hours. There have been too many cases to cite here regarding compensation beyond work hours. Cases involving employee’s loading/unloading/resupplying company vehicles at home, answering phone calls, emails and texts. If California is the test, then the trend would lean towards the employee.

Small business owners have to take this into consideration as they apply policy. Whether for breaks, meal times, or after work communications, how employers pay employees may be changing.

Link for the Maryland Guide to Wage Payment and Employment Standards

Move the sign

Went to MVA to meet with a fingerprint services company. The local MVA is a smaller facility compared to the State headquarters. This location has two entrances at either end of a long single-story building. The original intent was that customers with registration issues would enter through one door and licensing through another. Over time the entrances have become generic and there is a check-in desk at the center of the building. So it doesn’t matter what entrance one uses. 

Outside of one entrance is a sign for the fingerprint services company. One would guess that customers would enter through the entrance next to the sign. Once inside customers find that the fingerprint office is at the other end of the building, closer to the other entrance.

I explain all of this because of what was observed while waiting. Inside the entrance opposite the fingerprint office is a Trooper stationed at a lectern. While waiting, I observed customers approach him several times with questions, some of which regarded the whereabouts of the fingerprint office. Appearing annoyed the Trooper would direct the customers to the other end of the building.

The Trooper is stationed there for building security, not information. But stationed at a lectern, in uniform, near an entrance is going to attract questions. It would not relieve all of the questions, but simply moving the fingerprint services sign to the building entrance outside of where the office is located would alleviate many.

Businesses large and small see this or don’t see it, a forest for the trees kind of thing. Simple solutions that will reduce stress on a job or person. Sometimes it is poor planning or the next great idea that wasn’t vetted at all levels.

Management makes changes for employee well-being or system improvement. If the people at the top are not completely familiar with the issue sometimes the change can actually cause problems. Management needs to see the problem from the source and get employee input at that level. Employees who identify problems have to be empowered to make “field” decisions that can quickly solve issues and improve service.

Sometimes simply moving a sign to a better position can make a world of difference. 

Ban the box update

NOTE: This post was originally published in August 2016 and has been updated with more recent data.

The Ban the Box movement was initially reviewed in this blog in the 2013 post, Should the box be banned? The movement continues to grow and this blog has updated the progress.
Since the last update in September 2018 there hasn’t been much in the way of new legislation. However, some states are refining their Ban the Box laws. Massachusetts passed a Ban the Box law in 2010, which included private employers when most states have laws only covering State job applications. 

In October 2018, a Massachusetts criminal justice reform bill went into effect that included further Ban the Box regulation. The new regulations include disclosure of misdemeanor convictions for three years instead of five. Employers cannot inquire about expunged records. Applicants that have had records expunged may legally answer “no record”.

While past private employer Ban the Box bills have failed in Colorado (Law already cover State employers), the 2019 legislature may be amenable to idea.

What is “Ban the Box”?

For the last several years there has been a movement to remove from employment applications the “box” that asks the question, “Have you ever been convicted of a crime” or any inquiry about criminal history. What has become known as  “ban the box”, the campaign feels that one’s criminal history should not be a consideration of employment at the time an application is submitted, rather, at a later time during the interview process. It is felt that asking this question on the application reduces the chances of those with criminal records to be employed. Employers should meet applicants first, get to know them, give a chance to explain themselves and then get to the criminal history. The Equal Employment Opportunity Commission (EEOC) has updated its policies, issuing guidelines in 2012 suggesting that employers wait until after a personal interview before making inquiries about criminal history.

In January 2014, there were fifty-six cities that had “banned the box”. As of September 2018, that list included over 150 cities and counties, and 32 States (Eleven of which have laws that include private employers)

CURRENT STATE LIST

Arizona

California*

Colorado 

Connecticut *

Delaware 

Georgia 

Hawaii*

Illinois*

Indiana

Kansas

Kentucky

Louisiana 

Maryland 

Massachusetts*

Minnesota*

Missouri 

Nebraska 

Nevada

New Jersey*

New Mexico 

New York 

Ohio 

Oklahoma 

Oregon*

Pennsylvania

Rhode Island* 

Tennessee 

Utah

Vermont*

Virginia 

Washington*

Wisconsin

*States with laws that also cover private employers

The Society for Human Resource Management posted a good article that breaks down laws State by State, which can be viewed at Ban the Box Laws by State and Municipality .

Maryland Ban the Box

            Maryland’s law took effect October 1, 2013, and applies only to State of Maryland employment applications. State government cannot ask about criminal record or criminal history of an applicant until the applicant has been provided an opportunity for an interview. Exempt from the law are positions in the Department of Public Safety and Correctional Services. Baltimore passed a similar law in 2014, restricting employers with 10 or more workers from asking a candidate about criminal records until after a conditional employment offer is made.

