Monthly Archives: December 2015

A GUIDE TO THE GOOD LIFE IN 2016

Do you have a personal philosophy of life?  Or a business philosophy?  What principles will guide your actions in 2016?

A Guide to the Good Life is an outstanding book for those seeking to shore up their principles and objectives for the coming year — and well beyond.

A BETTER  AND HAPPIER YOU

One of the great fears many of us face is that despite all our effort and striving, we will discover at the end that we have wasted our life.  In A Guide to the Good Life, William B. Irvine plumbs the wisdom of Stoic philosophy, one of the most popular and successful schools of thought in ancient Rome, and shows how its insight and advice are still remarkably applicable to modern lives.

Do not confuse Stoicism with a lack of joy or excitement.  “Stoicism, understood properly, is a cure for a disease. The disease in question is the anxiety, grief, fear, and various other negative emotions that plague humans and prevent them from experiencing a joyful existence.”   A Guide to the Good Life

Irvine thus offers a refreshing presentation of Stoicism, showing how this ancient philosophy can still direct us toward a better life. Using the psychological insights and the practical techniques of the Stoics, Irvine offers a roadmap for anyone seeking to avoid the feelings of chronic dissatisfaction that plague so many of us. Irvine looks at various Stoic techniques for attaining tranquility and shows how to put these techniques to work in our own life. As he does so, he describes his own experiences practicing Stoicism and offers valuable first-hand advice for anyone wishing to live better by following in the footsteps of these ancient philosophers.

Readers learn how to minimize worry, how to let go of the past and focus our efforts on the things we can control, and how to deal with insults, grief, old age, and the distracting temptations of fame and fortune. We learn from Marcus Aurelius the importance of prizing only things of true value, and from Epictetus we learn how to be more content with what we have.

Finally,  A Guide to the Good Life shows readers how to become thoughtful observers of their own lives. If we watch ourselves as we go about our daily business and later reflect on what we saw, we can better identify the sources of distress and eventually avoid that pain in our life. By doing this, the Stoics thought, we can hope to attain a truly joyful life.

THE STOIC WORKPLACE

The stoic workplace is not one where workers walk around with blank or grim expressions; rather, it is a principled one, where employees’ actions are aligned with companies’ philosophies.

A Guide to the Good Life contains a number of tools management and employees can use to increase happiness and productivity:

  • Identifying and setting goals
  • Dealing with setbacks
  • Handling success; ironically, this is often challenging
  • Managing conflict
  • Staying focused
  • Cultivating gratitude
  • Working through anger, boredom, or frustration
  • Spotting troublemakers or con men

The book provides examples and quotes on all the foregoing challenges.  For instance, many people chronically view their stead in life in a “glass is half full” way — always taking a negative view of what they have.  This can create tension and unhappiness in our personal lives and in the workplace.

Stoic thinking, however, teaches us to understand and appreciate that we have a glass to drink from in the first instance.   Thus, “after expressing one’s appreciation that his glass is half full rather than being completely empty, one can go on to express his delight in even having a glass:  It could, after all, have been broken or stolen.”

Stoic thinking also helps to identify bad actors — such as sociopaths and narcissists.  As explained here and here, these types tend to use flattery as a means to disarm and deceive their victims.  The Stoic, however, knows that “it is better to fall in with crows than with flatterers; for in the one case you are devoured when dead, in the other case while alive.”

CONCLUSION

“The art of living is more like wrestling than dancing.” Marcus Aurelius.    

Bourque Law Firm hopes that you enjoy lots of dancing amidst the wrestling in 2016.  A Guide to the Good Life  is a great place to start!

MUST BUSINESSES PAY EMPLOYEES FOR TRAVEL TIME? FLOORING CONTRACTOR LEARNS THE HARD WAY

Business owners often get confused as to whether they need to pay employees for travel time.  The answer depends on the nature of their employees’ travel.

This article provides businesses with a simple and effective guide as to when to pay for employee travel time, and when not to.  But first, a real world example of what happens when an employer gets it wrong:  time tranforms into money and pain.

