10 Nov BOP Newsletter Fall 2020
BOP NEWSLETTER • Fall 2020
What now? From Crisis Management to Leadership
by Tim Twigg
When the COVID pandemic hit, it was, without a doubt, an issue of crisis management. There was a lot of scrambling. How do I do this? How do I do that? What about this? What about that? The list was huge:
- EIDL loans
- PPP loans
- PPP loan forgiveness
- State and local mandates
- CDC / OSHA protocols
- Scarcity of supplies (PPE’s)
- Unemployment wrinkles ($600 kicker)
- People’s worries and fears
- Employees (schools, day care, safety)
- Customers / patients (safety, ability to pay)
- Recruiting / hiring replacements and
- “New normal” procedures everywhere
And while the crisis has abated somewhat, COVID and its ramifications will be with us for the foreseeable future. As things settle into a “new normal,” your focus should have shifted from crisis management back to leadership.
Business success is almost always related to people success. You can’t do it alone (as much as you might wish could some days!). The foundation for people success is leadership.
For many, leadership often seems abstract or is perceived as hard. Yet, effective leadership is easier than you may think when you embrace some basic fundamentals. These fundamentals create organizations where employees:
- Have a sense of belonging and inclusion,
- Are encouraged to speak up,
- Have a sense of purpose,
- Have meaning with/for their job/roles,
- Have a sense of contribution,
- Feel valued,
- Receive recognition, and
- Feel appreciated.
What’s the formula? Simply put, it is: getting the right people on the bus…..having the right people in the right seats on the bus….and then modeling and leading in a way that engages, appreciates, recognizes and supports employees in ways that result in performance and long-term retention, i.e. little to no turnover.
This also requires communication because in the absence of communication:
- People will assume the negative; you don’t like them or didn’t like what they did
- Will be less likely to seek out assignments or tasks or offer ideas in the future
- If asked or assigned in the future, the effort won’t be 100% — why bother?
- Confidence and engagement will go down
We know that you have a lot on your plate. We know that many of you feel like you are still just trying to survive, but to build long-term organizational success, leaders must spend more time focusing on people and outcomes, not just on surviving or the results.
One starting place is to take a serious look at these questions:
- What kind of employer are you?
- What is your reputation as an employer/boss/leader?
- Is your practice/business one where people want to come to work?
- Would you work for you?
A lot of marketing time, attention, and money is spent on getting positive Google and/or Facebook reviews, but what would your Google or Facebook reviews be of you as an employer? Positive? Negative? Mediocre? Cheap? Supportive? Caring?
The difficulties you may have finding, hiring, or retaining employees are indicators of your reputation as an employer/boss/leader. Many practices and businesses don’t or haven’t had problems in the recruiting, hiring, and re-employment process. Why? Because those practices and businesses have reputations as good places to work. This is a result of leadership that truly embraces the “human” in Human Resources. For these practices and businesses, employees are not an expense; employees are rather truly a resource to be valued and supported.
These leaders don’t think of employees as working for them. Instead, they think: I work for them. It is as if their title might be better described as: Chief People Officer (CPO) or Chief Happiness Officer (CHO), instead of CEO, Owner, President, etc.
From a human resources perspective, the number one objective of leadership is: employee engagement.
Employee Engagement is characterized by:
- The extent to which employees feel valued (appreciation and recognition).
- The extent to which employees enjoy and believe (making a difference) in what they do.
- The extent to which employees are committed to something or someone in the practice.
- The extent to which employees will stay in or with the practice based on that commitment.
The extent and degree to which each of the above is true, is the extent to which you have (or don’t have) high employee engagement. Not surprising, there is a direct correlation between employee engagement and employee morale.
The benefits of increased employee engagement are:
- Sense of ownership
- Sense of belonging, and
- Employees who won’t go somewhere else
In other words, performance and long-term retention.
Long term retention of quality employees is the holy grail of leadership. Leaders understand that turnover is a killer. Turnover impacts time, revenue, overhead, profits, performance, consistency and quality of service. The costs of turnover are insidious. There is an emotional toll, as well as a financial toll. The stress and impact on morale is a significant emotional toll. Financially, the costs of recruiting, the time reading resumes, screening applicants, interviewing, plus the costs for reference checking, skills assessments and background checking all add up. And then there is the financial impact of how long it takes for the new person to be fully up-to-speed. Ouch!
