You drive me crazy Uber

Uber has just settled two class action lawsuits in California and Massachusetts brought by drivers. Drivers sought classification as employees, overtime pay and transparency regarding tips.

What does the settlement mean for the drivers and–more importantly–the law of independent contractors?

Very little. First, federal court judges in both jurisdictions must approve the $100 million settlement. Hearings will be held: This is not a rubber stamp situation by any means. The 385,000 drivers will receive little compensation to drop their claim to be employees. Judges may reject the settlement outright or pressure Uber into a much higher amount. Earlier this month, a federal judge in California rejected rival ride service Lyft’s $12.25 million dollar settlement with drivers as unfair, stating the drivers were “short-changed” by the deal.

This private action will not resolve or carry any weight on the issue of whether Uber drivers are employees. The IRS could audit Uber and make a determination on whether drivers are employees or independent contractors. The National Labor Relations Board (NLRB) is investigating Uber’s labor practices. The Teamsters are trying to organize the drivers and that would also bring the question of employee classification to the NLRB. Finally, both MA and CA have laws favoring the employee relationship over the narrowly defined independent contractor, which creates an unfriendly environment for Uber.

Many people are watching Uber as one of the largest companies to use the gig economy–can it last?  Stay tuned. 

 

Understanding Human Liability Management Systems

Human liability can occur in a variety of ways.  It can range from an accounting mistake that results in a small monetary loss, to a serious workplace accident that results in a life altering injury, to tracking errors within your company’s FMLA or integrated disability management systems.  Outcomes can be improved in all aspects of the workplace by understanding human liability traps and instituting appropriate best practices. We also believe it is prudent for all employers to incorporate these fundamental strategies into their OSHA recommended Health and Safety Protection Plan.

Below is a high level outline of the fundamentals behind Human Liability Management as a method for avoiding injuries, mistakes, and improving outcomes.  This document is not intended to be comprehensive training program or targeted legal advice, but to offer a basic understanding of the theory behind Human Liability Management Systems.  It is our belief that every organization can benefit from some or all of the systems outlined in this document.

Everyone is fallible.  In our experience, the most successful organizations understand:

• Individual behavior is influenced by organizational processes and values;
• Error likely situations are predictable, manageable, and preventable;
• Events can be avoided by understanding the reasons mistakes occurred and applying lessons learned from past events;
• People achieve their highest levels of performance based on positive recognition and reinforcement;
• Leadership must equally value production and people.
• Training is a necessary part of the system, but won’t fix problems by itself.
• Sustainable improvement in human error management is not dependent solely on workers.

 

STRATEGIES FOR AVOIDING HUMAN LIABILITY AND IMPROVING OUTCOMES.

Recognize Human Error Traps

The first step to understanding human liability and improving outcomes is to identify traps. The following are common traps that directly lead to mistakes, injury or near-miss outcomes. These apply equally to every industry whether it is a manufacturing, healthcare, construction, office, or corporate settings.

• Production pressure.
• Distractions and interruptions.
• Multiple tasks.
• Bias for results (over confidence).  Thoughtless performance of tasks.
• Vague or interpretive guidance.
• First time performing task/infrequently performed tasks.
• Change of duty/off normal.
• Physical environment.

Understand Human Relations Fundamentals

The next step is to institute controls that will include and engage employees in ongoing safety/performance protocols.  Each employee must be empowered to engage in his/her own safety and/or performance.

• Self-checking.  
• Know when to stop.
• Questioning attitude. Why am I doing this?  
• Place keeping – Force to read through policy, and check sections when read.
• Effective communication – If an employee is given instructions, the employee recites or writes backs the instruction given.
• Job site review – policy/practices – snapshot of jobsite.  The employee engages in this practice every shift prior to starting work.  What are the risks present?  Can a solution be engineered to mitigate those risks?  In a corporate or office setting, this can be completed prior to starting a project.
• Meeting attendance. Employees must be engaged in their own wellbeing and success. 

These fundamentals are not limited to safety and apply equally to security, quality, and performance functions in an office or corporate environment.

Understanding Human Reliability Defenses

These are practices and policies any company can engage in to create a defense against loss.   

• Verification Practices – Peer checking. If an employee is unsure, he or she has someone to ask, “am I doing this correctly?”  
• Procedure use and compliance.  Policies and procedures must be up to date and employees must know to use them.
• Coaching (peer to peer) – Consider an observation program where employees are comfortable coaching each other. Hierarchy shouldn’t matter for effective peer coaching.
• Pre-Job Brief – Here is what we want to accomplish during this shift, or for this project, here is what we want to avoid – provide opportunity for feedback.
• Turnover – Make sure people handing off projects communicate well.

