Month: January 2019

Pets and the Workplace: Pets are Changing Work

Published by Brett Holubeck on January 31, 2019

Picture of a dog in sun glasses to tie into the theme of pets and the workplace — Photo by alan King on Unsplash

Pets are an integral part of people’s lives. Sixty-eight percent of US households, a total of 85 million families, own a pet which is up from 56% of households in 1988. In 2017, Americans spent $69.5 billion on their pets.

While older generations loved their pets, millennials seem to love their pets more than any previous generation and have made them an integral part of their lives. More millennials own pets than have children. In 2016, 48% of Millennial women (ages 20 to 35 at the time) were moms compared to 57% of women the same age in 2000. Approximately 73% of millennials currently own a pet. There are Twitter accounts with millions of followers about animals (Dog Feelings and Dog Rates), entire Reddit groups about pets (Reddit Dogs) and, of course, innumerable pet photos on Facebook. There is even a movie (and a forthcoming sequel) about what pets do when their owners are not home, which I am very excited to see with my kids.

People with Pets are Healthier

Pets do a lot of good for the people in their lives. Researchers at the State University of New York at Buffalo discovered that in people already taking medication for hypertension, their blood pressure response to stress was cut by half if they owned a cat or dog.” Pets help people to socialize. A person that is walking a dog is a lot more approachable than a person merely walking down the street (except maybe if your dog is similar to mine- five whole pounds of fury). Pet owners also have a lower rate of obesity than non-pet owners. This comes as no surprise to me because I have to let my dog out practically every time I turn around.

Bringing Pets to Work

According to a 2016 report from the Society for Human Resource Management approximately 7 percent of offices in the US allow pets at work. Among the companies that allow pets are Amazon, Bissell, and Zoosk. 6,000 pets join their owners every day at the Amazon headquarters in Seattle. There is also a bring your dog to work day that some companies celebrate.

While this is not something that can be accommodated at every job (think about those that work in the food industry or elsewhere), there are workplaces where it can work, and companies should consider it. Pets and the workplace can work well together. Anyone that is in an office setting could potentially bring their pets to work with them.

As stated above, there are some health benefits from having pets that employees may also experience if they bring those pets to work including lower amounts of stress. Also, this is a perk that the employees that have pets really love. They get to spend more time with their dogs and cats and do not need to worry about what their pets are doing at home all day. As long as the pets are not inhibiting employees from doing their jobs (like this cat), making a mess, or causing allergic reactions, then this is something that may be possible in a lot of offices and can help attract talent. Especially when we know people are looking for jobs that accommodate their lifestyles and perception of work-life balance, allowing them to bring someone they love (their pet) to work may be something they really enjoy and value.

If any of these issues become a concern, then the best option is to address them with the employees. Obviously, if someone is severely allergic to a cat or dog, then you will need to either rescind the policy (if the workspace is small) or limit the policy to certain parts of the building. If an animal is not well-behaved, then the company will need to address it with the owner and should consider banning the animal from the premises.

Also, you should place some limits on the kinds of pets that are allowed on the property. I would limit the policy to dogs and cats (you may be required to allow miniature horses ), also maybe considering the limitation of breeds given aggressive nature similar to what breeds house insurance will not cover on homes. Lastly, no one needs to bring their emotional support alligator to work.

Service Animals Must be Allowed on the Property

One quick side note. All businesses that are open to the public must generally allow people to bring their service animals into the facility. The ADA National Network provides a great explanation of what a service animal is:

A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button.

Titles II and III of the ADA permit the owners of these service animals to be present anywhere members of the public, program participants, customers, or clients are allowed.

Jacquie Brennan and Vinh Nguyen at the ADA National Network write that

When a person with a service animal enters a public facility or place of public accommodation, the person cannot be asked about the nature or extent of his disability. Only two questions may be asked:
1. Is the animal required because of a disability?
2. What work or task has the animal been trained to perform?

Allowing an employee to bring their service animal to work may be a reasonable accommodation. It will depend on the job that the employee does to determine whether allowing a person to bring an animal is a suitable accommodation.

Pet Insurance and Companies

One of the incentives that some companies have begun to offer their employees is pet insurance. Currently, only 1-2 percent of pet owners have insurance for their pets.

As I said before, people love their pets and 68% of US households have a pet. Because companies are always in competition to attract the best talent, some companies have begun offering pet insurance. It is something that all companies should consider. Currently, about 1 in 3 Fortune 500 companies offer pet insurance.

Why are companies offering this benefit? Owning a pet can be expensive, especially when these animals get sick or injured and they need to go to the vet. On average, a dog owner will spend more $700 on veterinary bills per year and a cat owner will spend a little over $300. Pet insurance is a perk that the company can give to show employees that they care., and it is something that could be beneficial to most of a company’s workforce.

