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Best Practices, Legal Requirements, and Respectful Workplace Culture

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In the modern workplace, a respectful workplace culture isn’t just a cherry on top of a job role. If the work culture isn’t healthy and respectful, it could mean organizations lose their best employees and lose out on the best candidates. People don’t just want a respectful workplace culture, they EXPECT it. It’s a necessity for a high-performing workplace.

The issue, however, is that many organizations don’t realize the importance of creating and maintaining a positive culture. They also don’t understand the strong role leaders play in making that culture a reality. By empowering leaders to facilitate respect in the workplace, organizations can improve productivity and employee experience, and also protect businesses from legal issues and allegations.

Our Guest: Labor, employment, and human-rights lawyer Marli Rusen

On the latest #WorkTrends podcast, I spoke with Marli Rusen: labor, employment, and human-rights lawyer, mediator, arbitrator, author, speaker, and organizational consultant. Using her knowledge of workplace dynamics and law, Marli helps organizations create productive and healthy work environments. She reviews, analyzes, and helps resolve serious workplace issues, like misconduct allegations, employee disclosure, mental health discussions, etc.

Because of her extensive experience over the last 25 years, I wanted to get her take on how legal and societal expectations around respectful workplace culture have changed over time. According to Marli, in the last five years, a respectful culture has become a must-have at any workplace.

“Respectful workplace culture and conduct used to be an afterthought or a ‘nice-to-have,’ but has now turned into an expectation on the part of employees. And it’s now a legal requirement on the part of the courts,” Marli says. “It’s a core expectation in the employment world, and leaders should take notice of this.”

Why should they take notice? Marli says there are several reasons. 1) If an organization doesn’t take respectful conduct seriously, high-performing employees will look elsewhere. 2) If an employee sees that leaders are taking part in or tolerating misconduct, they may take legal action against them. And 3) organizations are putting themselves at risk in the “court of public opinion,” because employees can take them to task on social media. Leaders are key in preventing catastrophes and keeping employees happy.

“Leaders have a greater responsibility in maintaining a respectful workplace culture because they have greater authority. They have the power and therefore have the responsibility to exercise that to build and sustain a respectful workplace,” Marli says.

Walk The Talk: How Leaders Can Maintain a Respectful Workplace Culture

So what can leaders do to make sure they’re holding up their end of the bargain for employees? How can they best utilize their power for the good of the organization? According to Marli, they need to consider the three M’s of leadership.

“The first M is MODEL. Leaders need to model respect. Walk the talk. Show how they expect people on their teams to behave. The second M is MONITOR. Leaders need to get out there and engage and interact with employees to make sure they’re treating each other well,” Marli says. “And finally, the third M is MITIGATE. Leaders are the face of organizations, so they have to mitigate risks for other leaders. If they see something amiss at an organization, they need to speak up and help others.” 

As companies add policies to ensure a respectful workplace, they have to be careful that once the policies are written, there are plans to take action in the face of a violation. There can’t be a culture of avoidance at work, otherwise, there is no point in creating policies at all.

“In some workplace cultures, there’s a fear of holding people accountable because doing so will seem disrespectful. There is a belief that they need to make people feel good and not give critical feedback,” Marli says. “But once there’s been an objective review and allegations are confirmed, there’s an obligation to take action. Organizations must demonstrate through measured consequences that they take these issues seriously.” 

I hope you enjoy this episode of #WorkTrends. You can learn more about creating and sustaining a respectful workplace culture by reaching out to Marli Rusen on LinkedIn.

Working Off The Clock: What is Compensable Time?

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Working outside of one’s scheduled work time without compensation is generally known as working “off- the-clock”. The United States Department of Labor (DOL) recognizes work off-the-clock as one of the most common violations of the Fair Labor Standards Act.

The Fair Labor Standards Act (FLSA) provides information about the type of work for which an employee must be compensated. Under the FLSA, a work day begins when an employee starts their “principal activity,” and ends when they finish their last principal activity of the day. The FLSA definition of a work day may be longer than an employee’s scheduled shift or normal office hours.

The California Industrial Welfare Commission (IWC) defines “hours worked” as the time during which an employee is subject to the control of an employer, and includes “all the time the employee is suffered or permitted to work, whether or not required to do so”.

The California Division of Labor Standards Enforcement (DLSE) has interpreted the definition of hours worked to extend beyond an employee’s scheduled shift, in various circumstances including instances involving pre and post-shift duties.

Types Of Compensable Time

There are various categories of compensable time that are recognized at both the federal and state levels, which include:

  • Standby or On-call time
  • Travel time
  • Call Back time
  • Rest periods
  • Preparatory and Concluding activity time
  • Lectures, meeting, and training time

What Are The Violations?