 

• Walkdowns – This is a pre-job inspection – In the manufacturing setting allow employees to review the task or project before the start of their shift or the task for barriers and problems (e.g. insufficient overhead light, missing safety barrier, obstacles preventing safe completion of task, missing element needed).  In other settings, before starting a project or shift, each employee should complete a pre-job inventory to identify barriers for successful completion of the project or task.

• Robust Barrier – Anything preventing interface with equipment employee will work on – post-its, alarms, reminders.  This will force employees to consider what they are about to do before they do it.

Developing Effective Trending

Trending is the theory that we can predict errors by trending low level mistakes that didn’t have big consequences.  The near misses are the mistakes that were caught before they resulted in a loss, or the injury that almost happened.  These are the “we got lucky” scenarios.  These offer incredible insight into areas of exposure for any company.  Each near miss is an opportunity to proactively evaluate high risk areas of liability.

• Human error reviews can pinpoint error traps, missing individual fundamentals, and defenses before errors or incidents occur.
• Effective trending needs to get inside the head of your personnel to understand what the involved personnel were thinking when the error occurred.  The purpose is not blame. It is to better understand the environment in which errors occur so that they can be eliminated in the future.
• Observation Program – Watch people to see where errors are most likely to occur. Pay attention to the culture in the department.  Every department has a subculture defined as the way staff and managers interact, sometimes this culture is the source of errors.
• Identify retraining and process improvements such as procedure quality and labeling.

Coaching

Coaching is the practice of conducting observations and comparing behaviors to existing standards and expectations.

Remember, individual behavior is influenced by leadership values.  Workers will value what owners and managers value.

The most effective managers coach regularly rather than waiting for yearly reviews.

Coaching Opportunities:  Each of these areas represents an opportunity for coaching.

• Infrequent evolution.
• High risk tasks.
• Work performed by contractors.
• Pre-job brief (observe them).
• Component manipulations.
• Morning meeting.
• Leadership meetings.
• Peer to peer coaching adds value.

Observation Program

A successful observation program enables employees to assess procedural compliance and record safety observations, and stop work that’s unsafe. An effective observation program will minimize errors by 60%.

This isn’t limited to safety.  An observation program can also assess compliance risks in a number of functions, by recording noncompliance observations, dangerous/counterproductive/risky behavior can be stopped before it results in a loss.

The following are some best practices for any observation program:

• Make Behavior Based Observations – Don’t give statements like “performance declined,” instead, give behavior based observations that identify particular behavior that can improve.  
• Make Sure All Documentation is Closed Loop – Don’t just document a problem.  Identify the problem, and then identify how it was dealt with.  This adds value because if the problem reoccurs, it is an opportunity to examine whether a different method of dealing with a problem is appropriate.  
• Make Sure Observations Are Aligned with the Performance Challenge – Stay focused on the performance being measured and offer relevant observations.
• Allow for Feedback – Allow an opportunity for feedback between the observations and outcomes.
• Not Disciplinary – Employees have to be comfortable to make reports in order for a near miss observation program to be successful.  It is not as effective if it becomes a disciplinary model, instead it should be a form of coaching for improvement rather than coaching for discipline.

Conclusion

An effective human liability assessment will present an organization with an opportunity to correct a problem before it becomes a consequential incident. Near miss reporting of “we got lucky” scenarios represent an opportunity for growth.  Coaching and observation allow employees and management to recognize and proactively manage risk.

Employers throughout the country frequently ask our lawyers how they can better manage HR-related risk. Clients have told us that the strategies outlined above in combination with our law firm’s Employment Counsel On-Call Triage Service, Diagnostic Compliance Audit Service and Handbook Preparation and Updating Service create the Iron Dome of HR-related Risk Management protection. We stand ready to help. 508-548-4888

www.foleylawpractice.com

 

Who’s afraid of the DOL? Everybody now.

The US Department of Labor (DOL) announced this week that a human resources service provider will pay $1 million in back overtime wages and damages to hundreds of employees.  A DOL investigation found widespread violations of the Fair Labor Standards Act (FLSA).  You can find the press release at https://www.dol.gov/newsroom/releases/whd/whd20160418-0 .

