What Are Drake Stars And Why Are They Important?

Happy Person CCO

At Drake & Company, all of our candidates are important and we work very hard to get them placed in positions that they will love.  During our background/reference checks, a chosen few of our candidates shine brightest, and are selected to be featured as our Drake Stars.  These individuals have outstanding qualifications, reliability and ethics, all of which are confirmed through our communications directly with their previous supervisors.

Every month we select Drake Stars to feature on our website and in our newsletter, however, to protect their identity, we give them a pseudonym.   We highlight their skills, preferred job/industry, salary requirements and personality traits. This gives them a bit of extra exposure to increase their likelihood of being considered for a position. When a client expresses interest in one of our Drake Stars, we connect them immediately.

Our Drake Stars are the candidates that we go to for our client’s last minute or challenging needs because we know that we can count on them. Featuring Drake Stars is just one of the ways that we honor those who have worked hard to earn their recognition here at Drake & Company.

Angelica PM2 C for BLAngelica Dudenhoefer is the Marketing Coordinator at Drake & Company, a staffing firm based in Madison, Wisconsin. Drake & Company specializes in temporary, temp-to-hire, and direct hire administrative, clerical and legal placements. Since 1978, Drake has reached beyond skills and qualifications to match candidate personalities with a company’s culture. You can connect with Angelica by email or on LinkedIn and you can find Drake & Company on FacebookTwitterLinkedInGoogle+,Instagram and Pinterest.

Dear Atty., Do I Legally Have To Hire This Criminal?

Attorney Pete Albrecht

Handcuffs CCO

Dear Attorney:

Our company recently extended a job offer to a woman to fill our vacant accounting/bookkeeper position. She is highly qualified and comes with great references. She is scheduled to start next week. After we extended the job offer to her, however, her future supervisor went on the internet and discovered that she has a criminal conviction for battery. Upon discovering this, the supervisor came to me (because I am the HR Manager) and said that he wants to withdraw the job offer. He said that he is not comfortable working with a “criminal.” Something in my gut tells me this is not right. What should I do?

Signed,

Conflicted by Convictions

Dear Conflicted:

Listen to your gut. Wisconsin is one of a handful of states that has a law prohibiting discrimination based on an individual’s arrest or conviction record.

The Law: The Wisconsin Fair Employment Act prohibits discrimination based on an individual’s arrest or conviction record, unless the employer can show that the circumstances of the crime substantially relate to the circumstances of the job in question. The law also makes distinctions between criminal convictions and arrest and distinguishes between the treatment of existing employees and applicants. For job applicants, if the crime that led to the arrest or conviction is substantially related to the job, the employer can refuse to hire the individual. For existing employees, if the crime that led to the conviction is substantially related to the job, the employer may terminate the individual’s employment. If an existing employee is arrested for a crime that is substantially related to the job, the employer’s recourse is to suspend (without pay) the employee pending resolution of the criminal charge. If, however, the nature of the crime leading to either an arrest or a conviction is not substantially related to the job, an employer can take no adverse action against either a job applicant or an existing employee.

At this point you are probably saying to yourself, “that all makes sense, sort of, but how do I know if a crime is “substantially related” to the job?” Therein lies the rub: the substantial relationship test can be dicey. Sure, there are some easy examples. For instance, the crime of theft certainly would be substantially related to the job of a bank teller or some other job that involves access to money. But, consider some examples of crimes that have not been found to be substantially related to the job:

  • Battery/Custodian
  • Sexual assault, possession of a firearm, false imprisonment/Forklift Driver in a warehouse
  • Sexual assault, bail-jumping/Assistant Store Manager
  • Disorderly conduct/Certified Nursing Assistant
  • Sexual assault of a child/Machine Operator

The key in these cases is whether the job in question somehow would make it more likely that the traits that caused the crime could be repeated. In the example that you presented, it is unlikely that a conviction for battery is substantially related to the job of bookkeeper; there is nothing about being a bookkeeper that would increase the likelihood that the woman you hired would engage in another act of battery.

The most important lesson to take from all of this is that Wisconsin employers cannot have a blanket policy of refusing to hire or terminating individuals simply because of a criminal arrest or conviction. Employers must first assess whether there is a substantial relationship between the nature of the crime and the nature of the job.