Listed below are some of the more common off-the-clock violations relating to the list of compensable time above:

  • Requiring employees to work extra hours without pay.
  • Requiring employees to perform work before or after they clock in for their shift.
  • Failing to pay employees for the entire time they are performing work, not just the time they are “clocked in.”
  • Automatically deducting a meal period from an employee’s hours when no meal period was actually taken.
  • Deducting break time(s) from an employees work hours.
  • Requesting that employees work on the weekend without clocking in.
  • Failing to compensate employees who bring work home and continue to work outside of their “regular” workday.
  • Failure to pay employees for pre- and post-shift work. These activities involve “donning” (putting on) or “doffing” (taking off) protective equipment or uniforms.

Donning, Doffing And The FLSA

The Fair Labor Standards Act states that employers are required to pay employees for each workday, starting from the time the employee begins their first “principal activity” and ending when the employee completes their last principal activity of the day. Courts have also decided that employers must pay employees for time spent occupied in pre-shift and/or post-shift activities that are an “integral and indispensable part of the principal activities,” which includes time spent “donning and doffing” required protective and safety gear.

Best Practices for Avoiding Off-The-Clock Work

To avoid costly litigation and the negative public attention that “work off-the-clock” cases bring, organizations should implement a well-publicized policy that advises employees that off-the-clock work is prohibited, and that any violations will lead to disciplinary action. The policy should also mention that it is a serious violation for any employee to instruct another employee to work off the clock and affected employees should report such violations immediately.

An effective policy clearly defines proper and improper conduct and provides employees with a means to report such misconduct or improper instruction. Managers’ and employees’ should be reminded often of the importance of proper timekeeping practices, that off-the-clock work is never permitted, and of the proper procedures to be used for addressing these issues.

The policy should give clear instruction to employees, as an employer’s effort to prevent off-the-clock work will be a key element of its affirmative defense of an off-the-clock work claim.

As always, it is imperative to know and understand all of the regulations that apply to your business at all levels: federal, state, and local. Failure to know and apply these regulations can lead to hefty fines.

Exempt Or Non-Exempt Employees: Does It Really Matter?

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Proper employee classification can have a significant impact on an organization. The penalties for non-compliance can put a large dent into the growth and long-term stability of your business. On the federal level, penalties can include back wages, fines, interest and liquidated damages. In addition, employers with incorrectly classified workers may also be subject to penalties imposed by the state(s) in which their business operates.

The Department of Labor is responsible for the administration of the Fair Labor Standards Act (FLSA), which establishes minimum wage, overtime pay, record-keeping, and youth employment standards. Shown below are three recent settlements obtained by the Wage and Hour Division (WHD) of the DOL. These settlements may seem small, but it is important to note they are for local companies. Penalties are not limited to small companies; larger corporations such as Walmart have amassed penalties in the millions for various wage-and-hour infractions over time.

  • Structural Systems Inc.: $17,154 for nonpayment of travel time and also misclassification of workers as exempt resulting in unpaid overtime.
  • Rice Precision Manufacturing: $92,727 in back wages and liquidated damages for failure to pay overtime.
  • Downtown Hilton Head Inc.: $23,155 for three restaurants found to have overtime and record-keeping violations.

Employment Classification 101

The FLSA defines specific criteria for each type of employment classification. Both classification categories are governed by a set of requirements every business owner should be familiar with. We’ll start with the most basic definition of each classification as follows:

  • Exempt:  Workers exempt from the overtime and minimum wage provisions of the FLSA.
  • Non-Exempt: Workers subject to all FLSA provisions, including the payment of overtime.

There are a number of exempt classifications; the most common include the Professional, Executive and Administrative exemptions. For the purposes of this article we will focus on the Administrative Exemption. To qualify for the administrative employee exemption, all of the following tests must be met:

  • The employee must be compensated on a salary or fee basis (as defined in the regulations) at a rate not less than $455 per week;
  • The employee’s primary duty must be the performance of office or non-manual work directly related to the management or general business operations of the employer or the employer’s customers; and
  • The employee’s primary duty includes the exercise of discretion and independent judgment with respect to matters of significance.

The third bullet point above mentions “the exercise of discretion and independent judgment with respect to matters of significance” and this is where many employers run into trouble with the exempt designation for a position. The DOL has issued guidance on this which in part reads:

Discretion and Independent Judgment: implies that the employee has authority to make an independent choice, free from immediate direction or supervision. Factors to consider include, but are not limited to, whether the employee:

  • has authority to formulate, affect, interpret, or implement management policies or operating practices
  • carries out major assignments in conducting the operations of the business;
  • performs work that affects business operations to a substantial degree;
  • has authority to commit the employer in matters that have significant financial impact;

Matters of Significance: refers to the level of importance or consequence of the work performed.  An employee does not exercise discretion and independent judgment with respect to matters of significance merely because the employer will experience financial losses if the employee fails to perform the job properly. Similarly, an employee who operates very expensive equipment does not exercise discretion and independent judgment with respect to matters of significance merely because improper performance of the employee’s duties may cause serious financial loss to the employer.