Everyone “says” they’d like their turnover to be lower, but, ironically, most don’t invest time and energy in efforts that can directly lower turnover. Turnover is otherwise accepted as a given.
Employee engagement requires an investment of time and some money. If you choose the get serious about employee engagement, plan on a monetary investment of around 1-2% per year on employee engagement and team development.
Some of this represents “formal” things like: holiday parties or celebrations; summer parties, outings or celebrations; birthday and anniversary acknowledgments, etc. A lot of it though is “informal” things like: random group coffee breaks; providing or going out to lunch now and again; breaking out a bottle of wine or champagne at the end of an especially successful week; cutting out early on a Fridays; reduced hours during the summer or over the holidays, when feasible—without any change in compensation. Or, it is simply paying attention to an employee’s specific interests and sharing articles or resources that relate when they cross your radar.
Some of you are thinking “1-2%, no way, that money is mine! I shouldn’t have to do this; they are just employees.” Nah, nah! Spending that money is a whole lot less than how much turnover would cost, given the statistics are that turnover costs the equivalent of one year’s salary.
It also creates a more fun, engaging, and less stressful atmosphere. It creates a space and environment that is much more enjoyable to hang out in. Especially when you consider that for many, they (and you) are spending more time with team members than often with anyone else in their (and your) life.
Employee engagement is not all (or only) about fun and games. Here is how one employer put it:
“Do we work hard when we are working? YES. Is everyone expected to do their jobs well, reliably, effectively and professionally? YES. Is everyone expected to pitch in and do what is necessary to get the job done, the way we want it done, meeting our practice vision? ABSOLUTELY. Work is just not all we do or I pay attention to.”
“But I pay them, in fact, I pay them well, isn’t that good enough?” No, today that is not good enough.
Achieving an engaged team is not just about or only about pay. Study after study shows that increasing employee engagement through communication, mentoring, coaching, problem-solving, and supporting employees achieves greater organizational rewards than compensation.
As mentioned at the outset of this article, today, people are the key to business success. In fact, they have become the primary source of competitive advantage. And an engaged workforce, i.e. team, is the true competitive edge.
Here are ten ways (baby steps), to get you on the employee engagement path:
- Give verbal compliments
- Write thank you notes and/or emails
- Stop by and see how someone is doing
- Do something together
- Do a small task for someone
- See if you can help
- Buy coffee/tea/snack
- Magazine related to an area of interest
- High five when task is completed
- Greet each other warmly
The level of success you experience hinges in large part on your leadership and the organizational culture you create. Your leadership and organizational success hinges on the degree of employee engagement you create, encourage, and achieve. Employee engagement hinges on your communication and your commitment to truly put the “human” in human resources. The end result will be less stress, less turnover, a happier work environment for everyone and greater financial rewards.
YOU ASK, WE ANSWER
Q: We had an employee who submitted her notice of resignation two weeks ago. She then submitted a PTO request asking for the last two days off that she would’ve worked for her notice. We approved the PTO request for the afternoon of her last day but not for the day before. On her second to last day of work, she sent us a text message stating that she had left work four hours early and was not going to work at all on her final day.
I don’t think there is much we can do about it. She said she dropped her uniforms off and that she would mail back her key. She won’t be eligible for rehire, and we won’t be able to get her signature on the resignation paperwork. Any other thoughts or steps we should take?
A: You’re right, there’s nothing you can do about her inappropriate behavior. If you ever get called in the future from prospective employers asking about her employment with you, you can certainly inform them of this behavior that left you shorthanded and caused problems.
To be safe, I actually recommend that you change the locks on your business. This is the only way to ensure its safety. Also, take other measures to secure the business like changing passwords/codes, blocking access to systems, etc. – whatever is pertinent to you and your business and her position.
At the time an employee submits his/her resignation notice, it is ideal to have the employee complete a Notice of Resignation Form. If you got this, or something else that’s the equivalent, then that’s great. If you didn’t get anything in writing, you’ll probably have to let it go (her current behavior would suggest a lack of willingness to provide such things, even if you asked her to via email).