So, Conflicted, my advice is that you not rescind the job offer. The woman to whom you extended the offer obviously was qualified or you would not have made the offer. She should not be denied employment simply because her future supervisor has, based on unwarranted stereotypes, decided that no one with a criminal record should work for your company. This, after all, is the type of bias that the Wisconsin law was intended to address.

Signed,

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

Dear Atty., Can My Employee Take Maternity Leave Before The Baby Is Born?

Attorney Pete Albrecht

 

Pregnancy 2 CCO PM

Dear Attorney:

We have an employee who is in the final weeks of her pregnancy. She is healthy and has no medical complications as a result of the pregnancy. She recently approached me and asked if she could take a couple of weeks off prior to the expected due date to get her apartment and the baby’s nursery in order. According to her, she is feeling a strong “nesting” urge. This employee, however, has no PTO remaining. She asked whether this “nesting” time prior to her child’s birth could be covered by FMLA. I’ll be honest with you – – I know enough about the FMLA to be dangerous. I know that it would cover this employee if she had a medical complication from the pregnancy. I also know that she would be covered after the birth of her child for “bonding” leave. But I don’t see anything in the FMLA that would allow her time off prior to the birth of her child for “nesting.” Am I missing something?

Signed,

Nesting is for the Birds

Dear Nesting:

Actually, it’s a real thing. Many doctors believe that in the final weeks of a woman’s pregnancy, an increase in adrenaline levels may cause some women to feel a very strong nesting urge. It is understandable that an expectant mother may want to act on this urge to get her home in order before life becomes too hectic after the birth of her child.

Are you missing something in your reading of the FMLA? I think so. The answer to your question lies in the somewhat obscure interpretive regulations to the Wisconsin version of the FMLA.

The Law: Under the federal FMLA, it is clear that a woman is entitled to take 12 weeks off for the birth of a child. Under the federal FMLA, this entitlement starts, “beginning on the date of birth.” The Wisconsin version of the FMLA provides for six weeks of leave for the birth of a child. Under the Wisconsin law, this leave must start “within” 16 weeks of the child’s birth. The regulations that interpret the Wisconsin law make clear that the word “within” means that the leave can be taken, “16 weeks before the estimated date of birth and no later than 16 weeks after the actual date of birth.”

So, as you can see, the Wisconsin and federal laws take different approaches to this issue. Under the Wisconsin FMLA, your employee would be entitled to take time off prior to the estimated date of birth so long as the leave begins within the final 16 weeks of pregnancy.

Another thing to keep in mind is that the time that the employee takes off prior to the birth of her child under the Wisconsin law cannot be counted against the 12 weeks that she is entitled to take under the federal law. This is because the federal law does not apply to leaves beginning prior to the birth of a child. Stated differently, because the federal law and Wisconsin laws do not cover the same things, you cannot run this employee’s time off for “nesting” leave concurrently with her time off under the federal law. This means that the employee could, under the facts you gave me, have as much as 14 weeks off in a row: two weeks of nesting leave prior to the birth of the child under Wisconsin law and 12 weeks after the birth under the federal law.

Also, keep in mind that we are only talking about “bonding” and “nesting” leave. The federal FMLA certainly would apply prior to the birth of a child in situations in which the pregnancy is causing the mother to experience medical problems, i.e., the mother’s own serious health condition.

Nesting is not just for the birds. This instinct in humans can be as powerful as it is for our feathered friends. Legally, the Wisconsin law provides mothers with protected leave to act on this urge.

Signed,

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

Top 5 Reasons to Hire Quickly

 

Snail CCO

There is a common mentality in the hiring industry: hire slowly so that you can take your time to find the right candidate! This may work in certain situations, but for the most part, hiring slowly can cause a myriad of problems. Here are the top 5 reasons to hire quickly.

Top candidates find jobs before your hiring process is over

If you are considering hiring a person, it is likely that other people are too. Asking a highly qualified candidate to go through a long interview process is akin to asking them to keep their options open. They will have more time to interview at other companies. If those companies have a faster interview process, your top candidate could be scooped up before you even have a chance to make an offer.