In 2017, Louisiana became the first state to enact a ban the box law for state institutions. Maryland passed a law in 2017, but the Governor vetoed it. In January 2018, the Maryland legislature overrode the Governor’s veto, reinstating the law.

As the laws regarding criminal history continue to evolve the legislative season is a good time to review your interview and questions and job application content.

Click here for other posts relating to Ban the Box.

Experience v. Youth

Speaking to a friend about retirement she told me that she had a few more years to go. She wanted to get her financial foundation a little sounder before making the decision. She went on to say that she recently received a retirement assessment package from her employer outlining her current and future pension options. The package was personally addressed and written as a response to her inquiry. The thing was, she hadn’t made an inquiry. As time went by she heard from other employees similar to her age and seniority who had also received their “requested” retirement materials. When it came to hiring and promotions of late there appeared to be a bias towards younger people. Was the company sending a message with the retirement package mailings?

It is not unheard of. Some corporations feel older employees are more expensive due to their salary and benefits. Younger, newer hires do cost companies less money. They can be hired for a substantially less salary and are willing to accept it. Many companies are eliminating pension programs, instead, offering new employees 401(k) matches and other savings programs. Saving the company money in the long term. Companies embracing a youth movement are looking for new ideas from employees who are more familiar with current technology. 

Targeted “retirements”

In March 2018, ProPublica, an independent non-profit newsroom, published a report claiming that IBM systematically laid off 20,000 employees age 40 and over between 2013 and 2017. Up into the 1980s, IBM was the technology giant. As the technology rapidly changed over the next twenty years and companies like Apple challenged IBM, they were faced with a massive and aging workforce. To compete, IBM felt that they needed to reduce their workforce and begin hiring younger, more tech-savvy employees.

ProPublica’s investigation revealed, in part, that IBM devised performance point-rating systems that favored younger employees with fewer years on the job. Older employees were rated as their skills being out of date. These employees were offered retirement packages or were relocated to an office across the country with the ultimatum to move or retire.

The Older Workers Benefit Protection Act (OWBPA) was passed by Congress in 1990. The OWBPA prevents employers from discriminating in benefits based on age, firing only older workers when cutting staff, or demanding that older workers waive rights and without taking safeguards into consideration. However, the burden of proof is on the employee to show that the company let them go based solely on age. Without records, overt acts, or documentation this can be difficult for an individual employee to prove. In the IBM case, the corporation went so far as to have employees who accepted packages to sign agreements that they would not take part in any future class actions.

But what about experience? 

Is it worth pushing out experienced workers to make room for youth? Does cost cutting make up for the loss of institutional knowledge? Older employees have a lot to offer. They’ve been with the company through thick and thin. They are able to mentor younger employees in systems and procedures. Historically, older employees are dedicated to doing the best possible job and are often the ones who find and correct errors. Errors that could cost the company lots of money if overlooked. While a new set of eyes is always welcome, past experience can sometimes save hours of work that will eventually end up at the same conclusion.

Savings?

Cutting bloated salaries and benefits might sound good but the overall cost of turnover may not justify it. Jack Altman, CEO of Lattice, posted an article in the Huffington Post in January 2017, How much does employee turnover really cost? Altman cites research by the Center for American Progress who determined that the average economic cost to a company of turning over a highly skilled job is 213% of the cost of one year’s compensation for that role. He uses the following example, ”If you are a 150 person company with 11% annual turnover, and you spend $25k on per person on hiring, $10k on each of turnover and development, and lose $50k of productivity opportunity cost on average when refilling a role, then your annual cost of turnover would be about $1.57 million.”

Altman summarized by saying that companies should analyze four major areas:

·       Cost of hiring

·       Cost of onboarding and training

·       Cost of learning and development

·       Cost of time with an unfilled role

He also provided this link to Calculate the Cost of Employee Turnover for yourself. 

The quick decision to cut costs through salary and benefits should be closely examined. There are not always textbook answers to everyday issues. You need veterans of your business to lead and show the way. 

I’m in your way (Customer Service)

Nothing seemed to go with the topic...So why not a chicken.

A simple choice of words can make a big difference in customer service.  Not how the customer is spoken to, but the choice of words used by the employee and how the customer hears those words. Here are a few examples.

Over the last couple of months, I had the opportunity to place orders with a box hardware store to be picked up at the store. The first experience I was in the area and although before the scheduled pick up date thought I’d stop in and see if the item was ready. Being a pop in I didn’t have the order number but figured the order could be found through a search of the name, phone number, etc. I approached the in-store pickup desk and was greeted by the employee-friendly enough. I explained I wanted to check if an order had come in. The employee asked for the order number. When I said I didn’t have it I was told that the order could not be found without the order number. Not receiving a “Your order is ready for pick up” email, I decided it wasn’t worth the effort at this time. I returned at the proper time, with the order number, and received the product. I related this because of the second in-store pickup experience.

