Author: Brett Holubeck

How To Improve Workplace Safety

Published by Brett Holubeck on June 18, 2019

Photo of had hazards to demonstrate one of the most common tools to improve workplace safety. — Photo by Pop & Zebra on Unsplash

Workplace safety is critical. Every worker deserves to work in a job where their safety is the top priority even if all dangers cannot possibly be eliminated. Workplace injuries are, unfortunately, too common. For the office workers in Scranton, PA their safety, and let’s be honest, professional work environment is always in jeopardy- this includes their boss not taking safety training seriously, and worse, being the cause of the workplace injury in question. (And this isn’t even the time he hit Meredith with a car.) Although these are fictional characters, unfortunately these things do happen, and many times people don’t take workplace safety seriously enough.

There were approximately 2.8 million nonfatal workplace injuries and illnesses reported by private industry employers in 2017. About 3% of workers suffered some sort of workplace injury or illness in 2017, and every 7 seconds a worker is injured on the job.

Moreover, 5,147 workers died on the job in 2017. On average there are more than 99 deaths per week or more than 14 deaths every day. I don’t know about you, but that sounds like too many to me.

Work injuries and deaths are also expensive. According to the National Safety Council, the total cost of all work injuries in 2017 was $161.5 billion dollars. The figure includes

wage and productivity losses of $50.7 billion, medical expenses of $34.3 billion and administrative expenses of $52.0 billion. This total also includes employers’ uninsured costs of $12.4 billion, including the value of time lost by workers other than those with disabling injuries who are directly or indirectly involved in injuries, and the cost of time required to investigate injuries, write up injury reports and so forth. The total also includes damage to motor vehicles in work-related injuries of $4.9 billion and fire losses of $7.3 billion.

The average cost of a work-related injury in 2017 was $39,000 and the cost per death was $1,150,000. These figures “include estimates of wage losses, medical expenses, administrative expenses and employer costs, but excludes property damage costs except to motor vehicles.”

Most importantly, a serious workplace injury or death changes someone’s life forever. No company can afford to ignore workplace safety. Fortunately, there are some basic things that every company can do to improve workplace safety.

Steps to Improve Workplace Safety

There are many steps that every company should take to improve the safety of their employees. Most of them can be accomplished with only some minor effort from the company and its managers, but they have a dramatic impact on the workplace safety.

1. Train Your Employees

Employees must be trained to recognize and to report safety violations even when they are the ones that committed the violation. Many companies will discipline employees that fail to report safety violations because the risks are too high for the company if a problem does arise. Some employees may be afraid to report on other employees for fear that they will be thought of as tattletales. Employees need to have regular trainings and meetings on safety to make them feel comfortable with reporting safety violations and to understand the penalty and potential risk to themselves and their fellow employees for failing to report hazards and other safety issues.

The easiest way to train employees is through daily morning meetings where a safety or other topic is discussed for 5 minutes, implementing thorough onboarding training, and holding periodic extended trainings.

Covered topics at any facility should include:

Sexual harassment

Bullying

Workplace violence

Drug and alcohol use and recognition of the symptoms of use

Proper use of equipment

How to report injuries

2. Train Safety Coordinators, Managers, and other Individuals that are Specifically Responsible for Safety

Managers and safety coordinators need to be aware of the safety rules and procedures and be prepared to enforce them. These individuals need extra training to recognize and respond to safety issues, spot improper use of the equipment that their employees use, recognize alcohol and drug impairment, and know what to do when someone reports a safety issue.

3. Conduct Regular Inspections of the Worksite for Safety Issues

Employers, even those without a dedicated safety professional, should conduct regular inspections of their workplace. Every workplace should create a checklist of areas and equipment to inspect on a regular basis.

There are even certain types of equipment that needs to be checked every time you use it. For example, the safety rope should always be checked if you are jumping across a bridge at an extreme sports park that is suspended 500 feet above the ground.