It is important to remember that all of the tests mentioned above must be met in order for a position to be properly classified as exempt. If all tests are not met, the position must be classified as non-exempt and all FLSA requirements must be observed. Please see dol.gov for all federal exemption requirements.

It is imperative to know if the state(s) your business operates in have their own requirements/tests to determine exempt-vs.-non-exempt status. For example: California has a much higher minimum salary required for exemption, currently $33,280 annually; the federal requirement is $455 per week, which on an annual basis is $23,660. You may have positions that meet the federal requirements but do not meet the state requirements.

photo credit: StockMonkeys.com via photopin cc

The Social Workplace: Nowhere To Hide #TChat Recap

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“A lack of transparency results in distrust and a deep sense of insecurity.”
–Dalai Lama

Excellent point. But the Dalai Lama’s quote begs a key question: In the social workplace, how much transparency is too much? Moreover, what does “privacy” really mean today, for employees as well as employers?

Obviously, there are no simple answers. And best practices only continue to shift, as social tools and conventions evolve. However, this issue affects everyone in the world of work. So that’s why TalentCulture invited a social-media-savvy HR attorney to help our community explore these issues at this week’s #TChat forums. We were thrilled to welcome Mary Wright, former General Counsel at employment litigation firm Ogletree Deakins, and founding Editor of HR Gazette, a daily online newspaper for HR professionals and employment lawyers. (For event highlights, see the links and Storify slideshow at the end of this post.)

Social Disclosure: Less Is More. Or Is It?

Ubiquitous social media channels. Smartphones with cameras. (Does anyone remember “old school” film cartridges anymore?) Circles of “friends” we’ve never even met face-to-face. It seems like nothing is truly private anymore. Most of us share photos, post comments and tell the world whatever pops into our minds throughout the day. But how does all that activity expose us professionally in unwanted ways? And what are the implications for the organizations we represent?

Here’s the kicker question: In an open social environment, how can companies encourage employees to serve as brand ambassadors, while ensuring that those same individuals use appropriate discretion?

Knowledge Is Power

As many #TChat participants noted this week, the answers start at the top. Senior executives must lead by example and encourage others to follow. Treating employees with candor and respect means that candor and respect will likely be returned. Communicating company objectives and priorities helps employees feel valued and empowered. And clarifying social policies provides a framework that makes it easier for employees to comply. Sharing more information with employees doesn’t need to put employers at risk. Instead, it can create a spirit of collaboration and strengthen employee engagement.

At the same time, employers should respect employee privacy. Again, leading by example is key. Managers should avoid gossip around the office and outside of work. This sounds like common sense, doesn’t it? And yet, I’ve overheard managers openly discussing an employee’s personal hardships, including private medical information. When managers breach that kind of trust, it leaves a memorable impression for everyone involved.

Amplify This? Think Before You Go Social

These days, social media adds another dimension. Employers can no longer afford to operate without documented social media policies. But what should the guiding principle be? Here’s a simple idea from Dave Ryan:

And what is an employee’s responsibility when interpreting social policies? Jen Olney offered sound advice:

https://twitter.com/gingerconsult/status/383017281405853696

Or perhaps for some of us, that sequence should be Stop. Think. Stop some more…and more…and more…then send.

In other words, before posting a comment or photo, consider for a moment who may see that information. How might they perceive it — for better or worse? Ask yourself, “Would I want my grandmother or daughter to see what I am about to make public?” Remember, once you post it, you won’t have control over where it may be seen, or how it will be interpreted. So perhaps the very best policy is for each of us to take responsibility for ourselves, and err on the side of caution.

To see more about this week’s conversation, see the resource links and Storify highlights slideshow below. And if you have ideas, feel free to share a comment, or post in the #TChat stream. This is just the start of an ongoing dialogue — so please weigh-in anytime!

#TChat Week-In-Review: Workplace Privacy vs. Transparency

SAT 9/21:

Mary Wright

Watch the Hangout with Mary Wright now

#TChat Preview: TalentCulture Community Manager Tim McDonald framed the topic in a post that features a brief G+ Hangout video with our guest, Mary Wright. Read the Preview:
“TMI: A Fresh Take On Privacy By An HR Lawyer.”

