March Madness and Your Business

According to the outplacement firm, Challenger, Gray and Christmas, during the next few weeks of March Madness, employers could see $1.7 billion in lost productivity. This productivity loss extends to employee participation in office pools, to employees that will spend up to 30 minutes of work time completing sports brackets to employees using work time to watch streaming video of games while using up their employer’s bandwidth. Following the Super Bowl, March Madness interferes with employee productivity more than any other sports event.

Technology has made it much easier for employees to abuse work time by following their favorite sports event. In years past, employees would have to duck out to a local sports bar to watch the game. These employees did not have the ability to download March Madness screen savers from questionable websites,access on-line gambling sites via the Internet, or download streaming video.

Some employers chalk off the loss of employee productivity and misuse of company resources as a cost of doing business. While this approach may be the path of least resistance, it is not without attendant risk. Employers that turn a blind eye to abuse of work time and company resources may find they inadvertently have created the perception that members of one gender are receiving preferential treatment, as well as, undercutting handbook policies that govern email and Internet usage.

March Madness, and similar events, may provide an opportunity to communicate your expectations to your workforce. This time can be used to refresh their memories of company policies governing misuse of time, email, Internet usage, participation in listservs and Blogs, and downloading. The benefit to be derived is twofold. First, it will require you to blow the dust off of those policies and determine whether they require updating. Second, by bringing these policies to the attention of your workforce, they, in turn, will not be able to complain when those policies are enforced.

The Bottom Line: Many workplace problems can be avoided by careful and regular communication of expectations to your workforce. Repetition has it’s benefits. Consider the Head On advertisement. I don’t need to repeat that annoying advertisement to make my point. The same holds true with workplace policies. You should not assume that your employees remember key points of your handbook policies. Periodic reminders to your workforce can make minimize future problems.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

Thursdays Excuse for Wednesday's Excuse

I wish I could tell you that I never forget, but I was preparing for a speaking engagement at a seminar, entitled Employment Law from A to Z, and "I forgot" until I was listening to one of the speakers that preceded me who was speaking about individuals who abuse leave time. So without further delay, here is Wednesday's excuse:

“I didn’t think I had to come in if I had time in my vacation bank. I thought I could take it whenever I wanted.”

The “Windermere Way” is not the Court’s Way

Windermere, a large real estate company, was sued by one of its employees for commissions due. As part of the employment agreement with Windermere, the employee had to agree to arbitrate disputes rather than going to court. After the employee filed suit in court, Windermere asked the judge to enforce the arbitration agreement. The employee objected. It argued that the arbitration agreement was unfair since it was one sided in favor of the employer. The employee noted that the arbitration agreement was drafted by the employer, the employer wrote the arbitration procedures, and the employer selected the arbitrators from a panel of Windermere franchise brokers or agents, who were to resolve the case “the Windermere Way.” The trial judge agreed. Windermere appealed.

The appellate court found the points made by the employee to be persuasive. Although the court held, consistent with Washington law, that arbitration agreements are favored, it also noted that the statute that governs arbitrations prevents those with a “known, direct and material interest in the outcome of an arbitration proceeding or a known, existing or substantial relationship with a party” from serving as an arbitrator who is supposed to be neutral. The court noted that for arbitration to be a satisfactory alternative to litigation, the parties must have confidence in the arbitrator’s ability to make fair and unbiased decisions. This is critical since, in most cases, the decisions of the arbitrator are final and not subject to appeal. Here, it was apparent the court felt uncomfortable allowing agents and brokers of Windermere franchisees to serve as arbitrators since they may have a bias in favor of the company and against a former employee who is suing for unpaid commissions.

The Bottom Line: Arbitration agreements, if properly crafted, can go a long way to resolving workplace disputes in a less costly fashion. Employers tend to favor arbitration agreements since they keep the company from going in front of a jury that will most likely be composed of employees rather than corporate executives or business owners. Employees, on the other hand, feel that they would like a jury of their peers deciding their workplace dispute.

Although this employer probably felt that by having cases decided the “Windermere Way” reflected the company’s level of commitment to a high standard of business ethics, the court disagreed. It is apparent, from the decision, that it was the degree to which the company and its franchisees exercised control over the process that created the impression of bias regardless of the company’s commitment to a high level of business ethics.

Nothing in this Blog should be considered legal advice or to form the basis of an attorney client relationship. Every legal matter can turn on specific facts. Nothing can substitute for the advice of a seasoned legal professional.

New Microsoft Patent

According to the TimesOnline, Microsoft has just published a patent application for software that will allow an employer to remotely monitor an employee's heart rate, movement, body temperature, facial expression and blood pressure. As can be expected, this has already caused a great deal of concern on the part of privacy groups and worker's rights groups. Apparently, this software can use the information it collects to detect excessive stress and frustration on the part of the user.

Hopefully, this software will incorporate a method to account for my heart rate after drinking a 5 shot Americano on the way to work or my frustration when a certain operating system locks up in the middle of an important task.