20 Sep BOP Newsletter Fall 2021
BOP NEWSLETTER • Fall 2021
Perspective: Turning the Tables on the Competition
by Alan Twigg & Tim Twigg
There has always been a certain amount of competition for employees. Sometimes more so; sometimes less so. You compete with wages, benefits, organizational culture, your reputation as an employer, opportunities for advancement, and/or career goals, just to name a few.
A little over a year and a half ago, a big monster competitor entered the profession. Namely, pandemic unemployment and supplemental stimulus checks from the government, which is being blamed for all of the tight labor market problems.
A popular refrain is “People today are just lazy” or “Everyone just wants to sit around and collect unemployment.” Without a doubt, there are people like that. In reality, though, how many workers actually fall in this category?
A number of other big factors are affecting the labor market today, such as the number of employees who chose to retire, the number of employees who changed professions, the number of people who couldn’t get through school because it was shut down or limited. Then there are people having to stay home due to underlying health conditions, or they are caring for someone with one, or some may be caring for young children who can’t be in a traditional childcare or school setting, and sadly, some of the workers may have passed away due to COVID itself.
And let’s be honest, who would want to work if there was no economic advantage of working versus not working? Taking it easy, not having to get all dressed up, the ability to work on house projects, learn new things, read books, enjoy time with children and family, travel the country, and the seductive allure of wearing athleisure wear for most of the day!
There are capable workers out there who could work. So, why would they return to the workforce? And how do you go about successfully competing for them?
First, this requires you to “step up your game.” It is about making your employment opportunity compelling, interesting, and unique.
Before you dismiss work as being unable to compete with nonwork, read on for some perspectives. Your workplace can compete head-to-head in some areas, and it has the upper hand in others.
While free money from the government might sound nice, it won’t last forever. There is no career advancement with unemployment checks, no ability to earn more, and no resume-building skills and experience. Unemployment won’t grow a person’s network or improve their future career opportunities.
If you think unemployment benefits are preventing people from working for you, consider your own wage scale. If you were to pay an employee about $25/hour or more, you win the economic competition from an unemployment perspective.
Sound like too much? Consider reframing your expectations relative to lower-paid positions. Rather than seeing it as paying higher wages for substandard or menial work, see it as paying a professional rate and expecting professional, reliable, accurate, and productive work. You expect the best, so reward the best.
There are examples of companies in traditionally low-wage, entry-level industries like fast food who have begun to offer higher wages in order to not only get people to work for them but to also transform their employees into capable, long-term assets. It’s all about expectations and leadership. If it can work for fast food, why can’t it work for your office?
Unemployment cannot compete with the sense of purpose, meaning, and satisfaction that comes from work. This is a direct result of your leadership and the tone you set in your office. Is your team merely doing the same annoying tasks every day? Or are you bringing health and value to your team and the greater community?
Work offers the chance to socialize with coworkers of similar values, interact with those we serve, and to meet new people. While socializing with family and kids is nice, it’s been over a year, and some people are either tired of their family, or they are not in an optimally healthy relationship with their partner and/or their kids.
Work does not have to be an all-out sprint every day. You can control the pace and quantity of work placed on your team. You can bump up your payroll expense slightly to ensure an environment where breaks and lunches happen consistently; where there is downtime and employees feel caught up on tasks, as well as ongoing projects. It’s easy to get trapped into your own style, pace, and habits, and the “go-go” mentality. You can achieve diversity and work-life balance combined with success. If you can make a good living and not work your employees to their absolute max every day, why not do that?
Unemployment is a thankless endeavor. The government doesn’t tell you what a good job you’re doing, or how much they appreciate you. You can create an attractive environment where employees are treated with respect. Convey your appreciation simply for being there (given the alternative), and then again for doing a good job. As humans, we all want connection, purpose, and the pleasure of being valued.
Another silver lining to keep in mind: the pandemic gave everyone a chance to pause, reflect, and assess what is truly important in their lives. Perhaps an upshot is the weeding out of those who were not committed to the profession. Maybe those who remain, and those who join in the coming months, will be the dedicated professionals we all wish to work with. You can help facilitate this with regular conversations with your team about their life goals. An employer today is not just an employer; the hats include mentor, coach, friend and teacher, and sometimes colleague, therapist, and counselor. If they are happy where they are, great! If they are looking for something new, help them toward that.
On a certain level, this is about the fundamental way in which we view labor. Do you expect employees to work hard, and yet pay them as little as you can get away with? In a sense, this is what we have done to many of our workers, even those we call “essential.”