Pet Leave and the Workplace

Pets get sick. Many companies do not recognize the need to care for a pet as a sufficient reason for that person to stay home from work. However, other companies have begun to see the importance of this to their employees and have started to allow employees to call off sick to care for their sick pet. Some companies allocate a specific number of hours for employees to use to care for their pets. While others have allowed employees to use their sick or vacation time to take care of a pet. Truthfully, regardless of your policy, it is probably a good idea to allow people to take off time to care for their pets.

Consider a pet owner whose dog has to get emergency surgery. If you do not allow that employee to take off work, then they are going to be upset with the company. If they do come to work, they will not be focused on their job because the will be too worried about their pet. Unless it is really necessary for them to be at work, some time off can make the employee feel appreciated by the company and motivate them to work harder when they return.

New Pets and Pawternity Leave

Some workplaces are offering a new benefit for employees: the chance to bond with a new puppy. About 5% of pet owners have been offered paid leave from their job to adjust to owning a pet. Other employers allow employees to take off several days without pay while they adjust to owning a dog.

Again, while this is not right for every business, it can be something that is useful to attract millennials because so many of them have pets. It can help create a culture where the employees feel like the employer cares (and hopefully actually does care) about employees.

Pet Bereavement

Unfortunately, pets die. The death of a pet can even be as hurtful as the loss of a human significant other. It is an even more tragic experience when the pet owners have young children that also experience the loss of their pets. Many parents do not send their children to school the day or a couple days after they lose a pet when those children are young. The kids are devastated. The parents are too.

Again, allowing employees that need time to adjust to the loss of a pet can be incredibly helpful. This is a small benefit that can easily be included as part of the reasons that an employee may use sick leave, vacation time, or paid time off. Doing so will make the employee feel valued and will help them to be motivated when they return.

Conclusion

Pets and the workplace may seem like a combination that does not mix. However, as companies continue to compete for talent, it is a benefit that all companies need to consider. Most of the people in your office probably have a pet. Some of them will even have more than one pet. Providing benefits that help employees with pets is a way to improve morale and show employees that a company cares and recognizes what is important to them both inside and outside of the workplace.

The information provided in this blog is for educational purposes only and is not legal advice. If you need legal advice, then you should speak with a lawyer about your specific issues. Every legal issue is unique. A lawyer can help you with your situation. Reading the blog, contacting me through the site, emailing me or commenting on a post does not create an attorney-client relationship between any reader and me.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

New Employers Need a Hiring Checklist

Published by Brett Holubeck on January 22, 2019

Image of a "Come in. We're open" sign to show that the new business is open and to align with the theme that businesses need a hiring checklist. — Photo by Richard Balog on Unsplash

Alexandria Ocasio-Cortez’s campaign was fined $1,500 for failing to obtain the required worker’s compensation coverage from March 31, 2018, to April 30, 2018. As Congresswoman Ocasio-Cortez found out, being a new employer is not easy. There are tons of laws to follow, multiple entities that make and enforce the required rules and regulations, and tens of thousands of court cases explaining and refining these laws. Not only is it important to follow employment requirements because you do not want to break the law; ensuring your employees are equipped, prepared; and welcomed on their first (and every) day, has long-term implications for employee retention; satisfaction; and helps to prevent liability in the future. New employers need a hiring checklist.

What New Businesses Must Consider When Hiring New Employees: A Hiring Checklist

Let’s talk about some of the many tasks that new businesses need to do to ensure they do not make a mistake when they hire their first employee. (For the sake of this piece I am going to assume that the company has already created a legal entity, opened a company bank account, applied for an employer identification number, registered with any required state or local agencies, obtained any required business licenses, and is basically at the point of being ready to hire its first employee.)

Here is a hiring checklist that any new business should review when hiring its first employee:

1. Employers need an employee handbook. The employee handbook should outline the various requirements that employees must follow and explain what the company will do for its employees including that the company will follow all the required laws and regulations regarding employment. A handbook tells employees how to request leave, the discipline structure, how to report complaints, what company holidays will be, what benefits employee have, and any pertinent information that all employees need to know. This is the guide that helps employees know what is expected of them.

2. Companies need a plan to motivate employees. A motivated workforce performs better. A lack of employee engagement is responsible for $450-550 billion in lost productivity each year in the U.S. Here are some things to ask yourselves related to employee motivation:

How will employees grow at the company? If there is no room for employees to grow, then they will not be motivated and will eventually look for a new job. Helping employees grow can help retain your best employees, which improves your business. (This includes things like room for promotions, learning new skills, opportunities to manage or train, utilizing employee strengths, etc.)

How will you treat them as employees? Employees want and need recognition and feedback. You shouldn’t just talk to an employee when there’s a problem, in fact, you should share with them how you feel about their successes (formally and informally).

