Everyone is struggling with hiring right now. Due to many pandemic-related and unrelated factors, there just aren’t enough qualified candidates for all of the job openings. This means any decent or stellar employee currently in your office should be treated like a rare and precious asset. No employee should be treated as disposable in today’s economy. 

Employee and team engagement is a critical component to keeping your employees around. Disengaged employees will seek a better environment somewhere else, and in this market, they will have no problem finding another employer. Engagement goes beyond just wages and benefits. It encompasses trust, respect, appreciation, recognition, and support. In other words, your overall culture. 

What is your office culture? What words would you use to describe it? Overall, how positive or negative is it? How forward-thinking is it? How easy is it to discuss and implement change? What is the new-hire experience like? How do your employees feel on a day-to-day basis? 

Obviously, if you are dealing with a toxic employee situation right now, that is an acute challenge which should be worked through as soon as possible. As always, if you want guidance on how to navigate your particular situation, our HR Specialists can assist you with what to do, what to say (or not say), how to document it, and so on. Our colleague and friend Katherine Eitel-Belt is also a great resource for having these types of “courageous conversations.”

Beyond the toxic employee, as an employer, it is important to always ask yourself, what, if anything, are you doing that might be contributing to an undesirable culture and a lack of engagement? Sometimes, it is your policies that can lead, in subtle ways, to an overall culture of negativity, lack of trust, and fear. 

Use the following questions and scenarios to see if any apply to you and, if so, learn how you might change it. 

1 – Do you have policies that punish employees for small mistakes?

For example: maybe you put a policy in your manual/handbook that if employees lose their paycheck, they have to pay the stop-payment-reissue fee. Or, if they lose their parking pass, they have to pay for the replacement cost.

This might be the result of a bad experience once when someone somewhere sometime lost a paycheck or parking pass. Now this financial punishment on future employees feels justified in order to mitigate the inconvenience on you or the office. 

Often, these charges are arbitrary and inconsistent. Why have an employee pay a $25 check-replacement fee but not pay for $50 in supplies that are mistakenly thrown away, or pay for a broken tool, or pay a proportionate amount for equipment that was used incorrectly and wore out faster than normal?

Whether or not these types of charges are allowable is a topic for another article. In general, they are not, or they have requirements that must be met first, or they have certain limitations on how much can be collected and how, and so on. This is an area that requires knowledge about federal and state rules before implementation in order to ensure compliance and avoid liability.  

The real questions are: should you have these policies? What sort of message do these arbitrary and minimal cost policies convey in your office? How would these policies look to a brand-new hire, reading your manual/handbook for the first time? Let’s say your office is financially successful, this person is excited to begin a new career chapter at your particular office, and now they learn that the office won’t absorb a one-time $25 mistake. Does this inspire confidence and trust, especially as a first-impression?

As an alternative, you could take each situation on an individual case-by-case basis. If an employee loses their paycheck once, chalk it up to “mistakes happen” and move forward. If an employee loses their paycheck multiple times, treat this like any other performance issue and proceed accordingly with disciplinary action (verbal and/or written counseling, suspensions, termination). 

2 – Do you have strict and punitive policies about employees paying back money for continuing education (CE) courses if their employment ends?

This one is often a reaction from one employee, in the past, who attended a CE course and then resigned. The most extreme versions require an employee to pay back the full cost regardless of when their employment ends. In this case, someone could attend a course in 2021, quit in 2023, and have to pay hundreds, maybe thousands, of dollars back to the office.

As with #1 above, these policies are illegal in some states, and difficult to collect in-full even if allowable, regardless of whether there is a signed agreement. Furthermore, if the costs associated with CE events are required to be paid by you, which is often the case, then it can’t be recouped even if you want it to be. When viewed as the “cost of doing business,” the burden can’t be placed on the shoulders of your employees.

We understand the desire for fairness and recouping your investment. A “middle ground” position could be a loan program where the cost is paid back in a forgiveness manner over a set period of time (assuming recouping this cost is allowable by law). 

For example, the course is $2,400, and you agree that it will be paid/forgiven in 2 years, or 24 months. This is a monthly payment of $2,400 ÷ 24 = $100. Therefore, each month that the employee remains employed, the $100 is forgiven. If employment ends after 12 months, the employee would owe half of the total, or $1,200. 

Again, how you would be able to collect this amount is a different matter altogether. Like #1, state and federal laws come into play and have limitations that must be applied. 

Another perspective is seeing these costs as a good-faith investment in your team. In general, when you invest in your employees, they invest in you. Are there selfish bad apples out there? Absolutely. That’s why background checks, reference checks, calling past employers, and ensuring due diligence in your hiring practices are so important. But don’t let the fear of one bad apple ruin the investment and positive growth on the whole. Your team is your competitive advantage and worth investing in.

