Southern hospitality

Whenever we travel to the southwest part of Virginia, we are always amazed at the friendliness and hospitality encountered from employees at almost all businesses.

This was even more evident on a recent trip to Charlottesville. Shopping at an antique store in Ruckersville we had a nice conversation with the cashier. As expected, he was polite and friendly. We learned that he knew a little about where we were from in Maryland and even had some connections to the area. Telling him about our weekend plans he graciously made some suggestions on what we should do and see on the way to Charlottesville. He told us about an alternative route that had more antique stores, vineyards, restaurants, and an overall nice road for scenery. He asked about our tastes and suggested the stores and restaurants we may enjoy visiting.

The suggestions did not disappoint. At each location we stopped we told them how our original “guide” told us about their business. They in turn suggested other businesses we would enjoy visiting. All of these were a few miles apart and it wasn’t apparent that they had any relation to each other-Just businesses helping each other.

It’s easy to forget about the golden rule sometimes, especially in the impersonal world of business. It was such a pleasure to be a stranger and greeted with such hospitality. But to see individual businesses, some that would be competitors, freely offering suggestions to travelers was a refreshing surprise. We never would have had this experience had we continued on the main highway, missing this little detour. Now it is go to route to Charlottesville.

The hospitality didn’t end en route but continued once we arrived in Charlottesville. We love the pedestrian mall on Main Street. Parking isn’t hard to find but can be tricky with restrictions and meters. Finding a pay lot with no meters and no one in the pay booth, it was difficult to discern the process from the posted signs, as they directed you to pay at the booth. Not wanting to get a hefty ticket or worse, towed, we must have looked a little bewildered. A gentleman leaving the lot noticed us, pulled up, and rolled down his window. He immediately recognized our problem and told us that after a certain hour the booth is closed and there was no reason to pay. But just in case, he gave us a business card and told us that we could use him as a reference since he worked in the adjacent building. We thanked him and he drove off.  We parked. Enjoyed Main Street. And returned to an unflagged car.

Southern hospitality exemplified.

Overtime history

Last week there was a lot of news about the Department of Labor raising the salary threshold. Here’s a brief history of overtime pay.

Overtime or time and a half began with the Fair Labor and Standards Act of 1938. The FLSA established the eight hour a day/forty hours a week work standard, a national minimum wage, restricted employment of minors, and guaranteed time and a half pay for work over forty hours. Overtime pay was initially looked upon as a fine for employers and not a bonus for workers. 

Salaried or white collar workers (executive, administrative, professional) have been neglected overtime more so than hourly workers as employers can designate who is exempt from overtime by assigning “managerial” titles or paying a salary slightly above the established threshold. Since 1940, the Department of Labor regulations have required three tests to establish exemption from overtime under the FLSA- (1) the employee must be paid a predetermined and fixed salary that is not subject to reduction because of variations in the work performed (2) the salary paid must meet a minimum specified amount (3) the employee’s job duties must primarily involve executive, administrative, or professional duties. Any employee below the salary threshold and not meeting the test requirements is eligible to be paid overtime.

The current standard for eligibility dates to the 1950’s. If an employee’s job duties or salary fell below the standard then they were eligible for overtime. The Department of Labor has the power to define who is eligible through the FLSA. Since the passing of the FLSA, the Department of Labor has changed the definition six times. The minimum salary threshold for overtime by salaried workers was last changed by the Department of Labor in 2004 when it was raised to $23,660 annually. The previous adjustment was 1975.

On May 18, 2016, the Department of Labor announced new overtime rules and threshold that will take effect December 1, 2016. The new rule focuses on updating salary compensation for employees designated executive, administrative and professional. The threshold for overtime pay was raised to $47,476 annually or $913 per week.

Workplace monitoring

 The messaging software company Slack is working on software that will install manager bots to monitor employee production. The bots will be plugged into company networks to monitor an employee’s work. The bots will ask for updates, check employees work status, and even ask what tasks are currently being worked. Managers won’t have to roam the cube farms to keep everyone on point. The bots will do it.

Does this help or hurt employee morale and productivity? Do companies that are constantly looking over employee shoulders getting the results they want?

Many in the workforce have been exposed to a micro manager. Constantly overlooking every detail of an employee’s work. Workers usually respond with frustration or task-to-task completion without innovation. Doing only what has to be done to satisfy the manager, waiting to be told what to do next. The last decade has seen the use of technology to replace that micro manager.

Long before the idea of manager bots technology enabled companies to monitor almost every aspect of a worker’s day. Most, if not all, companies that have computer networks monitor employee email traffic and Internet use. Some even capture keystrokes and keyboard activity, such as how long a keyboard has been inactive. Software enables managers to monitor telecommuters-are they actively working or just logged in to the network? Companies that utilize vehicles track employees through GPS, recording location and length of stay. Hospitals track nurses through the use of sensors embedded to monitor their location and patient visits. And let’s not forget about cameras. With or without using a computer, workers are constantly tracked. How the use of monitoring occurs and is communicated to workers can have varied results.

