Wednesday Excuse on a Thursday

I don't know about you but 4 day workweeks throw my schedule out of whack. I love the 3 day weekend that comes along with it. Unfortunately, when I arrive at work on Tuesday, my brain says Monday. So even though its Thursday, I'm feeling Wednesday. That's my excuse and I'm sticking with it.

Wednesday's Excuse

Last week, I was trying to find a good excuse while at the Mid-Town Station Coffee House and Wine Bar in Sumner. The owner promised that she would have a good excuse for me this week. So here it is:

I couldn't make it in because I was eating caramel cheesecake.

Hey, I don't make the excuses, I just report them.

More thoughts on Telecommuting

As gas prices continue to spiral upward, telecommuting is an excellent way for a company to lessen the economic impact on employees and to be viewed as a good corporate neighbor by decreasing the carbon footprint of your workforce and traffic congestion.

On a personal note, I could write for days about the benefits of a decreased commute or not having a commute at all. A little over 6 months ago we moved our office. At the time my commute was what I would consider in the average range here in the Puget Sound, about an hour to an hour and fifteen minutes each way. Now I am about 6 miles from home which takes about 10 to 15 minutes, depending on the time of day. What prompted the move. Many things. First, I was spending about a work week commuting each month. Second, technology has reached a stage where it is no longer necessary for me to be in close physical proximity to my clients. With web conferencing, Blackberrys, and email, I can be just as accessible to clients as I was before. With the exception of depositions, my interface with employers was typically at their business location and with employees once in my office for the initial meeting. Traffic in the Puget Sound had already forced us to be more creative and efficient in manner in which we interacted with clients. Third, I am blessed to have some great clients. When I shared my decision with them, they completely endorsed the move. Nothing is without its hiccups. After I made the decision, I was faced with possibly losing one staff person who has been with me for almost 10 years. That was unacceptable. Since I am of the mind that nothing is more valuable that a loyal and hardworking employee, I chose to explore telecommuting with this employee. It has worked wonderfully. Now this employee works remotely and comes to our office one day a week. Sure there are times when I need that person here more than one day, but I make sure it is the exception rather than the rule.

I wish I could say that my decision to move my office was prompted by my incredible ability to forecast future events such as gas prices and a general economic downturn. It wasn’t. These are the things your employees are facing today. The other day, while driving to the office, I was listening to a local radio station. The DJ asked listeners what changes they made to account for the recent increases in gas prices. I was surprised to hear a number of callers state “I quit my job and found one closer to home.” It would be a shame to lose a valued employee just because you did not take the time to think outside the box.

In this post, I will address some of the things that should be considered when you decide to permit telecommuting.

1. Telecommuting is not a reward.

Some positions will lend themselves favorably to telecommuting. Others will not. Additionally, you have a business to run. That means you probably can’t have all your employees out of the office at the same time. As a consequence, you will need to determine which positions qualify for telecommuting and the criteria to be used to select those who will be permitted to telecommute. In plain english that means that if a particular job will permit telecommuting, then all employees, who meet the criteria, should be eligible to participate in the program that option.

2. Have you given consideration to the privacy rights of the employee?

Often employers forget that when an employee telecommutes they are working from their home. As with any position, there may be occasions when you will want to have direct interface with the employee or view their work area to assure they are being as efficient as possible and are not engaged in actions that could compromise confidential information. You should give consideration to how this will be handled.

Some employers address this by creating policies that identify when and under what circumstances, they will perform a home visit. I have several friends that telecommute and I am sure there are occasions when they are working on their laptop wearing very relaxed attire.

Also, if there have been certain problems in the past, such as a sexual harassment report made by an employee against their supervisor, it is not advisable to have that person conduct the home visit. Use common sense and be mindful of common courtesy.

2. Remember wage and hour laws apply?

I have a friend who is always looking for a 2-fer. I will share one of Rod’s Rules with you. “There are no 2-fers in life and there certainly aren’t any in the workplace.” What I mean is that you cannot disregard wage and hour laws because an employee is telecommuting. It is your responsibility to made sure that employees, who are working off site, accurately record their time. The failure to do so could put your company on the wrong end of a wage and hour lawsuit. Time can be tracked manually, or an employee can be required to log into your company server and electronically record their time.

3. What about confidential and proprietary data?

One of the reasons companies have a business location is security. The concept of security has taken on new dimensions in the Internet age. At a minimum, your employees should have a refresher course on what your company considers proprietary and confidential, the steps that must be taken to protect proprietary and confidential data, and the consequences of failing to adhere to your confidentiality policy.