To wrap this up, I recommend sending an email or letter confirming the end of her employment as well as providing her the final check in accordance with your state’s law.
Q: We currently have an Associate Dentist on an hourly rate plus a percentage of production. The focus now is to move the Associate to a percentage of production or a daily guarantee, whichever is higher. For example, $500 daily guarantee or 30% of production.
We currently have a vacation policy in which time off is accrued. If we move our Associate Dentist to the new pay system, we aren’t planning on having them track their hours. If that’s the case, how would we track their vacation accrual? Is accruing vacation hours still possible? When vacation is taken, how much would we be responsible to pay? The daily guarantee or more?
Another thing is emergency calls. We pay our hourly staff time and a half for any emergency call on a weekend. In this case, we would be taking that hourly rate away. We still would have their production percentage but a daily guarantee does not sound appropriate for that type of situation.
A: Despite the fact that you might be shifting this Associate’s pay to daily or production that does not mean you still couldn’t have the individual track their hours for vacation accrual purposes. If fact, if this individual is considered a non-exempt employee, tracking hours worked is required by law regardless of how they are paid.
As for the rate of pay when time off is taken, you will need to establish their regular rate of pay and apply it. The formula to compute the regular rate is: total compensation ÷ total hours worked. For example, if you looked back 3 months and their total pay was $25,000 and they worked 500 hours, then their average rate of pay is $50.00 per hour.
As for emergency calls, you can pre-determine the rate for this so long as it is minimum wage or higher. Thus, you can establish that emergency calls are paid at a rate of $15.00 per hour. Or, give a flat rate of $25.00 or time worked at minimum wage, whichever is higher. You need to be sure this is clearly outlined in writing so that everyone knows what is expected when these situations arise.
Q: I have a situation that I do not know how to handle. An employee received her license to place fillings. This employee told us what the Director of her training program told her she should now be paid. We agreed to it. Later, we double checked this information by emailing the Director. The Director stated the rate this employee quoted us was for a Hygienist position not an Expanded Functions Dental Assistant position, which is what this employee does for us. The employee is now overpaid. How should we handle this?
A: There are two options:
1. Accept that a mistake was made, allow her to have the increase, and continue forward. As a third-party looking in at the situation, I see this as a mistake by you. You should not have accepted the pay increase without doing your part first to determine if this was accurate and whether or not it was warranted. Since you did not do this, then I think it’s a little unfair to back out of this now. That being said…
2. You can rescind the increase and reduce her pay. You could leave her pay where it was before, or give an increase that is more than before but less than what she asked for.
If you go with option #2, you will need to explain what you uncovered and clarify that her pay will not be increased to what she asked and then inform her of what you’re prepared to do instead.
Any change cannot be retroactive. If she has worked under the new pay structure that you originally agreed to, she will need to be paid accordingly until you have discussed this with her, established the appropriate rate, and set the effective date of the change.
Q: We have limited parking for staff and clients; therefore, we have asked all employees to park their cars in certain areas of the parking lot. Only some of the parking belongs to the clinic. The other areas are city parking. We still run out of areas that are close to the clinic, so we have asked employees to park in the Ride and Share that is down the way. We have addressed this in several Memos to the employees.
We have one employee who continues to park in areas reserved for the doctors and clients. This employee does have some medical issues. She does not have a handicap sticker, so she cannot park in handicap parking. Over the last month, we have explained that we understand her situation and have asked her to give us a note from her treating physician, so that we can address her needs. To date, she has not provided this to us. What legal rights do we have? Can we write her up? Is it illegal to ask for a note from her treating physician, or for her to provide a handicap sticker? All the other employees follow the parking guidelines, and they are becoming frustrated.
A: You may require your employees to follow your rules until or unless there is a reason to consider reasonable accommodation due to a medical condition or disability.
I think the first place to start is to speak with her again to address the issue. I know you may have done that already, maybe more than once, but I would do it again. In this case, it would be following up to say that she continues to disobey the rules and, despite previous conversations, she has not brought in anything from her treating physician supporting her need for an accommodation.
