Good morning, welcome to my latest edition of Monday Morning Briefing. I hope you are enjoying this delicious weather we are finally having here in California, and if you celebrated any holidays this past week or so, some time with family and friends. I most definitely did both.
STORIES FROM THE FRONTLINES – COMPLIANCE ISSUES TO WATCH: WORKING OFF THE CLOCK, SHAVING TIME, REIMBURSING EXPENSES
As a result of having my head down in these PAGA mediations, I have spent many hours auditing my clients’ payroll and operational practices. But I have also had the opportunity to sit for hours and listen to the claims made by the opposing parties, digging up new and more intriguing arguments as to why their class members should be entitled to money. And while vocally, I tend to scoff during mediation at these attempts by counsel to throw literally every argument against the wall and see what may stick; in my head, I am sometimes left thinking, “crap, there is one I hadn’t heard before . . . .”
So let me pass along for your benefit of some of the issues that have been raised in these mediations lately, along with some issues a few clients have brought up in the last few weeks in response to that last Briefing I sent to all of you.
Employees Working “Off the Clock” in Various Settings – This continues to be a favorite topic since the Starbucks case with the shift lead who brought a class action for time spent locking up and turning on the alarm AFTER he clocked out on the POS system. These involve claims for small amounts of time, but time spent daily. Waiting in long lines to clock in, or waiting to have bags checked by security, or even having to walk by security and “slow down,” all will draw the same type of claim. Obviously, putting on or taking off any kind of safety equipment or apron, hat, hairnet, MUST be done on the clock, as must washing hands.
Every new case contains an allegation that COVID temperature checks and symptom screening were done off the clock. Of course, when we helped you all write your CPPs back in the day, we told you then that these claims would be made, so I am sure hoping you all did that properly.
One of the big new varieties of these claims stems from claim that also dovetails into another claim, that is, using personal devices for work, such as phones. Recently, both Bloomingdales and Macy’s have been hit with nationwide lawsuits claiming that their salespeople use their phones to call and text customers on personal time to tell them about sales and products. It’s unclear to me whether or not these stores even knew about these practices, but of course, that is the allegation. One such allegation arose in one of my mediations, and I made the same argument. Of course, if these employees are paid on commission, the argument is that they are incentivized to do this. But is that their choice? Still, in the retail world, it is a practice employers cannot and must not ignore, and it is one they should control with good policies at a minimum. Do NOT look the other way and assume it is the employee’s choice.
Another issue raised was about how many tee shirts were given to employees to wear. If they work five shifts, is giving them one or two enough, or would that require them to spend too much time WASHING the tee shirts? In our case, most employees only worked three days a week. But I leave this one with you to consider.
Reimburse employee use of phones – We’ve been talking about this one. If your rank and file use their phones for any purpose like this, not just to contact patrons, but what about group chats with managers? Or scheduling apps? Or if they work remotely even half time and check in with management with their phones? Even a small stipend per month is helpful. One of my clients suggested that a number of their employees were using their phones for navigating when driving for work. I know I do.
Shaving time to avoid meal break pay or OT – Anyone who has been in a class action, PAGA suit or even just a break pay audit knows of the frustration of having to pay these one hour break premiums if an employee works even one minute past that fifth hour, or returns back to work even one minute early. The temptation is SO often just to write off that one minute . . .especially if it is by a supervisor who sees a slow moving employee in real time, just lazily walking over to clock out and JUST miss that five hour mark. Oops, there she goes again, getting that one hour of pay. It does seem like she is doing that on purpose. Maybe I should just write off that minute and teach her a lesson.
It’s so easy for line supervisors, or any of us, to manage passive aggressively by just writing off that minute. It’s just one minute, after all! Except, it’s not. It’s called wage theft, and that is how it looks to everyone and anyone who sees it.
What is the proper way to deal with it? Counsel the offending employee on this behavior, especially if it’s repeated. And if necessary, hit them with something they will feel. A shift, a suspension of a day, something enough that word gets around that we are serious about this kind of silliness. Be a manager. Don’t shave time. Don’t allow the employees to play you.
On the other hand, if schedules are truly busy and people really can’t always punch out on time, just recognize that and pay the one hour. That’s why it’s done that way. Build it into the system and lay off people.
And ALL management changes of time should be initialed or otherwise approved in the system by the employee. Always.
Okay, I’m going to give you all a break today and quit here. I teased you with an update on Viking River Cruises, but there is not any good news, just more appellate cases coming down in ways we would not want. The Adolph v Uber case is still not set for oral argument, it now looks like June or later. I’ll keep you posted.
I had planned to get into another long discussion, but I need to get to the office to welcome a new attorney to our team, which is good news. We also opened a Chicago office earlier this month, which is also good news. So I wanted to make sure I passed along both those things, because I often forget to pass along the good news. And there is sometimes good news, and we need to make sure we slow down and take time for all of it. Along with things like enjoying hummingbirds – which I did a lot of this weekend since it was SO nice out.
It is still stressful out there, for you and for your employees. But the weather is delightful right now, so do take some time to get outside and breathe in some of this sunshine. I spent one early morning on my rooftop with my bird app last week, wrapped myself in a blanket with a cup of coffee and just listened to those noisy birds. And you know, they are a very calming influence on my day.
So try to find your birdsong, or your breath, or whatever you can do to keep yourself centered through this crazy 2023. Because you need to give yourself that oxygen first, and I know that you are the ones keeping others going. But remember to take care of YOU!
Next week, we will talk about taking care of those around you.
Sending a little birdsong out to all of you.
#StandWithUkraine