Alternatively, you can approach this from a symbiotic perspective: business owners need people, and people need meaningful employment. Foster an environment of abundance, creativity, appreciation, purpose, comradery, understanding, and passion. This comes from the top, your attitude, your leadership, and is a proven way for creating long-term, sustainable success.
Q: I ended up having to let an employee go recently, and she later sent me an email accusing me of things that were completely off base and 100% false. I want to respond and explain why she’s wrong. Should I do that, or is it better just to ignore this?
A: We completely understand the urge to set the record straight when someone is making false statements and accusations, unfortunately, it rarely is worth it. Individuals who make these claims will never see it your way. You’ll never be able to prove anything or get them to acknowledge their mistake. They see this as yours and everyone else’s fault and nothing will get through that. Responding can keep the argument going, or make it worse, and end with nothing gained.
The rare occasion in which there may be an exception is if the accusations involve claiming there was harassment or discrimination or retaliation. These are egregious claims and can lead to liability if left unaddressed, even if the individual is already terminated; therefore, a carefully crafted response to mitigate these concerns should be considered.
Q: We are currently looking to hire a manager. This individual will run deposits to the bank as needed as well as other errands occasionally. Is it permissible within employment laws to have this individual drive their own car and be reimbursed based on mileage? If something were to happen while the person is driving for work, what would that mean in terms of liability to the company? Would using a company vehicle instead minimize problems?
A: Yes, it is permissible to have an employee drive their own car and then be reimbursed for mileage. The current IRS mileage rate is $0.56 per mile.
In terms of liability, if an accident were to happen and an injury occurred, then the person could file a workers’ compensation claim due to being injured while on the job.
Most often, however, everything related to an accident (car damage, injury, etc.) is run through car insurance. This should start with the employee’s car insurance, but once it is known that the accident happened during work, then the employer’s insurance carriers could also get involved and fighting among the different entities could ensue.
Employers could also be sued by the non-employee party who may have gotten injured once they learn it occurred during work.
There is no way to avoid this, other than not allowing the employee to drive during work for work-related activities. This cannot be avoided, for example, by asking the employee to clock out (which is illegal), or just not paying the person for their time spent working.
Given the above, we recommend you reach out to your insurance carriers (general liability, workers’ comp) and make sure that someone driving for work is covered. Sometimes employers have to add coverage for this purpose to ensure that everything can be covered by insurance should anything happen.
You will also want to ensure this individual has an active driver’s license as well as car insurance. Since these expire, they should be re-verified to ensure it is renewed as required. Keep copies of these documents in the individual’s personnel file.
If you are able to provide a company vehicle, it would certainly minimize some of the problems noted above, particularly in terms of car insurance liability.
Q: We hired an employee that worked one day and then quit the next. The individual quit before we could get new hire paperwork completed such as the W-4 Form. What do I do with the hours the person worked on that one day since I don’t have a W-4 completed? Which option do I use to calculate their tax withholdings? I’ve attempted to make contact, but my calls go to voicemail and aren’t being returned.
A: Before directly answering your question, I want to encourage a change to your processes in order to avoid issues like this in the future. New hires should be prepped prior to starting their job with you that the first order of business is completing new hire paperwork. Then, on their first day of work, devote the first 1 hour or so for paperwork – before allowing anything else to occur in their workday. This is the best way to ensure this aspect of hiring someone gets handled properly right from the get-go.
As you’ve already surmised, a paycheck is due and must be cut even though the individual has ghosted you. You must ensure you do this within the requirements of your state for final checks.
When employers do not have a completed W-4 Form, then the only option is to tax the individual at the highest rate – single and zero. The completed form is what allows an employer to apply a different tax formula, so, without it, the individual must be taxed as though the person has no dependents to claim.
Depending on the state you’re in, mailing the check may not be advisable without written authorization from the individual. Some state laws frown upon this, in which case you must simply hold onto it and continue efforts to make contact in order to know what to do. Eventually, you may have put it aside and wait to see if you hear anything and, if not, it may have to be turned over to the state.
If you end up mailing this, you should be sure you do so in such a way that it can be tracked, such as certified mail with a return receipt.
Q: When approving vacation, PTO, sick leave, or other time off with pay requests, should I be approving no more than the person’s regularly scheduled work hours?
For example, we have an employee who works 6:30 to 12:30 with 1 half-hour break for lunch, per the law. That means the person actually works 5.5 hours even though they’re scheduled for a 6-hour day. If that person requests 6 hours of sick pay, should I deny the request and instead only approve 5.5 hours instead?
A: In general, vacation, PTO, sick leave, and other time off with pay benefits are intended to be wage replacement benefits. Meaning, they replace the time that someone would’ve worked and lost if they didn’t have those benefits to use instead for an absence.