FLOORING COMPANY LEVELED BY THE US DEPARTMENT OF LABOR

Mota’s Floorcovering Inc. in Riverside, California required workers to travel each day to and from work sites, including out-of-town assignments. However, the company did not always count travel time correctly and compensate the time as hours worked. In addition, the employer failed to include compensable travel time for overtime wage calculations, and did not keep accurate time records, in violation of the FLSA.

Enter the US Department of Labor (DOL).  After an investigation, Mota’s Floorcovering paid $229,357 in overtime back wages and $229,357 in liquidated damages to 127 workers. The company paid an addiitonal $23,749 penalty to the federal government.

DOL PRESS RELEASE WARNS EMPLOYERS

“Employers that require workers to travel to and from work sites as part of their daily routines should take note of this case to avoid a common, but easily preventable labor violation,” said Gayane Aleksanian, assistant district director for the Wage and Hour Division in West Covina.  “We are glad that Mota’s Floorcovering acknowledged the issues and stepped up to remedy the situation immediately.”

HERE IS THE LAW ON TRAVEL TIME IN A NUTSHELL

The principles which apply in determining whether time spent in travel is compensable time depends upon the kind of travel involved.

Home to Work Travel:  An employee who travels from home before the regular workday and returns to his/her home at the end of the workday is engaged in ordinary home to work travel, which is not work time.

Home to Work on a Special One Day Assignment in Another City:  An employee who regularly works at a fixed location in one city is given a special one day assignment in another city and returns home the same day. The time spent in traveling to and returning from the other city is work time, except that the employer may deduct/not count that time the employee would normally spend commuting to the regular work site.

Travel That is All in a Day’s Work:  Time spent by an employee in travel as part of their principal activity, such as travel from job site to job site during the workday, is work time and must be counted as hours worked.

Travel Away from Home Community:  Travel that keeps an employee away from home overnight is travel away from home. Travel away from home is clearly work time when it cuts across the employee’s workday. The time is not only hours worked on regular working days during normal working hours but also during corresponding hours on nonworking days. As an enforcement policy the DOL will not consider as work time that time spent in travel away from home outside of regular working hours as a passenger on an airplane, train, boat, bus, or automobile.

CONCLUSION

Determining whether to compensate employees for travel time is relatively easy using the above-referenced guidelines.  If, however, you encounter a travel time situation which does not fit the proverbial mold,  contact counsel, get it right, and avoid the fines, penalties, and grief suffered by  Mota’s Floorcovering.

Art Bourque has guided businesses and individuals in various FLSA matters, including pay for travel time cases.  Contact Mr. Bourque with any questions regarding these or other employment or human resource issues.

This HR Law Insider song about the joys of Going Mobile is one that I enjoyed often while travelling throughout the Northeast on construction jobs many Moons ago:

 

 

 

LOCAL PAINTING CONTRACTOR TO PAY NEARLY $200K IN BACK WAGES, DAMAGES AND PENALTIES FOLLOWING US LABOR DEPARTMENT INVESTIGATION

The US Department of Labor (DOL) announced last Thursday that it investigated an Arizona painting contractor and found Fair Labor Standards Act (FLSA) violations resulting in nearly $200,000 in damages.  This is yet another reminder for Arizona businesses that the DOL is aggressively on the hunt for employers who misclassify employees, fail to properly record workers’ time, and do not pay overtime.

Let’s review the facts of Arizona Painting Company case so that your company will not find itself in a $200,000 (or more) bind.

DEPARTMENT OF LABOR PAINTS AN UGLY PICTURE OF ARIZONA CONTRACTOR’S PAYMENT PRACTICES

Arizona Painting Company is a painting contractor located in the Phoenix suburb of Chandler.

A DOL investigation found that the company failed to pay their employees the federal minimum wage and overtime in violation of the FLSA.