SUN 9/22:

Forbes.com Post: TalentCulture CEO, Meghan M. Biro outlined 5 issues for business leaders to consider about transparency in today’s social world. Read: “Private Workplace Lives In a Public Social Age.”

MON 9/23:

Related Article: Entrepreneur David Hassell talked about why and how trust is the most precious currency for any new venture. Read: “Want to Build a Business? Lead With Trust.”

TUE 9/24:

Forbes.com Post: TalentCulture CEO, Meghan M. Biro shared compelling leadership lessons learened from a cultural clash at a software company in transition. Read: “5 Social Skills Business Leaders Must Master.”

WED 9/25:

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Listen to the #TChat Radio show now

#TChat Radio: Our hosts, Meghan M. Biro and Kevin W. Grossman spoke with Mary Wright about legal issues and implications surrounding privacy in the workplace — from multiple perspectives: employers, employees and job candidates. Listen to the radio show recording now!

#TChat Twitter: Immediately following the radio show, hundreds of community members gathered with Mary on the #TChat Twitter stream for an expanded discussion about this topic. For highlights from the event, see the Storify slideshow below:

#TChat Highlights: Transparency vs. Privacy In The Workplace

[javascript src=”//storify.com/TalentCulture/tchat-insights-transparency-vs-privacy-in-the-wor.js?template=slideshow”]

Closing Notes & What’s Ahead

GRATITUDE: Thanks again to Mary Wright for adding your insights to this week’s discussion. Your legal and HR expertise added depth and perspective to a topic that increasingly affects us all.

NOTE TO BLOGGERS: Did this week’s events prompt you to write about information sharing in the new era of social business? We’d love to hear your thoughts. Post a link on Twitter (include #TChat or @TalentCulture), or insert a comment below, and we’ll pass it along.

WHAT’S AHEAD: Next week, we tackle another “world of work” hot topic — The Dark Side of Workplace Effectiveness — along with two of the HR community’s best-known social commentators: John Sumser, editor-in-chief of HRExaminer; and William Tincup, CEO of HR consultancy Tincup & Co. So save the date (October 2) for another rockin #TChat double-header.

In the meantime, we’ll see you on the stream!

Image Credit: Pixabay

TMI? Fresh Take on Privacy by an HR Lawyer #TChat Preview

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(Editor’s Note: Want to see complete highlights and resource links from this week’s #TChat events? Read the recap: “The Social Workplace: Nowhere To Hide.”)

For better or worse, much of today’s world of work now plays out on a relatively open, social stage. Many of us — employers, employees and job candidates alike — welcome this as progress. However, it also raises core legal questions about transparency and confidentiality on all sides of the employment equation.

It’s like a scene from Goldilocks and the Three Bears. How do you know if you’re openly exchanging too much information? Too little? Or just the right amount? What business practices are accepted in your organization? What does common sense tell you? And what would a lawyer do?

Fortunately for the TalentCulture community, a smart, HR-savvy attorney is in the #TChat house this week to advise us about these issues!

Our guest expert this week is Mary Wright, former General Counsel of Ogletree Deakins, a premier employment litigation firm, and founding Editor of HR Gazette, a daily online newspaper for HR professionals and employment lawyers.

To kick-off this week’s conversation, I spoke briefly with Mary in a G+ Hangout, where she explained why it’s time to recast “privacy rights” workplace issues in a more positive light:

#TChat Events: Transparency vs. Privacy in the World of Work

This promises to be an enlightening week for HR and recruiting professionals, as well as employees and job seekers everywhere. So join us with your questions, concerns, ideas and opinions!

#TChat Radio — Wed, Sep 25 — 6:30pmET / 3:30pmPT

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Tune-in to the #TChat Radio show

Our hosts, Meghan M. Biro and Kevin W. Grossman talk with Mary Wright about legal issues and implications surrounding privacy in the workplace — from the perspective of employers as well as employees and job candidates. Tune-in to the interview LIVE online, and call-in with your comments and questions!

#TChat Twitter — Wed, Sep 25 — 7pmET / 4pmPT

Immediately following the radio show, we’ll move the discussion to the #TChat Twitter stream, for an open chat with the entire TalentCulture community. Anyone with a Twitter account is invited to participate, as we address these questions:

Q1: What does transparency and privacy in the workplace mean to you?
Q2: Are transparency and privacy essential to orderly and efficient workplaces?
Q3: What are the most common legal mistakes employers and employees make with one another?
Q4: What can business leaders do to balance the two and avoid legal trouble?
Q5: How does technology enable and hinder transparency and privacy in the workplace?

Throughout the week, we’ll keep the discussion going on the #TChat Twitter feed and on our LinkedIn Discussion Group. So please join us share your questions, ideas and opinions.

We’ll see you on the stream!