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A Post-Brinker Victory for Employees: Bradley v. Networkers International, LLC

Friday, December 21st, 2012
In the aftermath of the California Supreme Court’s landmark decision in Brinker Restaurant Corp. v. Superior Court(2012) 53 Cal.4th 1004 (Brinker), employers and non-exempt employees are still hashing out the implications of the clarified meal and rest period requirements.  In April, Bryan Schwartz Law discussed the implications of that case on this blog, which can be found here: California Supreme Court’s Long-Awaited Brinker Decision.

 

Last week, in Bradley v. Networkers International, LLC (December 12, 2012)  —Cal. Rptr.3d —, 2012 WL 6182473, the California Court of Appeal in San Diego addressed a common problem in meal and rest period cases: where an employer has no compliant meal and rest period policies that are distributed to employees. This case makes clear that a lack of a meal or rest period policy can provide sufficient commonality for class certification, which is a significant victory for plaintiffs.

Background

While the Brinker case was pending, a number of cases appealed to the Supreme Court were granted review and held, pending the decision in Brinker.  Among the cases relegated to judicial limbo was Bradley v. Networkers International, Inc. (Feb. 5, 2009, D052365). In Bradley, three plaintiffs filed a class action complaint against Networkers International, LLC, alleging violations of California’s wage and hour laws including nonpayment of overtime and failure to provide rest breaks and meal periods. The plaintiffs moved to certify the class, which requires that they “demonstrate the existence of an ascertainable and sufficiently numerous class, a well-defined community of interest, and substantial benefits from certification that render proceeding as a class superior to the alternatives.” Brinker, 53 Cal.4th at 1021. The court determined that the plaintiffs did not demonstrate that common factual and legal questions would predominate over the individual issues and denied class certification. The plaintiffs appealed, but the decision was upheld by the California Court of Appeal. 

Plaintiffs appealed to the California Supreme Court, which granted petition for review but held the case for over three years until Brinker was resolved. After issuing their decision in Brinker, the California Supreme Court remanded Bradleyto the California Court of Appeal, Fourth Appellate District, with directions to vacate its decision on class certification and reconsider the case in light of the Brinker decision.

Before getting to the recent decision from the Fourth Appellate District, a little background is useful. A common fight between employers and employees arises when an employer classifies its employees as “independent contractors,” as opposed to employees. True independent contractors have control over the terms and conditions of their employment and are not subject to California wage and hour protections including overtime and meal and rest periods. Employees, on the other hand, remain under their employer’s control during their working hours and are protected by California’s wage and hour laws. The employee versus independent contractor issue has been a battleground for years in the employment law arena and California courts have developed numerous criteria to assess whether an individual is truly an independent contractor or an employee.

In the recent Bradley case, the three plaintiffs alleged that they were misclassified as independent contractors, and should instead have been treated as employees. All three of the plaintiffs worked for Networkers. Each of the plaintiffs was required to sign an “independent contractor agreement,” which stated that each was an independent contractor rather than an employee. As such, plaintiffs did not receive overtime pay or meal or rest periods. However, contrary to the terms of the agreement, the plaintiffs alleged that they were treated as employees and were subject to the same employment policies.

Networkers argued that plaintiffs’ motion to certify the class should be denied because the case did not involve common questions of fact or law, and therefore, resolution of the case would require mini-trials for each plaintiff. Although the court agreed with Networkers on the first go-around, after the Brinker decision, the court agreed with plaintiffs on all but one cause of action. 

The Court of Appeal’s Decision on Remand

Because Networkers applied consistent companywide policies applicable to all employees regarding scheduling, payments, and work requirements, those policies could be analyzed on a class-wide basis. The court would not need to assess them with respect to each potential class member. In analyzing whether class certification was appropriate the court noted that, “[t]he critical fact is that the evidence likely to be relied upon by the parties would be largely uniform throughout the class.” The court held that the factual and legal issues related to the independent contractor issue would be the same among the plaintiff class members, and therefore appropriate for class treatment.
 