Employees legally-entitled to minimum wage and overtime were paid flat weekly salaries that, when divided by the number of hours they actually worked, fell short of the federal minimum wage, currently $7.25 per hour. These employees routinely worked between 50-55 hours per week, yet the employer also failed to keep an accurate record of hours worked and failed to pay them overtime for hours worked beyond 40 per week, as required by the FLSA.

Other employees, who were paid on a commission basis without regard to how many hours they had worked, were also paid less than the minimum wage and were denied overtime.

Arizona Painting Company agreed to comply with the FLSA and will pay $165,638 in back wages and damages to 79 workers. The commercial and residential painting contractor will also pay an additional $29,546 in civil money penalties. As part of the settlement, the employer notified employees about the case and agreed to provide them with training on their rights under the FLSA.

THE DOL VOICES ITS COMMITMENT TO PROTECTING EMPLOYEES AND TARGETING BUSINESSES

“Workers in [the contracting] industry are among the most vulnerable that we see,” said Eric Murray, director of the Wage and Hour Division’s district office in Phoenix. “As the back wages, damages and penalties paid in this case illustrate, we are committed to ensuring that workers receive every penny they have rightfully earned.”

“Other employers should take note of this investigation, and ensure that they are in compliance with the law. Other employees being paid in this manner should give us a call. Our services are free, and confidential.”

COMPLY WITH THE FLSA AND SLEEP WELL AT NIGHT

How can your business avoid the painting contractor’s mistakes?  Here’s how:

  • Make sure you have a solid and defensible recordkeeping system that accurately records all time worked
  • For FLSA recordkeeping requirements, read this previous HR Law Insider article
  • Pay non-exempt employees on an hourly, not salary, basis; this way it is much easier to accurately determine any overtime due and much less likely you will miscategorize employees
  • Conduct an annual internal audit with counsel; this should neither be difficult nor expensive — few employees fall into a grey area when it comes to classifying and properly paying employees

CONCLUSION

The tips listed above are but several of many measures that go into an effective FLSA compliance program.  Put the proper systems in place, execute consistently, and your business needn’t fear the “dreaded” DOL audit.

Art Bourque has guided businesses and individuals in various FLSA and DOL audits and investigations.  He has defended and brought claims under the FLSA and other DOL and EEOC regulated laws.  Contact Mr. Bourque with any questions regarding these or other employment or human resource issues.

EPILOGUE:  THE TREES

As explained in a previous article, the most effective way to avoid a DOL audit is to treat your employees well —  because the number one cause of audits is employee complaints.

So, while pondering the state of your employees’ morale, enjoy The Trees by Rush.  This Neal Peart creation brilliantly captures what happens when those above (the Oaks) and those below (the Maples) do not get along.  Namely, “hatchet, axe, and saw” intervene (the Government).  At least this has always been my interpretation of the song — one of my favorites.  The lyrics appear below the video:

There is unrest in the Forest
There is trouble with the trees
For the Maples want more sunlight
And the Oaks ignore their pleas.

The trouble with the Maples
(And they’re quite convinced they’re right)
They say the Oaks are just too lofty
And they grab up all the light
But the Oaks can’t help their feelings
If they like the way they’re made
And they wonder why the Maples
Can’t be happy in their shade?

There is trouble in the Forest
And the creatures all have fled
As the Maples scream ‘Oppression!’
And the Oaks, just shake their heads

So the Maples formed a Union
And demanded equal rights
‘The Oaks are just too greedy
We will make them give us light’
Now there’s no more Oak oppression
For they passed a noble law
And the trees are all kept equal
By hatchet,
Axe,
And saw…

USC’S EX-FOOTBALL COACH SUES THE SCHOOL FOR FAILING TO ACCOMODATE HIS ALCOHOLISM: DOES HE HAVE A CASE?

Yesterday, ex-USC Trojan football coach Steve Sarkasian sued the University, claiming that it discriminated against him because he is an alcoholic.

Does Coach Sarkasian have a case?  Are alcoholics protected by the Americans with Disabilities Act (ADA)?  Should employers, therefore, proceed with caution when discharging alcoholic employees?  Read on for the answers.

