 Am I Entitled to My
Vacation? Page 1-2
 Why Culture Trumps
Compliance
Page 3
 ISSUE 8  VOLUME 2  SEPTEMBER /October 2014
IMPROVING THE WORLD, ONE WORKPLACE AT A TIME
 Don’t Pay for Sick
Employees
Page 4
 EEO Says: Hold the
Onion(head),
Page 5
 When Mark Becomes
Marcia, Page 6-7
 Hire Your Replacement, Page 8
 OSHA Fines Safety
Whistle-Blowers,
Page 9
Am I Entitled
to My Vacation
Time?
By Rick Birdsall, J.D.,
Senior Associate at
The Growth Company
And 911
 Seminars & Solutions
Question:
I traveled to Alaska to work as a project manager for a construction company during the
summer. My departure date has been set for September 15th. I am paid hourly and accumulated 5 days of vacation leave during the summer. This leave accumulation is shown on
my paychecks along with my wages. I have asked to use my vacation time during my last
week. The employer so far has been reluctant to agree. I am not aware of any employer
policies or employee handbook that discusses the subject. Do I have any recourse?
Answer:
This is a very interesting question and the answer is highly dependent upon the state jurisdiction. First, let me provide an overview. Vacation and sick leave benefits are generally a
matter of contract interpretation and require an examination of the employment contract.
What are the terms of the agreement between the employer and employee? No federal or
state law requires an employer to offer paid sick leave or vacation leave. However, many
states have enacted legislation that views earned (vested) leave to be an extension of wages. Payment of unused leave, even under circumstances when an employee quits without
notice or is terminated with cause, is required under the state labor laws of California, Louisiana and others.
Alaska, Washington and Oregon all similarly view vacation as a contractual benefit based on an employer/employee agreement.
It is viewed as a contractual benefit rather than earned wages. Under these circumstances the respective state labor agencies
lack the statutory authority to enforce an agreement concerning leave pay because it is not a jurisdictional wage issue.
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Richard Birdsall
J.D., B.A.
Let’s talk about your particular circumstances. Do you and your employer have an
express or implied understanding regarding how your vacation should be addressed?
Is there any documentation that affirms an agreement such as e-mail, text messages
or the like? If you can show an agreement with the employer supporting your contention that you are owed money for the accumulated vacation time as wages or,
alternatively, you should be able to use your earned vacation at the conclusion of
your summer projects, the Alaska Department of Labor (wage and hour unit) might be
able to help you. Alaska Statute, section 23.05.230 says the state Department of Labor may “prosecute an action . . . for the collection of a claim that is valid and enforceable.” A strong argument can be made that a promise to pay for vacation benefits could be a contractual claim that is “valid and enforceable.” In other words, they
may be able to help you.
I telephoned the Wage and Hour Investigations Unit, (907) 269-4909, to get their interpretation of a “claim that is valid and enforceable.” Their interpretation matches
mine – if they find you have a valid contractual claim supporting vacation pay they
may pursue it. It will depend upon the individual facts and circumstances. They invite you to call them and ask. I would encourage you to do so. On every occasion I
have called the investigators to pepper them with my inane questions they have always been extremely informed, helpful and abundantly patient.
Senior Associate
Rick offers a tremendous
amount of experience, both
with his law degree as well
as 9 years in the field of investigations
contributing to his ability of
providing technical
expertise in real life
circumstances.
Rick is also our Supervisor
Academy instructor.
Click here to learn more
about
Supervisor
Academy.
Ultimately, the Alaska Wage and Hour Division could conclude your claim has merit
and pursues an action on your behalf or they could conclude insufficient evidence
exists to show your claim is clearly enforceable. As expected, they view these types
of issues on a case by case basis. They might recommend other courses of action
such as civil litigation or perhaps small claims court. You will be left to your own devices to recover the monies owed by filing a small claims or other action.
You have several arguments working in your favor. First, the accumulated vacation as
reflected on your paychecks suggests it is a paid benefit as part of your wages. Second, you were hired to work a limited term during the summer construction season.
It does seem rather odd that you would be expected to utilize your vacation when
you are only present in the state for 14-16 weeks during our limited summer construction season. Third, you are not aware of any written policies stating otherwise.