Among the items that should be inspected are:

Fire alarms

Fire extinguishers (they should be available and unexpired)

Any fences around the property to ensure that they are undamaged and do not have holes

Walkways are free from grease, ice/snow in the winter, and water

First aid kits are stocked, and the medicine/medical equipment is unexpired

Ladders and other walking surfaces are in good condition and not slippery or unbalanced

Any machine guards are undamaged and working properly

Machinery, tools, and other equipment are working properly and undamaged.

Every workplace is different and has unique safety risks, but these are a few of the items that should be inspected at any workplace. Obviously, office, construction, manufacturing, restaurants, and every other type of workplace will have other problem areas that must be inspected.

4. You Need Proper Safety Procedures

Employees that have dangerous jobs must have procedures that should be followed to complete them to ensure that they are safe. For example, someone that is operating a forklift should have a procedure to alert people in the work area that they are operating the forklift (a beeping alarm or something similar), and they may also be required to keep their eyes focused and aware of their surroundings while they operate the machine. Workers that operate the equipment need to be aware of the rules.

In all workplaces, there should be procedures in place to ensure that all tasks that have safety risks are properly carried out in a way that minimizes the risk of injury. For example, any lockout-tagout procedures (which ensure that machines are shut off and not able to start until any maintenance or other work is completed) should be well documented.

What Are the Most Common Workplace Safety Violations that OSHA Finds

Below are the most common violations that every workplace should be aware of and prepare for when they consider the areas and equipment in their workplace that is most likely to cause injuries. The list below from OSHA is the Top 10 most frequently cited OSHA standards violated in FY 2018

Fall protection, construction (29 CFR 1926.501) [related OSHA Safety and Health Topics page]
Hazard communication standard, general industry (29 CFR 1910.1200) [related OSHA Safety and Health Topics page]]
Scaffolding, general requirements, construction (29 CFR 1926.451) [related OSHA Safety and Health Topics page]
Respiratory protection, general industry (29 CFR 1910.134) [related OSHA Safety and Health Topics page]
Control of hazardous energy (lockout/tagout), general industry (29 CFR 1910.147) [related OSHA Safety and Health Topics page]
Ladders, construction (29 CFR 1926.1053) [related OSHA Safety and Health Topics page]
Powered industrial trucks, general industry (29 CFR 1910.178) [related OSHA Safety and Health Topics page]
Fall Protection–Training Requirements (29 CFR 1926.503) [related OSHA Safety and Health Topics page]
Machinery and Machine Guarding, general requirements (29 CFR 1910.212) [related OSHA Safety and Health Topics page]
Eye and Face Protection (29 CFR 1926.102) [related OSHA Safety and Health Topics page]

Conclusion

Every workplace should be safe for the employees that work there. No workplace can eliminate all safety risks and hazards, but by taking steps to ensure good documentation and procedures and adequate training companies can reduce the likelihood that someone is injured on the job.

Paying Tipped Employees: A Nightmare

Published by Brett Holubeck on May 13, 2019

Image of a restaurant to demonstrate the issue of paying tipped employees a tipped wage. — Photo by Petr Sevcovic on Unsplash

One of the biggest problems that many restaurants face is paying tipped employees. Wage and hour lawsuits in the restaurant industry are rampant. The Economic Policy Institute found that a 2010-2012 Department of Labor (DOL) compliance sweep of 9,000 restaurants revealed that 83.8% of restaurants had some wage and hour violation and the DOL recovered $56.8 million in this sweep. Unfortunately, many restaurants make mistakes in paying tipped employees, which increases their liability in a wage and hour lawsuit. Restaurants can benefit by reviewing the basics of the tipped wage for employees.

What is the Tipped Wage?

In many states, including Texas, employers can pay an employee a wage that is less than the minimum wage if they earn tips in addition to this wage. The direct wage that employers must pay tipped employees varies, but in many states the wage is $2.13 per hour. The rest of the employee’s wages are earned by the tips that they receive from customers. These employees must still earn at least the minimum wage and the employer must pay employees more if the employee’s tips plus the direct tipped wage that the employer pays do not equal the state minimum wage. The employer must make sure that the employee is making at least the minimum wage during their shift.

