April, 2009

Common Sense Necessary in Current Flu Outbreak ...
Proactive crisis management is always a good idea.

This month my main article is only to provide some input for you about "why and how" to prepare for any flu or other health outbreak. You can all get the statistics from your newspaper, Internet and tv reports ad nauseum. I am not going to comment on those in this newsletter. But, as a responsible employer you can't ignore the possibility that an employee, vendor, visitor, etc could be infected and spread the flu among your employees.

The experts say that it's important for companies to take preventative action now rather than later. Some well known companies taking action include Microsoft, General Electric, IBM, and Dell. Read our article this month and make sure your company is prepared for any type of emergency.

In more mundane matters, here is a short article on Tip Pooling and the dangers of including supervisors in the distribution of the tips.


Tip Pooling and Supervisors Do Not Mix

The court awarded almost $350,000 to a class of employees, plus attorney's fees after ruling that mandatory tip pooling policies are enforceable under California law, so long as supervisors are not compensated through the tip pool. The law restricts employers, or their agents, from collecting, taking or receiving any gratuity that is paid, given to, or left for an employee by a patron.

Harvey Grodensky was a dealer at Artichoke Joe's Casino and filed a class action against the casino because of the casino's mandatory tip pooling policy. The casino believes a tip pooling arrangement would be good for employee morale and further customer service and did not exclude floor and shift managers because it wanted all employee to benefit. Floor managers were primarily responsible for resolving disputes between customers or between the dealer and the customer. Floor managers also greeted customers, started games, see that games run smoothly, change cards for games, prevent cheating, make rulings of misdeals or disputes, and protect dealers from troublemaking patrons. Although the casino's employee handbook stated that floor managers supervised dealers, the court noted this was not dispositive. The court found that the floor managers were not agents of the casino for purposes of tip pooling.

Shift managers on the other hand were responsible for ensuring floor managers performed their job effectively and correctly. Shift managers assigned floor managers to the sections they were to work and assigned dealers to particular tables. Shift managers had the authority to discipline employees and when the shift supervisors were absent from the premises, the shift manager on duty had authority over the entire casino. The court found that the shift managers were agents of the casino for purposes of tip pooling. As such, the casino violated the law when it included shift managers in the tip pooling arrangement.

Supervisors who direct the work of employees and have the authority to hire, discipline and/or fire are considered agents of the employer for purposes of tip pooling pursuant to Labor Code section 350 et seq. Grodensky v. Artichoke Joe's Casino 2009 Cal. App. LEXIS 324 (2009)

The court clarified that tip pooling arrangements are legal under California law, so long as the employer does not keep any of the money or disburse any of the money to its agents. As such, a tip pooling arrangement among the dealers and other employees of the casino who do not have the authority to act on behalf of the employer relating to hiring, discipline, and firing is legal.

What Should You Do?

• Clearly define, by policy and in practice, which employees have supervisory authority such as hiring, discipline, and firing.
   
  
• Set tip pooling policies only for nonsupervisory employees.
   
  
• Document all hours actually worked by nonexempt employees, ensure they receive at least minimum wage for all hours worked, and use tips as a supplement to their income.

© 2009 California Chamber of Commerce

While this is a California-specific case right now, don't forget that decisions like this have a way of traveling eastward across the country. It would be wise for all employers to review your tip pooling policies.


And of course, here is our monthly quiz

Can an employer require exempt employees to use accrued vacation time during a plant shutdown of less than a workweek without affecting their exempt status, according to the Department of Labor?

A. Yes, provided the employees receive in payment an amount equal to their guaranteed salary.

B. No, the employer cannot require exempt employees to use accrued vacation time during a plant shutdown of less than a workweek without affecting their exempt status.

 
Answers are found at the end of the main article.

Now to my main article on preparing for emergencies in the workplace!

According to Gregg Perry, a public relations expert, who heads the boutique The Perry Group, LLC, specializing in crisis communications ...

Leaders of mid-sized and small organizations need to be prepared to prepare themselves to manage "a Swine Flu problem."

According to Jane Genova (Speechwriter-Ghostwriter), here's what he says:

"Now is the time for organizations to be dusting off their crisis communications plans. If a major Swine-Flu outbreak were to affect your organization, you must know how you are going to communicate with customers, employees, investors, regulators and other constituencies.

Those organizations that were smart and put business continuity and crisis communications plans in place a few years back before Avian-Flu was threatened were far ahead of those which didn't. Remember: The cardinal rule in crisis preparation is that a crisis plan is only effective if it's been built before the crisis happens. Otherwise, it's too late."