There is one additional thought I should interject here. The Alaska Supreme Court
has adopted the principle that there is an implied covenant of good faith and fair
dealing in every employer/employee relationship (Mitford v. de Lasala, 666 P.2d 1000
(Alaska 1983)). The implied covenant has two basic concepts. Either one works:
The objective standard. Are the policies being fairly and equally applied? If others
have historically been paid for accumulated vacation under similar circumstances
and now you are not, this objective standard of “fairness” in the application of policies is breached; and,
The subjective standard. The employer is not to act with bad motives or in bad faith.
Looking at the objective standard you need to do a little investigation. How have others been treated under similar circumstances? Is the employer violating its own internal policies, past practices and procedures?
Looking at the subjective standard, you already have an argument that the employer is acting in bad faith. Clearly you had an
understanding before you accepted the job and traveled here that vacation was part of the package. The employer acknowledged this by reflecting it in your paychecks. Your argument is that, after completion of your limited term work period, the employer is now reneging, in bad faith, on the promised benefit used to entice you to come here to begin with.
Ultimately, it all condenses down to the terms or your employment agreement or understanding. If the employer has a basis to
argue your agreement expressly stated that unused vacation would not be reimbursed, then the employer has the stronger argument.
The Alaska Department of Labor is your starting point.
2
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for recertification credit.
Stephen Paskoff is a former EEOC
trial attorney and the president
and CEO of Atlanta-based ELI Inc.,
which provides ethics and compliance training that helps many of
the world's leading organizations
build and maintain inclusive, legal,
productive and ethical workplaces.
He is a Workforce contributing
editor.
WHY CULTURE TRUMPS COMPLIANCE
BY STEPHEN PASKOFF
On July 30, the Wall Street Journalreported the following on a recent meeting of the
New York Fed:
Thomas Baxter, Executive Vice President and General Counsel of the New York
Fed, stressed at the outset of his remarks that he was only speaking for himself,
but he pointedly critiqued company culture, saying that if a firm’s values don’t
support the rules used to guide employee behavior, the organization ‘is headed
for troubled territory.’
Baxter is right on the money. His statement applies not only to banking but also to other
types of businesses. NAVEX Global recently released a survey reporting that most compliance officers have shifted to transforming culture as opposed to simply – and it is relatively simple – educating employees on applicable regulations. This is a welcome development. Unfortunately, it’s happening a little too late for organizations like General Motors and the Veterans Administration.
In 2002, I met with the number two aide to one of the nation’s top general counsels. We
were discussing how his organization would comply with the newly-enacted Sarbanes
Oxley Act, which introduced major changes to the regulation of financial practices and
corporate governance requirements.What he told me that day proved to be a common
organizational approach. He said his organization planned to communicate basic standards and document leader and employee receipt. The company’s leaders had concluded
getting material out broadly, not whether it had impact, was all that needed to be done.
I thought his employer and others following the same course had made a grievous mistake. And, history has made it clear that they did. Time after time, organizations with
supposedly robust compliance mechanisms have proven their systems to be as effective
as paper shuffling. They’ve become prey to gross violations that all of their policies, actions, and public commitments promised would never happen.
Compliance initiatives based solely on systems, processes, memos, and other activities –
which are largely ignored – tell people what to do; but it’s organizational culture that
determines what people actually do. Culture is derived by what people see being done
by those they respect and, frankly, may fear. It’s based on how individuals are rewarded
or punished when they meet or breach key values. This varies from organization to organization: I know one company that fires anyone who lies on an expense report, no
matter how high up the chain they are; another allows employees to cut corners on
business deals and deceive clients as long as they meet their financial goals. The reality
is people violate rules all the time and either don’t believe they’ll be caught or get into
trouble if they are.
Thus, culture represents the way organizational values are actually lived, not the words
by which they are expressed. And, a healthy organizational culture won’t take root by
forcing employees to sign documents they’ve barely read and that are ignored by individuals who control their workplace opportunities and futures. Defining clear principles
on paper is a first step, but that’s all it is.