The Tipped Wage and Overtime

Another common mistake that some employers make is that they fail to pay employees the proper amount of overtime. Many employers take the tipped credit for their tipped employees, but they do not realize that the overtime rate for an employee that is getting tips has to be calculated by using the minimum wage (ex. $7.25 nationally) rather than the $2.13 per hour wage that the employer often pays if they take the tip credit.

This means that a tipped employee is paid overtime wages of $7.25 x 1.5 = $10.88 per hour for each hour that they work in a week that is over 40 hours and/or for each hour that they work in a day that is over 8 hours (this depends on the laws for the particular state). Moreover, in many states you can deduct the tip credit for the overtime hours also. In our example, this is how it works: $10.88 minus $5.12 equals $5.76 for each overtime hour worked.

How Does the Tipped Wage Work?

Tipped employees, like waiters, can be paid a tipped wage for work in which they are receiving tips (e.g. waiting on a table). They cannot be paid a tipped wage for work that does not involve any tipped work.

The DOL has a helpful clarification by looking at the example of a person that has a dual job as a waiter and a maintenance person. The employee can be paid a tipped wage for work that they do as a waiter, but they must be paid at least the minimum wage for any hours that they work in a position where they do not customarily get tips, such as a maintenance person.

The DOL also explained what duties are considered tipped duties and which duties are not normally eligible for tips:

Reg 531.56(e) permits the taking of the tip credit for time spent in duties related to the tipped occupation, even though such duties are not by themselves directed toward producing tips (i.e. maintenance and preparatory or closing activities). For example a waiter/waitress, who spends some time cleaning and setting table, making coffee, and occasionally washing dishes or glasses may continue to be engaged in a tipped occupation even though these duties are not tip producing, provided such duties are incidental to the regular duties of the server (waiter/waitress) and are generally assigned to the servers. However, where the facts indicate that specific employees are routinely assigned to maintenance, or that tipped employees spend a substantial amount of time (in excess of 20 percent) performing general preparation work or maintenance, no tip credit may be taken for the time spent in such duties.

Tip Pooling: a Major Concern

Employees can be required to share their tips, but as made clear in the Consolidated Appropriations Act, 2018, managers and supervisors cannot receive any part of tips that an employee receives.

However, the Consolidated Appropriations Bill has allowed employers who pay the full minimum wage to their wait staff (i.e. they do no pay the tipped wage or use the tip credit) to mandate tip pooling (the tipped employees share tips with other employees). Essentially, if an employer wishes to do so, they can require tipped employees to share either a portion or all of their tips with employees that are working at the back of the restaurant (dishwashers, cooks, etc.) or other front of the house employees if they pay tipped employees the minimum wage. In the 7 states where employers must pay tipped employees at least the minimum wage (i.e. there is no tipped wage), requiring tipped pools can be a great way to reduce the pay difference between the front and the back of the house of a restaurant if that is permitted by state law.

Tip pools are also used at restaurants where the customer receives their food at the counter. In these circumstances, there may be a tip jar with money that is then distributed at the end of the shift.

Essentially, the government is now allowing restaurants to address one of the most frequent issues that restaurants face: the pay disparity between the front and the back of the house.

This article by Kendal Austin at Toast has some other great tips that restaurants can use to decrease the wage gap between the front and the back of the house.

The Tipped vs. Non-Tipped Pay Difference in Restaurants

Payscale has a great dataset from 2015 that explains the average wages of workers in various jobs at restaurants. Bouree Lam at The Atlantic sifted through the data and found that “Where tips amounted to 0 to 10 percent of chefs’ and cooks’ hourly incomes, for bartenders, waiters, and waitresses that number could be as high as 70 percent.” The information from Payscale, while outdated, does indicate the problems that many restaurants face in paying their employees and ensuring that they can pay back of the house employees enough to attract talent.