As a result, the typical thing is to both request and payout only what someone would have worked if they had not had the day off. For example, if an employee is scheduled to work 8-5 with a 1-hour lunch, then their vacation pay is for 8 hours, not 9. They would’ve worked only 8 hours even though their total workday is 9 hours.
While employers can grant what someone asks for even if it’s beyond wage replacement, that’s a choice, not a requirement. It’s really about the employer’s policies and practices.
We do advise being consistent. Either require it to be wage replacement only and deny the request for more time or let them request whatever they want. Before doing this one way or another, ensure your employees know the rules. Once they know the rules, they can submit more appropriate requests minimizing the trouble to fix their errors.
Inquiries into job applicants’ age prohibited
A new Connecticut law called “An Act Deterring Age Discrimination in Employment Applications” prohibits employers with at least three employees from inquiring into the age of prospective employees. The new law went into effect on October 1, 2021.
Under the new law, employers may not ask a prospective employee about the following information on an initial employment application:
- Date of birth;
- Dates of attendance at an educational institution; or
- Date of graduation from an educational institution.
An employer, however, may request or require such information if:
- The request or requirement is based on a bona fide occupational qualification or need; or
- The employer has a need for such information to comply with applicable state or federal laws.
Revised job posting requirements
In a reversal of its prior interpretation, the Colorado Department of Labor and Employment (CDLE) issued a revised Interpretative Notice & Formal Opinion (INFO) #9 on July 21, 2021—six months after the law went into effect on January 1, 2021. Employers covered by the Colorado Equal Pay for Equal Work Act, Part 2 (EPEWA) will now have to post wage and benefit information for all covered promotional opportunities and job openings (including remote jobs that can be performed anywhere), unless that work is specifically tied to a non-Colorado worksite.
To read the full details, click here.
Employer requests regarding criminal history of applicants banned
Under the law “An Act Relating to Fair Chance in Employment,” which was signed in July, employers are prohibited from requesting an applicant’s criminal history on its initial employment application. An employer may only ask about an applicant’s criminal history during an interview, or once the applicant has been determined qualified for the position.
There are exceptions to this prohibition and an employer may ask about criminal convictions on the application if:
- The position is one in which any federal or state law or regulation or rule creates a mandatory or presumptive disqualification based on a conviction for one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the disqualification;
- The employer is subject to an obligation imposed by any federal or state law or regulation or rule not to employ a person, in either one or more positions, who has been convicted of one or more types of criminal offenses and the questions on the initial employee application form are limited to the types of criminal offenses creating the obligation;
- The employer is required by federal or state law or regulation or rule to conduct a criminal history record check for the position for which the prospective employee is applying; or
- The employer participates in a program that encourages employment of persons with criminal convictions.
New requirements for pay notices and final wages for separated employees
On July 8, 2021, North Carolina Governor Roy Cooper signed Senate Bill 208. This bill makes amendments to the North Carolina Wage and Hour Act (NCWHA) (N.C. Gen. Stat. § 95-25.1 et seq.) and took effect immediately.
With regard to the requisite pay notice, at the outset of employment, the bill provides that employers must now provide written notice to employees at the time of hire stating:
- the promised wages; and
- the day and location for payment of wages if delivering payment in person or the method of payment if using a different form (e.g., direct deposit or mail).
The bill also requires employers to provide employees with written notice “at least one pay period prior to any changes in promised wages.”
With regard to final wages for separated employees, the bill requires an employer to pay final wages through the regular payroll method used by the employer, unless the employee makes a written request for a live check to be sent by trackable mail.
Employers can no longer maintain “use-it-or-lose-it” vacation policies, says Supreme Court
Employers do not have to offer vacation pay to their workers whether by state or federal law. However, as confirmed by the June 14 decision in Nieto v. Clark’s Market, once an employer chooses to provide vacation pay, it cannot be forfeited once earned. The Colorado Supreme Court ruled that an employer must pay employees their earned but unused vacation pay upon separation from employment – and any agreement or policy forfeiting this pay is void as a matter of law.
Hairstyles and other physical characteristics historically associated with race will soon be protected
On June 11, 2021, Governor Kate Brown signed into law House Bill 2935. This bill, and many across the nation that are similar, is also known as the CROWN Act (Creating a Respectful and Open World for Natural Hair). This bill explicitly prohibits employers and public schools from discriminating against individuals based on physical characteristics historically associated with race, including hair texture and protective hairstyles. The act will take effect on January 1, 2022.
The act amends the Oregon Equality Act, which prohibits discrimination in employment, by including a new definition of “race” that “includes physical characteristics that are historically associated with race, including but not limited to natural hair, hair texture, hair type, and protective hairstyles.” It further defines “protective hairstyles” to include any “hairstyle, hair color or manner of wearing hair that includes, but is not limited to, braids, regardless of whether the braids are created with extensions or styled with adornments, locs and twists.”