To instill ethical behavior, organizations must provide incentives and encourage everyone to not only act properly but also to report violations. And, they need to recognize
and, perhaps, reward people when they do. That’s the strategy banks, auto manufacturers, healthcare institutions, government agencies, etc., should follow if they’re serious
about making ethical choices, welcoming values, and having daily meaning. It’s much
bigger than just handing out compliance-worthy statements and having employees
check the box.
3
DON’T PAY FOR SICK EMPLOYEES
BY STEPHANIE DUFEK, PROJECT MANAGER, THE GROWTH COMPANY
Stephanie Dufek
According to the CDC, “Productivity losses related to personal and family health problems
cost US employers $1685 per employee per year, or $225.8 billion annually. Depending
on the number of employees you have, you may be paying one or more employee’s full
salary just to compensate for absenteeism. Herein lies the question: what can we do to
decrease our losses in this all too common expense?
With the rise in obesity and other chronic diseases, the world is taking a look at ways to
improve wellness. Businesses should look at all avenues of promoting the physical and
mental health of their employees. The most common benefit businesses utilize is the extension of a bank of sick leave time to employees. This can sometimes be a double-edged
sword, as employers fear being taken advantage of by employees who falsely call in sick;
however, employers who do not extend a sick leave bank risk having employees who are
legitimately ill coming into work and spreading their illness to other employees. A common remedy for this is that most employers require a doctor’s note once the employee
has utilized one or two days’ worth of their sick leave.
A sick leave bank is ‘old news’. We are now witnessing innovative corporations creating
complete wellness plans for their employees. For example, British Petroleum offers a
points-based wellness program for which their employees can exchange points for rewards (such as a $100 gift card). Employees earn points by simply recording the number
of steps they take in a day with the company-provided Fitbit tracker. They can also earn
points by completing their annual physical (a free service provided by their insurance carrier), a biometric screening, and completing wellness classes. BP also has a selection of
team-based challenges centered on healthy activities, getting their employees to engage
each other, maintain accountability, and have FUN with wellness. Not only is BP rewarding their employees for healthy choices, they’re providing their employees with a multitude of tools to lead healthy lives.
So maybe your business is smaller than BP, and you want to implement some wellness
benefits without breaking the bank. There are several low-cost options. You may appeal
to your competitive employees with monthly health challenges and competitions. Consider a step challenge similar to BP’s or maybe facilitate a healthy recipe competition. Have
employees pair or group together to work as mini-teams within the business to build a
better working team while achieving healthy goals.
Project Manager and
Associate
Stephanie is responsible for
project coordination and
management from establishing
and clarifying project scope to
feedback and review. She
is available for recruiting and
coaching on various topics. Stephanie has a diverse
career background making her
a well-rounded team member.
She has extensive customer
service experience and has
excelled in training and
management positions.
Encourage your employees to de-stress during the work day. Allow an additional break during the day for which employees are
encouraged to take a five to ten minute walk or simply sit at their desk in silence. If you notice an overly-stressed employee, take
the time to understand where their stress is coming from, and if possible and appropriate, make accommodations to reduce their
workload. Sometimes simply allowing an employee to ‘vent’ about their work stress and recognizing them for a job well done will
produce immediate stress-relieving results for the employee.
Invest in non-invasive fitness equipment for your employees to use during their work day. I worked at a company that provided
small dumbbells and resistance bands I could use to get the blood flowing and de-stress. Also provided were a few under-desk
stair steppers. With these tools, I was able to exercise at my workspace while remaining productive.
Encourage and reward your employees for utilizing any preventative health screenings and exams. Most insurance companies include yearly exams as part of the benefit package. By encouraging your employees to utilize this service, you may save a life or
reduce the expense of their health costs by catching a problem early. Rewarding them for utilizing these evaluations does not have
to be large; it can be as small and simple as a $5 gift card to a healthy local restaurant, or maybe their choice of an extra day off.
Regardless of what ideas you choose, maybe it is time for you to invest in your employee’s health and wellness. If your employees
are happy and healthy, your business will be happy and healthy. Start with small changes, and maybe someday you will find yourself with a wellness program like BP’s that top employee candidates will flock to.
