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9 to 5: Top 10 Tips for Effective Workforce Management. Paul S. Mazeski, Esq. Shareholder, Buchanan Ingersoll & Rooney PC September 17, 2019. Paul S. Mazeski, Esq.
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9 to 5: Top 10 Tips for Effective Workforce Management Paul S. Mazeski, Esq. Shareholder, Buchanan Ingersoll & Rooney PC September 17, 2019
Paul S. Mazeski, Esq. • An attorney for 29 years, Paul S. Mazeski has spent his legal career as a commercial litigator representing companies in employment and workers' compensation matters and in general business disputes. In recent years, Paul has served as general counsel for businesses in the construction, manufacturing, and food and beverage industries. • As acting general counsel to companies that do not have in-house law departments, Paul utilizes his years of trial experience to defend businesses against lawsuits and counsels them on risk management techniques. • Additionally, Paul advises businesses on the benefits and risks of buying and selling assets and negotiates legal transactions with other business entities or government agencies on behalf of his clients. P: (412) 392-2120 E: paul.mazeski@bipc.com
Tip 1 – Properly Classify Workers • Properly classify employees as exempt or non-exempt • DOL recently issued proposed regulations increasing the salary threshold to be considered an exempt employee from $435 per week to $679 per week ($35,308 per year) • To meet this threshold, an employer can count a non-discretionary bonus or incentive and commissions to meet up to 10% of this requirement • The 10% can include all payments made throughout the calendar year • The 10% also can include one final payment no later than the first pay period of the next year, but the money only counts toward the prior year. • The DOL also proposed to increase the threshold for the highly compensated exemption from $100,000 to $147,414 in total annual compensation. • The employer can meet this requirement with one final payment in the first month of the next year.
Tip 1 – Properly Classify Workers (cont’d) • Properly classify workers as employees or independent contractors. Different test apply for each law, but the critical inquiry is becoming whether the worker is in business for himself/herself. • DOL Economic Realities Test • Is the work an integral part of the employer’s business? • Does the worker’s managerial skill affect the worker’s opportunities for profit or loss? • How does the worker’s relative investment compare to the employer’s investment? • Does the work require special skills and initiative? • Is the relationship between the worker and the employee permanent or indefinite? • What is the nature and degree of the employer’s control?
Tip 2 – Properly Calculate the Regular Rate/OT Rate • Non-exempt workers must be paid 1.5 times their regular rate; however, determining their regular rate is not always simple. • A fixed rate of $10 per hour generally means an overtime rate of $15 per hour. • A case pending before the PA Supreme Court (Chevalier v. General Nutrition Centers, Inc., 177 A. 3d 280 (2017), allocatur granted July 16, 2018, appeal dockets 22 and 23 WAP 2018) is considering how to calculate the OT due when a non-exempt salaried employee works more than 40 hours • Weekly compensation divided by hours worked = regular rate x .5 = OT pay • Weekly compensation divided by hours worked = regular rate x 1.5 = OT pay • On April 9, 2019, the US DOL proposed new regulations to clarify when additional payments can be omitted from the regular rate. 84 Fed. Reg. 14043.
Tip 2 – Regular Rate/OT Rate (cont’d) • Avoid schemes to make the calculation easier • In US DOL v. First & Safety Investigation Consulting Services, LLC, 2019 U.S. App. LEXIS 3971 (6th Cir. 2019), the Company paid a flat rate for a two-week hitch that purported to include compensation for 80 non-OT hours and 88 OT hours. • However, when an employee missed a day, the employer deducted an amount calculated as follows: • Amount due for full hitch divided by 168 hours = blended rate • Blended rate x total hours worked = pay • Although this approach paid the employee more than he should have received, the Court held that by doing this, the blended rate became the regular rate. • Therefore, the Court held that all OT hours had to be paid a 1.5 times the blended rate.
Tip 3 - Conduct Effective Performance Reviews • Avoid common mistakes: • Giving everyone at least a “satisfactory” (I don’t want to hurt any feelings). • Providing everyone with the same comments (I’m not that creative and I don’t know what to say). • Rating everyone in the middle (nobody is that excellent or that bad, right?). • Allowing personal bias to dictate the evaluation (I really like him, so I’ll give him a favorable evaluation). • Being overly concerned about the employee’s reaction (I know she’ll be very upset if I rate him poorly); • Waiting until the last minute (I have several reviews due tomorrow so I’ll do it just before I leave today).