Spend some time thinking about your Unique Employee Proposition (UEP). Why should someone work for you versus the office down the street? If a person is experienced, qualified, and has a fantastic attitude, what do you offer that is unique and special? Anyone can compete on money or benefits. Long-term retention of quality employees comes from your office culture, and how you make the people feel.

3 – Have you spent significant time debating whether to payout unused sick time, vacation, or PTO at termination? Or requiring 2-weeks’ notice to payout unused benefits? 

This one is also born out of bad experiences where an employee uses their vacation and quits immediately. This can result in an employer adopting complicated paid time off calculations, strict controls on usage, changing to a system of “advancing” time off benefits so the employee “owes” them back if they quit at a certain point, outright elimination of all paid time off benefits, and other such modifications all in an effort to protect oneself in the future. Employers will spend precious time trying to determine the exact way to prevent this at all costs, some of which may or may not be legal depending on your state laws. 

Something that will definitely cost more than paying out paid time off benefits is turnover. Turnover estimates consistently put the total cost equal to that person’s annual salary (or more depending on the position and how long it takes to fill it and get the new person up to speed.) So, if you lose an employee who makes $45,000/year, then your office will ultimately suffer at least a $45,000 loss in direct and indirect costs. Compared to these numbers, one week of vacation is an incredibly small impact.

Rather than focus on recouping the cost of paid time off, focus on why this person quit in the first place. The reasons for turnover have been covered in other articles, but the short version is this: happy, engaged, and appreciated employees don’t quit. When leaving, they might say “I can make more money at another office.” What they are really saying is “I’m not making enough money to put up with this work environment.” 

Now, flip your hat from employer to employee: Would you work for you? How would you feel if you were considering working for you and these were the rules and policies in place?

This article might persuade you to revisit your written policies and adjust or eliminate them—that is a good first step.

Next is asking yourself, how do you view your team? Do you think of them as an asset or a liability, a resource or an expense? Don’t let a negative perception worm its way into your entire office culture.

The team you have is hopefully your team of the future—a team of capable, decent people who genuinely want to do a good job. They may not be perfect (no one is) but they want to support you and be supported in turn. 

Employee and team engagement is absolutely possible; it’s never too late to start. We have clients who experience little to no turnover. Their employees show up on time, work hard, have a great attitude, and stick around. Are these offices just plain lucky? No. Whether intentionally or unintentionally, these offices view their employees in a positive light and continually demonstrate their appreciation. The engagement results speak for themselves. 

Ask around and see who hasn’t had to hire a new employee for 5, 10, 20, or 30 years. You will hear (as we do) inspiring stories of focusing on the future. If you want the positive office culture you’ve dreamt about, it begins with your leadership, the tone you set in your verbal and written communications, and a consistent focus on employee and team engagement. 

New Mexico

Paid Sick Leave Law in 2022

Beginning on July 1, 2022, New Mexico private employers will be required to provide paid sick leave to their employees. Here are some basics of the Health Workplaces Act (HWA):

1. Applies to all employers with 1 employee
2. Employees will accrue one hour of paid sick leave for every 30 hours worked, up to a total of 64 hours a year. 
3. Employees may use paid sick leave for the following reasons:
   • Mental or physical illness, injury, or health condition (for employee or employee’s family member);
   • Medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition (for employee or employee’s family member); or
   • Preventive medical care (for employee or employee’s family member);
   • For meetings at the employee’s child’s school or place of care related to the child’s health or disability; or
   • For absence necessary due to domestic abuse, sexual assault, or stalking suffered by the employee or a family member of the employee.
4. Employers with paid time off (PTO) policies that provide the minimum amount of leave required by the HWA (i.e., 64 hours) may use their PTO policy to comply with their HWA requirements, so long as employees can take PTO for the same reasons set forth in the HWA and under the same terms and conditions. 

Virginia

Expanded Disability Discrimination Protections

Effective July 1, 2021, Virginia further expands the scope of the Virginia Human Rights Act (VHRA) to prohibit discrimination on the basis of disability. 

Under the expanded VHRA, employers will be required to make reasonable accommodation to the known physical and mental impairments of an otherwise qualified person with a disability, if necessary. Further, employers will be prohibited from:

• Taking any adverse action against an employee who requests or uses a reasonable accommodation;
• Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make reasonable accommodation to the applicant or employee;
• Requiring an employee to take leave if another reasonable accommodation can be provided to the known limitations related to the disability; and
• Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the requested accommodation is reasonable, and if such accommodation is determined not to be reasonable, discuss alternative accommodations that may be provided.

An accommodation must be provided, unless an employer can demonstrate the accommodation would impose an undue hardship.