4
EEOC SAYS: HOLD THE ONION(HEAD)
BY JON HYMAN PARTNER AT MEYERS, ROMAN, FRIEDBERG & LEWIS
I’ve been married 11 years. My wedding was not what you’d call traditional. I’m Jewish and my wife
is Catholic, and we wanted our ceremony to blend the best of both traditions. While my wife’s
dream wedding included her dad walking her down a church aisle, we were willing to sacrifice if we
could not find a priest and a rabbi who would accommodate our wishes. With nervous trepidation,
we met with the priest of Colleen’s parish, who, as it turned out, was 100 percent on board with our
plan. We next found a rabbi, and all of us worked together to craft the ceremony we wanted: in a
church, under a chuppah, with a beautiful blend of both religions and our respective traditions and
customs.
I tell this story because, recently, the U.S. Equal Employment Opportunity Commission filed a lawsuit against a company that fired employees who refused to worship the employer’s religion of
choice — which happened to be the worship of an onion.
According to the EEOC, United Health Programs of America and its parent company, Cost Containment Group, required its employees to participate in “group prayers, candle burning and discussions
of spiritual texts,” all as part of a “belief system” that the defendants’ family member created, called
“Onionhead.” The EEOC further alleges that employees who refused to participate were fired.
What is Onionhead? According to the Harnessing Happiness Foundation, Onionhead is not a “what”
but a “who.”
“He wants everyone to know how they feel and then know what to do with those
feelings. He helps us direct our emotions in a truthful and compassionate way. Which in turn assists
us to communicate more appropriately and peacefully. In turn, we then approach life from a place of
our wellness rather than a place of our wounds.”
Jon Hyman is a partner in
the Labor & Employment
practice of Meyers, Roman, Friedberg & Lewis.
He is
a Workforce contributing
editor. For more information, contact Hyman at
216-831-0042, ext. 140,
orjhyman@meyersroman.
com. Follow Hyman on
Twitter
at @JonHyman. You can
also follow him on Google
Plus.
I’m not making this up. This comes right from the website of the Harnessing Happiness Foundation,
which is a legitimate 501(c)3 nonprofit organization. It is “dedicated to emotional knowledge and
intelligence, conflict resolution and life handling skills, for all ages,” which teaches the belief that
“hope lies in our ability to deal with problems in a respectful, mindful and loving way.”
“Onionhead” is part of Harnessing Happiness, which uses a genderless onion “as a medium to express peeling our feelings, as a way of healing our feelings.” For its part, the Harnessing Happines
Foundation denies that Onionhead is a religious practice.
Here’s the thing. For purposes of the EEOC’s religious discrimination lawsuit, it doesn’t matter whether Onionhead is a bona fide
“religion.” According to the regulations interpreting Title VII’s religious discrimination provisions, “religious practices … include
moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” According to the Harnessing Happiness Foundation’s website, Onionhead appears to include sincerely held moral or ethical beliefs
about what is right and wrong. Thus, it appears that, even though Onionhead’s leaders deny its status as a religion, Title VII likely
concludes otherwise.
What does all this mean for you? Leave religion out of the workplace. Whatever you call your deity — God, Jesus, Allah, Buddah or
even Onionhead — leave it at home. The workplace and religion do not mix. An employer cannot force its employees to conform
to, follow or practice the employer’s chosen religious practices and beliefs.
This case illustrates a deeper point: Employers seem to have forgotten how to accommodate. People are quick to lay blame at the
feet of companies that fail to accommodate their employees’ differing religious views, or worse, force their own religious views
upon their employees.
Yet, teaching how to accommodate starts at home. If children learn exclusion, how can we expect them to act any differently as
adults? If nothing else, I know my kids (being raised Catholic, but with a healthy dose of Jewish tradition in the home) should not
make these mistakes as they grow. We won’t let them, and, as they age, I hope they won’t want to.
5
WHEN MARK BECOMES MARCIA
BY LYNNE CURRY, THE GROWTH COMPANY
Lynne Curry
PhD., S.P.H.R.
Question: I oversee three departments in a company without an HR officer. Our project
coordinator is a wizard with spreadsheets and a stickler for details – without him we’d be
a ship run amuck.