Tip 3 - Effective Performance Reviews (cont’d) • Language is important. Avoid ambiguous phrases. • He is dedicated. • She is a good worker. • He is a pleasure to work with. • She produces good work. • He is a talented member of the team. • She is intelligent. • He makes a good impression. • She is capable.
Tip 3 - Effective Performance Reviews (cont’d) • Use descriptive phrases. • He communicates effectively and appreciates the audience. • She is very organized and always meets deadlines. • She is detail-oriented. • He is proactive and always takes the initiative. • She works independently and with little supervision. • He provides creative solutions. • She takes ownership of projects. • His work product is free of errors.
Tip 3 - Effective Performance Reviews (cont’d) • Bad: His work performance is unsatisfactory. • Better: His performance is unsatisfactory because (a) he doesn’t complete work in a timely manner, (b) his work frequently contains errors, and (c) he was counseled about these issues on ___ and ___. • Bad: She is a great person and an asset to the department. • Better: She accomplishes all assigned tasks on time and with high quality and works well with everyone in her department. Others in her group seek her out for assistance.
Tip 3 - Effective Performance Reviews (cont’d) • Bad: You need to improve over the next two months. • Better: Over the next two months, your work product must be timely and error-free. A failure to meet these standards will result in discipline up to an including termination of employment. • Bad: He is disorganized. • Better: His lack of organization has had a detrimental effect on the department. For example, he was assigned responsibility for analyzing the draft budget for the division, but failed to meet any of the projected deadlines and did not prepare a report in time for the scheduled budget meeting.
Tip 4 – Don’t Forget About Your Fiduciary Duties • Under ERISA, employers have a fiduciary duty to properly administer their plans. • While many employers rely on third parties for 401(k) plan documents and administration, employers have their own fiduciary duties they need to meet. • Regular Meetings • Meeting Minutes detailing discussion should be maintained. ERISA’s standard of prudence focuses on the process as much as the decision. • Documents • Investment Policy - should be followed and periodically reviewed and updated to ensure adequacy. • Committee Charter – advisable, particularly for authority to act outside of meetings.
Tip 4 - Fiduciary Duties (cont’d) • Investments • Utilize an investment professional; contract should state if the professional is an ERISA 3(21) investment advisor or 3(38) investment manager. • Plan should include a broad investment lineup that covers the risk/return spectrum, and is well-diversified. Review investment performance at least yearly and replace poor performing funds. • Review investment fees for both reasonableness and how they are paid/allocated; recent trend is to move to per capita fee assessment as opposed to using revenue sharing; review generally should be annual.
Tip 4 - Fiduciary Duties (cont’d) • Fiduciary Training • Committee should understand basic fiduciary duties, such as who is a fiduciary, what are my responsibilities, and when acting as a fiduciary, I AM ACTING IN THE BEST INTEREST OF THE BENEFICIARIES. • Fiduciary Appointments • Establish procedures under which those who appoint fiduciary will periodically monitor the performance of the appointed fiduciaries (e.g., administrative or investment committee members, directed trustees, independent investment advisors, etc.)
Tip 5 – Properly Manage PTO • Two significant issues: • How to integrate a PTO policy with any local sick leave laws. • How to address employees who borrow unearned PTO and leave work before it is repaid. • Sick leave laws • Pittsburgh Code, Tile VI, Article 1, § 626 - 15+ employees, up to 40 hours of paid sick time; 1 – 14 employees, up to 24 hours of paid sick time. Currently stayed, but pending before the PA Supreme Court. PA Rest. & Lodging Ass’n v. City of Pittsburgh, 175 A. 3d 219 (Pa. 2017). • Philadelphia Code, ch 9-4100 (bill No. 141026) – 10+ employees, up to 40 hours of paid sick time; 1 – 9 employees, up to 24 hours of unpaid sick time.
Tip 5 – Properly Manage PTO (cont’d) • Many employers provide PTO in an amount equal to or above those required by local sick leave laws; however, the devil is in the details: • Accrual start date • Accrual rate • Carryover options • Reasons for use • Availability for part-time employees • Operating in multiple jurisdictions makes this even more complicated – do you devise a universal policy or individual addenda?
