Deep Breaths about Wage Theft

As of July 1, 2019, Minnesota’s new Wage Theft Law will go into effect.  If you read anything about this new law, it is easy to assume it places many, many new obligations on employers.  But, like many things, take a deep breath.  The new law isn’t nearly as onerous as you might think.

First, the new law requires employers to follow old laws.  Employers have to pay employees.  Employers have to pay at least minimum wages.  Employers have to pay overtime.   Employers have to have paystubs with a bunch of information on it that specific how the employee earned pay (pay period dates, what is regular pay, what is overtime, what deductions are for, employer name, address, and telephone number, etc.).  None of this is new.  What is new is the amount of penalties that accompany failure to follow these laws.  Those have increased and failure to follow the law could include very real criminal penalties.

Second, if you have offer letters, much of the new “notice” requirements are already in your offer letters.  Start date, how much the employee earns, basis of pay (salary or hourly), when employees will get paid (weekly, biweekly, twice monthly, etc.), exempt vs. nonexempt status, any commission structure (if applicable), what shift the employee is assigned (if applicable), PTO or vacation and sick time accrual, deductions to pay, employer address, and telephone number – these should already be in your offer letter.  The only “new” pieces are when the first payday will be, any allowances (like meals and lodging), and an offer to put the offer letter in a different language if needed.

Third, when employers roll out new policies, you need employees to acknowledge them.  Prior to the new law, employers could roll out new policies without employee acknowledgements.  Now you need them.  To avoid piecemeal acknowledgements, it may be best to review your handbook annually and when updates are necessary, require employees to acknowledge the changes all at the same time once per year.  More frequent changes are going to require more frequent acknowledgements.  This could be a bit of a pain to both do and track.

Fourth, when you change wages, employees need to acknowledge those changes too.  For example, if Jimmy is going to get a raise, you give him a writing (email, letter, performance review) that his wages are increasing and have him acknowledge the increase.  Again, most employers already do this, but now it is mandated by law.

That’s it!  The Wage Theft Law looks like it could be hard to comply with.  But, in reality, it is not as big of a deal as it has been made out to be.  Take a deep breath, you got this.

 

Photo by Pepi Stojanovski on Unsplash

Saying Something Calculus

Full disclosure:  While visiting Consulate General Jerusalem in 2011, Vice President Biden heard it was my birthday and then kissed me on the cheek.  At the time, it was weird.  At times, it was a cool story to tell, but it remains weird. 

“Why didn’t she say something?”  “She should have said, ‘don’t touch me.’”  “We need to have a conversation.”  These are all common responses to women who have shared their uncomfortable interactions with a variety of powerful men – including Vice President Joe Biden.  Look closely at them.  Note how all of them place an obligation on the target of the questionable behavior and never on the person engaging in that behavior.

That is why these responses are flat-out wrong.

I get the argument for the responses.  How is someone supposed to know that their behavior is inappropriate if no one tells them?  Are we expecting everyone to be a walking encyclopedia (or Wikipedia for you youngsters) of cultural norms?  Most certainly not.  That said, you do need to use some emotional intelligence and plain-ole common sense and treat everyone with respect.

Emotional intelligence is “the capacity to be aware of, control, and express one’s emotions, and to handle interpersonal relationships judiciously and empathetically.”  Being aware of other people would suggest that when you’re going in for the hug, you see the look of panic on the individual’s face.  Controlling your own emotions means you don’t kiss a colleague when you successfully complete a project because we don’t kiss in the workplace.  Handling interpersonal relationships judiciously is understanding that not everyone is a hugger.

Common sense – albeit rare contrary to the very term itself – is defined by being aware of social norms and how they change.  Yes, #metoo has changes our cultural norms.  But the movement hasn’t changed all social norms.  Some are still not understood by all.  The way to know what those social norms are is by being aware of what happens culturally.  Read or watch the news.  Read a book.  Watch the news.  Meet with friends and family.  This is how cultural norms are formed and learned.

The target of the inappropriate behavior is doing her or his own calculus.  If I say something here, how will the person respond?  Is it worth sticking my neck out to say “what you did made me feel uncomfortable”?  Doing this mental calculus quickly often results in saying nothing because of ease, expediency, and social respect.  Remember saying something always has a cost.  I knew that stopping the Vice President to tell him that he shouldn’t kiss people would be awkward and potentially off-putting for a visit already fraught with political tight-rope walking, so my calculus was to not say something.

Instead of putting the target in the crosshairs, we should focus on our own behavior.  For this, the most important thing is to lead with respect; respect of the personal autonomy and beliefs of the people you encounter.  In some cases, it would be inappropriate for a woman to touch a religious man, so when I reach out for a handshake, I might receive a polite bow in response.  I am certainly not offended by his decision to stay true to his faith.  And, because I am conforming to a social norm by reaching for a handshake, he is unlikely to be offended by my gesture as well.