Save money, time and resources

Slow hiring leads to vacant positions which in turn decreases productivity and sales. Additionally, hiring managers are being pulled away from work for things like meetings related to the opening, candidate interviews, and researching potential applicants which only contributes to the problem. There is also the cost of the recruiter or hiring manager to consider. When it comes down to it, sometimes the lengthy hiring process could cost more than the salary being saved while the position is vacant.

Increase your chance of winning a war for a candidate

So you’ve found your perfect candidate, but someone else wants her too. You are stuck in a bidding war. A slow hiring process could mean that you lose the war and have to start over again. Candidates will often go with the first job offer that meets their needs.

Creates a burden on customers and current employees

A slow hiring process creates more work for your HR department/recruiter and more work for those employees who are taking on additional tasks until the position is filled. This can decrease productivity placing an extra burden on your customers.

Slow hiring causes a lag in recruitment enthusiasm

A slow hiring process can easily turn from a task that someone is excited to do, to a long drawn out process that gets put on the back burner. This lack of enthusiasm could result in candidates that have not been screened thoroughly or an even longer hiring process.

These are just a few of the many reasons why it is often better to speed up your hiring process. This doesn’t mean you should hire the first Joe Schmoe that turns in a resume. It means, be deliberate in your hiring process and eliminate the unnecessary, time-consuming steps.

Angelica PM2 C for BLAngelica Dudenhoefer is the Marketing Coordinator at Drake & Company, a staffing firm based in Madison, Wisconsin. Drake & Company specializes in temporary, temp-to-hire, and direct hire administrative, clerical and legal placements. Since 1978, Drake has reached beyond skills and qualifications to match candidate personalities with a company’s culture. You can connect with Angelica by email or on LinkedIn and you can find Drake & Company on FacebookTwitterLinkedInGoogle+, Instagram and Pinterest.

Dear Atty., Do I Legally Have To Pay My Staff Overtime?

Attorney Pete Albrecht

Money in pocket CCO

Dear Attorney:

I own a small manufacturing company. Our facility is divided into several departments and I employ “Department Managers” to oversee production in those departments. These managers also supervise several employees each. The manager’s work hours vary from week to week; some weeks they will work less than 40 hours while other weeks they may work in excess of 50 hours. Because their hours vary so much, I find it easier to simply pay the managers a fixed salary each week. They currently earn $45,000 a year. I also like paying them a fixed salary because I don’t have to worry about paying them overtime. My human resources manager recently went to a seminar on wage and hour law. When she got back to the office, she told me something about a new rule that would change the way that I am paying my managers (she didn’t take very good notes and that’s all that she could remember). Has there been some change to the law that I am missing?

Signed,

Change is Not Good

Dear Change:

Yes, indeed, the times are changing when it comes to exemptions from the overtime laws. Before we get to that, a brief refresher on the rules for the exemptions for paying overtime might be helpful.

The Law: The Fair Labor Standards Act (FLSA) contains many exemptions from the obligation to pay overtime. The most well-known and commonly used are the so-called “white collar” exemptions for executive, administrative and professional employees. Generally, in order to qualify for a white collar exemption, an employee must: 1) perform duties which fit the FLSA’s test for the exemption (the “duties test”); and 2) be paid at least $455 per week on a salary basis (the “salary basis test”). An employee’s duties are a critical factor in determining exempt status – – merely paying an employee a salary and giving the employee an exempt-sounding job title are not enough to justify application of an exemption. In terms of the salary basis test, this test is met if an employee is paid a pre-determined amount per week which is not subject to reduction regardless of the quality or quantity of the work. Further, the employee must receive her full salary for any week that she performs work without regard to the number of hours worked.

Thus, in order for your managers to be exempt from overtime they must first meet the FLSA’s definition of a “manager” (i.e., the duties test). Your managers likely meet this test because they oversee distinct departments of your business and direct two or more employees. The problem that you likely will face is with the salary basis test.

The Law: Sometime this year (nobody knows exactly when) the Department of Labor (DOL) is going to implement a rule that changes the minimum threshold for the salary basis test. Currently, that minimum threshold is $455 per week or $23,660 per year. The DOL’s rule likely will raise the minimum threshold to $50,440 per year.