Moreover, in Bradley, as in many workplaces, the employer did not have a policy actually distributed to employees that provides for meal and rest periods. Networkers argued that Brinker was not controlling, in its guidance about meal and rest requirements, because in Brinker the plaintiffs challenged an express meal and rest break policy whereas in Bradley, the plaintiffs were arguing that the employer’s lack of policy violated the law. The Court rejected this argument, holding: “This is not a material distinction on the record before us. Under Brinker, and under the facts here, the employer engaged in uniform companywide conduct that allegedly violated state law.” Bradley, 2012 WL 6182473 *13. The Court noted that plaintiffs had presented evidence on Networkers’ uniform practice and that Networkers acknowledged that it did not have a policy and did not know if employees took meal or rest breaks. In assessing the lack of evidence presented by Networkers and relying on Brinker, the Bradley Court held: “Here, plaintiffs’ theory of recovery is based on Networkers’ (uniform)  lack of a rest and meal break policy and its (uniform) failure to authorize employees to take statutorily required rest and meal breaks. The lack of a meal/rest break policy and the uniform failure to authorize such breaks are matters of common proof.” Bradley, 2012 WL 6182473 *13.

The Bradley decision disposes of a significant hurdle in wage and hour cases by holding that this type of scheme – where no policy is distributed to provide for meal and rest periods- can meet the commonality requirement for class certification. For example, Bryan Schwartz Law is currently representing a group of restaurant workers who were not aware of a meal/rest period policy, and who were not provided with meal or rest periods. In the Bryan Schwartz Law case, there was no policy that provided the workers with coverage to enable them to take their breaks. Under Bradley, certification is appropriate to test, class-wide, whether the employer’s lack of a well-defined policy or practice of providing meal/rest periods violated the Labor Code. 

Although several meal and rest period cases have been decided adversely to workers post-Brinker, the Bradley court determined that each of those cases was distinguishable.  In distinguishing Lamps Plus Overtime Cases (2012) 209 Cal.App.4th 35, the Bradley Court of Appeal noted that it was undisputed that the Lamps Plus employer’s written meal and rest period policy was consistent with state law requirements and that the violations differed at each store and with respect to each employee. Similarly, the Bradley court held that Hernandez v. Chipotle Mexican Grill, Inc. (2012) 208 Cal.App.4th 1487 was distinguishable because the only evidence of a company-wide policy or practice was Chipotle’s evidence that it provided meal and rest breaks as required by law. Likewise, Bradley distinguished Tien v. Tenet Healthcare Corp. (2012) 209 Cal.App.4th 1077, noting that in that case there was “overwhelming” evidence that meal periods were made available and the employer’s liability with respect to each employee depended on issues specific to each employee. Brookler v. Radioshack Corp. is an undecided case that was remanded after Brinker involving wage and hour class certification, which may provide additional clarification on these issues.

The court also rejected Networkers’ argument that because each plaintiff would be owed a different amount of damages, the case should not be certified. Relying, in part, on the concurring opinion in Brinker, the court held that even where plaintiffs are required to individually prove damages, individualized damages inquiries do not bar class certification. The court also reversed its prior decision and determined that class certification on the issue of overtime was appropriate because, assuming the plaintiffs were employees, proof of damages could be determined from the common proof of the pay records.

Although the court decided to remand the off-the-clock work issue, it did so because the factual record did not show that there was a uniform policy requiring each employee to work off the clock.

About the Author: Bryan Schwartz is a practicing attorney. If you believe you have been mis-classified as an independent contractor, have meal and rest period claims, or have questions about other wage and hour violations, contact Bryan Schwartz Law (www.BryanSchwartzLaw.com). Nothing in the foregoing commentary is intended to provide legal advice in a specific case or to form an attorney-client relationship with any reader. You must have a representation agreement with Bryan Schwartz Law to be a client of this firm or author.

What You Need To Know About The Michigan GOP’s ‘Right-To-Work’ Assault On Workers

Monday, December 10th, 2012

On Thursday, Michigan Gov. Rick Snyder (R) backtrackedon his commitment to avoid so-called “right-to-work” legislation and by the end of the day, both the Michigan House of Representatives and the Michigan state Senate had introduced and passed separate bills aimed at the state’s union workforce.