This time I waited until the order was ready for pick up notification. I arrived at the store, order number in hand, was greeted at the pickup desk and explained I had an order for pick up. The employee responded, “Let me see what I can find”. Which implied that my order could be searched in a variety of fashions. I explained my earlier experience and complimented the employee. Just a simple choice of words within a greeting provided options to customers.  How something is communicated can make a huge difference in a customer’s experience. 

Noticing more ants than I wished to notice roaming about I called the pest company with whom we have a service contract. Meaning they are supposed to respond pretty quickly to pest issues. I’m met with the standard directory tree of press ones, twos, and threes. Finally reaching my destination I am greeted with, “All customer service representatives are busy at the moment, your call is important to us, please listen to some catchy music while you wait”.  As I begin to get the rhythm of whatever 90’s classic has been turned instrumental, a pleasant voice interrupts my musical interlude. She explains that all the operators are busy and maybe for some time. I may leave a call back number and they will return my call within 24 to 48 hours. 48 hours!! I have ants now! I wanted to say but didn’t. 

Just as I begin to work up a response, she adds, “OR you could call back in a few minutes, there should be someone available”. Now I’m sure the “leave a message” bit was what was supposed to be told to the customer. But this operator, in one sentence and unbeknownst to her, defused my ire. Taking the effort and time to spend two more seconds on the phone made for a content customer. She didn’t have to give me the added tip but she went out of her way to do so.  I made sure to point this out and compliment her for her customer service skills.

I hung up. Waited a few minutes. Called back and got right through, making my appointment for the next day.

On a recent trip to a Disney resort, we had an encounter with an employee that really hit the nail for what Disney customer service is all about. The employee, or cast member as they’re called, was cleaning around a trashcan near stairs. It was difficult to get to the stairs without intruding on the workspace. We excused ourselves and apologized for being in the way. The cast member quickly said that it was not a problem and it was he that was in our way. 

A little comment that could quickly be forgotten. But the more I thought about it the more I realized that that attitude is what makes visiting a Disney resort so great, The cast members are there to make sure you have the greatest experience possible. Everyone is quick with a smile, hello, and what can they do for you.

Building on the “I’m in your way” comment, I was recently in a small mom and pop type store. One of the employees was moving some merchandise with a hand truck and had to pass by. I apologized for being in the way and stepped aside. He said, “Don’t apologize. You’re the one with the money”.

Whether it is a friendly smile or an upbeat verbal greeting, how employees interact with customers is a significant reflection on your business. Cordial greetings could help put an irate customer at ease. Empathy with the customer’s needs and reassurance can diffuse bad experiences. Lee Cockerell, former Executive Vice President of Operations for the Walt Disney World Resort, says the customer isn’t always right, but they are the customer.

Refer to our blog archive for more posts on Customer Service. Please share.

What's in this punch?

NOTE: This post was originally published in 2013 and has been updated with new information. 

The holiday season is upon us. Many employers are planning office parties or allowing employees to plan parties. You’ve heard the stories of bars being liable for their patrons after they leave the establishment or parents who have allowed parties to take place at their homes. These same liabilities are being applied to employers who serve alcohol at office parties.

Party on!

A 2015 survey conducted by the Society for Human Resource Managers (SHRM) found that approximately 59 percent of companies having holiday parties plan to serve alcohol. Less than half of those plan on regulating alcohol consumption by employees. While the parties can serve as an employee reward, team building, or morale booster when alcohol is involved they can also set the scene for inappropriate behavior and/or injuries. The aftermath of which employers have to deal with or could be held liable.

Many employers seek to hold the functions at offsite locations to further enhance or show commitment to the employee event. The location doesn't release the employer of liability and may sometimes encourage inappropriate behavior by employees as the offsite location and alcohol consumption lower inhibitions.

In the most notable case to date, a California Appellate court ruled in August of 2013 that an employer was liable when an employee caused a fatal accident after becoming intoxicated at the employer sponsored party. The ruling was based on vicarious liability and the employer’s responsibility for their employee’s actions. Not all courts may rule the same in all situations, but the precedent has been set.

Why take the chance with your livelihood?

The possibility of legal action should not dampen the festivities or cause employers to cancel parties. Employers have to be aware of the issues and plan accordingly. A little preparation and foresight now may save a lot of money and heartache later.

When planning the party, consider the need to serve alcohol. If alcohol is served manage the consumption by setting limits. Do not pay for alcohol at offsite locations. Arrange alternative transportation for those who do consume.

Review company policies, update as needed, and publish. Ensure employees are aware and reminded of policies regarding alcohol consumption, harassment, and behavior. Make sure social media policies are up to date and include information about the posting of photographs/videos and are sensitive to privacy concerns.

Every effort you make will help later if you were to be sued.