As you can see, when this rule goes into effect your managers, who are being paid $45,000 per year, will not meet the new $50,440 per year minimum. Stated simply, your managers will not meet the salary basis test. Stated even more simply, they will not be exempt from the payment of overtime. If misery truly does love company, appreciate that you will not be alone: the new DOL rule is estimated to make approximately five million additional employees eligible for overtime. This obviously is a big change.

I know that you hate change, but this one is coming soon. You might as well get ready for it.

Signed,

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

Is your recruiter good, bad or great?

 

Alex Headshot PM 2

There are good recruiters, there are bad recruiters and there are great recruiters. Great recruiters help you prep for your job interviews. Bad recruiters leave you hanging. Here are just some of the ways that a great recruiter can help you nail your next job interview.

  • Advise on how to dress – Professional attire varies depending on the job. Also, people’s idea of what attire is professional varies depending on the person. A recruiter should be familiar enough with the company and you, the applicant, to help you determine what type of clothing is appropriate.
  • Help with research – A great recruiter will call or email you with the selling points of the company you are interviewing for and suggest that you do additional research on you own.
  • Suggest a social media overhaul – Recruiters often look at your social media during the initial interview period before they send you to a client. A great recruiter will suggest an overhaul if necessary. This may require removing questionable images and posts or even creating an online presence if you don’t have one.
  • Hold a mock interview – When recruiters hold a mock interview, they can immediately address any concerns and reinforce what you are doing well. Mock interviews can help calm your nerves and give you an idea of what to expect. Great recruiters will adapt the mock interview to the specific company and job opening.
  • Tweak your resume – Sometimes going from a good resume to a great resume only requires a few minor changes. Just make sure that your resume remains an honest reflection of your work experience. Be wary of bad recruiters that ask you to lie or bend the truth on your resume.
  • Suggest that you get business cards – If there is enough time before the interview, have business cards printed. They are a professional way to leave an impression. If you are out of work they can be a simple as your name, your field of interest and your contact information. They are not necessary because most of this information will be on your resume or job application, but it will likely set you apart from the other applicants who are less prepared. A great recruiter will know this.
  • Help you address any issues – If you are honest with your recruiter, he or she can help you address issues such as gaps in employment, terminations, arrests, etc. Your recruiter can help you put a positive spin on your negative event.
  • Say something to increase your confidence – A great recruiter would have done an outstanding job screening you, which means that you should be able to do the job. A word of confidence can help reassure you of your capabilities and give you more confidence during the interview.
  • Stress the importance of showing enthusiasm about the job and company – This is perhaps the most important tip. Company’s want to hire people who are passionate about their work. Showing this passion and enthusiasm during the interview reassures the company that you really want to do the job.

These are just some of the things that make a great recruiter. What are some others?

Angelica PM2 C for BLAngelica Dudenhoefer is the Marketing Coordinator at Drake & Company, a staffing firm based in Madison, Wisconsin. Drake & Company specializes in temporary, temp-to-hire, and direct hire administrative, clerical and legal placements. Since 1978, Drake has reached beyond skills and qualifications to match candidate personalities with a company’s culture. You can connect with Angelica by email or on LinkedIn and you can find Drake & Company on FacebookTwitterLinkedInGoogle+Instagram and Pinterest.

Drake & Company Celebrates International Women’s Day

Kelly headshot PM

In honor of International Women’s Day, I asked our CEO, Kelly Starr-King three questions. Here are her insightful answers.

1) Why is gender parity important in the workplace?  

“Balance within an office in gender, race, nationality, etc. brings strengths from all directions and that lends to a stronger team, whereas an imbalance can lead to narrow thinking.  Narrow thinking can create discomfort, and often times employees don’t realize why they’re uncomfortable…they just are.  Discomfort leads to turnover and a loss of production.”

2) What does Drake & Company do to ensure gender parity? 

“At Drake & Company, we pay no attention to anything other than qualifications and personality in hiring for each position.”

3) What advice do you have for employers who want to achieve true gender parity in the workplace?