Tip 5 – Properly Manage PTO • How to deal with employees who want to borrow unearned PTO? • Most employers allow it, conditioned on the employee agreeing to repay any unearned amounts on termination. • However, this presents two issues: • How do you overcome state anti-deduction laws. • How do you avoid possibly interfering with the salary requirements for exempt employees.
Tip 5 – Properly Manage PTO • Anti-Deduction Issues • PA and most other states strictly limit deductions from pay and, in most cases, deductions for borrowed vacation is not expressly permitted. • One option is to pay the wages and sue for the balance, but that is not practical. • The better option is to formally document the borrowing as a loan that the employee agrees to repay. This may not work everywhere, but it is a better approach than simply stating it in a policy.
Tip 5 – Properly Manage PTO • Salary Basis Issue • Under the FLSA, to be classified as exempt, most employees must be paid on a salary basis, which means that for any week in which they work for any amount, they must receive their full salary, subject to certain exceptions – first week, last week, absences for a full day for personal reasons other than sickness, etc. • Thus, if an employer deducts unearned PTO from an exempt worker’s final pay, the employee may not be receiving a full week’s pay for the week in which he borrowed the vacation day, which arguably would violate the salary basis requirements. • If the employer does this routinely, it could be used to claim that the workers are not exempt. • One solution would be to permit employees to borrow vacation only in full day increments, so as to fall within one of the exceptions.
Tip 6 – Prevent the Next #MeToo (cont’d) 2018 EEOC Statistics 76,418 Number of workplace discrimination charges filedin FY 2018, a 12-Year Low Number of Sex-Based Charges filed in 2018 (up 5% from 2017) 7,609 Sexual harassment charges filed with EEOC in 2018 (up 12% from 2017) 13,055 Amount of money secured for discrimination victims in FY 2018 (up from $398M in 2017) Monetary recovery for victims of sexual harassment in FY 2018 (up from $47.5M in 2017) $57M $505M In inquiries and interviews by EEOC since Launch of the Online Portal in 2017 4,463 30% EEOC Charges filed in Pennsylvania in 2018, 4th Highest of any State or Territory https://www.eeoc.gov/eeoc/newsroom/release/10-4-18.cfm (last visited April 8, 2019); https://www.eeoc.gov/eeoc/newsroom/wysk/2018_highlights.cfm (last visited April 8, 2019); https://www.eeoc.gov/eeoc/statistics/enforcement/sexual_harassment_new.cfm (last visited April 11, 2019)
Tip 6 – Prevent the Next #MeToo (cont’d) 2018 Statistics on Internal Complaints • https://www.law360.com/articles/1146246/print?section=employment (last visited April 10, 2019) • NavexGlobal, a leading provider in corporate compliance and whistleblower hotlines, surveyed data from more than 2,500 companies, employing more than 44M workers in 2018. • Overall discrimination complaints were higher than 2017, but similar to the 2016 levels. • Record high 56,400 internal harassment complaints filed in 2018, up 25% from 2017. • Employers receive an average of 1.4 internal complaints per 100 employees in 2018.
Tip 6 – Prevent the Next #MeToo (cont’d) Recent Legislative Action Recent Laws Attempting to Deter Victim Silence Recent Laws Mandating Sexual Harassment Training • Federal Tax Cuts and Jobs Act • Maryland Disclosing Sexual Harassment in the Workplace Act of 2018 • New York State Human Rights Law • Stop Sexual Harassment in NYC Act • Delaware Discrimination in Employment Act • Similar laws in California, Connecticut and Maine
Tip 6 – Prevent the Next #MeToo (cont’d) Reevaluate • Company Culture: Instill gender equity, diversity and inclusion from the top down. • Strong H.R.: Knowledgeable personnel may be able to remedy issues before they become a legal matter. • Anti-Harassment Policy: Instill or review your policy to ensure it’s up to date from both an organizational and legal perspective. Retrain • Company-Wide Training: inform employees of what is/not acceptable, how to report it and how to react. • Enhanced Manager Training: inform managers of liability risks (including personal), how to recognize, report and investigate, first line of defense! • Consider Other Trainings: bullying, unconscious bias, ethical training. React • Contact Appropriate Persons: to investigate, don’t promise complete anonymity, follow written procedures. • Implement Appropriate Protocols: be mindful of privacy and defamation concerns for accuser and accused. • Warn/Watch for Retaliation!
