WIRTW #661: the “crafty” edition

Earlier this week I had the pleasure of presenting, Crafting Your Craft Brewery's Employee Handbook, a webinar jointly sponsored by Craft Beer Professionals and Start A Brewery. (Thank you, Andrew Coplon and Laura Lodge, for asking me to present 🍻) 

In 60 minutes, I discussed why every business needs an employee handbook and ran through every policy a craft brewery needs in its handbook. While the presentation is craft brewery focused, any business of any size will find most of the information applicable. I guarantee you'll learn something.

You can watch the entire webinar here.

Here's what I read this past week that you should read, too.

Do you know the rules for paying remote workers for “downtime”?

Every 10 minutes at some random point that she couldn't anticipate, the company took photos of her and her work, a screenshot of whatever she was working on, and a photo of her face. And they were doing that to verify whether or not she was working.… The company was using that to pay Carol and the other workers only for the minutes when they appeared active.

If she was clicking away at a spreadsheet, doing demonstrable work, she was fine. She would be paid for that 10-minute increment. But as soon as she got a cup of coffee or answered the doorbell or went to the bathroom, she risked not being paid for that time.…

[E]ven if she had worked for 9 and 1/2 minutes out of 10 minutes, if that screenshot showed her inactive, if she was gone or distracted for that 30 seconds, she wouldn't be paid for that increment.

That's from The New York Times, describing the latest employer trend of monitoring remote workers and only paying them for the time during which the performance of actual work could be verified. And, if those remote workers happen to be nonexempt, that practice is highly illegal.

The Department of Labor just issued a Field Assistance Bulletin reminding employers on the proper payment of remote workers under the Fair Labor Standards Act.

Specifically:

• The FLSA requires employers to pay nonexempt employees for all hours worked.
• "Hours worked" is not limited solely to time spent on active productive labor but also includes time spent waiting or on break.
• Short breaks of 20 minutes or less (e.g., to go to the bathroom, get a cup of coffee, let the dog outside, or stretch one's legs) are generally counted as compensable hours worked.
• Longer breaks "during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked."
• These rules apply regardless of whether the work is performed at the employer's worksite, at the employee's home, or at some other location away from the employer's worksite.

In other words, even if you catch your nonexempt employees "not working" during the workday, if a break lasts 20 minutes or less you still must pay them. It's non-negotiable under the FLSA. (Exempt employees are paid a salary which becomes owed in full as soon as he or she works just one minute in a work week.)

If you discover an employee abusing paid breaks or their salary status, your remedy is discipline or termination, not withholding wages.

No privacy for drug-test pees

Someone on Reddit asks: Is it legal for my new employer to watch my pee for a drug test?

I can’t speak for every state, but in my state the answer is an unequivocal “yes.” It’s perfectly legal to require the direct observation of an employee peeing for a new hire or workplace drug test.

Employee harassed after coming out at work loses harassment lawsuit

After an employee comes out at work as gay, he alleges that co-workers left him pink nail polish, a nail file, and bath bombs, that someone posted Bible verses on his desk, and that he was moved to an isolated corner of the office. 

Based on these facts, the 6th Circuit Court of Appeals affirmed the dismissal of the employee's sexual harassment claim.

WIRTW #660: the “Freckles” edition

Two weeks ago I shared the story of Freckles, the toad that my daughter rescued from our backyard. On our podcast — The Norah and Dad Show — we left you with a cliffhanger. Did Freckles live or die. On this week's episode we share Freckles' fate, along with the fate of Norah's high school mock trial team.

You'll find The Norah and Dad Show on Apple Podcasts, Spotify, Google Podcasts, Overcast, Amazon Music, in your web browser, and everywhere else podcasts are available.

Here's what I read this past week that you should be reading, too.

Seminars and Webinars: Employee Handbooks

When was the last time you reviewed and updated your business's employee handbook? 

If your answer is, "I don’t know," "Longer than a year ago," or "What's an employee handbook and why do we need one?" then we need to talk.

The reality is that you need a customized and updated handbook that documents the guidelines and expectations between your organization and your employees. If you do not pay careful attention to your handbook's contents, you might violate the law, alienate employees, and invite costly and time consuming lawsuits.

Lucky for you, you have two upcoming opportunities to hear me speak on this important topic.

Post-termination diagnosis is insufficient to support ADA claim

Haley Hrdlicka, a 30-year General Motors employee, began having attendance problems after transferring to its Design Academy. Serious attendance problems. Dozens of absences in the four-month period from May – August 2019. A less-than-glowing performance review followed by an "Attendance Letter" (essentially a final written warning) did nothing to improve her attendance. So GM fired her. 

She unsuccessfully appealed her termination through GM's internal grievance process. During that process Hrdlicka was diagnosed with Persistent Depressive Disorder and a brain tumor. She then sued GM for disability discrimination stemming from the after-the-fact diagnosis.