BIG TROUBLE AT ‘SC

Problems surfaced in August of this year when Coach Sarkasian appeared intoxicated and used inappropriate language at a pep rally.  Here is a clip of  him at the event:

Subsequently, reports surfaced that Sarkasian was drunk on the sidelines of USC’s September 26 game against Arizona State University.

On October 11, Sarkasian was placed on “indefinite leave” by USC’s Athletic Director, Pat Haden.  Less than 24 hours later he was fired:

“After careful consideration of what is in the best interest of the university and our student-athletes, I have made the decision to terminate Steve Sarkisian, effective immediately,” USC athletic director Pat Haden said in a statement.

SARKASIAN SUES USC FOR WRONGFUL TERMINATION BASED ON HIS ALCOHOLISM

Sarkasian’s lawsuit claims that USC knew he was an alcoholic and, therefore, had a duty to accommodate him:

“California law imposes a duty on USC to make reasonable accommodations for a disability, such as alcoholism, unless USC could demonstrate that doing so would have imposed an undue hardship.  Furthermore, California law imposes a duty on USC to engage in a timely, good faith, interactive process with Steve Sarkisian to determine effective and reasonable accommodations for his disability. This is particularly true since Mr. Sarkisian requested an
accommodation. USC also was required under California law to seek input from Mr. Sarkisian as to what accommodations may be needed.

USC also cannot credibly argue that Helton was incompetent to handle the team’s head coaching duties while Steve Sarkisian was on leave given that USC has now hired Helton to be the permanent Head Coach for at least the next five years.

USC also failed to engage in a timely, good-faith interactive process with Steve Sarkisian to determine an effective and reasonable accommodation. Instead, USC fired Steve Sarkisian by email less than 24 hours after placing him on leave. Had USC not withdrawn its decision, less than 24 hours after announcing it, to place Mr. Sarkisian on leave, he would have been able to obtain the treatment he needed and then return to successfully perform his essential job functions as Head Coach.”

The California law upon which Sarkasian relies mirrors the ADA.  It requires an employer to make a reasonable accommodation for a disability unless such accommodation would place an undue hardship on the employer.

ARE ALCOHOLICS PROTECTED UNDER THE ADA?

Alcoholics are indeed protected under the ADA.  The US Department of Justice provides this Q&A on the issue:

Q. Are alcoholics covered by the ADA?

A.
Yes.  While a current illegal user of drugs is not protected by the ADA if an employer acts on the basis of such use, a person who currently uses alcohol is not automatically denied protection. An alcoholic is a person with a disability and is protected by the ADA if s/he is qualified to perform the essential functions of the job. An employer may be required to provide an accommodation to an alcoholic. However, an employer can discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct. An employer also may prohibit the use of alcohol in the workplace and can require that employees not be under the influence of alcohol.

The Equal Employment Opportunity Commission’s (EEOC’s) Technical Assistance Manual provides: “A person who currently uses alcohol is not automatically denied protection simply because of the alcohol use. An alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, if s/he is qualified to perform the essential functions of a job. However, an employer may discipline, discharge or deny employment to an alcoholic whose use of alcohol adversely affects job performance or conduct to the extent that s/he is not ‘qualified.’ ”

CONCLUSION

Does the Sarkasian case instruct us that employers cannot terminate alcoholics?  No.

Employers may prohibit the use or possession of drugs and alcohol in the workplace and require that employees not be under the influence of alcohol or drugs in the workplace.  Thus, if an alcoholic or non-alcoholic employee is violating work rules relating to the use or possession of alcohol, that employee may be terminated.

What an employer cannot do is terminate an alcoholic employee on the basis of his/her disease or fail to reasonably accommodate an alcoholic, when such accommodation does not impose an undue burden on the employer.