How did this happen? The employer made a common but erroneous assumption: salaried employees are not eligible for overtime pay. In this case, the employer raised salaries to avoid OT pay after 40 hours a week. The employees however were NOT EXEMPT because the criteria under the FLSA exemption were not met. (http://www.dol.gov/whd/overtime/fs17a_overview.pdf) Worth  noting is the mistake was made by an outsource HR provider, which illustrates how legally complicated these matters are. 

Whether an employee is actually exempt under the law—and not determined by past practice or a job description—has enormous ramifications for a business.  In this case an HR provider made a very costly error, which occurs easily with back pay, liquidated damages and attorneys’ fees allowed under the Act.

Between the upcoming changes in the overtime rules (https://wordpress.com/post/workplacelawhelp.com/419 ) and cases like this, committing resources to a comprehensive audit by Foley & Foley PC is a good investment. We can get your employment classification and wage and hour matters in compliance and you can go about your business.  We can help.

Coalitions, Alliances…the Drone War continues

The skyscape is abuzz with interested parties maneuvering for control over all things UAS.

A new lobbying group has formed this week in an effort to lead the charge toward a “practical and responsible regulatory framework” for UAS. Splitting off from the Small UAV Coalition, which includes companies such a Google and Amazon, a group of four UAS manufacturers have formed the Drone Manufacturer Alliance (DMA). The foursome is GoPro, 3DR, DJI and Parrot. The split makes sense for the manufacturers. The Small UAV Coalition is lobbying for regulations that will allow for freer and easier commercial usage of UAS, while the manufacturers primarily seek to promote their retail agenda. While the two groups have common interests, their positions are not 100% aligned. Thus, the DMA projects to be the voice of manufacturers, retailers and their customers on Capitol Hill.

The newly created FAA Task Force – the MicroArc – recently voiced interest in risk-based regulations for commercial operation of UAS. Such regulations could allow for a more flexible review of each individual application and the risks posed by the proposed UAS operation. A risk-based system would be more user friendly to commercial enterprises than a rigid one-size fits all regulatory process.

The Airline Pilots Associations (ALPA) opposes risk-based regulation. One key safety concern raised by ALPA is (its belief) that the command and control systems of UAS are unreliable and the risk of a “loss link” between the UAS and the command center is still too great. ALPA fears that absent strict regulations, UAS pose a significant risk to airline operations. Among other items, ALPA wants (1) UAS operated by properly certified pilots, (2) using identifiably airworthy systems; (3) that are equipped with detect and avoid technology. ALPA’s stated goal is to ensure that “aircraft certification, technology standards, and pilot certifications [are required] to maintain the safety of the airspace system.”

The FAA has joined forces with the Department of Homeland Security (DHS) and CACI International to develop and implement a “rogue drone” detection system around airports. The “SkyTracker” system developed by CACI can detect the location of the UAS and its operator using radio waves and sensors. The implementation of this technology suggests that the FAA and DHS will aggressively prosecute individuals who operate UAS in the protected airspace around airports without proper authorization.

FUN FACT: Since September 24, 2014, the FAA has approved 4505 Section 333 petitions (for commercial operation of UAS in the national airspace). In February 2016 alone, the FAA approved over 500 petitions. While the Small UAS rule remains pending before Congress, a Section 333 petition will remain the means by which businesses can obtain permission to legally operate UAS in commerce.

Get Ready to Update Your Discrimination Policies, California.

 

No this is not a cruel April Fool’s Day joke. As of April 1, revised California Fair Employment Housing Act (FEHA) regulations will take effect, with new anti-discrimination and anti-harassment obligations for California employers. If you have not already updated your Discrimination and Harassment Policies to track the amendments to FEHA, now is the time.

Our office has already updated and drafted a number of Harassment and Discrimination Policies in response to these new regulations. Feel free to contact us at any time.

The new regulations make it mandatory for every California employer employing five or more employees (regardless of location) to have a written anti-discrimination, harassment and retaliation policy. This means that out of state companies with 1-2 California employees may now be sued under FEHA.

Discrimination and Harassment policies must now include all of the following:

List all protected categories covered under the FEHA. These include:

• 4o Age (40 and over)
• Ancestry
• Color
• Religious Creed (including religious dress and grooming practices)
• Denial of Family and Medical Care Leave
• Disability (mental and physical) including HIV and AIDS
• Marital Status
• Medical Condition (cancer and genetic characteristics)
• Genetic Information
• Military and Veteran Status
• National Origin (including language use restrictions)
• Race
• Sex (which includes pregnancy, childbirth, breastfeeding and medical conditions related to pregnancy, childbirth or breastfeeding)
•  Gender, Gender Identity, and Gender Expression
•  Sexual Orientation

Specify that the law prohibits unlawful conduct by coworkers and third parties, as well as supervisors and managers;

Set forth a complaint process, that includes:

• Timely investigations and response to complaints;
• Impartial investigations by qualified personnel;
• Means for tracking progress of investigation;
• Appropriate remedial actions and resolution; and
• Timely closure.

Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Complaint options should include:

• Direct communication, either verbally or in writing, with a designated company representative, another supervisor or complaint hotline, so that the employee has options outside of his or her immediate supervisor;
• Access to an ombudsperson; and/or
• Identification of the California Department of Fair Employment and Housing (DFEH) and the U.S. Equal Employment Opportunity Commission (EEOC) as additional avenues for employees to lodge complaints;

Instruct supervisors to report all complaints of misconduct to designated company personnel.

Indicate that when an employer receives allegations of misconduct, it will conduct a fair, timely, and thorough investigation. If misconduct is found, appropriate remedial measures will be taken.

Specify that confidentiality will be maintained to the extent possible, although the policy should not indicate that the investigation will be completely confidential.

Clearly state that employees will not be retaliated against for lodging a complaint or participating in any workplace investigation.

Employers must distribute the updated policy through one or more of these methods:

• Hard copy to all employees with an acknowledgement form for the employee to sign and return;
• Email to employees, along with an acknowledgement return form;
• Post on the company intranet, along with a tracking system that ensures all employees have read the policy and acknowledged receipt;
• Discuss the policy with new hires or during orientation sessions; and/or
• Other distribution methods that ensure employees receive and understand the policy.

Employers whose workforce at any facility or establishment contains 10 percent or more employees who speak a language other than English as their primary spoken language must translate the policy.

For employers with 50 or more employees:

The new regulations also update training and record keeping requirements under California’s existing supervisor harassment training provision. The following now apply:

• Training must instruct supervisors of their obligation to report complaints of discrimination, harassment or retaliation to a designated company representative, and must review with supervisors the steps necessary to take appropriate remedial measures to correct harassing behavior.
• The training must cover “abusive conduct,” including the definition of abusive conduct, the negative impact of abusive conduct, the elements of and examples of abusive conduct, and the fact that a single act will not constitute abusive conduct unless it is sufficiently severe and egregious. The regulations state that there is not a specific amount of time that must be spent on abusive conduct in the training but it should be covered in a meaningful manner.

o Employers must maintain training documentation for a minimum of two years.

• Documentation includes names of the supervisors trained, training date, sign-in sheet, certificates of attendance or completion, type of training, copies of written or recorded training materials, and the name of the training provider.
• For webinar training, employers must also retain a copy of the webinar, written materials used by the trainer, written questions submitted during the program, and written responses or guidance that the trainer provided during the webinar. For e-learning training, employers must retain written questions received and written responses or guidance provided.

 

Other updates to the FEHA regulations include:

New definitions of gender expression, gender identity, sex stereotype, and transgender;

• “Gender expression” means a person’s gender-related appearance or behavior, whether or not stereotypically associated with the person’s sex at birth.
• “Gender identity” means a person’s identification as male, female, a gender different from the person’s sex at birth, or transgender.
• “Transgender” is a general term that refers to a person whose gender identity differs from the person’s sex at birth. A transgender person may or may not have a gender expression that is different from the social expectations of the sex assigned at birth. A transgender person may or may not identify as “transsexual.”

A woman/female disabled by pregnancy includes a transgender employee who is disabled by pregnancy;

Clarification of what constitutes actionable harassment and the basis for co-worker liability;

A new rule permitting the DFEH to recover “non-monetary preventative remedies” against an employer, regardless of whether the agency prevails on an underlying claim for discrimination, harassment or retaliation; and

A prohibition of discrimination against a non-citizen applicant or employee who holds a driver’s license issued under Section 12801.9 of the California Vehicle Code. Specifically, the regulations now allow employers to require an applicant or employee to hold or present a driver’s license as part of employment only if it is required by: (a) state or federal law, or (b) the employer’s policies for a legitimate business purpose (and permitted by applicable law).

 

We recommend that California employers take the following immediate steps:

• Ensure you have written policies that comply with the new regulations and that the policies are disseminated in one or more of the approved methods (in addition to Form DFEH-185).
• Ensure proper complaint and investigation procedures are in place.
• Ensure supervisors and human resources personnel receive proper training on the new regulations so that all inquiries and potential complaints can be addressed in a compliant manner.