Hawthorne Effect

Workers who are knowingly being observed tend to be more productive due to what has been called the Hawthorne effect. The Hawthorne effect is used to describe the tendency of observed employees to work harder due to the attention they are receiving from researchers rather than because of individual work habits.

The Hawthorne Effect is named for the location where worker productivity experiments took place in the 1920’s and 1930’s, Western Electric’s Hawthorne Works near Hawthorne, Illinois. The electric company had commissioned research to determine if there was a relationship between productivity and the work environment. The focus of the studies was to determine if increasing or decreasing the amount of light that workers received would have an effect on worker productivity. Employee productivity seemed to increase due to the changes but then decreased after the experiment was over. Researchers suggested that productivity increased due to attention from the research team and not because of changes in the experimental variables.

Transparency Trap

Ethan Bernstein, assistant professor of business administration at Harvard Business School has extensively researched employee monitoring. Bernstein believes that it is difficult for employees to be at their best when they know they are being watched and evaluated at every moment. Bernstein wrote in the Harvard Business Review, “Wide open workspaces and copious real time data on how individuals spend their time can leave employees feeling exposed and vulnerable.” For his paper, The Transparency Trap, Bernstein conducted several experiments to help prove his theory. In one, Bernstein embedded five Chinese born Harvard undergraduate researchers into the lines of the world's second largest mobile phone factory in China. Controls were added to allow for the Hawthorne Effect.

This particular experiment showed that employees acted and behaved differently when they were being watched. Basically, observed employees followed the policies of the company to the letter while unobserved employees did not. Unobserved employees innovated ways to make their tasks easier, tending to hide process improvements from managers. Two examples were scanning multiple bar codes at once instead of one at time as per policy and crossed trained themselves on breaks. The intent was to improve the process without having the inefficiency of explaining their actions to managers.

Overall, those shielded from observation were more productive than the observed. Experimentation, shared problem solving, and focus flourished.

Communication

There are many examples of employee monitoring. Done improperly, with poor communication to employees may cause resentment and a feeling of “Big Brother” is watching. Letting workers know that data is being collected to improve efficiency may alleviate skewed results. UPS has saved millions and improved their schedules by collecting delivery data and providing the analysis back to drivers. You may have heard of how UPS routes were made more efficient by reducing left turns.

Letting employees know that monitoring is taking place, how the data is being used, and how that will improve their workday goes a long way is establishing trust between employer and employee.

Will employees do their best when being observed? Or are they so hindered by the constant oversight that they do the minimum required. If left to themselves would they perform better, working more efficiently with less fear of messing up and being corrected by managers?

These questions that are still being studied. From what is known, it seems that communication between management and the workforce about the use of technology to monitor productivity is a key factor for improvement. Technology will always continue to improve. Innovators will figure out how to apply technology to the workplace. But while people are still involved they need to be kept in the loop.

Health history discrimination

What an employer asks on employment applications regarding criminal history and how it is used, has long been scrutinized by the Equal Employment Opportunity Commission (EEOC). In recent years when an employer asks about criminal history has been at issue (Should the box be banned, February 4, 2013). Employers are also getting caught on health history questions, although the EEOC has been monitoring that form of discrimination for over twenty years.

EEOC and ADA

The Civil Rights Act of 1964, Title VII, made it illegal to discriminate based on race, color, religion, sex, or national origin. The EEOC was created in 1965 to enforce the Civil Rights Act but had to authority. In 1972, Congress gave the EEOC litigation enforcement authority. The American with Disabilities Act was passed in 1990 and the EEOC was given enforcement authority over Title I of the Act, which includes the employment discrimination provisions. The ADA places restrictions on employers regarding asking job applicants to answer medical questions.

EEOC v. Grisham Farm Products, Inc.

In a recent case the EEOC, on March 22, 2016, filed suit in the United States District Court against Grisham Farm Products, Inc. alleging that its employment application violated the ADA. (Equal Employment Opportunity Commission v. Grisham Farm Products, Inc. 16-cv-03105)

In the case, an applicant applied for a warehouse position at Grisham. The Grisham job application contained forty-three “yes or no” health related questions. The questions were similar to what would be seen on an initial doctor visit. The Grisham application inquired whether in the past ten years the applicant has had allergies, arthritis, bladder infections, eating disorders, gallstones, sexually transmitted diseases, etc. The application also inquired about prior hospitalizations, HIV infection, treatment for alcoholism, and whether the applicant consulted a doctor, chiropractor, therapist, or other health care provider in the past two years.