New York

Workplace Safety and Health Law 

According to the NY Department of Labor, the Health and Essential Rights Act (HERO Act) “is intended to prevent current and future occupational exposure to airborne infectious diseases at workplaces throughout New York state. This new law:

1. Requires the Department of Labor, in consultation with the Department of Health, to create and publish a general model airborne infectious disease exposure standard for all worksites and, where appropriate, differentiated by industry. The standard must include retaliation protections and be published in English and Spanish
   
2. Requires private employers to establish an airborne infectious disease exposure plan by adopting the model standard, or an alternative plan that equals or exceeds the model standard
   
3. Requires employers to provide written notice to workers about the model standard
   
4. Authorizes the Department of Labor and the New York State Attorney General to take appropriate enforcement measures
   
5. Allows employees to establish and administer joint labor-management workplace safety committees.”

This is a developing issue for NY employers. For more information as it is provided by NY, please visit: https://dol.ny.gov/ny-hero-act

Connecticut

Amends Pay Equity Law

The new law, which goes into effect on October 1, 2021, extends the prohibition on sex-based compensation discrimination to comparable as opposed to equal work, and imposes new requirements on Connecticut employers to disclose the wage range for vacant positions to both job applicants and existing employees.

Under the new law, a Connecticut employer cannot:

1. Fail or refuse to provide an applicant for employment the wage range for a position for which the applicant is applying, upon the earliest of (a) the applicant’s request or (b) prior to or at the time the applicant is made an offer of compensation.
2. Fail or refuse to provide an employee the wage range for the employee’s position upon (a) the hiring of the employee, (b) a change in the employee’s position with the employer, or (c) the employee’s first request for a wage range.

“Wage range” is defined as the “range of wages an employer anticipates relying on when setting wages for a position.” It can include reference to pay scales, previously determined wages for the position, actual ranges for the employees who currently hold a comparable position, or the employer’s budgeted amount for the position.

Fifth Circuit Rules Incomplete Payroll Records Led to Employer Liability

The Fair Labor Standards Act (FLSA) requires employers to pay non-exempt employees overtime wages for all hours worked in excess of 40 hours in a workweek. Additionally, the FLSA imposes recordkeeping requirements on employers regarding the hours worked by their nonexempt employees. In  U.S. Department of Labor v. Five Star Automatic Fire Protection, LLC employers can see the danger in failing to comply with these requirements.

A little background: the 53 construction workers employed by Five Star Automatic Fire Protection, LLC would travel to client sites to install and/or repair fire protection equipment. These employees typically worked from 7:00 a.m. to 3:30 p.m. The company’s personnel policy required employees to record all the hours they worked. However, testimony from employees uniformly reflected that they were required to show up between 15 and 30 minutes before the start of their shifts at 7:00 a.m. and/or were either explicitly told, or it was implied, that they could not record their time prior to 7:00 a.m. Additionally, the employees did not record their time from the end of their shifts at client sites for their travel back to the company’s premises at the end of the day.

In making its ruling, the Fifth Circuit applied Anderson v. Mt. Clemens Pottery Co., a 1946 decision by the Supreme Court of the United States holding that if an employer does not keep accurate time records, the employees’ testimony regarding the hours they worked may provide an inference of correctness as to the hours worked. If the time records are inadequate to reflect the time worked and an employee “‘produces sufficient evidence to show the amount and extent of that work as a matter of just and reasonable inference[,]’ [t]he burden then ‘shifts to the employer to [produce] evidence of the precise amount of work performed or … evidence to negat[e] the reasonableness of the inference’” in favor of the employee. The Fifth Circuit determined in this case that because the produced time records did not reflect the pre-shift and post-shift times worked, the employees’ testimony provided a reasonable inference of the time that they had worked and the employer could not rebut such evidence because it lacked accurate records. The Fifth Circuit affirmed the trial court’s award of back pay and liquidated damages to the employees.

Texas Court Rules that Texas Law Protects Against Sexual Orientation Discrimination

In Tarrant County College District v. Sims, No. 05-20-00351 (March 10, 2021), the Court of Appeals for the Fifth District of Texas held that “claim[s] of discrimination based on sexual orientation may be brought under the Texas Commission on Human Rights Act (TCHRA).” 

In the court case, the plaintiff sued Tarrant County College District (TCCD) alleging discrimination based upon her sexual orientation in violation of the Texas Constitution and retaliation under the Texas Whistleblower Act. 

The Fifth Court of Appeals determined it was appropriate for the court to “look to federal law for guidance.” Recently, the Supreme Court issued its opinion in Bostock, wherein the court held that Title VII’s prohibition on discrimination “because of … sex” prohibited an employer from discriminating against an individual for being homosexual or being a transgender person.

Consequently, the Fifth Court of Appeals concluded that it must follow Bostock “[i]n order to reconcile and conform the TCHRA with federal anti-discrimination and retaliation laws under Title VII” and held that “the TCHRA’s prohibition on discrimination ‘because of … sex’ … prohibit[ed] discrimination based on an individual’s status as a homosexual or transgender person.”