Michigan Republicans claim the state needs the measure to stay competitive with Indiana, where lawmakers passed “right-to-work” last year. In reality, though, such laws have negative effects on workers and little effect on economic growth. Here is what you need to know about the state GOP’s campaign:

THE LEGISLATION: Both the state House and state Senate passed legislation on Thursday that prohibits private sector unions from requiring members to pay dues. The Senate followed suit and passed a different but similar measure that extends the same prohibition for public sector unions, though firefighters and police officers are exempt. The state House included a budget appropriations provision that is intended to prevent the state’s voters from being able to legally challenge the law through a ballot referendum. Due to state law, both houses are prevented from voting on legislation passed by the other for five days, so neither will be able to fully pass the legislation until Tuesday at the earliest.

THE PROCESS: Union leaders and Democrats claim that Republicans are pushing the legislation through in the lame-duck session to hide the intent of the measures from citizens, and because the legislation would face more trouble after the new House convenes in January. Michigan Republicans hold a 63-47 advantage in the state House, but Democrats narrowed the GOP majority to just eight seats in November. Six Republicans opposed the House measure; five of them won re-election in 2012 (the sixth retired). And Michigan Republicans have good reason to pursue the laws without public debate. Though the state’s voters are evenly split on whether it should become a right-to-work state, 78 percent of voters said the legislature “should focus on issues like creating jobs and improving education, and not changing state laws or rules that would impact unions or make further changes in collective bargaining.”

THE CONSEQUENCES: While Snyder and Republicans pitched “right-to-work” as a pro-worker move aimed at improving the economy, studies show such legislation can cost workers money. The Economic Policy Institute found that right-to-work laws cost all workers, union and otherwise, $1,500 a year in wages and that they make it harder for workers to obtain pensions and health coverage. “If benefits coverage in non-right-to-work states were lowered to the levels of states with these laws, 2 million fewer workers would receive health insurance and 3.8 million fewer workers would receive pensions nationwide,” David Madland and Karla Walter from the Center for American Progress wrote earlier this year. The decreases in union membership that result from right-to-work laws have a significant impact on the middle class and research “shows that there is no relationship between right-to-work laws and state unemployment rates, state per capita income, or state job growth,” EPI wrote in a recent report about Michigan. “Right-to-work” laws also decrease worker safety and can hurt small businesses.

Union leaders are, of course, aghast at Snyder and the GOP’s right-to-work push. “In a state that gave birth to the modern U.S. labor movement, it is unconscionable that Michigan legislators would seek to drive down living standards for Michigan workers and families with a law that will do nothing to improve either the state’s economic climate or the quality of life for Michigan residents,” RoseAnn DeMoro, the executive director of National Nurses United, said in a statement.

This post was originally posted on December 7, 2012 on Think Progress. Reprinted with Permission.

About the Author: Travis Waldron is is a reporter/blogger for ThinkProgress.org at the Center for American Progress Action Fund. Travis grew up in Louisville, Kentucky, and holds a BA in journalism and political science from the University of Kentucky. Before coming to ThinkProgress, he worked as a press aide at the Health Information Center and as a staffer on Kentucky Attorney General Jack Conway’s 2010 Senate campaign. He also interned at National Journal’s Hotline and was a sports writer and political columnist at the Kentucky Kernel, the University of Kentucky’s daily student newspaper.

I’m a Guy and I’m Stressed Out

Monday, July 25th, 2011

Image: Bob RosnerAh, the good old days. It’s 1977 and the Labor Department’s Quality of Work study found that 34 percent of men say that they’re experiencing some kind of work and home life stress. About one in three.

Fast forward to 2008 (okay, it’s 2011, but the Labor Department sometimes gets too much labor on it’s plate to produce reports in a timely fashion. Don’t get me started on the stress they’re experiencing) and the same question gets agreement from 49 percent of men with families. Just about half.