The wages in the Payscale dataset may actually underestimate the pay difference between back of the house and front of the house staff as the IRS estimates that 40% of tips are not reported.

Employers Can Forbid Tips

Restaurants also have the option to ban employees from receiving tips or at least letting customers know that tips are not expected. Of course, these restaurants do need to pay employees at least the minimum wage to do so.

The DC Vote to Eliminate the Tipped Wage

The recent debate in DC to eliminate the tipped wage demonstrates that many groups have a wide variety of opinions on the issue of tips. The proposal was a voter initiative that would have eliminated the tipped wage and it passed, but it was ultimately undone by a DC council vote. Many restaurant workers expressed concern that the elimination of the tipped wage would cost them money as less people would tip. As noted above, many tipped employees receive most of their wages from tips, so their concern was obvious.

The issue of the tipped wage is not going away even if more states consider eliminating the tipped wage. Employers across the country need to pay attention to their state and local laws to ensure that they are following the law on paying their tipped employees.

If you are curious about the other ways to pay employees, check out my previous article here.

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 Conduct Effective Workplace Investigations

Published by Brett Holubeck on April 20, 2019

Magnifying glass on a computer to symbolize that many workplace investigations occur online or in electronic files — Photo by Agence Olloweb on Unsplash

One of an employer’s worst nightmares is having a workplace incident. And the worst workplace incidents are the ones where the employer has no idea what to do. Fortunately, there are some things that employers can do to avoid this situation. Workplace investigations can be broken down into 3 different parts: 1) preparing for a problem before it occurs; 2) conducting the investigation; and 3) making a decision and following through.

Preparation is Key:

Many incidents at work could have been prevented with better preparation and communication with employees, and a problem that is prevented is one less headache for you as an employer.

You Need to Communicate Expectations with Your Employees

It is imperative that employees know the rules that they are required to follow. An employee that does not know the rules is going to feel like they are being unfairly treated when they are eventually disciplined for a rule that they did not know or when they feel that a rule was inconsistently enforced. It is a bit like this scene from Office Space when Joanna’s boss counsels her about how much “flair” she is wearing at her job at the restaurant. In her case, the rules said one thing (you need 15 pieces of flair), but she was counseled for only doing the minimum (there was an unwritten rule).

You Need to Keep Good Records

In the event that a problem arises, even with adequate communication and training, you need to document the various problems that arise with an employee so that you can take appropriate actions against an employee. When you conduct workplace investigations, it matters whether an individual has committed a similar offense prior to the one that they are being investigated for- and documentation is key. It matters for determining what punishment the employee should receive and for determining whether they committed the offense, the frequency of offenses, and types of offenses committed. Every single instance of an employee not obeying the rules must be documented.

You Need to Train Your Supervisors

Supervisors need to know how to enforce the rules of the workplace. They cannot merely have a familiarity with the rules. They need to know how to address a variety of scenarios in the workplace from sexual harassment, workplace performance problems, and any other major, common issues that the worker may face meaning they need to know what exact steps to take in the event something occurs. In the event supervisors are not certain of their steps, they should know who to contact (e.g. their supervisor or company legal counsel) to prevent any missteps for the company.

You’ve Got a Problem- Now what?

Unfortunately, not all problems will be prevented even with adequate preparation. Some of these incidents (like absences, showing up late, failing to complete paperwork) are routine and will not require a workplace investigation. However, problems that are fact specific and require a tailored response will. These sorts of incidents are the ones that keep HR up at night. Let’s start at the beginning. Something’s happened. You have a problem. What should you do?