He’s also an odd duck. I’m glad he’s out of sight of our customers, because his appearance takes getting used to – he has manicured fingernails, plucked eyebrows and sometimes wears face powder. He’s also moody and rude. He walks away from co-workers
when they’re talking to him and stares off into space without listening during staff
meetings. When I’ve asked him about this he says “if the topic doesn’t interest me, it’s a
waste of time.”
Three months ago during a routine job review, he told me he would be undergoing surgery to change into a woman and his surgeon recommended we call him Marcia. I didn’t
know what to say.
This morning, the head of one of our departments came to me and said I needed to
know Mark was using the female bathroom and several female employees were now
taking an elevator to another floor’s restroom. I discussed this problem with Mark and he
became indignant. He also gave me a printed recommendations sheet from his physician
that included his using the female restroom. How do I handle this?
Answer: In the past two decades, more than 200,000 individuals have elected surgery to
change from male to female or female to male. According to the Equal Employment Opportunity Commission, Title VII of the Civil Rights Act of 1964 bans discrimination based
on transgender status.
Further, President Obama’s July 21, 2014 executive order specifically bans sexual orientation and gender identification discrimination among all employers holding federal contracts.
Although no Alaskan law addresses transgender rights, the U.S. Supreme Court set a partial precedent in the landmark 1989 Price Waterhouse v. Hopkins decision. When the
accounting firm denied Ann Hopkins the right to become partner because she dressed
and acted in a masculine manner, the Supreme Court ruled in Hopkins’ favor and against
sexual stereotyping.
Multiple employers, among them American Airlines, IBM, Chevron, Xerox, Safeway, Costco, Walgreens, Nike and Aetna have implemented policies protecting transsexuals, those
who choose sexual identities different than the one in which they were born and raised,
from co-worker or employer discrimination.
President
Dr. Curry offers 3 decades
of consulting experience.
She has assisted with a
wide range of issues and
has worked all over the
world. She is at her best in
the toughest situations.
@lynnecurry10 (Twitter)
Connect with us!
As an employer, you need to get ahead of the power curve on this issue. If you don’t, you
potentially face worsening morale among employees or a hostile work environment
claim from Marcia.
As you’ve learned, restroom usage can be a hot topic. Most employers allow
transgender employees to use the restroom that corresponds to the employees’ gender
identity and full-time gender presentation. No-cost arrangements, such as asking Marcia
to use a single stall bathroom with a locked door or ensuring that restroom stalls provide
adequate privacy can make the situation more palatable.
Many employers work with the transgender employee to create a “disclosure memo,” as
long as the transgender employee agrees. These start with a statement such as “Our
Company is committed to treating all employees with respect and dignity,” outline the
date the anticipated “transition” is to take place and address issues such as restroom
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6
usage and “please refer to Mark as Marcia.”
Because some co-workers have strongly held beliefs about transsexuals, disclosure memos often add “We don’t require that you
accept transgendering but do ask that you treat Marcia and other employees with respect.”
Finally, those who “feel at home in their own skin” ordinarily perform better than those who feel “not quite right” about their
identity. Some of Mark’s former behaviors, such as staring off into space, may fall away now that she has the chance to live in the
sexual identity that feels right to her. If they don’t, you need to address them. They’re tinder and Marcia’s transition may light
the fire.
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7
HIRE YOUR REPLACEMENT
BY MARCUS BOBBITT, COO, THE GROWTH COMPANY
Marcus Bobbitt
B.S.B.
At a glance you may question, now why would I hire my replacement? This concept supports an imperative element within any organization: succession planning. Despite how
certain your current competitive strategy may appear, how financially solid your organization may be, or the niche you have discovered and capitalized on, the people aspect
within the organization is the most volatile. Many of the major corporate players invest
countless dollars and energy in the development and operation of talent acquisition departments to identify the next Steve Jobs, Mark Zuckerburg, Kevin Systrom, or Mike
Krieger - the game changers and the top performers. Mid to small firms often partner
with HR companies such as The Growth Company Inc. to search for ‘the most talented’.