Pay discrimination protections enacted
The new law, which goes into effect January 1, 2023, makes it unlawful to pay any employee less than the employees of another race, color, religion, sex, sexual orientation, gender identity or expression, disability, age, or country of ancestral origin for comparable work.
Consistent with other state equal pay law trends, the Rhode Island law also contains a “ban” on employer inquiries about or reliance on salary history, as well as pay transparency protections. Employers may not require a candidate to disclose salary history or rely on a candidate’s wage history to justify lower pay.
Employers also may not prevent employees from discussing pay.
Two new laws: 1) increases penalties for wage & hour violations, 2) Makes Discrimination and Immigration Practices Based on Work Authorization Status a Civil Rights Violation
1) On July 9, 2021, Governor Pritzker signed an amendment to the Illinois Wage Payment and Collection Act that increases the penalty for underpaying wages from 2% of the amount of the underpayment per month to 5%.
2) On August 2, 2021, Illinois enacted House Bill 0121. This bill went into effect immediately.
This bill adds a provision to the Illinois Human Rights Act (IHRA) making it a civil rights violation for discriminating against employees and job applicants based on their “work authorization status[.]” Under the Bill, “work authorization status means the status of being a person born outside of the United States, and not a U.S. citizen, who is authorized by the federal government to work in the United States.” As such, the IHRA now prohibits discrimination, harassment, and retaliation based on this protected category. According to the Illinois Department of Human Rights, “the change in law aligns protections in the IHRA with those already in federal law.”
California Supreme Court requires higher rate of pay for missed meals and breaks
Labor Code section 226.7(c) states “the employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each workday that the meal or rest or recovery period is not provided.” This payment must be made concurrently with the other wages due within the pay period when the break violations occurred.
The California Supreme Court ruled in July in Ferra v. Loews Hollywood Hotel, LLC that the wage premium employers must pay out must be paid at the “regular rate of compensation.” The “regular rate of compensation” includes not just hourly wages but all nondiscretionary payments for work performed by the employee. The Court also determined that its ruling applies retroactively and will apply to any past practices that took place before their decision (subject to applicable statutes of limitation).
What does that mean? If an employee receives, for example, $25.00 per hour and, in that same week is paid a nondiscretionary bonus of $500.00, then both the nondiscretionary bonus and the hourly rate must be used to factor the meal break premium pay. In other words, the premium pay is not just $25.00. In this case, if the employee worked 40 hours that week, they would have earned $1,500 ($1,000 regular wages plus the bonus), making their “regular rate of compensation” $37.50 ($1500 divided by 40 hours). Therefore, the premium payment must be $37.50, not $25.00.
This decision highlights the importance of complying with meal and rest breaks. Furthermore, it demonstrates the need for constant vigilance in complying with the relevant laws and regulations, including the calculation of the one-hour premium required when violations occur.
Finally, if you now realize that you failed to satisfy the strict terms laid out by the California Supreme Court in the past, those actions may come back to haunt you unless you take action. You should coordinate with a California wage and hour attorney to determine the best approach in your specific situation.
California Court of Appeal ruling may restrict employment background checks
The California Court of Appeal recently ruled in All of Us or None of Us v. Hamrick that an individual’s date of birth and driver’s license number cannot be used as data identifying a criminal defendant in public records. The ruling will, if upheld, affect employers and third-party consumer reporting agencies when conducting background checks on applicants or employees.
In the All of Us or None of Us v. Hamrick the case centers around a California Rule of Court which specifies how electronic trial court records are made available to the public. Rule 2.503 (b) requires that the trial courts that maintain an electronic index must provide remote electronic access to “indexes in all cases” to the extent feasible to do so. Rule 2.503 also specifies what must be excluded from such indexes, including two pieces of information at issue in the case, date of birth and driver’s license number.
As this case worked its way through the Court system, it finally landed with the CA Court of Appeal who stated: “After considering the text, history, and purpose of Rule 2.507 [(Electronic access to court calendars, indexes, and registers of actions)], we agree that the rule prohibits the Riverside Superior Court from allowing searches of its electronic criminal index by use of an individual’s date of birth or driver’s license number. We further conclude that the trial court erred in sustaining defendants’ demurrer to this cause of action.”
While currently only directly affecting Riverside County, the ruling by the Court of Appeal has already encouraged other courts in California to remove the date of birth information from criminal records. This change in how criminal records are made accessible by courts could pose difficulties for employers, in particular, the information could be less reliable.