Respond in a Timely Manner

Once you hear of an incident, it is your responsibility to take steps to mitigate the situation in a timely manner. Employee safety is an imminent concern- if safety is in question, you have to deescalate the situation ASAP. For example, if two employees engage in a verbal altercation then you may need to suspend an employee while you conduct the workplace investigation. The same thing may be true if there is a workplace accident that you need to investigate. You also need to consider who all needs to be involved in conducting an investigation. Some investigations can be conducted with inside counsel/HR, but outside counsel is preferred when litigation is likely. If it is the CEO or owner, then you may also need outside counsel that you do not normally use. Any investigator should be independent to avoid any semblance of bias or undue influence/interference with the investigation.

Gather Information

The next step is to interview the various people that may have relevant information about the incident.

The first person to interview is the complainant. There are a number of questions that you will need to ask the complainant. The goal of this interview is to gather as much information as possible. You want to know who committed the action against them, where did it take place (Was it in more than one location? Away from work? Online?), when it did it take place (Was it more than 1 time?), how did it take place (What was the context?), and what exactly happened. You want to know whether there are any other people that may have other information about the incident, did anyone else complain about the conduct that he or she is accusing another employee of, and whether there are any notes or other documents that they have that may be relevant (This may be past accusations, discipline notices, and other documents in the employee’s folder) .

The next person to interview is the person that the complainant is making accusations against (the offending employee). You will let them know what they are being questioned about and ask what their response is to the allegations. If an employee admits that they committed the conduct, then you will ask questions around the behavior to determine any appropriate punishment or reason that shows that they did not violate company policy. If the employee says that the allegations against them are false, then you will ask why the complainant may lie or be incorrect. You will also ask if they have any other relevant information, if there is anyone else that may have relevant information, and if they have any documents, text messages, or other physical evidence about the incident.

Finally, you will ask any additional witnesses about the information that they may have about the allegations. You will ask the witnesses what they may have seen or heard about the incident and when the incident(s) may have occurred. You may ask what the complainant, other witnesses, or the offending employee told them about the incident and when they gave them this information. You will also ask whether they have any relevant information or know anyone that may have relevant information.

Wrapping up the Investigation

After you have interviewed all the witnesses, the next step is assessing the credibility of your witnesses and any evidence and taking action.

The EEOC has some great information on how to determine whether a witness is reliable:

Inherent plausibility: Is the testimony believable on its face? Does it make sense?
Demeanor: Did the person seem to be telling the truth or lying?
Motive to falsify: Did the person have a reason to lie?
Corroboration: Is there witness testimony (such as testimony by eye-witnesses, people who saw the person soon after the alleged incidents, or people who discussed the incidents with him or her at around the time that they occurred) or physical evidence (such as written documentation) that corroborates the party’s testimony?
Past record: Did the alleged harasser have a history of similar behavior in the past?

After each witness interview you need to determine whether a witness is believable/credible. Can you believe what they are telling you? Is it physically or otherwise impossible for what they said to have occurred? You also need to consider whether the employee’s demeanor makes it seem like they are telling the truth. Were they able to look in your eyes or were they being shifty in their answers or not being direct in answering the question that you asked? You also want to determine whether an employee has a reason to lie. An employee may have been recently disciplined by a supervisor or given a last chance warning that they would be fired for another performance issue. Some employees may retaliate against a supervisor or competitor in the workplace. Essentially, you have to examine all the factors that could determine whether or not a witness is telling the truth.

After interviewing the witnesses, you will assess the evidence as a whole to determine whether the individual(s) violated company policy. This is a fact specific determination that requires examining your company policy and the evidence to determine whether the employee committed a violation.

Determine the Appropriate Action

Once you have made a determination based on the evidence, then you need to decide how you respond to the employee’s offense or conduct. You need to consider whether you will absolve an employee and determine that they did not violate company policy or if you will discipline or terminate the employee. It is important to review whether there are any circumstances that indicate that the punishment should be reduced. Finally, you should document any actions that you take and follow-up with the employee that made the accusations to ensure that the problem is not recurring.

Conclusion

Workplace investigations are an important part of any business. By taking these simple steps you can conduct better investigations and follow-up on any issues that arise so that you can prevent similar problems in the future.

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