The fundamental inhibitor tends to lie with hiring managers who fail to believe in the
premise of ‘hiring your replacement’. What does this mean? It means setting aside the
fear of actually being replaced and embracing the benefit of developing a solid team
equipped with a wealth of talent. More specifically, according to Dr. John Sullivan, an HR
thought-leader who states in his article “20 Reasons Why Weak Managers Never Hire Alevel Talent”: weak managers generally steer away from hiring superior talent to avoid
being replaced or challenged. In fact, inadequate managers tend to hire skill levels lower
than their own in order to increase their degree of job security and sense of worth. This
lack of confidence is revealed when faced with the chance to develop internal emerging
leaders as well. Mediocre managers are often incapable, unwilling, or nervous about developing subordinates for the same reason they are reluctant to hire prodigious talent.
True leadership isn’t about being the most skilled or having all the answers, rather it’s
about extracting greatness from those who follow. It’s about providing opportunities to
those who will one day lead; therefore, to shut the door on superior talent due to personal insecurities is a disservice to the organization. In past management occupations I
understood the position wouldn’t last forever, thus I identified those who could fill my
seat. This mindset allowed me to build a team of talent which made my role far more
rewarding and successful. It is critical to understand the essence of leadership and effective management, to unveil the connotations of succession planning.
Many strategic/change management consultants support the notion that succession
planning provides the ability to evaluate the organization and effectively plan successors
- a core component in human capital management. However, some say it has the ability
to foster ‘legacy schools of thought’ therefore shutting the door on innovation and culti-
Chief Operating Officer
Marcus Bobbitt serves as TGC's
Chief Operating Officer,
responsible for Finance
Management, Business
Development, and most
importantly, Client Relations.
Marcus provides clients with
financial data and analysis of
wage, hour, and benefits surveys.
With a strength in quantitative
statistics, Marcus also partners
with Senior Consultants to offer a
comprehensive approach to
reporting and research.
vating organizational inertia i.e. “We’ve always done it this way”. Although culture has its place, performing a talent scan and assessment of current employees and considering successors further supports the ability to make calculated hiring decisions in the
event a key player unexpectedly departs from the organization. Succession planning should be viewed as a cyclical human capital
management structure: as management positions become vacant, the organization would shift forward, moving the proper successor into position, following similar shifts in staff down to an entry level position suited for an outside hire.
Ideally, key openings of the organization would be generally filled from the internal applicant pool pursuant to the succession plan;
however, the plan must be adjusted when the next runner up isn’t ‘ready’ or we seek to harness the benefits of a skilled outsider
thus placing focus outside the organization. This school of thought avoids the acts of a ‘battlefield’ promotion i.e. hiring the most
senior individual despite proper/mature skill sets.
Overall, I challenge readers to assess their recruitment/development methodology; does it support talent acquisition or just filling
vacancies? Does it support the future of the organization [succession planning] or just the present?
8
OSHA FINES SAFETY WHISTLE-BLOWERS NEARLY
$1 MILLION
BY LYNNE CURRY, THE GROWTH COMPANY
According to the U.S. Department of Labor’s August, 2014 press release, the Occupational Safety and Health Administration
(OSHA) fined an asphalt company nearly $1 million for firing workers who raised safety concerns.
The company, Asphalt Specialists, Inc., fired a foreman and two truck drivers who refused to break federal hours-of-service rules
requiring that drivers take a minimum ten hour rest between shifts.
The company was also ordered to reinstate the three employees to their former positions with all pay and benefits.
According to a second August 2014 OSHA news release, OSHA also ordered an independent Oregon trucking company to reinstate a trucker wrongly fired for refusing to drive an unsafe vehicle. “We will enforce whistleblower provisions to the fullest extent of the law,” said acting OSHA regional administrator Ken Atha.
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TGC—NEW FACES AND NEWS
Marcia Templin
B.A.
Lynne Curry’s newest
book, Solutions, now
available!
Client Services
Marcia Templin serves as the Growth Company‘s Client Services Coordinator & Senior Administrative Professional,
responsible for providing administrative support to the
CEO and consultants. Additionally, she manages the social
presence TGC has within our respected industry which includes strategic marketing and company branding.
Marcia has lived in Alaska for 24 years and has served the
community in a volunteer capacity for many of those years.
She brings extensive experience with people – teaching,
training and conflict resolution – and is excited to become a
part of TGC’s mission to, “heal the work place, one business
at a time”.
Arm Your Workplace
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Can you do recruitment better?
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By Lynne Curry
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