Terranea Proud Terranea | Diana Lerma | August 15, 2019
Goals • Evaluate current Terranea culture • Understand harassment & discrimination • Wage & Hour 101 • Upcoming legal trends in employment law with a focus on hospitality • Learn how to respond effectively to complaints • Begin to take preventive measures to ensure a safe & comfortable workplace for everyone
Terranea Culture Where are we now? Where do we want to be?
What is it like to work for Terranea? • What is it like to work at Terranea as a manager? And as an employee? • What kind of company culture do we want to foster?
How often do you talk to your employees? What do you talk about?
Title VII of the Civil Rights Act of 1964
Title VII of the Civil Rights Act of 1964 Prohibits discrimination at work on the basis of race, color, religion, sex, or national origin.
Title VII of the Civil Rights Act of 1964 Prohibited activity includes: • Not hiring someone • Firing someone • Discriminating in terms of pay or conditions and privileges of employment • Discriminating against applicants • Discriminating with regard to training
“He who passively accepts evil is as much involved in it as he who helps to perpetrate it. He who accepts evil without protesting against it is really cooperating with it.” Dr. Martin Luther King Jr.
Theories of discrimination Disparate treatment and disparate impact
Disparate Treatment • Disparate treatment discrimination occurs when race or another protected trait is a motivating factor in how an individual is treated
Proving Disparate Treatment • Most obvious proof: blatant racial animus • Often more subtle and difficult to detect: racial bias • Systemic patterns/practices are demonstrated through statistical evidence • An employee alleging discrimination needs to prove by a preponderance of evidence (51%) that: • 1) the reason given by the employer for the disputed action is pretext; and • 2) discrimination is the true reason for the disputed action
Disparate Impact • Disparate impact discrimination occurs when a neutral policy or practice has a significant negative impact on one or more protected groups, and either the policy or practice is not job-related and consistent with business necessity or there is a less discriminatory alternative and the employer has refused to adopt it • Disparate impact analysis is aimed at removing barriers to EEO that are not necessarily intended or designed to discriminate – “practices that are fair in form, but discriminatory in operation” in that they operate as “built-in headwinds for [a protected class] and are unrelated to measuring job capability” (Griggs v. Duke Power Co. 401 U.S. 424)
Proving Disparate Impact • Proving unlawful disparate impact requires statistical evidence that the employer has an employment policy/practice that causes a significant disparate impact based on a protected category • The employer then has the burden of demonstrating that the policy or practice is job related for the position in question and consistent with business necessity • The employee then has the burden of demonstrating that a less discriminatory alternative exists that meets the business need and that the employer refuses to adopt it
Adverse Employment Action • Any action that negatively impacts an employee • Unlawful when based on a protected class • e.g., taking away shifts, progressive discipline, passing up for promotion, not giving annual raise, forced retirement
Protected Classes • Race/Color • Disability • National • Marital status • Age Origin/Citizenship/Ancestry • Genetic Information • Religion • Political Activities • Sex/Gender • Whistleblower • Sexual Orientation • Victim of Domestic • Gender Identity/Gender Violence/Assault/Stalking Expression • Natural hair (1/1/2020) • Pregnancy
Sex discrimination includes discrimination based on gender identity and expression, transgender status, and sexual orientation.
Harassment Harassment is also discrimination.
Harassment Harassment is unwelcome conduct that is based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Harassment becomes unlawful where 1) enduring the offensive conduct becomes a condition of continued employment, or 2) the conduct is severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
Hostile Work Environment • Unwelcome severe or pervasive conduct based on a protected class that creates an uncomfortable work environment
Quid pro quo Harassment • Requiring submission to unwelcome conduct in exchange for an employment benefit • e.g., hire, a promotion, a shift assignment, a wage increase
Sexual Harassment • Widely associated with: • Depression and stress • Physical health symptoms • Reduced productivity and organizational commitment • Harassment can occur when both the victim and the harasser are the same sex
Who are the harassers? Managers Employees Guests/Vendors
Who are the victims? Who are the most vulnerable?