Where does this stress come from? Not many surprises here. 60 percent of me who have a spouse who also works report substantial conflicts in the demands of work and family, as do men with young kids (55 percent) and men who work the longest hours (60 percent of those working more than 50 hours a week, versus 39 percent of those working 40-49 hours/week).

There are many reasons for this: wages have remained essentially flat for almost 40 years, long hours, working not only your job but the job of laid off coworkers, greater job insecurity and boundaries between work and home life that are breaking down. Heck, just writing this list is stressing me out.

Okay, my take is that this is all a good thing.

Men should assume more stress from their home life. Take more responsibility. In my significant relationships I did 80% of the cooking, cleaning and taking care of the kids. I think that men should contribute in all these areas.

Because participating in family life does bring stress. But it also brings joy and meaning. So this is one of those areas where stress is not 100% bad. It can complicate your life but it also enriches your life at the same time.

Why should women have all the joys and stress from home? Dive in there fella.

About the Author: Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, “The Boss’s Survival Guide.” If you have a question for Bob, contact him via [email protected].

Peaceful Revolution: Champion Real Workplace Flexibility

Thursday, April 8th, 2010

Image: Netsy FiresteinThe White House Forum on Workplace Flexibility has generated an energetic buzz in work family advocacy circles across the nation. As a longtime advocate for family friendly workplaces, I am thrilled by First Lady Michelle Obama and President Barack Obama’s keen interest and commitment to build and promote flexible workplaces. I also commend the many businesses that are genuinely trying to create workplaces that reflect the current needs of America’s working families. But I am cautiously optimistic. For, I am also aware of the many “fake flex” policies that force workers to “flex” their lives to fit the job and not vice versa.

Workplace flexibility remains an elusive phenomenon in most American workplaces — the majority of such benefits are available only to the highly qualified and skilled professional workforce. And when flexible work arrangements are offered to service sector workers, they do little to address the workers’ needs but plenty for the company’s bottom-line. Creating a more “flexible” and cheaper workforce is a popular profit-making strategy of many large retail employers including big box chains like Walmart. In the name of flexibility, employers are capping wages, forcing full-time workers into part-time positions without benefits, and forcing them to work irregular and erratic work schedules, including working more nights and weekends. The demand that workers be available round the clock puts the company’s needs first and the needs of working families last. Such management-driven “fake flex” policies that penalize workers and give them little or no control give workplace flexibility a bad name.

As I see it, real workplace flexibility equals workers’ control over their job plus security. It is never forced on workers. It expands their choices by giving them the power to shape their work days, hours and schedules to achieve work family balance. A key task for the Obama Administration is to put existing flexible workplace policies through a sieve and champion only those policies that truly give workers control over their work time without risking their wages, benefits or job security.

We have made some advances in creating family friendly workplaces — but these have been worker by worker and workplace by workplace. For the most part, labor unions have been at the forefront of re-envisioning the workplace — the 8-hour work day, the weekend, safety standards, and important family friendly policies such as paid sick days, paid family leave and family health insurance (see Family-Friendly Workplaces: Do Unions Make a Difference?). In many industries, unions have regulated “flexibility” that is controlled by the employer and a burden on employees (see Real Flextime – Union Made). Any policy discussion on advancing workplace flexibility stands to gain from a strong union presence at the table.

Nearly 75 percent of all working adults in the United States have little or no control over their work schedules — lower paid workers (especially lower income women) have the least control. Arriving or leaving even a few minutes late can cost them their jobs. We continue to lag behind other developed nations in guaranteeing our workers important labor standards such as paid sick days and paid family leave. In his closing remarks at the Forum, President Obama said, “Caring for loved ones and raising the next generation is the single most important job we have.” It is indeed time we made this easier for our working families.

A Peaceful Revolution is a blog about innovative ideas to strengthen America’s families through public policies, business practices, and cultural change. Done in collaboration with MomsRising.org, read a new post here each week.

*This post originally appeared in The Huffington Post on April 5, 2010. Reprinted with permission.