3. Make sure that employees fill out all of their required paperwork correctly. Think about the I-9s. Section 1 on the I-9 must be completed on the first day of the employee’s employment. Employers have three days to complete Section 2. You can review what to do here in my earlier post.

New employees also must complete the W-4 form for their tax withholding.

4. Businesses also need to run any necessary background checks, drug tests, motor vehicle reports, and other checks that are required for your particular business or these employees. You should get the employee’s written permission to run drug tests and background checks.

5. Employers also need to set some formal processes that the employees will follow (and great employers also include not only adequate, but exceptional, training). This training/support should detail for employees how they successfully do their jobs. What are the processes for things that require step-by-step actions to perform them correctly? Who do they report to in the event of a problem? Who do they refer people to based on particular needs? What are the communication norms and expectations within the business/department/team? Essentially, how do they do their jobs? You should not expect an employee to be able to exercise their own discretion to do their new job. Just like anything else, learning to do a job takes time.

Think about Chick-Fil-A. They have a very particular way they want their employees communicate with their customers. Rather than saying “you’re welcome” when a customer says, “thank you” every employee is instructed to say “my pleasure.” This is something that is readily identifiable and special about Chick-Fil-A. People remember it. There are also a slew of memes about it. Employees would not do this with the consistency required for this brand recognition without the training and feedback they receive.

6. Employers need a personnel file and a recordkeeping system for the employees. When you hire an employee, you need to ensure that they sign any necessary documents for your company including:

Noncompetition and nondisclosure agreements
Employee handbook acknowledgement (stating that the employee received a copy of the handbook)
Life and health insurance plan information documents
401(k) documents

7. Ensure that the workers have a safe place to work and the tools that they need. Nothing makes an employee feel unwelcome more quickly then showing you didn’t put any thought into their arrival, first day, and needs. Do you have enough equipment for the employee on their first day? Is their computer set-up? Is there someone to train them? Have you showed them where to put their lunch? There is nothing worse than feeling like an afterthought on your first day of work because no one was told that you were starting, or nobody cared to figure out how to orient you. It makes you feel a bit like Milton when he gets moved down to the basement in Office Space.

8. And don’t forget to get worker’s compensation coverage for your business. Workplace accidents can get expensive.

Conclusion

Hiring a new employee is incredibly important, which is why all companies should have a hiring checklist. If a company fails to properly prepare for a new employee, then you start with an employee that already feels out of place and unwanted. The company may also set itself up for a lot of liability later on by not adequately ensuring successful orientation and onboarding. Great training, preparation, and navigation of the laws can ensure success for employer and employee alike.

The information provided is my own and does not reflect the opinion of my firm or anyone else.

Responding to an NLRB Unfair Labor Practice Charge

Published by Brett Holubeck on January 10, 2019

Image of gavel to represent that the unfair labor practice is essentially a case against the company alleging that it violated the NLRA. — Photo by rawpixel on Unsplash

Getting an unfair labor practice charge against you can be confusing. Let’s start with the basics.

An unfair labor practice charge is filed by an employee or a union with the National Labor Relations Board alleging that an employer or a union violated the National Labor Relations Act. The National Labor Relations Act (NLRA) protects employees’ rights to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection” (otherwise known as protected concerted activity). It is illegal for a company to discipline or fire someone because they engage in protected concerted activity.

Some of the most common violations that employers commit are:

Forbidding employees to discuss their salaries
Firing or disciplining employees that discuss the union or solicit employees to sign union authorization cards
Disciplining or firing employees that complain about working conditions, pay, or safety issues with or on behalf of a group of employees.

You can read more about other ways that the NLRA protects employees in one of my earlier posts.

The Best Approach is to Avoid Unfair Labor Practices

If you do not violate the law, then it is less likely, although not impossible, that an employee or a union will file an unfair labor practice charge. Employees can and do file frivolous lawsuits and unfair labor practice charges.

The best way to avoid an unfair labor practice charge is to train your managers, supervisors, and HR staff on what they can and cannot do. The easiest way to remember what can and cannot be done is to remember TIPS.

Threaten
Interrogate
Promise
Spy

Employers cannot threaten employees with any adverse action (discipline, termination, reducing pay) because they support a union or engage in protected activity. Companies cannot interrogate employees on whether they support a union. Employers cannot promise employees benefits or better pay to encourage employees to stop supporting a union. Finally, employers cannot spy on employees that are engaging in union or protected activity (like having a meeting offsite about whether employees should join a union).

So, what happens when you have an unfair labor practice filed against you?

The NLRB has a chart that shows exactly what happens. Let’s review the steps before a hearing occurs.