Tipping and Sexual Harassment • Restaurant and bar customers wield tipping policies as an excuse to verbally and/or physically harass servers • Servers must often weigh the amount of abuse they’re willing to tolerate against the size of the tip they’re able to make • Abuse and harassment often go unreported thanks to the attitude that a certain level of harassment is simply a part of the job Data from “The Tipping Equation” by Leslye Davis for The New York Times
Employer liability • The employer is automatically liable for harassment by a supervisor that results in a negative employment action • If the supervisor's harassment results in a hostile work environment, the employer can avoid liability only if it can prove that: • 1) it reasonably tried to prevent and promptly correct the harassing behavior; and • 2) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer • The employer will be liable for harassment by non-supervisory employees or non-employees over whom it has control (e.g., independent contractors or customers/guests on the premises), if it knew, or should have known, about the harassment and failed to take prompt and appropriate corrective action
Equal Pay The Equal Pay Act of 1963 (EPA)
Compensation Discrimination • The EPA requires that men and women in the same workplace be given equal pay for equal work • Job content (not job titles) determines whether jobs are substantially equal • All forms of pay are covered by this law, including: salary, overtime pay, bonuses, stock options, profit sharing and bonus plans, life insurance, vacation and holiday pay, cleaning or gasoline allowances, hotel accommodations, reimbursement for travel expenses, and benefits • If there is an inequality in wages between men and women, employers cannot reduce the wages of either sex to equalize their pay • Title VII, the ADEA, and the ADA prohibit compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability
Retaliation Retaliation is unlawful
Retaliation Taking an adverse employment action against an employee for: • Filing or being a witness in a discrimination charge, complaint, investigation, or lawsuit • Testifying, or participating in any way in an investigation, proceeding, or lawsuit • Opposing employment practices that a person reasonably believes discriminate against individuals in violation of anti-discrimination laws
Hiring What can you ask during an interview?
Medical Questions during Hiring • An employer cannot ask a job applicant to answer medical questions or take a medical exam before extending a job offer • An employer also cannot ask job applicants if they have a disability (or about the nature of an obvious disability) • An employer can ask job applicants whether they can perform the job and how they would perform the job, with or without a reasonable accommodation • After a job is offered to an applicant, an employer can condition the job offer on the applicant answering certain medical questions or successfully passing a medical exam, but only if all new employees in the same type of job have to answer the questions or take the exam
Wage & Hour Overview Why are wage & hour laws important?
Shifts • Treat colleagues with respect and dignity • Can I schedule a colleague for two shifts in one (1) day? • “Split Shifts” • Day of Rest • On-Call shifts – be wary of “on-call” colleagues
Report Time Pay • What if Sarah the Server reports to work as scheduled but she is not put to work? • What if Barry the Barista is required to show up work for an unscheduled, mandatory meeting? Prohibit Off the Clock Work*
Meal Breaks • Whose responsibility? • How long? • Where? • When? • Best practices?
Rest Breaks • 10 “net” minutes for every 4 hours worked • Paid, uninterrupted breaks • Do not combine breaks • Can restrict location • Best Practices?
What happens if the laws aren’t followed? • Meal/Rest Break Penalties • Overtime impact • Exposure to future lawsuits
Wage & Hour best practices Responding to complaints and preventive measures • Clearly written policies communicated to colleagues • Audit payroll • Prohibit off-the-clock work • Let colleagues do what they want during breaks • Talk about meal and rest breaks pre-shift and regularly! • Ask colleagues, “have you taken your meal or rest break yet? • Discipline colleagues and supervisors equally and consistently
Complaints and Investigations What happens when you get a complaint?
Encourage employees to complain early and often. Provide multiple channels of communication.
Investigations • Documentation • Statements • Process • Determination • Counseling • What goes into a personnel file?
Investigation Checklist • Step One: Meet with employee(s) who raised the complaint • Step Two: Meet with the accused employee(s) • Step Three: Meet with Managers and HR to plan Investigation • Step Four: Conduct Investigation- Conduct Witness Interviews • Step Five: Assess credibility of witnesses • Step Six: Make a recommendation • Step Seven: Wrap-Up Investigation
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