One thing I’m leery of is prohibiting touching all together.  If we tell everyone to stop touching, aren’t we turning into robots?  I’ve got some do’s and don’ts on hugging and kissing:

  1. Do know the person you may want to touch before you do it. When you know someone – even if you’ve only interacted online – a hug may be a totally appropriate greeting.  But that’s only because you know them.  People give you clues on whether it is okay to touch.  A stranger?  No hug and definitely no kiss.  By the end of your meeting, it may be okay to hug goodbye.  The only time to kiss goodbye is at the end of a date (and maybe not on the first date).
  2. Do understand that people are all different and people may feel differently day-by-day. Some people will never hug.  Others may hug all the time.  Some will hug occasionally.  Just like we all process grief differently, we all process hugs in different ways on any given day.  A hugger might be having a bad day and the last thing he wants to do is hug.  Be open to this possibility and watch for the clues your emotional intelligence is picking up on.
  3. Don’t assume you can touch everyone because you’re powerful. It is simply not true that “when you’re a star, they let you do it.”  You may be more likely to get away with it because of the power dynamic at play, but no one forgets when someone famous inappropriately touches them.  In fact, if you are in a position of power, like a manager, leader, or “influencer,” it may be appropriate to dial down your normal behavior to hug knowing that others may be made even more uncomfortable because of your status.
  4. Don’t kiss at work.   Not even if your significant other comes to the office.  It’s weird.  (One exception, if you’re in a foreign country and it is socially acceptable to air kiss upon meeting.  Please note the air kiss – no lip contact required.  No lip contact.)

During a recent respectful workplace training, I was asked for the line.  “When does conduct cross the line?”  As I told the gentlemen, I wish I had the answer.  If there was a black/white line, it would be easier for all of us.  However, people have always made things gray and squishy.  It will take our smarts and our hearts to continue to learn about people and make appropriate decisions.

 

Photo by Tim Mossholder on Unsplash

To Pee or Not to Pee

In April, I had the distinct pleasure of presenting at DisruptHR Denver.  My topic?  Drug testing and marijuana.  Take a look and let me know what you think!  (I mean it, tell me what you think!)

Two-Percent, Schmoopercent

Almost two weeks ago, the Washington Post published an article detailing the efforts of the U.S. Equal Employment Opportunity Commission to resolve workplace disputes over harassment and discrimination.  For past two weeks, the article has been nagging me.  Like really, really nagging me.

Out of all the data the Post reviewed, only two percent of the sex, disability, or retaliation cases had a cause finding, meaning the EEOC found cause to believe discrimination or harassment occurred.  In race and age cases, the EEOC found cause to believe discrimination or harassment occurred in only one percent of cases.  Does this mean that between two and one percent of the people who filed charges of discrimination actually have a case?  No.  It can’t mean that.  What do these numbers mean then?

The idea that “nothing will happen if I complain” is bolstered by these numbers.  If any reasonable person who believed they might have a legitimate case of discrimination or harassment read this article, will they still file a charge?  Still go through the stress and anguish of telling their story and waiting months and months to find out that the federal agency they turned to has nothing to help them?  Probably not.

The argument of “Discrimination has been solved and we don’t have to do anything about it anymore” is also bolstered by these numbers.  Yet, most of us know that discrimination and harassment are not solved.  Society still has problems with bias and microaggressions that seriously affect our ability to be a just and civil society and definitely, negatively impact our workplaces.  Yet, some jackass (yes, I meant to swear) is going to point at these numbers and say, “see, there’s nothing here.”

To give the EEOC some credit, they are heavily overworked, underpaid, and under significant pressure to turn cases over as fast as they can.  This means that the easiest thing to do is to try to get some kind of result (note the percentages in the teens for some sort of recovery) and then issue a no cause determination.  But the budgetary and staffing woes of EEOC are not the only reasons for these dismally low numbers.

Another reason for these dismally small numbers is the law.  The law has set an incredibly high standard for what actually is harassment and discrimination.  Employment lawyers joke that that every employer gets one boob grab or one n-word before the conduct is severe and pervasive enough to create real liability.  The joke is kinda-sorta funny because it’s kinda-sorta true.  An employer is not likely to be liable for discrimination, the microaggressions, the different treatment until it is really bad.

We have two choices.  One, we can change the law.  Some states are considering lowering the standard, so employees don’t have to meet such high bar to show discrimination or harassment.  (California passed this law, and Minnesota is considering it.)  By removing the analysis of severe and pervasive, employees may have an easier time proving discrimination or harassment pushing employers to take action sooner when confronted with inappropriate behavior.

Two, we can lower the bar ourselves.  We, as employers and HR pros, can set the bar at the level of behavior we are going to tolerate, meaning we can choose not to tolerate microaggressions.  We can choose not to tolerate a single boob grab or n-word.  We can choose not to tolerate the behavior that so many already believe is intolerable.  We don’t have to rush to terminate when communication problems are the culprit, but we can take action more often to make our folks comfortable to be themselves in our workplaces.