Tip 7 –Prevent the Next #EqualWorkforEqualPay Gender Pay Gap & Equal Pay for Equal Work • PayScale.com surveyed nearly 1.8M people from January 2017 to February 2019, providing information about their industry, occupation, location and other compensation factors. Data showed as follows: For Every $1 Earned by Men For Every $1 Earned by Men https://www.payscale.com/data/gender-pay-gap#section02 (last Visited April 11, 2019)
Tip 7 – Prevent the Next #EqualWorkforEqualPay (cont’d) PayScale.com Gender Wage Gap by Industry https://www.payscale.com/data/gender-pay-gap#section02 (last visited April 11, 2019)
Tip 7 – Prevent the Next #EqualWorkforEqualPay (cont’d) https://www.payscale.com/data/gender-pay-gap#section02 (last Visited April 11, 2019); https://www.pewresearch.org/fact-tank/2019/03/22/gender-pay-gap-facts/ (Last visited April 11, 2019
Tip 7 – Prevent the Next #EqualWorkforEqualPay (cont’d) The Equal Pay Act The Equal Pay Act (EPA) • Prohibits sex-based discrimination in the payment of wages for equal work. • Falls under the FLSA—most employers covered. • No need to first file with the EEOC. • Discriminatory intent irrelevant. • Plaintiff must only prove: • Paid less than at least 1 employee of the opposite sex; • Both jobs require equal skill, effort and responsibility; and • Both jobs are performed under similar working conditions in the same establishment. Affirmative Defenses under the EPA • Pay is based on a seniority system; • Pay is based on a merit system; • Pay is based on a system that measures earnings by quantity or quality of production; and • Any other factors other than sex. • Prior salary or market forces may no longer be a valid defense!
Tip 7 – Prevent the Next #EqualWorkforEqualPay (cont’d) Revived EEO-1 Reporting Requirements • Must provide EEOC with data regarding workforce pay and hours worked, broken down by job categories, race, ethnicity and sex. • EEOC to use the data to identify potential discriminatory pay practices. • Applies to certain federal contractors and all private employers with 100 or more employees. • Judge just ordered that the deadline to comply is September 30, 2019!
Tip 7 – Prevent the Next #EqualWorkforEqualPay (cont’d) • Be Proactive: no longer an option to ignore potential wage and opportunity gaps. • Internal Audits: conduct regular audits of employee compensation and other terms and conditions of employment. • EEO-1 Compliance: if applicable, start gathering pay and hour data now. • Implement an effective EEO Policy: instill or review your policy to ensure commitment to comply with all laws, anti-discrimination provisions, reporting procedures, anti-retaliation language, etc. • Implement Regular Training: train supervisors and managers involved in interviewing applicants to ask uniform sex-neutral questions concerning any issues of scheduling (i.e. avoid eliciting information about marital status, pregnancy or caregiving status).
Tip 8 – Avoid Implicit Bias • Implicit or Unconscious Bias: Occurs when you make spontaneous judgements about people or situations based on past experiences, culture, background or exposure to the media. • Famous Example: Southwest Airlines Pilot Tammie Jo Shults landed plane safely after engine failure. Many media viewers hearing her recorded flight updates assumed she was the flight attendant.