“Hire the best qualified candidate, no matter what gender, race or nationality for that matter.  One of my favorite quotes says it best -”

“You don’t get harmony when everyone sings the same note.”  – Doug Floyd

Angelica PM2 C for BLAngelica Dudenhoefer is the Marketing Coordinator at Drake & Company, a staffing firm based in Madison, Wisconsin. Drake & Company specializes in temporary, temp-to-hire, and direct hire administrative, clerical and legal placements. Since 1978, Drake has reached beyond skills and qualifications to match candidate personalities with a company’s culture. You can connect with Angelica by email or on LinkedIn and you can find Drake & Company on FacebookTwitterLinkedInGoogle+,Instagram and Pinterest.

How To Recover From A Botched Job Interview

Worried Man CCO

So, you botched an interview, your mind is racing thinking about all of the mistakes you’ve made. Your heart beats faster and you start to sweat. By now, you are mad and you blame yourself. Does that sound familiar? But what can you do? It has happened to the best of us. Just because you feel you’ve messed up royally in an interview, that doesn’t mean that all is lost. Here are some tips and tricks to recovering from a botched job interview.

Reflect, Don’t Over Analyze

Take some time to go over the interview. Don’t just consider what you did wrong, that will only make you feel worse, also focus on what you did right. This will help to prevent you from over analyzing and over reacting. For example, say you were nervous and you were talking way too fast. This is a small detail. The interviewer may not have even noticed even though it was obvious to you. Remember, that interviewers expect people to be nervous during an interview.

Wait…Then Respond

Don’t respond the moment that you get home from your interview. Take some time to calm down so that you do not make another mistake in your haste to fix the problem. Consider whether or not the problem is worth bringing more attention to. If so, what is the best way to address the issue?

Make A Plan

If you did make a big blunder that the interviewer couldn’t help but notice, make a plan to correct it. All is not lost. Think about what the mistake was and about how you can fix it without making yourself look worse. Often times the best way to fix a mistake like this is through a concise, well-crafted communication. Or perhaps, you could just fix the problem. For example, say that you bumped into the interviewer’s desk and broke their picture frame. Try sending a new picture frame to their office with a simple note. If possible, replace it with a better one than the one that you broke so that they feel like they are coming out ahead. You’ve just turned a bad situation into a good one.

Only Point Out The Big Ones

Only focus on correcting the big mistakes, the things that the interviewer would have definitely noticed. After all, you don’t want to inadvertently call attention to a mistake that the interviewer did not pick up on. No one is perfect, so the interviewer does not expect the interview to be perfect either.

Fix It With A Thank You Note

A thank you note is a great option to fix a misstep. Keep the focus of the note on thanking the interviewer and only dedicate a few lines to addressing the problem. This will help to keep the tone positive. Thank you notes are also a great place to add in information that is crucial to getting the job that you may have forgotten to mention during the interview. Let’s say that a big part of the job that you are applying for involves making PowerPoint presentations and you completely forgot to mention that you are a PowerPoint wizard. Try slipping it into the thank you note. You could simply say something along the lines of “I’m excited for the possibility of getting to use my PowerPoint skills in a setting in which my creative and interactive presentations will be appreciated”. This lets them know about your skills without bringing attention to the fact that you forgot to mention them.

Don’t Apologize Just Fix

In most cases a formal apology is not necessary, especially if you can fix the problem with a concise comment. However, if you did something that was extremely offensive or physically damaging such as spilling tremendously hot coffee in the interviewer’s lap, an apology may be the best course of action. If that is the case, remember to be sincere, honest and concise.

Inform The Interviewer Of Distractions

One thing to keep in mind is that interviewers are people too. If you were distracted due to an emergency or another life-altering event, consider sharing it with the interviewer (if it is not too personal). This may even highlight your human nature or the fact that you have values that the employer may be looking for. For example, if you were distracted because you were worried about a sick family member, that shows compassion and family values. These may just be the characteristics that your potential employer is looking for. Either way, chances are that he or she will understand.

Learn And Grow

The most important way to optimize an otherwise unsuccessful interview is to learn from it. It may sound cheesy but, it can be extremely helpful. The same holds true for successful interviews. Always learn from them, the knowledge that you obtain will only strengthen your interviewing skills and improve your chances of landing the job. Remember, a bad interview does not mean that you’ve blown it. It is still possible to recover and even get the job.

