Do you Need to Upgrade Your Sexual Harassment Policies?

by Isaac Benmergui, Esq on December 30, 2017

DO You Need to Upgrade Your sexual Harassment Policies? As #Metoo spread across social media, HR departments are reviewing their sexual harassment policies to make sure they are covered.

So what makes for good sexual harassment policy, and how do you know your company is protected if someone makes a claim?

  • Every kind of harassment should be covered. Sexual harassment is only one kind of harassment. This includes harassment on the basis of any protected status, such as disability, religion, race, and all other protected statuses.
  • Use real-life examples. Of course you need to include legal definitions of unacceptable conduct, but also spell out what that means in real life as best you can without being offensive. If you explain that hate speech won’t be tolerated, then give an example of what that looks like.
  • Stress what is expected, not what is prohibited. New workplace problems and issues are being discovered all the time, so don’t wait until conduct has been explicitly rules illegal before you deal with it. By stressing that what the law requires is only the bare minimum of acceptable conduct, you don’t have to wait until it’s that bad to deal with it.
  • Be clear about when and to whom the rules apply. Be aware of all the types of people who interact in your workplace, including vendors, contractors, and clients. And also that harassment rules apply onsite as well as at offsite functions. Specify that these policies apply to email, texts, and social media.

The most important thing is that expectations are clear, that the laws are a baseline for conduct, and that employees are clear as to when, where and to whom the rules apply.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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House Committee Considering Paid Leave Bill

by Isaac Benmergui, Esq on December 29, 2017

House Committee Considering Paid Leave BillA huge headache for multi-state companies, paid sick leave laws are a patchwork of coverage throughout the United States. But a House Committee may be working to change that. And if they do, it will have an impact on every company, not just the ones with locations in more than one state.

The Workflex in the 21st Century Act would create an optional program that bases paid time off requirements on the size of a company’s workforce, how long an employee has worked for an employer, and how many hours they work. So, a large company with an employee who has worked there full time for ten years would be guaranteed more paid time off than an employee who works for a small employer full time and has only been there five years. Both full and part time employees would qualify for paid leave.

The option would also include guaranteed flexible work options as well, such as compressed schedules, telecommuting, job sharing, or flexible scheduling. To be eligible for flexible work program, an employee will have to have worked for at least 12 months and worked at least 1,000 hours in the previous 12 months.

This would give employers a way to opt out of the confusing and conflicting state and local laws governing paid time off in each state. The legislation would not affect FMLA or other unpaid leave laws. Employers would bear the full cost of the leave provided in the bill.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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What do I Need to Know about Tip Pooling?

by Isaac Benmergui, Esq on December 28, 2017

What do I need to know about tip pooling?If your workplace includes tipped employees, you’re about to face some huge changes in the way those tips are handled. Recent changes to tipping laws by the Department of Labor mean that employers may be allowed to keep or redistribute tips from tipped employees to balance pay inequities with employees who do not receive tips in the same workplace, such as servers and cooks.

What Does that Mean for Employers?

The Fair Labor Standards Act governs how employees are paid. It sets the minimum wage, and overtime rules. For service employees, the FLSA allows these workers to be paid less than minimum age as long as tips make up the difference.

Under 2011 regulations from the Obama Administration, tips were considered the property of these service employees; they could not be withheld, redistributed, or donated to charity. But tips have meant that while service employees’ incomes rise, 300 percent in more than 30 years, non-tipped employees have only seen a 20 percent increase in pay.

To solve this disparity, some employees have eliminated tipping. Others have started to use cooks as food runners so they can be considered service employees and share in tips. The Trump Administration solution to the tip problem is to pay all workers minimum wage, and allow employers to choose what to do with tips, which could mean that they split them between front and back of the house workers. But a loophole in the law also means the employer can simply keep them. It’s worth noting that Trump himself employs tipped workers at multiple businesses, enabling him to personally profit from this rule if he so chose.

Many restaurants have come out in favor of the proposed changes—as long as management is not profiting. “It’s funny that the person who actually cooked your food is not considered part of the chain of service and can’t share in tips,” says Gwyneth Borden, an industry insider.