About the Author: Netsy Firestein is founder and Executive Director of the Labor Project for Working Families, a national non-profit organization that educates and empowers unions to organize, bargain and advocate for family friendly workplaces. Ms. Firestein is recognized as a national expert on labor and work family issues. For over 25 years, Ms. Firestein has worked with the labor movement to ensure that work family issues are an integral part of labor’s organizing, bargaining and advocacy efforts.  Ms. Firestein has also helped forge important partnerships between labor and community groups to advocate for statewide and national work family policies.

White House Boosts ‘Flexible’ Workplace, As 15 Million Still Seek ANY Workplace

Friday, April 2nd, 2010

The White House on Wednesday took time out to promote the value of a flexible workplace that can accomodate two-paycheck families. With 15 million people officially unemployed, it made one nostalgic for a time before the recession, when people worried about the quality of their work lives rather than about just finding a job.

But allowing workers flexible schedules so they can balance their work and family lives isnt just a luxury that should be reserved for flush economic times. As Michelle Obama pointed out at the event that included business and family advocates, “So it’s something that many of the companies here today have discovered, very fortunately, that flexible policies actually make employees more, not less, productive.”

To underscore that point, the White House Council of Economic Advisers released a report that, the White House noted, “discusses the economic benefits of workplace flexibility—such as reduced absenteeism, lower turnover, improved health of workers, and increased productivity.”

Still, there might be a way to combine workplace flexibility with job creation — by adopting the proposal of Dean Baker and others to use unemployment insurance or other funds to help keep people on the job but working fewer hours.

Unfortunately, that sort of approach responding to the clamor for work didn’t get as much attention as innovative ways to promote flexible hours for employees so they can juggle personal and work obligations.  As the Huffington Post’s Dan Froomkin reported:

Two out of three American families are so-called “juggler families,” in which parents are forever trying to balance the needs of their job with the needs of their children.

But many workplaces — and government policies — are still stuck in the distant past, operating as if most families still had a single breadwinner, and someone else to mind the kids when they’re out of school, or the grandparents when they need care.

Once you realize that, there are a bunch of employer practices and policy proposals that suddenly make a lot of sense: Encouraging telecommuting, giving people time off for family emergencies, enabling flexible schedules, allowing employees to swap shifts, and so on…

As part of his push, Obama cited a new White House report which concludes that flexible workplace rules could increase productivity.

But he also cast the need for more humane workplaces in moral terms. “[U]ltimately, it reflects our priorities as a society — our belief that no matter what each of us does for a living, caring for our loved ones and raising the next generation is the single most important job that we have. I think it’s time we started making that job a little easier for folks,” he said.

Even so, feminists and others who have promoted these concepts for years are now sharpening their arguments about the need for making such reforms in hard times. As Ellen Galinsky, president of the Families and Work Institute pointed out, in advance of the conference:

We had a preview of the Forum last week in DC at the Work Life Conference, co-convened by the Families and Work Institute and The Conference Board. Speaking at the conference, Martha Coven of the White House Domestic Policy Council said that some might argue that employees are lucky just to have jobs, that companies have to focus on meeting their payrolls, and that the government needs to get the economy back on track and stabilizing it. They ask, “why workplace flexibility; why now?”

That is a false choice, she countered. Workplace flexibility is something that we have to do not only when times are good, but when times are bad. Workplace flexibility will help our businesses AND our families thrive.

While promoting “flexible workplaces” won’t do anything to stop the distorted GOP onslaught targeting Obama over jobs, he stood up for the imporance of the issue—and made clear its broader benefits.

“Workplace flexibility isn’t just a women’s issue. It’s an issue that affects the well-being of our families and the success of our businesses,” said  Obama. “It affects the strength of our economy – whether we’ll create the workplaces and jobs of the future that we need to compete in today’s global economy.”