You would then inform her that she must follow the rules going forward, that she will be held accountable to those rules, and a failure to follow them could result in further actions to be taken such as writing her up.
I would reiterate a willingness to work with her and attempt to accommodate her, but in order to do so, she must do her part by bringing information from her physician or obtaining a handicap sticker. Until or unless she does this, she will be treated like everyone else and expected to obey the rules.
Did You Know?
Colorado Enacted A Public Health Emergency Whistleblower (PHEW) Law?
Under the new law, a principal cannot retaliate against, or interfere with, the following worker activities:
- Concerns: raising a “reasonable concern about workplace violations of government health or safety rules, or about an otherwise significant workplace threat to health or safety, related to a public health emergency.”
- Opposition: “opposing any practice the worker reasonably believes is unlawful” under PHEW.
- Participation: “making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing as to any matter the worker reasonably believes to be unlawful” under PHEW.
This was effective immediately and creates a new claim for adverse action, discrimination, or retaliation against workers who, in good faith, raise “any reasonable concern about workplace violations of government health or safety rules, or an otherwise significant workplace threat to health or safety, related to a public health emergency.” Thus, protected concerns include not only perceived violations of state and local public health orders, but also any perceived threat to health or safety in addition to the numerous (and constantly shifting) requirements in those public health orders.
For more information on this new law, review the Interpretive Notice & Formal Opinion (INFO) # 5 issued by the Division of Labor Standards and Statistics.
Georgia Enacted a Paid Break Law for Breastfeeding/Lactation?
Georgia House Bill 1090, also known as “Charlotte’s law,” requires employers to provide paid lactation breaks and private locations at the worksite where working mothers can express breast milk. The new law was effective immediately.
Employers cannot require employees to use paid leave for such breaks or reduce an employee’s salary as a result of the employee taking a break to express breast milk.
Additionally, the private location must be an area “other than a restroom” where employees can express breast milk at the worksite.
WHAT’S NEW in Employment Compliance
OSHA Standard for COVID-19 Enacted; First-in-Nation
Virginia Occupational Safety and Health (VOSH), the state’s version of the Occupational Safety and Health Administration (OSHA), will now enforce a standard that mandates guidance issued by the U.S. Centers for Disease Control and Prevention (CDC) and OSHA. The new standard covers most private employers in Virginia, as well as all state and local employees.
The standard includes provisions that require employers to:
- Provide flexible sick leave policies, telework and staggered shifts when feasible;
- Provide both handwashing stations and hand sanitizer when feasible;
- Assess risk levels of employers and suppliers before entry;
- Notify the Virginia Department of Health of positive COVID-19 tests;
- Notify VOSH of three or more positive COVID-19 tests within a two-week period;
- Assess hazard levels of all job tasks;
- Provide COVID-19 training of all employees within 30 days (except for low-hazard places of employment);
- Prepare infectious disease preparedness and response plans within 60 days;
- Post or present agency-prepared COVID-19 information to all employees; and
- Maintain air handling systems in accordance with manufacturers’ instructions and American National Standards Institute (ANSI) and American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE) standards.
The standard protects employees who raise reasonable concerns about infection control with any form of media, including online and social networks.
The standard also implements provisions that echo CDC and OSHA guidance, including requirements to:
- Place requirements on workplaces based on hazard levels (i.e., “very high,” “high,” “medium,” and “low”);
- Screen employees prior to entry to work;
- Establish requirements for employees with COVID-19 positive tests and symptoms before returning to work;
- Require social distancing or, when social distancing is not possible, respiratory protection; and
- Clean and disinfect commonly used areas and equipment.
The emergency standard is set to expire within six months or upon expiration of the Governor’s State of Emergency or the enactment of a permanent standard.
New Documentation Requirement; New Enforcement Initiative
1) The Alabama Department of Labor now requires all employers to provide a notice to employees regarding unemployment benefits at the time of separation. This notice requirement took effect immediately. The required notice may be made by letter, email, text message, or flyer.