The application’s Health History section stated in large letters, “All questions must be answered before we can process your application”. The applicant did not answer all of the questions and telephoned Grisham Farm. A company representative said that if the health history section was not fully completed, it would not be accepted.

The EEOC claims that the applicant believed he did not have to reveal his medical history to any potential employer. The case is still in litigation.

Review your hiring process

Employers should be frequently reviewing their hiring process. They also need to follow EEOC decisions as these decisions occur frequently and affect the hiring process. As with questions regarding criminal history, there are parameters as to what health questions can be asked and when they can be asked. The EEOC is clear that pre-employment health inquiries can be made only after a conditional offer has been made, if the inquiries are made to all applicants for that job category, and the inquiries are job related and consistent with a business necessity.



May 9, 2016-The EEOC released it's latest guidance on leave as a reasonable accommodation under the ADA. Employer-Provided Leave and the Americans with Disabilities Act

Maryland-Paid Sick Leave Act

The 2016 Maryland General Assembly did not enact a new workplace law regarding sick leave.  The Maryland Paid Sick leave Act returned to the General Assembly this year and again failed. 

The act would have required businesses with fifteen or more employees to allow workers to earn one hour of sick leave for every thirty hours worked, up to a minimum of five days per year. Businesses with less than fifteen employees would have been required to offer the same amount of unpaid sick leave.

Four states currently have laws requiring paid sick leave for employees-Connecticut, California, Massachusetts, and Oregon.

We’re writing about an act that didn’t happen because this issue was addressed in the 2015 session as well. Be sure that it will be back in 2017.

A proposal by the Governor to reduce business filing fees was also defeated.

What is your social media policy?

            

Hiring and maintaining quality employees is a difficult process, in addition there is the challenge of keeping up with the ever-changing landscape of employment issues. The last few years employers have had to navigate through several major adjustments, some changes are ongoing. For example, the EEOC has published new guidelines on the use of criminal background checks. The “Ban the box” movement is rapidly spreading through State and local governments. If you are not familiar with the term “Ban the box”, it is the phrase used to describe the movement to have the question, “Have you ever been convicted of a crime”, removed from employment applications. (Have you ever been convicted of a crime? February 3, 2013) Maryland passed such a law, which took effect October 2013. In addition to rule changes, Federal authorities are monitoring employer’s actions for FCRA violations and National Labor Relations Act violations.

           

Researching social media

As technology changes it affects the way we do business. Not only in our daily commerce but also in the hiring process. Employees have always talked around the water cooler and outside of work in the privacy of their cliques, outside the earshot of company officials. With social media, employees have a broader base to which their complaints are heard and also are more open to discovery. Bosses are taking to the Internet to see what their employees are doing on social media. Human resource professionals are also using social media as part of their screening process. Hiring surveys have found that nearly 60% of interviewed HR professionals use social media as part of the applicant’s screening process. This is almost double the percentage from surveys conducted in 2012. In 2013, Federal labor bodies began hearing social media related cases and applying existing laws to the new medium for worker dissent-social media.

            The Internet has made it very easy to check on employees, but whether you are hiring or checking on an employee you may want to resist the urge. If you are researching job applicants and decide to do some Internet research, you may learn details about the applicant that you don’t know from the application, this could affect your hiring decision. If you learn something such as race, sexual orientation, illness, or pregnancy, and use that knowledge in your hiring decision, you may be in violation of the Civil Rights Act of 1964 and have trouble with the EEOC. 

            If you’re searching to see what employees are up to around the virtual water cooler and learn some disparaging information you may be enticed to act. Some employers have retaliated against employees for social media postings, which brought the cases before the National Labor Relations Board (NLRB). As the result, the NLRB has ruled, in most cases, for the employee.

           

Federal law

Title 7 of the Civil Rights Act of 1964 prohibits employers from refusing to hire any individual, or otherwise to discriminate against any individual, with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin

The National Labor Relations Act, Section 7 states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities. Section 8(a)(1) forbids an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7”.

When using social media searches, employers can easily let information they learn infiltrate the decision process. Even if they claim they haven’t used information illegally, it would be difficult to prove otherwise.

            The NLRB ruled in 2013 that employees could use social media to…well…complain. As you read above, the NLRA protects employees’ rights to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. When an employee is complaining on social media about the boss, or conditions, or hours, they have that right. Additionally, the NLRB has ruled that employees can use confidential company information, company logos, or photographs of company property. The basis of the rulings are the employee’s Section 7 rights to act in concert and share company information regarding their working conditions in such ways as leaflets, picketing, etc. in an electronic medium.