Angelica PM2 C for BLAngelica Dudenhoefer is the Marketing Coordinator at Drake & Company, a staffing firm based in Madison, Wisconsin. Drake & Company specializes in temporary, temp-to-hire, and direct hire administrative, clerical and legal placements. Since 1978, Drake has reached beyond skills and qualifications to match candidate personalities with a company’s culture. You can connect with Angelica by email or on LinkedIn and you can find Drake & Company on FacebookTwitterLinkedInGoogle+,Instagram and Pinterest.

Dear Atty., 8 Things Employers Do Illegally

Attorney Pete Albrecht

Lady Justice PM CCO

Dear Attorney:

As a faithful reader of this column, I know that most people write in with specific situations that they want you to address. My question is a little different. Given that you advise employers for a living, I am curious if there are certain mistakes that are commonly made by employers. For example, looking back on 2015, what were some of the most common mistakes that you saw?

Signed,

Hoping to Learn from Others’ Mistakes

Dear Hoping:

Thank you for the interesting question. You are right, there are certain employer mistakes that occur more frequently than others. In no particular order, here are some of them:

Improperly classifying employees as exempt from overtime—this one is a biggie. Just because an employer pays an employee a salary doesn’t mean that the employee is exempt from receiving overtime. Federal and state wage/hour laws require that employees meet both a “salary basis” and “duties” test in order to be exempt from overtime. Application of the tests can be very fact-specific. Many employers either are unaware of these tests or simply ignore them. It also is important to note that the Department of Labor has proposed significant changes to these tests that will expand the availability of overtime to approximately five million additional workers. These changes likely will go into effect later this year, although the exact timing is unknown.

Failing to consider section 7 of the National Labor Relations Act—under section 7 of the Act, employees have the right to engage in concerted activity for their mutual benefit and protection. This means that employees have the right to work together regarding issues that affect their terms and conditions of employment. Section 7 applies to both union and non-union employers. Most often, section 7 issues arise in situations in which an employer tries to discipline employees for saying negative things about the company to each other, whether at work or on social media such as Facebook. Under section 7, employers cannot discipline employees for discussing the terms and conditions of their employment, even if that discussion is negative. Also, many employers have policies that prohibit employees from sharing their wage information with each other. Such a policy clearly violates section 7.

Misclassifying employees as “independent contractors”—unfortunately, this is very common. Employers often hire individuals to perform discrete projects or tasks. While it is certainly much more convenient to treat these individuals as independent contractors (e.g., the employer does not have to worry about payroll deductions, etc.), in most cases the individual is not a true independent contractor. The IRS uses a 20‑factor independent contractor test that, in essence, focuses on the extent to which the employer actually controls the day-to-day activities of the individual doing the work. Employers need to carefully consider that test before reaching the conclusion that an individual is an independent contractor. Also, keep in mind that the mere existence of an independent contractor agreement will not lead to the legal conclusion that the individual is, in fact, an independent contractor. This is a hot button issue for the IRS; they have assigned hundreds of additional investigators just to enforce this misclassification.

Forgetting to consider the ADA after exhaustion of FMLA leave—an individual could have a medical condition that is covered under both the FMLA (and WFMLA) and the ADA (and WFEA). Once an employee’s FMLA leave has been exhausted, many employers fail to consider the duty to accommodate mandated by the ADA. Under the ADA, it may be a reasonable accommodation to allow the employee to extend the leave of absence beyond that which was provided under the FMLA. Many employers fail to consider this.

Inaccurate performance evaluations—let’s face it, no one truly enjoys preparing performance evaluations. Too often, supervisors take the easy way out and either fail to comment on performance issues or, worse, provide praise that is unwarranted. Invariably, this comes back to bite the employer when it later becomes necessary to discipline or terminate the employee.

Improper emails—I cannot tell you how many times I have gone into a case thinking that we have a strong defense only to have my hopes dashed by something stupid that was said in my client’s internal email communications. Please people – – before hitting send consider that, later on, some third-party (a judge, jury, EEOC investigator or arbitrator) may read your email. Be careful.

