Month: October 2019

Haunted Houses and Employment Law

Published by Brett Holubeck on October 31, 2019

Image of sign that says "Haunted Come Right In" that represents haunted houses. — Photo by Bee Felten-Leidel on Unsplash

Haunted Houses, Halloween Stores, and Employment Law

Halloween is a $9 billion dollar industry with more than 175 million Americans taking part. Haunted houses are a 300 million industry according to an NBC news article from 2013.

Consumers were expected to spend $3.2 billion on costumes and $2.7 billion on decorations with 35% of consumers going to a Halloween store to buy their costumes during Halloween. More than 36 million people were projected to visit haunted houses in 2018.

It is no surprise that Halloween is so popular, and people spend so much money on it. It is ingrained in our culture. Many Americans have fond memories of watching It’s the Great Pumpkin Charlie Brown, carving pumpkins, going trick or treating with just your friends, watching Simpsons Treehouse of Horror episodes or, if you are like my mother, scaring yourself silly with the latest horror film (Mom, why do you do that? Even your dog is too afraid to watch.).

There is a lot that goes on behind the scenes to make haunted houses and specialty stores come alive each October.

Preparing for an Intense Season

A haunted house will only be open, typically, about 6-8 weeks per year. Some haunted houses are open the entire year or transition their business to escape rooms or another venue in the off-season. The setup time can be four weeks or even more for a haunted house. As with anything else that requires setup, businesses must invest capital to see whether they will eventually succeed. Not all ventures are successful, so it is critical that haunted houses, Halloween stores, and any other pop-up businesses effectively prepare to run successfully.

Here are a few things that these businesses can do to increase their chances of success.

Start planning early. Every haunted house needs effective planning to ensure that they are prepared for the short season. That means planning the haunted house design and ensuring that the materials are ready to be delivered to prepare for the setup.
Train your workers. As with any popup business or event, you need to make sure that you quickly bring employees onboard so that they are ready to operate the facility when it opens.
Have a well formulated recruitment plan and clear procedures
- For example, the 13th Floor Haunted House in Houston, will hire over 100 people for the Halloween season. All of these employees need to fill out I-9’s, complete W-4’s, and a number of things. You can look at an earlier article I wrote on the things that you need to do when you hire new employees for more information;

Some Notes on Safety and Haunted Houses

Working in a haunted house is not easy. There are a lot of things that the actors and actresses need to do to prepare to safely work in a haunted house. OSHA can also inspect haunted houses as it can inspect any other amusement park or attraction. I have written a bit about improving workplace safety here but there are some special considerations for haunted houses.

Haunted Houses must adhere to strict protocol regarding protection from fires as noted by this blog post from Quick Response Fire Supply.

In 1988, haunted houses were classified as “special amusement buildings” and specific provisions were added to that year’s version of NFPA 101: Life Safety Code. Overall, these include:
Every special amusement building must be protected throughout by an approved automatic sprinkler system that is properly installed and maintained.
If the amusement building has low lighting levels, it must be equipped with a smoke detection system, which will sound an alarm at a constantly attended location on the premises.
In buildings where mazes, mirrors, or other features are used to confound the egress path, approved directional exit marking that will become apparent in an emergency must be installed.

Here is a really great article from Entertainment Safety Solutions discussing the numerous things that all haunted houses should consider (and may be required to do) before they open. The article is too long to quote in its entirety, but it has some really great tips that everyone should consider. It discusses Fire Prevention, Detection, and Suppression, Electrical Safety, Exits, Emergency Lights (Illumination), and Egress, and Training.

The training listed in the article includes:

Emergency Response and Evacuation Procedures, including employee accountability assembly locations.
Fire drills. Log evacuation times and any difficulties and mitigation efforts to improve evacuations. Fire extinguisher use.
Guest/employee safety e.g. do not touch or chase guests, ADA considerations, frightened guests/chicken exits, hostile guests.
Pre-opening safety checklists and inspections.
Hazard recognition.
Fire watch procedures.
Maximum occupancy limits.
Important phone numbers and radio procedure

Training is especially important, as many individuals will be new to the experience of running a haunted house and many of them are young and inexperienced in the business.

There may also be local requirements that operators must consider. For example, Illinois has specific requirements that must be followed for facilities in that state. All haunted houses in Illinois must be inspected.