2) The Alabama Department of Labor announced on its website that it has begun enforcing employers’ new-hire reporting obligations. In its announcement, the Alabama Department of Labor stated that employers should ensure that all new hires and recalled employees for the past 12 months be properly reported. Failure to report new hires and recalled employees may result in a statutory penalty.
Workplace Safety Lawsuits Limited in Missouri
On July 1, 2020, Missouri Governor Mike Parson signed Senate Bill (SB) 591. SB 591 provides that punitive damages will only be awarded if the plaintiff “proves by clear and convincing evidence that the defendant intentionally harmed the plaintiff without just cause or acted with a deliberate and flagrant disregard for the safety of others.” This language is a change to the previously lower burden on plaintiffs for establishing punitive damages. Additionally, plaintiffs may now only seek punitive damages by submitting a written motion for leave to file a pleading seeking punitive damages and can no longer seek them in an initial pleading.
The bill provides that punitive damages may only be awarded against an employer because of an act by an employee if: (1) the employer authorized the employee’s conduct; (2) the employee was “unfit” and the employer “was reckless in employing or retaining [the employee]”; (3) the employee “was employed in a managerial capacity and was acting in the scope of employment”; or (4) the employer “ratified or approved” the employee’s conduct.
Overall, SB 591 provides greater protection for employers against claims for punitive damages in civil actions. Governor Parson said he was “proud to sign SB 591,” noting that “[p]rotecting Missouri businesses and equipping them with the tools to succeed has always been a priority of my administration” and that the legislation “will stop the unfair and unreasonable litigation our businesses face.”
$35,000 Settlement to the Equal Employment Opportunity Commission (EEOC) for Disability Discrimination Lawsuit
According to the EEOC, Brock Services, LLC forced an employee to take three eye examinations after learning he had a vision impairment related to glaucoma in one eye. Despite his glaucoma, the eight-year employee could perform the essential functions of his position. After the third exam, Brock Services fired the employee.
These actions violated the Americans with Disabilities Act of 1990 (ADA) which prohibits discrimination based on an employee’s disability. The EEOC filed suit in the U.S. District Court for the Eastern District of Texas, Beaumont Division (Civil Action No. 1:19 cv 00212) after first attempting to reach a pre-litigation settlement through its voluntary conciliation process.
“The EEOC will continue to ensure employers understand their assumptions about an individual’s disability should play no role in their workplace decisions,” said Rudy Sustaita, the EEOC’s regional attorney in Houston.
Self-Quarantine Cases Settled by the Department of Labor Give Insight on What to Look Out for Regarding the Families First Coronavirus Response Act (FFCRA)
1) Risk & Insurance Consultants Inc., based in Atlanta, has paid $1,599 in back wages after denying paid sick leave to a worker who received a health care professional’s instruction to self-quarantine, the DOL announced Sept. 15. “The U.S. Department of Labor is protecting the American workforce during the coronavirus pandemic by ensuring employers comply with all of the requirements of the Families First Coronavirus Response Act,” said Wage and Hour Regional Administrator Juan Coria in Atlanta.
2) KNM Holdings LLC, operator of Church’s Chicken franchise locations in Oklahoma City and Tulsa, Okla., paid $1,653 in back wages to an employee after it denied the employee’s request for paid sick leave to fulfill a health care provider’s order to self-quarantine for two weeks, the DOL announced Aug. 28. The DOL also found the company failed to provide required paid leave after the employee reported that the school and child care center of the worker’s children were unavailable due to the coronavirus. The employer agreed to future compliance with the FFCRA, which took effect on April 1.
3) The operator of a Smoothie King franchise in Mobile, Ala., paid $918 in back wages to seven employees after denying them emergency paid sick leave, the DOL said. The seven employees took leave while some sought medical diagnosis for suspected coronavirus infection and others followed orders to self-quarantine due to coronavirus exposure at the workplace.
Coronavirus-Related Litigation Is Increasing
In the courts, coronavirus-related litigation is increasing each month, with more than 700 lawsuits filed against employers due to alleged violations related to coronavirus. California has the most cases, followed by New Jersey, Florida, then New York. The most common complaints have involved retaliation, followed by wrongful termination, leaves of absence, workplace safety and discrimination.