One of the first rulings for employees came on April 27, 2013. The NLRB, Administrative Law judge, ruled in favor of three employees fired as the result of postings on Facebook about their employer and work conditions. The Board ruled that the employees were engaging in a protected concerted activity. As a result, the employer must offer full reinstatement to the fired employees, make the employees whole for any loss of earnings or benefits, and remove any mention of the firings from the employee’s records. Case 20-CA-035511, 359 NLRB No. 96

            In our blog post, Enforcing company policy May 8, 2015, a NLRB decision is highlighted in which a company claimed violation of obscenity rules as the reason for firing an employee for a Facebook rant.

Enacting policy

Companies have responded to the growing phenomenon that is social media by enacting policies that control what their employees can and/or cannot post. The NLRB has ruled that companies cannot have policies that restrict the use of social media by employees, nor can acts of retaliation be taken against employees as a result of social media postings. Furthermore, employers cannot ask employees for passwords or retaliate against employees for failure to provide passwords.

            Social media laws are also being enacted at the State level. In 2012, Maryland enacted the country’s first such law. The User Name and Password Privacy Protection and Exclusions law prohibits an employer from requesting or requiring an employee or applicant to disclose access information to their personal social media accounts.

So the question is- what is your social media policy? Is there one in place and does it address management’s use as well as workers? HR professionals can help draft your policy; always have any new policy or policy changes reviewed by an attorney.

Websites like Policy tool for Social Media can assist in drafting a policy. The site takes the user through a series of questions that results in a completed policy.

Sue for a review?

Only in the last couple years have small business owners fully taken grasp of the power of Internet marketing. The first step was to jump on the web by building and publishing a site. Companies sat back and figured that would do it, we’re on the Internet. Then a company came along and, basically, took control of how people search for information and what the results of those searches would be (Google it). So now businesses had to ensure their websites could be found when potential customers entered popular search terms.

As commerce began interacting with the search engine gatekeepers, companies specializing in search engine optimization (SEO) figured out how to get websites on the first page of search results. Once that happened, companies began to compete for the slots on the first page. Search engine programmers were also watching and began ranking the companies in the search results based on the sites web activity, content, links, etc. The SEO companies figured this out and the dance began and continues. Part of the data collected that goes into search engine rankings are business reviews. In part, the number of reviews affects the search results so a push was made to increase those numbers. Potential customers began to actually read the reviews and make shopping decisions based on what others had experienced.

Encourage reviews

The next entrepreneurial Internet evolution was the development of review based business listings that helped people make shopping decisions based on what others were saying. Yelp is one of the most popular services for finding businesses on the fly. Users rely heavily on the reviews they read. So, businesses naturally seek to be reviewed which in turn provides a 1 to 5 star-based rating system. To please the review “powers to be”, businesses seek out and encourage reviews. Through Yelp, Google, Facebook, and myriad other search engines and business listing sites, a company can have many opportunities for customers to leave reviews. All of which are searchable by patrons and used to rank the business in search results.

This is all wonderful until a business gets a bad review that stinks. Like everything else on the web, once it’s out there, it’s out there. There’s an old saying that it takes ten atta boys to overcome one oh crap. Once a company gets a bad review the decision has to be made to respond or not, or try and bury it with good reviews. Even if the company corrects the issue offline the bad review is still out there.

To encourage reviews companies, will provide on-site access so that customers can leave comments immediately. Some offer coupons, discounts, and other enticements to get customers to leave a review. Some, however, have attacked the problem from the other end. Not so much discouraging bad reviews, but attempting to take the ability away from customers.

Companies have begun putting non-disparagement clauses into contracts. A non-disparagement clause restricts individuals from taking any action that negatively impacts an organization, its reputation, products, services, management or employees. In Texas, a pet sitting company is currently suing a couple for posting a negative review on Yelp. The plaintiff is seeking more than $6,700 in damages, alleging the client violated a non-disparagement clause in the signed contract when the couple posted the bad review. It will be interesting to see how this plays out.

Get out the vote

People don’t picket outside your place of business trying to warn others of the terrible service they received. No. They get on the anonymous Internet and express themselves. So how to deal with bad reviews? Ecommerce has changed the way a company markets themselves. A company has to encourage reviews. Help make it easy for customers to find the place to write reviews. As they say in election years-Get out the vote!  You want to rack up as many atta boys as you can and keep the trend going. Circumvent bad online reviews by addressing issues as they arise. If left to fester you can bet you’ll be reading it online.

If a bad review pops up, acknowledge it. Don’t be argumentative.  Apologize and make it right. Explain to other readers in the response what was done to correct the issue. The same goes for good reviews. Acknowledge and thank the writer. Either way, show you care about their business. Of course, if your bad reviews outweigh your good reviews maybe there are other issues you need to address.

Depending on your customer base, getting them to write reviews can be like getting blood from a stone. Make sure they know reviews are welcomed and how they can do it. Follow up. People will say they will write a review but once they leave your business it never happens. Provide good service and the good reviews will come.