Dealing with People

Haunted Houses also have one very unique aspect that is not found in many businesses: danger from customers. Physical injuries are common as noted by this article on the Huffington Post:

According to former and current professionals in the haunted house industry, it’s common for customers to freak out from fear and bust noses, bite arms and throw punches at the people they’ve paid to scare them. “It’s common, absolutely,” said Allen Hopps, who trains actors to work in haunted houses. “The problem isn’t the haunted houses or the actors, but the customers. They forget that people are actors and have a flight-or-fight reaction towards the person scaring them, not realizing one might be a 16-year-old girl.”

Also in the Huffington Post article, one operator said “I know one actress who scared a guy and he forced his way through a back door so he could hit her in the face,’ Hopps said. ‘Even so, she came back the next year.”’

Training employees is critical for understanding the best ways to prevent injuries. Such training typically includes rules against touching customers, maintaining the appropriate distance, and responding if someone lashes out. One of the major things that the haunted house operators can do is train staff before it opens to recognize signs of alcohol and marijuana impairment. You can read more about recognizing the signs of impairment here. Having your local sheriff or your worker’s comp carrier provide training on this topic may be beneficial for you business. Many businesses also employ security guards or others to deal with unruly customers also. It is often best to prohibit anyone that is drunk, high, or seems like they would cause problems from entering the haunted house. Safety of employees is critical and it is important that employees are trained before a problem occurs and that proper safety precautions are taken for your employees.

Moving Your Business into Other Areas

Haunted Houses, Halloween stores, and pop-up businesses are temporary businesses. They do not operate the whole year. Many operators cannot afford to work full time as haunted house, but there are some options.

Many haunted houses have begun to move into escape rooms. For some farms and other owners with adequate land, the haunted house was their side venture. When branching out there are a few important things for business(es) to consider and how they will affect your employment practices:

Will the new venture be its own business (LLC, etc.) or will it be owned by the current business? There can be important considerations regarding insurance, whether certain employment laws will apply (based on the number of employees), how the businesses will operate, and what will happen if the venture is unsuccessful.
If the new venture will be a part of the old business, then how will the duties of the various individuals change? You need to make sure to update any relevant job descriptions to ensure that everyone understands their responsibilities.
Update the employee handbook and any policies as necessary to adequately describe the new business venture and any necessary policy changes.
Do you need to adjust your various coverages (worker’s comp, insurance, etc.) based on the new venture?
Are you now subject to additional laws because you have more employees or because you now have expanded into another state or type of business?
Have you followed the right regulations for your new business venture?

Conclusion

Haunted Houses and Halloween stores have a lot of requirements that they must follow. There are a lot of unique situations that apply only to them. However, every business has its own unique requirements and employment issues. Every business needs to consider what they need to do in their specific industry, state, and their particular business to maximize their chance of success. Most importantly, have a happy and safe Halloween- and don’t punch a haunted house worker in the face.

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.

How to Train Your Supervisor

Published by Brett Holubeck on October 24, 2019

Image of a "world's best boss mug" to show the importance of supervisor training for managers to become truly great bosses — Photo by Pablo Varela on Unsplash

Supervisors are your front line of defense against any employment claims, low morale, productivity issues, and a number of other workplace problems. Unfortunately, many companies fail to adequately provide supervisor training and select the wrong people for the position. When this happens, disaster can strike with a fury.

What To Do When you Promote Someone

Many companies promote their highest performing employees to supervisors Many companies promote their highest performing employees to supervisors, which is a bad starting point if the sole reason you are promoting that person. The most crucial step in choosing a supervisor is to select the right person for the job. That does not necessarily mean that the person is completely ready to fulfill all aspects of the job because as we all know, supervisor training is essential. The fact is that the best candidate is someone that is either prepared for the role or can grow into it.

How do you pick the best supervisor? Here is what you should look for:

Are they independent? Do they make decisions by themselves (that are within the range of what is within their authority)
Do they interact well with their coworkers? Are they relatable? Do people like them?
Do they help others without asking? Are they constantly looking for ways to improve the team?
Do they take responsibility for what they do wrong or do they blame others for their mistakes?
Do they have a growth mindset? Are they looking for ways to improve themselves?
Do they represent the culture of the organization or the direction that the organization wishes to go?

You should also seek references from any and all internal and external applicants to determine whether they would be successful and how they actually work with others. Positive remarks from coworker speaks volumes about whether a person is actually a good leader or just someone that knows how to advocate for themselves.