How will the Sarkasian case play out?  It will most likely settle.  There is a lot at stake, bad publicity all the way around, and Trojan Nation will likely want to move on.  For the time being, USC has issued this statement:

“Much of what is stated in the lawsuit … is patently untrue … The record will show that Mr. Sarkisian repeatedly denied to university officials that he had a problem with alcohol, never asked for time off to get help and resisted university efforts to provide him with help.”

Art Bourque has guided businesses and individuals in various HR matters, including alcohol and substance abuse incidents.  Contact Mr. Bourque with any questions regarding these or other employment issues.

EEOC CREAMS DUNKIN’ DONUTS: EMPLOYER LESSONS FROM THE DONUT MAKER’S $151,000 PAYMENT IN ADA CASE

A company which operates Dunkin’ Donuts stores at Baltimore-Washington International Airport (BWI) will pay $151,000 and furnish significant equitable relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced yesterday.

DUNKIN DONUTS TELLS DISABLED EMPLOYEE IT’S NO LONGER TIME TO MAKE THE DONUTS — AND PAYS FOR IT

According to her lawsuit, Joan McMahon O’Donnell successfully performed her job duties as a regional manager at the company’s BWI Dunkin’ Donuts locations.  After O’Donnell was diagnosed with breast cancer and requested unpaid leave for surgery, chemotherapy and radiation treatment, Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged her because of her disability, EEOC charged.

Such alleged conduct violates the Americans with Disabilities Act (ADA).  The EEOC thus filed suit after first attempting to reach a pre-litigation settlement through its conciliation process.

Dunkin Donuts decided the risk of a trial was too great.  In addition agreeing to pay $151,000 in monetary relief to O’Donnell, it entered into a two-year consent decree prohibiting OHM from engaging in any future disability discrimination. OHM will also implement a new attendance policy which includes a provision for requesting reasonable accommodations for employees with disabilities. The restaurant will provide annual ADA training to all supervisors, managers and human resources employees. OHM will also post a notice about the settlement and will report to EEOC about how it handled any internal complaints of alleged disability discrimination.

THE EOOC IS GROWING MORE ACTIVE AND VOCAL WHEN IT COMES TO ADA VIOLATIONS

“Providing a leave of absence for an employee who needs medical treatment related to a disability is not only the decent thing to do – it is required by federal law unless the employer can show it would pose an undue hardship,” said EEOC Philadelphia District Director Spencer H. Lewis, Jr.

EEOC Regional Attorney Debra M. Lawrence added, “This settlement fairly compensates Ms. O’Donnell for her losses. Equally important, the consent decree contains equitable relief, including training and monitoring provisions, designed to ensure that employees with disabilities get reasonable accommodations if needed.”

LESSONS FOR EMPLOYERS

Any time an employer is confronted with an employee that may need medical leave or some other accommodation to help with a serious medical condition, it should evaluate and determine whether it is complying with the ADA (and, for companies 50 employees or more, the Family Medical Leave Act).

Dunkin’ Donuts failed miserably to do this according to the EEOC:  “Dunkin’ Donuts refused to provide a reasonable accommodation and instead abruptly discharged her because of her disability.”

The process of deciding on whether a reasonable accommodation is possible and practical is oftentimes difficult.  There is often great friction between the employee’s medical needs and the employer’s legitimate business needs.

If a requested accommodation poses an “undue burden” on the employer – if it is not objectively reasonable because it will pose too great a burden on the business — the employer is not required to provide that accommodation.  Any time an employer refuses an accommodation on the basis that it would create an undue burden, it should know that its decision may be scrutinized by the EEOC and, ultimately, by a jury.

In sum, when making a decision as to whether to accommodate a sick employee, (1) know that the ADA requires an accommodation unless it would impose an undue burden; (2) maintain openness and flexibility in enforcing leave and other policies; and (3) consult with counsel to ensure that you are making a decision that, if tested, is fully supportable.

Art Bourque has guided businesses and individuals in various ADA and FMLA matters.  He has defended and brought claims under both federal statutes.  Contact Mr. Bourque with any questions regarding ADA, FMLA, or other employment or human resource issues.