Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Under the Occupational Safety & Health Act of 1970, businesses and employers are responsible for providing safe and healthy workplaces for employees. OSHA is assigned to enforce these standards, provide training, education, and assistance.

OSHA is proposing to revise its Occupational Injury and Illness Recording and Reporting regulation by restoring a column for identifying work-related musculoskeletal disorders on the OSHA form 300. The existing requirements on when and under what circumstances employers must record musculoskeletal disorders on their illness/injury logs remains the same.

If you want to provide input on the regulation you may submit comments about the proposed rule electronically prior to March 15, 2010. A public meeting on the proposed rule will be held on March 9, 2010.

We will keep you posted on these regulatory changes.
 

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Many times employees are promoted to management positions because they are great producers. Unfortunately, the skills needed to be a star employee, do not translate to being a great boss.

Linda Hill wrote an article in the Harvard Business Review titled, “Becoming the Boss.” She suggests, new bosses mistakenly think the road to success lies in ordering subordinates around. There is nothing further from the truth. Authority and leadership emerge as a result of the operation of time, the establishment of credibility, and the demonstration of character, competence, and influence. Hill suggests new bosses need to be armed with realistic expectations about supervision, and actively seek out opportunities for coaching and mentoring.

Lighter reading for a new boss may be a review of the submissions for the Internet contest sponsored by Heliotrope Books. The independent publisher is compiling psycho boss stories for inclusion into a new book titled, “Jobs of the Damned.” Rate Your Boss websites are another popular source for horror stories about workplace bullies and poor managers. Learn from their mistakes and do the opposite.

Watching Michael Scott at the helm of the Dunder Miflin Paper Company on the television show “The Office,” is yet another learning tool. Do exactly the opposite of Michael Scott and you may succeed in your new management role. Michael Scott describes his management philosophy as, “I'm friends with everybody in this office. We're all best friends. I love everybody here. But sometimes your best friends start coming into work late and start having dentist appointments that aren't dentist appointments, and that is when it's nice to let them know that you could beat them up.”

You’re the boss, not their friend. Your job is to create a successful team, maximize positive change, and assist employees to reach their peak performance. Your new role as a boss is, after all, about managing people.

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This week the new CBS Sunday night reality show “Undercover Boss” followed President and CEO Coby Brooks of Hooters of America Inc., as he worked undercover in entry level positions in his own restaurants. He cleaned up the kitchen in one restaurant, worked in the supply warehouse packaging hot wing sauce, worked as an assistant manager, and did sales and marketing with two Hooters girls offering free wings on a street corner.

Brooks admitted it had been over 20 years since he worked in a restaurant, and this was very apparent. He seemed surprised and shocked that anyone would be offended by the image of the Hooter Girls, or think his company was not pro-female.

Brooks defended the Hooter Girls concept and seemed to feel badly when a woman on the street  stated, she wouldn’t want her daughters to work at Hooters. Brooks disconnect with his company’s perception and the company he thought he was running seemed real, and not just fabricated for prime-time television.

When a Hooters manager named Jimbo suggested the Hooter Girls working at his restaurant play the reindeer game to decide which one would get to go home early, Brooks looked nausated. Jimbo then placed a plate of beans in front of each Hooter Girl and they had a race to see who could eat the plate of beans first. The question I have for Brooks was why wasn’t Jimbo fired? During the big reveal when Brooks identity was disclosed to the employees, Jimbo was simply chastised for his treatment of the Hooter Girls and told not to do that kind of thing again.

To run a good business, it is important to have an understanding of all aspects from the bottom up to the top. Anything that looks like sexual harassment should be promptly investigated and any inappropriate behavior stopped immediately. My message to Brooks-Fire Jimbo!

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The United States Equal Employment Opportunity Commission (EEOC) office received a black eye this month, when a judge with the Northern District of Iowa federal court issued an order requiring the EEOC to pay more than $4.5 million dollars in costs and attorneys fees in a dismissed lawsuit against a trucking company.

Many people, including Debra L. Reilly of the Workplace Investigations Blog and Tom Crane from the San Antonio Employment Law Blog are blogging from differing perspectives on this recent federal court decision.

The EEOC had filed a series of claims against trucking company CRST Van Expedited, alleging sexual harassment of female employees. The Court dismissed the case, finding the EEOC had failed to investigate and consolidate individual claims prior to bringing the Title VII lawsuit. The judge did not appreciate the EEOC’s litigation strategy of ‘sue first, ask questions later’.

As Ms. Reilly and Mr. Crane point out on their blogs, it is important to investigate claims before proceeding with a lawsuit. Rest assured the EEOC will not be making this mistake again. All employers should be aware EEOC will be more cautious in the future.

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Marylee Abrams and I attended an excellent seminar yesterday presented by Jay Larson, about the FISH Philosophy. The FISH Philosophy was developed or maybe more accurately, discovered by ChartHouse Learning, a documentary film company, who made a film about the Pike Place Fish Market in Seattle. What they discovered was a group of fish mongers who took a tedious and dirty job selling dead things from the ocean, and made it fun and entertaining. By doing so, not only have they made work more enjoyable, but customers and browsers alike have a wonderful experience and return for more. The result has been increased sales and great public relations for the Pike Place Fish Market.

The FISH Philosophy has four principles, designed to provide a different way to show up to work.