Responding to administrative charges on their own—many employers try to save a little money by responding to EEOC charges or ERD complaints on their own. While saving a little money on attorneys’ fees may seem like a good idea at the time, it invariably turns out badly. In fact, I just was forced to settle a case in which the client hired us after they already had submitted a response to the EEOC. Because the client was unfamiliar with the area of law, the response essentially admitted liability. It was unfortunate because we actually had a decent defense.

Failing to provide managers and supervisors with basic employment law
training
—legally, managers and supervisors are the agents of the employer; their actions can legally bind the employer. Accordingly, it is imperative that these individuals are provided with basic employment law training. In addition, some courts have found that a company’s failure to provide such training may be justification for punitive damages awards (i.e., monetary awards that are designed to punish an employer for egregious violations).

While the above list certainly is not exhaustive, it contains the most common mistakes that are made by many employers. Looking forward to the remainder of 2016, wage and hour compliance promises to be a major issue. The Department of Labor is trying to tighten the overtime exemptions and to apply the Fair Labor Standards Act to “joint employers” (seemingly separate companies that the Department of Labor will consider as one for FLSA purposes). In addition, expect the IRS to continue its crackdown on the misclassification of employees as independent contractors.

Well, Hoping, I hope that helped. If your company can avoid making these common mistakes, you should be off to a good start for 2016.

Signed,

 

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.

Dear Atty., How Do I Stop Employees From Recording Our Meetings

Attorney Pete Albrecht

Smartphone CCO 2

Dear Attorney:

I am the HR Manager for my company. These days, it seems as though everyone has a cell phone that is capable of making audio and video recordings. This is creating a problem in our workplace. For example, we hold weekly staff meetings so that employees can share problems in the workplace and brainstorm on possible solutions. These meetings used to be very lively and some good ideas emerged from them. Several weeks ago, however, one employee started recording the meetings on his phone. This caused the other employees to be uncomfortable. As a result, these once lively meetings now are dead; people are afraid to speak up because they are being recorded. To deal with this situation, I instituted a policy that employees cannot make audio or video recordings in the workplace without prior, management approval. The employee who originally started recording the meetings has told me that my policy is illegal. He is kind of a troublemaker. I would love to be able to tell him that he is wrong.

Signed,

Sick of Cell Phones

Dear Sick:

Unfortunately, your employee is right. It is likely that your new policy runs afoul of section 7 of the National Labor Relations Act.

The Law: Under section 7 of the Act, employees have the right to engage in concerted activity for their mutual benefit and protection. Such protected conduct may include, for example, recording images of protected picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, documenting inconsistent application of employer rules, or recording evidence to preserve it for later use in administrative or judicial forums in employment-related actions. The National Labor Relations Board will find that a policy violates the Act if employees “would reasonably construe” that the policy prohibits their section 7 activity.

The problem with your new policy is that it is overly broad. It does not differentiate between recordings that are protected by section 7 and those that are not. As such, the NLRB will take the position that employees reasonably could construe your policy as prohibiting their section 7 activity.

Although it seems counterintuitive, employees often have the right to make audio and video recordings in the workplace, even if the recordings are made secretly. The problem with your policy is that it placed a blanket prohibition against all recordings. It would be possible to fashion a more specific policy that would allow you to restrict recording your weekly meetings but that would not be interpreted by employees as infringing on their other section 7 rights.

I certainly understand your frustration. It doesn’t seem right that employees should be able to make audio and video recordings in the workplace, especially if these recordings are made secretly. But, thanks to the advent of smartphones and an employee-friendly NLRB, that is the world in which we now live.

Signed,

Attorney

The “Dear Atty.” column is aimed at answering employers’ legal questions that surround issues in human resources. Attorney Pete Albrecht of Albrecht Backer Labor & Employment Law, S.C. welcomes you to submit questions here for future editions of “Dear Atty.”

If you would like additional information about this topic, please contact Pete Albrecht. He is the president and a shareholder at Albrecht Backer Labor and Employment Law. Pete has represented employers for over 28 years and his law office is located in Madison, Wisconsin.