My preference has always been that an employee should only perform work on a company computer with proper encryption. Do not assume that an employee, working from home, will always use a hard wire Internet connection. In many instances they will prefer to use a wireless connection. Raise that issue with your employees and confirm their wireless signal is encrypted. Always consult with your IT department about security measures that should be in place. Finally, consider providing a shredder and requiring all hard copies to be shredded or returned to your business location.

4. Consider the workers compensation implications?

Yes, employees are covered by worker compensation while they are working at home. Any lawyers reading this post, are now creating hypothetical nightmare scenarios. For example: Joe is talking to a customer on his cell phone, while he is in the kitchen making a PB&J sandwich. As he is returning the jelly to the refrigerator, he drops the jar, slips on the jelly, falls on the floor injuring his back, impaling his arm with the cell phone antenna, and, in the process, inconveniencing your customer. Is he covered under workers compensation laws? The answer in Washington, is probably, since our state does not have a PB&J defense. The answer might be different if Joe injured himself while he was not engaged in a work activity. To some employers, the mere thought of this happening is enough to drive them to a point where they insist that an employee only engage in work activities in a specified area of the home. Great idea but, people will be people. Use a good dose of common sense and, in most instances, you will be just fine.

My experience has been that employers spend more time worrying about the potential, yet to happen, worker’s compensation claim than is merited. Instead, employers should spend that time educating employees on the manner in which worker’s compensation claims should be reported and insure their employees understand that all claims should be reported promptly, regardless of where they arise.

5. Have a telecommuting policy and agreement.

Besides salary, some studies have shown the ability to telecommute is the second most important factor in attracting and keeping top talent. Unfortunately, employers tend to jump on the telecommuting bandwagon before they have policies in place that accurately communicate their expectations and the limitations of their telecommuting policy. At a minimum, the telecommuting policy should address work hours and availability, confidentiality and security, equipment to be provided and who will bear the risk of loss in the event that equipment is damaged, how performance will be measured, and the manner in which work hours will be recorded and reported. In addition your policy should reserve, in the employer, the sole discretion to revoke this policy with or without notice. The policy should be signed by your employee.

For those that are new to my Blog, the picture above is my telecommuting picture.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. We encourage you to take your legal problem to a seasoned lawyer who can provide you with her/his opinion on the best course of action to follow.

Wednesday's Excuse-Late Edition

So I’m sitting at the Mid-Town Station Coffee House and Wine Bar. We just call it the Mid-Town. Great restaurant by the Sound Transit Station in scenic downtown Sumner, Washington. The nice thing about a city like Sumner is that you tend to run into people that run the small businesses that are the backbone of our country. The Mid-Town is where a lot of them hang out. It’s also a good place to get some free Wi-Fi access, a great Northwest cup of coffee and half price nachos during happy hour.

As I’m sitting here, I run into one of the local business owners. He asks what I’m doing. I tell him, “It’s Wednesday and if I don’t get a real life work excuse posted on my Blog, I’ll have to post a Thursday’s excuse for not posting a Wednesday excuse which will make two excuses in one week.” It was obvious he didn’t get it. That’s ok. So I asked one of the servers for a good excuse she has used. Probably wasn’t a good idea. After all, if it works, you don’t want to clue your boss in who might be reading this Blog. We agreed to invoke the attorney-client privilege. So her excuse is, “I never call in sick unless I’m really sick.” Nothing. Undeterred, my server asked the cook. Still nothing. I’m starting to get a little desperate. Then I remembered, I had an excuse just in case I ran into a problem. It’s not great, but here’s Wednesday’s excuse:

I am stuck in the blood pressure machine down at Wal-Mart.

By the way, if you happen to drop in at the MidTown, tell them you read about them on Rod the lawyer's Blog.

Storm Clouds at The Weather Channel

The Weather Channel is currently embroiled in litigation concerning the outcome of a sexual harassment and retaliation arbitration in which the arbitrator issued what one media outlet has described as a “blistering arbitration ruling in favor of a former anchorwoman...” Presently, The Weather Channel is attempting to keep the results of that arbitration cloaked in secrecy.

Here are the facts as I understand them:

The plaintiff (Hillary Andrews) went to work for The Weather Channel in 2003 and eventually was paired with a male anchor (Stokes). Andrews replaced another female who had reported sexual harassment by Stokes. According to Andrews, her predecessor suffered daily abuse by Stokes and would hide in her dressing room in between shifts to avoid Stokes. The predecessor was eventually let go after five (5) reports to management complaining of Stokes’ conduct. For a more detailed description of what Andrews’ and her predecessor endured click here.