We believe that tip sharing is one way to help support better wages across the restaurant, while still allowing service staff to still be well-compensated by tips.”

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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The Al Capone Theory is Your Financial Reason to Care about Harassers

by Isaac Benmergui, Esq on December 27, 2017

 The Al Capone Theory is Your Financial Reason to Care about HarassersSexual harassment. If no one reports it, it’s a victimless crime, right?

That’s been the theory of HR managers everywhere, clearly, for decades at least. That’s why HR is notorious for dissuading employees from reporting, complaining and otherwise acting out against this behavior. They explain it as “boys being boys,” blame the victim, assert that you aren’t pretty enough to be harassed, or that you aren’t special because “he does that to everyone.” Just do your job and don’t make a fuss. Go along to get along, right?

But there’s something more, and it’s why maybe the accounting department should care more about this than HR, perhaps. It’s the Al Capone theory.

Valerie Aurora, principal consultant at Frame Shift Consulting, a firm that helps companies promote diversity and inclusion, and Leigh Honeywell, the co-founder of female-driven makerspaces HackLabTO and the Seattle Attic Community Workshop, came up with the idea after a deep-dive into Sillicon Valley’s sexual harassment problem:

“The U.S. government recognized a pattern in the Al Capone case: smuggling goods was a crime often paired with failing to pay taxes on the proceeds of the smuggling. We noticed a similar pattern in reports of sexual harassment and assault: often people who engage in sexually predatory behavior also faked expense reports, plagiarized writing, or stole credit for other people’s work.…All of these behaviors are the actions of someone who feels entitled to other people’s property — regardless of whether it’s someone else’s ideas, work, money, or body.”

So it’s not just an annoyance, or an HR hassle. Someone who feels entitled in your workplace wants to take what’s not theirs, simply because they want it. Whether that’s a coworker, a bonus, or extra office supplies, this theory makes the case that if HR isn’t interested in your being harassed, maybe accounting should be.

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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The Masterpiece Cake Shop Case has Implications for Employers

by Isaac Benmergui, Esq on December 26, 2017

 The Masterpiece Cake Shop Case has Implications for EmployersThe question facing the Supreme Court in the Masterpiece Cake Shop case has implications not only for small business owners, but employers everywhere. If you’re not familiar with the case, a cake shop owner in Colorado was approached by a same-sex couple wanting a custom-made cake for their wedding. The owner offered to sell the couple any pre-made cake in the shop, but said his evangelical Christian beliefs prevented him from being involved with a same-sex marriage celebration. The cake shop owner also does not make custom items for bachelor or bachelorette parties or Halloween.

The cake maker and owner of Masterpiece Cake Shop claims that he is an artist, and cake is his art form. So asking him to create art that goes against his religious beliefs violates his first amendment right to freedom of expression. But where does this case potentially intersect with employment law?

If this cake maker is an artist, than why can’t other people consider their chosen work an art form? And if any potential employee is an artist, then their work is their art, and they have be allowed to follow their conscious in crafting their art.

Some people who have sounded off on this case say, well, if he wants to lose business as a cake shop, those individuals that he chooses not to serve can walk down the street, down the block, or into the next town and find dozens of businesses willing to serve them. This might be true. It’s also the same argument that has allowed heavily restrictive non-compete agreements into the workplace. The courts have decided that the free market will take care of this issue; that if the restrictions are too much, the employee can simply seek employment elsewhere.

But as we have seen throughout history, people enjoy having jobs. They like being able to pay bills, rent, and buy groceries. It’s a huge imbalance of power that the employer has, and history has shown that that power will be used against the worker if the worker isn’t provided some protections that even the playing field.

So watch this case carefully, because if businesses are allowed to discriminate against protected classes when those people are the ones handing money over to them, imagine what they’ll do to the people who are depending on them for equal treatment.

 

Call Miami Employment Lawyer Isaac Benmergui at 305.397.8547 and set up a no charge, no obligation consultation to discuss your case. We have over a decade of experience handling Employment Law and Civil Litigation cases throughout Miami and South Florida, and will use our expertise to help your case to the best of our abilities.

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