As a White House press released noted, Obama has taken the issue seriously enough to place it alongside other intiatives that aim to level the playing field for women — and strengthen out economy by promoting full and fair participation in the workplace:

“Employers, including the federal government, will have to implement flexible work policies if they want to attract the best and the brightest,” said Valerie Jarrett, Senior Adviser to the President and Chair of the White House Council on Women and Girls. ” The President is committed to making sure that the federal government can compete for talent because he knows that good people produce better work, which in turn, leads to better service for the American people.”

*This post originally appeared in Working In These Times on April 1, 2010. Reprinted with permission.

About the Author Art Levine is a contributing editor of The Washington Monthly, and a former Fellow with the Progressive Policy Insititute. He has also written for Mother Jones, The American Prospect, The New Republic, The Atlantic, Slate, Salon and numerous other publications. He is the author of 2005’s PPI report, Parity-Plus: A Third Way Approach to Fix America’s Mental Health System, and is currently researching a book on mental health issues. Levine also posts commentary at Art Levine Confidential.

Companies That Care About Workers' Rights: Apply Now to be Named a 2010 Top Small Company Workplace

Thursday, December 17th, 2009

Inc. magazine and the nonprofit I work for, Winning Workplaces, have partnered to find and recognize exemplary workplaces; those that motivate, engage and reward people. A model workplace can offer a critical competitive edge, ultimately retaining employees and boosting the bottom line.

Together, Inc. and Winning Workplaces will identify and honor those benchmark small and mid-sized businesses that offer truly innovative, supportive environments, thus achieving significant, sustainable business results.

“Growing, privately held companies have always excelled at competing based on the people they employ,” states Jane Berentson, Editor of Inc. magazine. “Their innate ability to innovate is woven throughout their cultures, including the way they manage and motivate their employees. Inc.’s partnership with Winning Workplaces is a great opportunity to fully recognize private company excellence in supporting their human capital.”

Click to apply for Top Small Company Workplaces 2010“Winning Workplaces is thrilled to partner with Inc. as we honor truly exemplary organizations who have created workplaces that are better for people; better for business; and better for society,” said Gaye van den Hombergh, President, Winning Workplaces. “These organizations are an inspiration to business leaders looking for ways to leverage their people practices to create more profitable and sustainable companies.”

The application process is open through January 22, 2010. To apply, go to tsw.winningworkplaces.org. The Top Small Company Workplaces will be announced in a special issue of Inc., which will be available on newsstands June 8, 2010, and on Inc.com in June. An awards ceremony, honoring the finalists and winners, will be held at the national Inc. On Leadership Conference in October 2010.

About Inc. magazine
Founded in 1979 and acquired in 2005 by Mansueto Ventures, Inc. magazine (www.inc.com) is the only major business magazine dedicated exclusively to owners and managers of growing private companies that delivers real solutions for today’s innovative company builders. With a total paid circulation of 724,110, Inc. provides hands-on tools and market-tested strategies for managing people, finances, sales, marketing and technology.

About Winning Workplaces
Winning Workplaces (www.winningworkplaces.org) is an Evanston, IL-based not-for-profit, whose mission is to help the leaders of small and mid-sized organizations create great workplaces. Founded in 2001, Winning Workplaces serves as a clearinghouse of information on workplace best practices, provides seminars and workshops on workplace-related topics and inspires and awards top workplaces through its annual Top Small Company Workplaces initiative.

About the Author: Mark Harbeke ensures that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University. Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.

What's Wrong with This Picture?

Tuesday, September 1st, 2009

The following is cross-posted on the Winning Workplaces blog. I thought it was appropriate for Today’s Workplace’s focus on taking back Labor Day. After all, this holiday should offer pause not just for workers, but for company leaders to reflect on how they can do more with less in this difficult economic environment. Enjoy, and feel free to drop a comment below.
– MH

According to two new, independent employer studies – this one and this one – while more than half of employers are planning to hire full-time employees over the next year, over half also don’t offer paid maternity leave (and those that do provide only around 50% pay, on average).

This recruiting/retention picture doesn’t add up for me.  Companies that believe they’re seeing light at the end of the economic tunnel should focus on pleasing their current workforce and getting employees engaged – especially if they’ve had to make some wage or other concessions since the beginning of the recession.  This is all part of sharing the recovery as well as the pain with workers.