Here are his suggestions:

"GREGG PERRY - The Three Quick Steps:

1. Update crisis plan.
   This includes making sure that everyone on the crisis team is aware of their responsibilities. Double check contact information for key team members as well as the 2nd and 3rd level team. Knowing how to find people can save valuable time when decisions and approvals need to be made.
    
   

2. Gather as much information about Swine Flu as possible in the event your organization is affected. Sources include the CDC and your state health department. Find out what the communications plans are for your industry trade association such as the National Association of Manufacturers or the Public Relations Society of America.
    
   

3. Begin internal discussions among key crisis team members.
   How are you going to monitor the situation? What are the action "triggers" if employees are diagnosed with suspected Swine Flu? This is especially critical for those whose operations interact directly with the public - for example, the food service, retail and health-care industries."

   Gregg Perry can be reached at The Perry Group LLC, Gperry@perrypublicrelations.com, 401-886-7200, 401-338-5076, cell.
   
   Source: Jane Genova: Speechwriter - Ghostwriter

One of the most fruitful roles HR can play is to insure policies are in place to address compensating employees who stay at home and also those who are operationally critical and cannot stay at home. In these harsh economic times sick people will come to the workplace and spread flu if they have no assurance of pay continuity. On the other hand, you also need to give an incentive to critical employees to get them to leave their homes and respond to work if needed. Two sides of the same coin.

Here are some ideas for communicating with your employees (thanks to Dyan Ullman, the Human Resources/Office Manager for my long-time client Fraser Communications, for these ideas).

• Posters for the breakroom, mailroom, restroom or any place your employees congregate: Take 3, Swine Flu and/or Good Health Habits - Flu
   
  
• As the employer, you may consider making hand sanitizer available to the employees in the bathroom, lunch room, or any other place that might be a place where employees gather or even at their individual work stations.
   
  
• Place the following into your employee's email communications and/or take this image and make it into a poster:
  

While we cannot control an outbreak on the larger global scale, we can individually protect ourselves, our families, our employees and co-workers with a few simple activities. Don't wait till someone becomes ill in your immediate sphere -
BE PROACTIVE NOW.

 

---

Answers to our Quiz:
Correct Answer: A  Yes, provided the employees receive in payment an amount equal to their guaranteed salary.

Explanation: In a recent opinion letter, the Department of Labor said an employer may require exempt employees to use accrued vacation time for any absence, including one resulting from a plant shutdown, without affecting their exempt status, provided that employees receive a payment in an amount equal to their guaranteed salary. An exempt employee who has no accrued [vacation] benefits . . . or has a negative balance . . . still must receive the employee's guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.

---

Don't Forget To Access Our WebForms.
Answer All Your Human Resource Needs!

• Manage Your Day-to-Day Non-Profit or Small Business
• Organize All Necessary Human Resource Information
• Promote Legal Compliance Within Your Organization.
  

Click Here To Know More!

ABOUT MJMS, INC.

President and Principal Consultant: Margaret Jacoby, SPHR

Margaret Jacoby has more than 25 years of Human Resources and professional management experience in a variety of industries. She has designed human resources infrastructure and implemented systems to ensure compliance with state and federal employment laws. She has directed high quality human resources functions for small and emerging businesses, and served as an external consultant to a wide range of diverse organizations, including non-profits.
 
Her work has included: 

• Conducting H.R. Needs Assessments
• Drafting employee handbooks and policy manuals
• Conducting job analysis and developing position descriptions
• Conducting on-site compliance audits
• Counseling management on progressive discipline
  
• Drafting and review of employee disciplinary actions
• Providing mediation in employee/employee conflict
  
• Training employees/supervisors/managers in the implementation of human resources systems and policies such as Sexual Harassment
• Conducting workshops for business owners on H.R. compliance issues.

 
Ms. Jacoby has earned the nationally-recognized certification of Senior Professional in Human Resources (SPHR) from the HR Certification Institute, Society for Human Resource Management (SHRM).
 
Ms. Jacoby's professional affiliations include:

• Professionals in Human Resources Association (PIHRA)
• Society for Human Resource Management (SHRM)
• National Association of Women Business Owners (NAWBO), Los Angeles and Phoenix
• California Chamber of Commerce


• Arizona Small Business Association (ASBA)
• Long Beach Community Business Network (LBCBN)
• Institute for Management Consultants (IMC)

The information contained in this newsletter is provided as general information and is not a substitute for legal or professional advice. The information is provided by MJ Management Solutions, Inc. and while we endeavor to keep the information up-to-date and correct, we make no representations or warranties of any kind, express or implied, about the completeness, accuracy, reliability, suitability or availability with respect to the newsletter or the information, products, services, or related graphics contained on the website for any purpose. Any reliance you place on such information is therefore strictly at your own risk.