Andrews alleged that Stokes was “sexually attracted to her and romantically obsessed with her.” Stokes would make crude sexualized comments such as, “Will you lick my swizzle stick?” In addition, he would grill her on her personal intimate life, including her sex life with her former husband. Stokes would ask “the same invasive questions about her sex life over and over again, non-stop. He would interrogate her for at least an hour during the three-hour time period between our shows on both Saturday and Sunday. He was relentless in his questioning; he would press incessantly, asking the same questions over and over.”

Andrews also alleged that Stokes would stare at her chest, follow her into her dressing room and invade her personal space. He would make some of the following comments:

a. “It tortures me when you wear those heels and skirt.”
b. “You are the most attractive woman I’ve ever worked with.”
c. “I find you very attractive.”
d. “You know I find you attractive.”
e. “I could win you over if I wanted to.”
f. “I know you are attracted to me, tell me, just say it.”
g. “ Sometimes I think about what it would be like.”

Andrews rebuffed Stokes. Once it became apparent to Stokes that he was not getting anywhere he began to sabotage Andrews on the air.

At first, Andrews was reluctant about reporting to management because she knew of what happened to her predecessor and she knew managers would speak of “putting up with Bob.” When she finally requested a different partner, she asked her supervisor, “Do you need me to tell you why?” Her supervisor responded, “No, I understand.”

After reporting this incident to The Weather Channel and advising that she would no longer tolerate Stokes’ abuse, Ms. Andrews received poor job assignments. Later, she would learn that her contract would not be renewed.

Andrews alleged that The Weather Channel failed to take action on her claim because Stokes had high ratings and was popular with viewers. The Weather Channel lost this case in an arbitration proceeding in which the arbitrator was highly critical of the manner in which this case was handled. Stokes was fired after the arbitration.

Lessons Learned:

When you have a problem, address it head on.

From the facts of this case, it is clear that the employer was aware of Stokes’ conduct but chose not to be proactive. Although there may be some reluctance in taking action when a highly placed or public employee has engaged in inappropriate conduct, put those concerns aside. You have an obligation to address those problems. Handling events of this nature always becomes more complex as the size of your company grows. In small companies these events can be handled discreetly. That luxury that is not available to larger publicly-held entities who have reporting requirements and risk, in today's volatile economic climate, having the price of their stock tumble with the disclosure of allegations of harassment or discrimination by a major figure within the company. In many of these cases, the signs were present, but no one wanted to be proactive.

Handling the complaint saves you money and sends a message.

One of the great myths is that employers who do the right thing and address sexual harassment in the workplace, will get sued. My experience has been that most employees only come into a lawyer’s office once it appears their employer is not willing to address a problem or they perceive they are not being treated fairly.

By being proactive, more often than not, you can stop a claim in its tracks. In addition, you will save the hard costs of litigation which can run upwards of several hundred thousand dollars in defense fees and costs, as well as, the soft costs of litigation. By soft costs I mean the general loss in productivity that is experienced, the loss of time associated with the retrieval of data as the parties exchange information, and the loss of time associated with participation in litigation related events such as depositions and trial. Don’t misunderstand what I am saying. You should never roll over just because a claim is made. However, if you determine unlawful harassment or discrimination has occurred, be firm, consistent, and make it clear to all concerned that you intend to stop the problem. In doing so, you will send a message that your company does not tolerate this type of conduct. This is one time where the rumor mill will work to your advantage. Consider the following. Joe is fired for sexually harassing female coworkers. When his replacement is hired, one of the first questions to coworkers will be, “What happened to the person who had my job?” What do you think Joe’s coworkers will say?

Think about how the actions you take today will look to a jury that is evaluating the case with the benefit of 20/20 hindsight.

Always take considered actions. Not only should you be fair but you should appear fair. In The Weather Channel case, perhaps someone should have thought of how their actions would be perceived at a later date. In many cases, a report of harassment or discrimination may not have the necessary components needed to succeed in court but, the employer will act in such a way that gives rise to a claim for retaliation.

Nothing in this Blog should be considered legal advice or to form an attorney client relationship. Legal matters often turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional who can address your particular legal needs.

Wednesday’s Excuse

“I won't be able to come in today. It seems that I have some unknown contagious disease; but I'll be fine on Monday."