Retraining and Continued Maintenance

People forget. Unless you are training and preparing your supervisor on a regular basis, they will forget what they need to do, especially if it is a task that they are not used to performing. For example, sexual harassment may not be something that supervisors deal with on a regular basis. It may be the case that they have never had to deal with a complaint from a member of their team. However, they need to know how to respond when these issues occur- and they will occur. This is one of the reasons that many states have adopted special supervisor training requirements on the issue of sexual harassment. California, for example, has initiated a requirement for supervisors of one additional hour per year of training on sexual harassment on top of the one hour required for all employees that work for employers with 5 or more employees.

There are a number of topics that supervisors should receive regular training on. Some of these can be done through morning meetings, additional work hours for supervisors, or special training days.

Topics that supervisors should receive training on include:

Basic Management skills
- How to recognize employee achievement
- Motivating your team
- How to improve employee performance
- Handling employee complaints
- Dealing with employee conflict
Sexual Harassment
Safety on the Job
Disability/Light Duty Requests
Union Organizing
Drug Testing, Marijuana, and Opioid usage
Employee Discipline
All procedures and policies in the employee handbook
- Supervisors need to know about the various workplace rules at the company- and not just briefly scanning the handbook and signing the page acknowledging they have read it. They need to have a much deeper knowledge than the average employee and how the rules need to be enforced in a variety of situations. This is going to be pivotal from a prevention and preparation perspective for your business.
Supervisors need to know the various steps that they need to take to conduct a workplace investigation (more info available here).
- Managers may need to function as the primary investigator and enforce discipline during their shift. Supervisors that work 3^rd shift or on the weekends when no HR staff is available especially need to know how to respond to the various problems that may arise in the workplace. They need to know how to gather information for the investigation before it is lost or employees no longer want to talk about it. The quicker that an investigation can begin, which includes taking witness statements and determining whether to suspend an offending employee while the investigation is ongoing, the better the overall investigation will go.

Conclusion

Supervisors are the frontline in a company’s defense. A good supervisor can minimize the risk of employment claims by being proactive, applying the appropriate response to a workplace issue, and by improving the morale and quality of the team. A bad supervisor will ignore employee complaints, not respond or address complaints, and unfortunately are often the cause of an employee lawsuit.

Choosing the right supervisors and providing supervisor training is a must for any company. It is an investment that pays dividends to a company in increased productivity, positive workplace morale/performance, and preparedness to respond to employment situations.

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

HR and Business Immigration Visas

Published by Brett Holubeck on October 12, 2019

Image of people waving flags to show the importance of immigration visas. — Photo by Elias Castillo on Unsplash

Business immigration and visas are complex; navigating the system can seem like going through a labyrinth. We have talked about immigration a few times here at Texas Labor Law Blog- discussing immigration and the midterm elections (including DACA, increases in Notices of Inspection, and what businesses should do in an ICE raid).

Ultimately, immigration is an issue that HR cannot ignore. “There were a record 44.4 million immigrants living in the U.S. in 2017, making up 13.6% of the nation’s population” A Supreme Court case next year will determine the fate of DACA recipients. Over 700,000 DACA recipients will be affected by the decision.

Of course, there are certain industries and areas where more workers are going to be foreign workers. For example, the over 300,000 estimated L-1 visa workers only work for companies that have foreign affiliates, subsidiaries, or parent companies. Many tech positions are frequently held by H-1B visa holders.

While many HR representatives and businesses will not have to deal with visa holders, there are many that will have to do so, so it is an important element for HR to understand. Each visa has its own unique standards to qualify, and potential to lead to a green card or residency status. By knowing the in’s and out’s of each visa, HR reps can figure out the best route for their potential employee.

The Many Different Visas

If any company is looking to bring a foreign worker to the business, then there are a number of different options that companies have.

F-1 Opt (Student or Recent Graduate)

This option is available for students (on an F-1 student visa) to work in the area of their study for 1 to 3 years before or after they complete their studies.

USCIS outlines the requirements in full here:

Pre-completion OPT: You may apply to participate in pre-completion OPT after you have been lawfully enrolled on a full-time basis for one full academic year at a college, university, conservatory, or seminary that has been certified by the U.S. Immigration and Customs Enforcement (ICE) Student and Exchange Visitor Program (SEVP) to enroll F-1 students. You do not need to have had F-1 status for the one full academic year; you can satisfy the “one full academic year” requirement even if you had another nonimmigrant status during that time.