1. Play: Make work fun. Encourage creativity. Be enthusiastic. Anything can be boring if you make it boring, so make the commitment to make your workplace more fun and more like play. Tap into natural creativity. Be child-like, not childish.
2. Make Their Day: Find special ways to connect with everyone you encounter for no reason than to brighten their day. Share a cup of coffee, ask about someone’s weekend, share a joke. If employees love their job it is going to show through to others. Encourage your employees to interact and connect with the people who come to your place of business, whether it is the mailperson, delivery person, customers or other coworkers.
3. Be There: Be physically and emotionally present for people, especially when they need you. It’s a powerful message that strengthens relationships. Be present in the moments you are dealing with customers, employees, or others.
4. Choose Your Attitude: No matter the situation, take the responsibility for consciously choosing how you want to show up in the world. Every person has the choice each minute of each day to choose their attitude. Choose a good attitude.

If you conclude you can’t throw fish, shout out customer orders, or play jokes at your business, you are missing the point. The four principles are all about engaging employees, providing exceptional service to customers, and exploring how to make your business more successful. The principles can apply to any business with a little thought and creativity.

By encouraging your employees to follow the four principles of the FISH Philosophy you are likely going to see increased productivity, happier employees, and happier customers, which can result in more $$$$$ and business growth.

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CBS rolled out its’ new reality television show “Undercover Boss,” right after the Super Bowl Sunday evening. In the first episode, Waste Management President and COO, Larry O’Donnell, went undercover for one week performing entry level positions in his own company. A camera crew followed him under the guise they were filming a documentary on entry level positions.

President O’Donnell was filmed working the conveyor belt and picking out cardboard from other recyclables, learning to clean out portable toilets, picking up paper at a worksite, following an overworked administrative assistant/payroll clerk/ truck weigher, and riding along with a female garbage hauler.
 

Overlooking the manufactured drama of reality television, O’Donnell seemed to really learn from his experience performing the entry level positions. He learned one of his recycling plants implemented his 30 minute lunch rule, by docking employees 2 minutes for each minute they were late returning from their limited lunch break. This punishment was never his intention, not to mention the possible FLSA problem it may pose to reduce an employee’s earned wages this way.
 

O’Donnell also learned the female garbage hauler was forced to drive a route which does not permit her to stop and use a restroom, so she carries along a can in her truck to use when she needs to urinate. He admitted maybe his company was not too female friendly and he vowed to make necessary changes. He was surprised to find the employee who cleans out the portable toilets had a cheerful attitude and worked hard at his given tasks. O’Donnell wondered how he could translate that work ethic and attitude to more of his employees.
 

The big lesson for O’Donnell was making the connection between his management policies and the impact they had on his front-line employees. It was an eye-opening experience and O’Donnell vowed to be a better boss based on the experience.  What kind of boss are you?

Stay-tuned for next week’s expose where the CEO of Hooters goes undercover as a management trainee. He uncovers a Hooters manager requiring the waitresses to perform a reindeer dance which looks a lot like sexual harassment.
 

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Employers need to be careful and not misclassify employees as independent contractors in an effort to avoid income taxes, Social Security and Medicare taxes, as well as, unemployment taxes.

In deciding whether someone providing a service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence must be considered. The general rule is that an individual is an independent contractor if an employer has the right to control or direct only the result of the work and not the means and methods of accomplishing the result. The common-law rule for an employee is, if you can control what work will be done and how it will be done, the individual is an employee. The IRS provides a nice breakdown on what to consider when determining if a person is an employee or independent contractor.

As Dennis Westlind from the World of Work Law blog highlights, ‘It is always risky to misclassify someone who should be an employee as an “independent contractor,” but it will become even riskier for employers in 2011 if President Obama’s budget proposal is passed by the legislature.’
The federal government loses millions of dollars of payroll tax revenue annually due to the misclassification of employees as independent contractors. President Obama’s budget proposal has earmarked funds to target this type of misclassification.

Don’t let your business get caught with misclassified employees. Review the business relationship between you and anyone currently classified as an independent contractor to prevent any litigation or penalties for your business.

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Everyone focused on the “jobs, jobs, jobs” message President Barak Obama stressed in his recent State of the Union Address, or the mouthed comment “not true” by Justice Samuel Alito. Adam Santucci reminds us that buried in the speech is a warning the Justice Department will be aggressively pursuing employment discrimination suits against public employers.

This first was announced when, “In December 2009, Thomas E. Perez, assistant attorney general for civil rights, announced the CRD’s (Civil Rights Division of the Justice Department)) intention to file more class action ‘pattern or practice’ discrimination suits against state and local governments.”

These types of cases generally involve class actions alleging discrimination in hiring practices, promotional exams, physical testing etc. The lawsuits allege such practices discriminate against a particular protected class of individuals because fewer of them are selected for employment. Mr. Perez warned he would be seeking monetary damages.

This new threat of aggressive enforcement should cause public employers to revisit their hiring, employment, and testing practices to insure compliance with the law.

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Daniel Schwartz reported on his recent attendance at the 2010 Legal Tech Conference in New York. Finally, it seems businesses are realizing someone on the web is talking about them, and it may not be the media relations message they had in mind.

Several years ago while Walmart was using its cheerful elderly greeters in an ad campaign for their stores, an internal memo from Walmart top management was busy sending a very different message. The internal memo discussed trying to reduce health benefit costs by getting rid of older and sick employees. The contradiction caught on fire on the web. It was a disaster for Walmart.

Businesses can address social media messages with employees by adopting social media policies. As technology has evolved from pagers and cell phones to e-mail, and now Twitter & Facebook, personnel policies must also evolve.

It is not necessary for your business to redesign the wheel. It is necessary to draft a social media policy which captures the philosophy of your company, and the values of management. Matt Leonard blogged about, “Why employees need Social Media Guidelines,” and offered links to 22 useful social media resources including model policy examples. Start with a model policy and see what will work for your business.

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