The Investigation

Companies need to act fast when they receive an unfair labor practice charge from the NLRB. Obviously, employers should seek legal counsel if they are not represented. To respond companies should:

Carefully read the unfair labor practice charge
- Who was involved in the incident(s)?
- When did they occur?
- What violation does the charge allege that the company committed?

The employer will also receive a Questionnaire on Commerce Information. It is best to agree or stipulate that the company is subject to the jurisdiction of the NLRB rather than filling out the form. Employers typically do not want to reveal more information than they need to.

Employers need to be careful about speaking to employees that were witnesses to the events leading to the unfair labor practice charge.

Matt Austin explains the basics of what employers need to do to speak to employees in these situations:

Specifically, Johnnie’s Poultry allows questioning of employees only after the employer’s representatives:
1. communicate to the employee the purpose of the questioning;
2. assure the employee that no reprisals will take place for refusing to answer any question or for the substance of any answer given; and
3. obtain the employee’s participation in the interview on a voluntary basis.

Basically, employers need to let the employee know that they are interviewing the employee because of the incident within the unfair labor practice charges. Employers must inform the employee that they will get no benefit or punishment from speaking with the employer or the employer’s attorney. Finally, the interview is voluntary and can be stopped at any time. Employers should never speak with the charging party (the person that made the accusations) about the incident. None of this applies to members of management or human resources.

The NLRB will typically wish to speak with the members of the management team that are alleged to have committed the offenses committed by the company. Most employers benefit from conducting their own careful investigation of the events before they allow the NLRB to interview their employees.

The NLRB will Want to Take Affidavits from Management Witnesses

As part of the investigation, the NLRB will seek to take affidavits or statements from management witnesses. Companies have a right to have an attorney present for all witnesses that are members of management or human resources staff (agents of the company) but attorneys cannot be present for any affidavits taken from employees that are not members of management. Employers cannot stop employees that are not members of management from speaking with the NLRB.

Employers have a few options when it comes to determining whether to provide management witnesses. They can:

Refuse to provide any information to the investigator. This will usually result in a complaint being issued against the company because the only evidence will be from the charging party. Employers may wish to do this if they believe that this will go to a hearing because the NLRB will ultimately issue a complaint. Companies also need to be aware that the NLRB will often share information with the charging party. The NLRB rarely seeks an investigative subpoena to force the employer to provide information, so it is likely that you will be facing a complaint that will include all of the allegations from the charge.
Call the investigator and orally discuss the company’s position but refuse to make management witnesses available for affidavits or to provide any documents.
Provide the management witnesses for affidavits and have an attorney present to assist witnesses. If an employer plans to do this, then it should also file a statement of position explaining its defenses before the affidavits are taken.

Some Tips If You Provide Management Witnesses for Affidavits

The affidavits are incredibly important to help the NLRB determine what happened. If something is said incorrectly in an affidavit, then the opposing party will use that against a company should the case go to a hearing. The NLRB or the union (if they are the charging party) will impeach company witnesses with incorrect statements. It looks a bit like this scene from My Cousin Vinny, but with documents. No company wants this to happen to its witnesses, which is why preparation for an investigation is crucial.

Each witness and any attorneys present can review the affidavit that the NLRB takes. The NLRB takes affidavits using a computer, so errors that a witness or their attorney find should be redone to make a clean copy of the affidavit. Be sure to ask the investigator to do this.

Witnesses must be careful that the NLRB agent does not pin a witness down with statements like “I spoke with no other individuals about the incident.” A witness may remember more information later, so be careful of statements that lock a witness into a position unless the witness is absolutely sure that they will not remember more information later.

If the investigator does not ask a question or get information that a witness believes is necessary for the investigation, then they should speak up and get the information into the affidavit. The affidavit is your chance to provide any information that will be helpful to the employer’s case.

The NLRB’s Conclusion of the Unfair Labor Practice Investigation

Once the affidavits are completed, the employer should consider providing an additional statement of position concerning the facts of the case. This will be the last chance to state its position and defense before the NLRB reaches its conclusion on the unfair labor practice charge.

Once the NLRB makes a determination, then it will either dismiss all of the allegations (i.e. the employer/defense wins) or the charging party will withdraw the charge, dismiss some of the allegations, or dismiss none of the allegations. If the NLRB dismisses all of the allegations, then there is nothing left for the employer to do. If the NLRB dismisses some but not all of the allegations or none of the allegations, then it will be time to consider settlement. Each case is unique, so the best option is a fact specific determination that will need to be carefully discussed.

Conclusion

Responding to an unfair labor practice charge from the NLRB is difficult, but there are a number of things that employers can do to respond. Employers must investigate allegations of unfair labor practices carefully before they decide the proper approach for their company.

The information provided is my own and does not reflect the opinion of my firm or anyone else.