If you are authorized to participate in pre-completion OPT, you may work part time (20 hours or less per week) while school is in session. You may work full time when school is not in session.

Pre-Completion OPT is a chance for students to work before their degree is complete.

USCIS outlines the requirements in full here for Post-completion OPT (after graduation).

Post-completion OPT: You may apply to participate in post-completion OPT after completing your studies. If you are authorized for post-completion OPT, you may work part time (20 hours or less per week) or full time.

OPT can be extended for an extra 24 months if a student earned a degree in certain science, technology, engineering, or math fields. The student must have received one of the STEM Designated Degrees STEM Designated Degree Program List (PDF), the employer must be enrolled in and using E-Verify, and the student must have received an initial post-completion OPT employment authorization based on the STEM degree.

The school of the individual is responsible for filing the paperwork and maintaining the visa. Hiring someone on OPT is a great way to find a qualified candidate, see if they fit your culture, and eventually hire them under an H-1B visa.

H-1B Visa (Specialized Occupation)

H-1B visas are unique. There are only 85,000 visas awarded every year through a lottery system (65,000 for those who have a bachelor’s degree and 20,000 for those that have a master’s degree or higher. Typically, around a third of first-time applicants will receive a visa.

The general requirements are listed here:

The H-1B program allows companies in the United States to temporarily employ foreign workers in occupations that require theoretical and practical application of a body of highly specialized knowledge and a bachelor’s degree or higher in the specific specialty, or its equivalent. H-1B specialty occupations may include fields such as science, engineering and information technology, and fields such as teaching and accounting. For more information about the H-1B program, visit the H-1B Specialty Occupations Web page.

H-1B visas are an option to get specialized workers for a company. The worker can eventually obtain a green card. These visas are frequently used by companies in the tech sector and elsewhere to fill jobs with needed skills. Restrictions on the H-1B program and higher standards have been found to push jobs outside the US and increase investment in other countries rather than in the US.

L visa (Intra-company Transfer)

May bring managers/executives or workers with specialized knowledge that work in a related foreign company (parent, subsidiary, or affiliate) to the US.

Here are the requirements:

L-1A Classification (Manager or Executive)

To qualify for the L-1A Intracompany Transferee Executive or Manager, you must:

Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide service in an executive or managerial capacity for a branch of the same employer or one of its qualifying organizations.

Executive capacity generally refers to the employee’s ability to make decisions of wide latitude without much oversight.

Managerial capacity generally refers to the ability of the employee to supervise and control the work of professional employees and to manage the organization, or a department, subdivision, function, or component of the organization. It may also refer to the employee’s ability to manage an essential function of the organization at a high level, without direct supervision of others.

The L-1A visa is essentially a way to bring executives or managers of a foreign affiliate to the US to serve as an executive officer or manager of the US affiliate.

Here are the requirements for the L-1B visa (specialized knowledge):

L-1B classification (Specialized Knowledge Classification)

To qualify for the L-1B Intracompany Transferee Specialized Knowledge classification, you must:

Generally, have been working for a qualifying organization abroad for one continuous year within the three years immediately preceding his or her admission to the United States and
Be seeking to enter the United States to provide services in a specialized knowledge capacity to a branch of the same employer or one of its qualifying organizations.

Specialized knowledgemeans either special knowledge possessed by an individual of the petitioning organization’s product, service, research, equipment, techniques, management, or other interests and its application in international markets, or an advanced level of knowledge or expertise in the organization’s processes and procedures (See 8 CFR 214.2(l)(1)(ii)(D)).

Workers with specialized knowledge are often individuals that have understand of a system or set of methods that is not common in the US, understand proprietary processes or software that the company has, or has experience in a field with limited availability in the US.

L-1 visas are great options for companies with a foreign presence to bring workers to the US. They have a big advantage over the H-1B visa because there is no set quota on these visas and the visa holders may start at any time after their visa is approved.

TN Visa (NAFTA/USMCA . Only Canadians and Mexicans in certain jobs are eligible)

For Mexicans and Canadians this one of the easiest visas to obtain. There are a few important restrictions that apply.