Tip 8 – Avoid Implicit Bias Implicit Bias and Hiring • Do • Eliminate gendered language in job description. • Provide clear job descriptions. • Consider blind resumes/applications. Think • Success and likeability are correlated positively for men and negatively for women. • Women are hired based on accomplishments, men on potential. • Unclear criteria lead to pronounced bias
Tip 8 – Avoid Implicit Bias Implicit Bias – Career Development Think • Men typically attribute their success to internal qualities and skills, women attribute success to external factors • When a woman fails, she is more likely to cite lack of ability. When a man fails, he often cites situational factors • Success and likeability are correlated positively for men and negatively for women • Do • Encourage advocacy • Acknowledge contribution • Encourage risk taking • Celebrate success
Tip 8 – Avoid Implicit Bias Implicit Bias – Feedback and Performance Management Think • Women are promoted based on accomplishments, men are on potential. • Success and likeability are correlated positively for men and negatively for women. • Feedback discussions can be anchored in stereotype and are not objective • Act • Create clarity • Be conscious of biases • Evaluate fairly
Tip 9 – Properly Calculate Intermittent FMLA Leave • FMLA (29 CFR 825.204) entitles eligible employers (50 employees - 75 miles) of covered employees to take unpaid job protected leave for specified family and medical reasons. • 12 work weeks of leave in a 12 month period • Newborn • Adoption or foster care • Immediate family member’s serious health condition • Employee’s serious health condition • Military family member
Tip 9 – Properly Calculate Intermittent FMLA Leave 29 CFR 825.205 (a) Minimum increment. (1) When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken. An employer may not require an employee to take more leave than is necessary to address the circumstances that precipitated the need for the leave, provided that the leave is counted using the shortest increment of leave used to account for any other type of leave.
Tip 9 – Properly Calculate Intermittent FMLA Leave (cont’d) 29 CFR 825.205 (a)(1) cont’d. If an employer uses different increments to account for different types of leave, the employer must account for FMLA leave in the smallest increment used to account for any other type of leave. For example, if an employer accounts for the use of annual leave in increments of one hour and the use of sick leave in increments of one-half hour, then FMLA leave use must be accounted for using increments no larger than one-half hour. If an employer accounts for use of leave in varying increments at different times of the day or shift, the employer may also account for FMLA leave in varying increments, provided that the increment used for FMLA leave is no greater than the smallest increment used for any other type of leave during the period in which the FMLA leave is taken. If an employer accounts for other forms of leave use in increments greater than one hour, the employer must account for FMLA leave use in increments no greater than one hour.
Tip 9 – Properly Calculate Intermittent FMLA Leave (cont’d) 29 CFR 825.205 (a)(2) Where it is physically impossible for an employee using intermittent leave or working a reduced leave schedule to commence or end work mid-way through a shift, such as where a flight attendant or a railroad conductor is scheduled to work aboard an airplane or train, or a laboratory employee is unable to enter or leave a sealed “clean room” during a certain period of time and no equivalent position is available, the entire period that the employee is forced to be absent is designated as FMLA leave and counts against the employee's FMLA entitlement. The period of the physical impossibility is limited to the period during which the employer is unable to permit the employee to work prior to a period of FMLA leave or return the employee to the same or equivalent position due to the physical impossibility after a period of FMLA leave.
Tip 9 – Properly Calculate Intermittent FMLA Leave 29 CFR 825.205 (b) Calculation of leave. (1) When an employee takes leave on an intermittent or reduced leave schedule, only the amount of leave actually taken may be counted toward the employee's leave entitlement. The actual workweek is the basis of leave entitlement…An eligible employee is entitled to up to a total of 12 workweeks of leave, or 26 workweeks in the case of military caregiver leave, and the total number of hours contained in those workweeks is necessarily dependent on the specific hours the employee would have worked but for the use of leave. (2) If an employer has made a permanent or long-term change in the employee’s schedule (for reasons other than FMLA, and prior to the notice of the need for FMLA leave), the hours worked under the new schedule are to be used for making this calculation.
Tip 9 – Properly Calculate Intermittent FMLA Leave (cont’d) 29 CFR 825.205 (c) Overtime. If an employee would normally be required to work overtime, but is unable to do so because of a FMLA-qualifying reason that limits the employee's ability to work overtime, the hours which the employee would have been required to work may be counted against the employee's FMLA entitlement. In such a case, the employee is using intermittent or reduced schedule leave. For example, if an employee would normally be required to work for 48 hours in a particular week, but due to a serious health condition the employee is unable to work more than 40 hours that week, the employee would utilize eight hours of FMLA-protected leave out of the 48-hour workweek, or one-sixth (1/6) of a week of FMLA leave. Voluntary overtime hours that an employee does not work due to an FMLA-qualifying reason may not be counted against the employee's FMLA leave entitlement. KEY POINT - If an employee regularly works a 45 hour week (one hour of overtime per day), then 45 hours equals one week of FMLA leave, meaning that the employee actually has a total of 540 hours of intermittent leave (45 x 12).