This is the thing about the law.  It is most often the floor.  We can do more.  We can say two-percent, shmoopercent.  We will look at every situation, every individual, and say, “You will be respected” and actually mean it by our policies, our trainings, and our actions.

 

Photo by Sebastian Pichler on Unsplash

Me & You Metrics

I wear an Apple Watch.  I have since they debuted in April 2015.  I love it even though I rarely use all of its functionality.  I track my calories burned, whether I work out, get all the notifications from Twitter to reminders to actually breathe.  (Little nugget – I have only missed my stand goal twice in nearly four years.)  I’ve metric-ed myself to death with Ive (my watch’s name).

Yet, I would never share all of this information with an employer.  You can tell where I’ve been, whether I went up a flight of stairs, or my heart rate at a particular time. You’d be able to figure out so much about me, my habits (good and bad), and could even use the information to determine if I’m a good employee.  (She sits too much when she should be chatting with customers or getting parts.)

My personal beliefs of biometrics are part of the reason I’m less-than-enthusiastic about recommending employers use them.  I love the idea of determining if there’s a better way to lay out a manufacturing floor, whether we could reduce real estate costs by encouraging hot-desking, and I’m even for handing out Apple Watches to employees for wellness purposes.  But I just can’t get endorse an employer gathering this data and then making employment decisions based on the data.

My biggest concerns surround privacy and the potential for misuse of personal health information.  Employers don’t get to know what I do off work provided it doesn’t affect the workplace.  If an employer knows, could I get terminated for spending too much time at a movie theater rather than reading business books?  What about not spending the night at my house but at a friend’s? Biometrics can allow data gatherers to be the Big Brother technology has often been portrayed as.

As for health information, biometrics are implicated by the Americans with Disabilities Act, Genetic Information Nondisclosure Act, and many state laws.  Imagine being an employee in a wheelchair where steps taken are not going to be tracked.  Does that mean that that employee is not going to be considered when the health data is aggregated into an analytic tool that determines who should be promoted?  Or imagine being an employee who struggles with his weight who has trouble meeting his step goals.  When his fitness goals are not met, does that mean he could be terminated, maybe even in an effort to reduce overall health costs. (This would likely be unlawful under ERISA, but that might not stop an overly cost-conscious employers.)

To this end, I recently went on XpertHR’s HR Podcast to discuss a new decision out of Illinois on biometric data collection and the possible impact on employers from coast-to-coast.  I encourage you to listen.  You can listen here.

Photo by Alvaro Reyes on Unsplash

Like Grief

In the 200+ respectful workplace trainings I’ve done in the past year, I often get a version of the following comment, “People are just too sensitive.  Let’s be reasonable here. Anyone could be offended by anything.”  The assumption underlying this comment is that people should only be offended by the bad stuff and just stop complaining.  “Toughen up!  Grow up!  Be an adult!”  Essentially, everyone must feel the same way about everything.

We know this is not true.  We’ve learned through thousands of years of human behavior that we all grieve differently.  We understand this, we respect it, and we give each other support the way they want to receive it.  Even when our dearest friends are grieving, we might not know what to do, so we offer the support and love that we can while trying not to overstep or dictate how they should be feeling.

Why don’t we treat harassment the same way?  People are different.  We process comments and conduct differently.  What could make one person uncomfortable might be what another person revels in.  Here’s the example I use:

The company hires Ranya, a Palestinian who wears a hijab.  Steve, a former Political Science student, has been fascinated by the Middle East conflict for years.  Curious, Steve asks Ranya all sorts of questions about her life in the West Bank & why she wears her hijab.  Ranya comes to you as her co-worker & tells you that she is uncomfortable around Steve.

This example illustrates potential harassment on the basis of national origin and religion even if Steve does not intend it to be that way.  (Remember, harassment can occur if I have the purpose to harass or if my conduct results in harassment regardless of my intent.)  If you asked me what it was like to live in East Jerusalem, I could chat your ear off for days.  I’d be totally comfortable and excited that someone wants to know more.  But to Ranya, she is uncomfortable.   So, do we have to do something about this?  You betcha.

Under most harassment laws, whether conduct or comments is actionable harassment will come down to how a reasonable person would feel, meaning it is unlikely that Ranya could recover if she decided to sue the company.  That said, Ranya’s uncomfortableness could lead her to look for a different job or steer other Palestinians and Muslims away from working with the company – two things the company really wants to avoid under its diversity and inclusion initiatives.  Regardless of the law here, the company needs to have a chat with Steve and work to make Ranya more comfortable.

When I get the comment that we should all learn to be adults, I typically respond with “You know all people are different, right?  That we all process information differently?”  They say, “I know that.”  Then, I point out that they are trying to get everyone to feel the same way.   “Yes, we should have the grace to forgive when people make mistakes, but that does not mean that we should all just ignore what other people might find demeaning or demoralizing.”

Respecting that we are all different is the key to having an effective work environment free of harassment.  Seeking to understand and let people be themselves is part of this.  Just like we let our friends grieve however they want.

 

Photo by Rosie Fraser on Unsplash