It is only available for certain positions such as accountants, medical professionals, engineers and other positions on the approved list (available here).

A person will qualify if:

You are a citizen of Canada or Mexico;
Your profession qualifies under the regulations;
The position in the United States requires a NAFTA professional;
You have a prearranged full-time or part-time job with a U.S. employer (but not self-employment – see documentation required below); and
You have the qualifications to practice in the profession in question.

TN visas are good as they can generally be renewed continuously and almost without limit. However, TN visa holders cannot be sponsored by their employers for a green card.

J-1 visa (Exchange Visitor)

Here are the requirements for the J visa:

The J-1 classification (exchange visitors) is authorized for those who intend to participate in an approved program for the purpose of teaching, instructing or lecturing, studying, observing, conducting research, consulting, demonstrating special skills, receiving training, or to receive graduate medical education or training.

In carrying out the responsibilities of the Exchange Visitor Program, the Department of State designates public and private entities to act as exchange sponsors. J-1 nonimmigrants are therefore sponsored by an exchange program that is designated as such by the U.S. Department of State. These programs are designed to promote the interchange or persons, knowledge, and skills, in the fields of education, arts, and science.

Examples of exchange visitors include, but are not limited to:

Professors or scholars
Research assistants
Students
Trainees
Teachers
Specialists
Au Pairs
Camp counselors

Many doctors are J-1 visa holders and it can be a great way to get doctors and other individuals to the US.

O visa (Extraordinary Ability)

This is a visa for the best of the best in their field. Very few individuals qualify.

Here are the requirements:

The O-1 nonimmigrant visa is for the individual who possesses extraordinary ability in the sciences, arts, education, business, or athletics, or who has a demonstrated record of extraordinary achievement in the motion picture or television industry and has been recognized nationally or internationally for those achievements.
The O nonimmigrant classification is commonly referred to as:
O-1A: individuals with an extraordinary ability in the sciences, education, business, or athletics (not including the arts, motion pictures or television industry)
O-1B: individuals with an extraordinary ability in the arts or extraordinary achievement in motion picture or television industry
O-2: individuals who will accompany an O-1, artist or athlete, to assist in a specific event or performance. For an O-1A, the O-2’s assistance must be an “integral part” of the O-1A’s activity. For an O-1B, the O-2’s assistance must be “essential” to the completion of the O-1B’s production. The O-2 worker has critical skills and experience with the O-1 that cannot be readily performed by a U.S. worker and which are essential to the successful performance of the O-1

There are no quotas on visas. They are great options for anyone who qualifies to get a green card as O visa holders may qualify for EB-1 (extraordinary ability categories).

H-2A (Agricultural Worker)

To qualify for H-2A nonimmigrant classification, the petitioner must:

Offer a job that is of a temporary or seasonal nature.
Demonstrate that there are not enough U.S. workers who are able, willing, qualified, and available to do the temporary work.
Show that employing H-2A workers will not adversely affect the wages and working conditions of similarly employed U.S. workers.
Generally, submit a single valid temporary labor certification from the U.S. Department of Labor with the H-2A petition. (A limited exception to this requirement exists in certain “emergent circumstances.” See e.g., 8 CFR 214.2(h)(5)(x) for specific details.)

The H-2A program is available for temporary agriculture workers and is critical for our nation’s food supply.

H-2B (Seasonal Worker)

Here are the requirements for the H-2B visa:

The H-2B program allows U.S. employers or U.S. agents who meet specific regulatory requirements to bring foreign nationals to the United States to fill temporary nonagricultural jobs.

One-time occurrence – A petitioner claiming a one-time occurrence must show that it has:
An employment situation that is otherwise permanent, but a temporary event of short duration has created the need for a temporary worker.
Not employed workers to perform the service or labor in the past, and will not need workers to perform the services or labor in the future;

OR

Seasonal need – A petitioner claiming a seasonal need must show that the service or labor for which it seeks workers is:
Traditionally tied to a season of the year by an event or pattern; and
Of a recurring nature.

There is an annual cap of visas available that varies every year. Here are the visa caps by year. Golf clubs, resorts, crab pickers, landscapers, seafood processors, and other temporary seasonal jobs rely on the program every year to fill the need for temporary workers.

Conclusion

There are many different visa options that companies can consider for bringing workers to the US. By understanding the basic options, HR and upper management can better determine how they can fill needs within their workforce.

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