This is not to say that companies that see more demand shouldn’t hire more talent to meet it.  But while they make plans to do so, they should use this time as an opportunity to ramp up their benefit packages and other methods for improving productivity and commitment so their existing knowledge base is fully on board for the increased workload – and so they can serve as better ambassadors to acclimate new hires to the organizational culture.

Do you agree or disagree with my assessment that the above-mentioned studies represent conflicting human capital strategies?

About the Author: Mark Harbeke ensures that content on Winning Workplaces’ website is up-to-date, accurate and engaging. He also writes and edits their monthly e-newsletter, Ideas, and provides graphic design and marketing support. His experience includes serving as editorial assistant for Meredith Corporation’s Midwest Living magazine title, publications editor for Visionation, Ltd., and proofreader for the National Association of Boards of Pharmacy. Mark holds a bachelor’s degree in journalism from Drake University. Winning Workplaces is a not-for-profit providing consulting, training and information to help small and midsize organizations create great workplaces. Too often, the information and resources needed to create a high-performance workplace are out of reach for all but the largest organizations. Winning Workplaces is changing that by offering employers affordable consulting, training and information.

The Advent of the Four Day Work Week?

Tuesday, August 4th, 2009

At least in Utah (via Derek Thompson at The Atlantic):

Forget everybody working for the weekend. In Utah all government employees have shifted to a four-day workweek, and the state is calling it a win-win-win for its budget, workers and clean air. Utah has saved $1.8 million in electrical bills in the last year, the air has been spared an estimated 6,000 metric tons of carbon dioxide, and workers are thrilled.  Eighty-two percent of them say they prefer the new arrangement, which still enforces the 40-hour week by requiring 10 or more hours a day Monday – Friday. Is it time to ask your boss if you can take off Friday …. forever?

Not sure this will start a craze, but the fewer day workweek clearly has some benefits, as illustrated above.  Moreover, Thompson points out:

There's another way to realize those kind of savings: Asking workers to telecommute. As I've written before, the benefits of telecommuting are pretty diverse. From the employer side, it can save office space, utilities and overhead for employee services. From the employee side, it allows parents to spend more time with their family and cut down on increasingly expensive travel given the rising price of gas and public transportation. And of course, fewer cars on the road means less traffic, which means quicker travels (and less gas) for other Friday commuters.  

But, on the other hand, any increase in telecommuting will lead to less face time in the office. Will that have deletrious effects on the culture of the workplace and make employees feel that they are not part of a team, part of something more than just what they contribute to the enterprise?

Am I overstating my concerns here?

Paul Secunda: Paul Secunda joined the Marquette University Law School as an associate professor of law in the summer of 2008. He teaches employment discrimination, employee benefits, labor law, employment law, civil procedure, and seminars in special education law, global issues in employee benefits, and public employment law. Professor Secunda is the author of nearly three dozen books, treatises, articles, and shorter writings. He is also the author, along with Rick Bales and Jeff Hirsch, of the treatise, Understanding Employment Law, along with Sam Estreicher and Rosalind Connor, of the case book, Global Issues in Employee Benefits Law, and of the Teacher’s Manual to the 14th Edition of the Cox, Bok, Gorman & Finkin Labor Law casebook.Professor Secunda is a frequent commentator on labor and employment law issues in the national media and has written numerous columns and op-eds for the National Law Journal and Legal Times. He co-edits with Rick Bales and Jeffrey Hirsch the Workplace Prof Blog, recently named one of the top law professor blogs in the country, which is part of the Law Professors Blog Network.

This article originally appeared at Workplace Prof Blog on July 30, 2009 and is reprinted here with permission from the author.

Towards a “New Normal” in the American Workplace - A Public Policy Platform on Flexible Work Arrangements

Wednesday, May 20th, 2009

On the heels of First Lady Michelle Obama’s challenge to find ways to encourage employers to provide more flexibility to employees, Workplace Flexibility 2010, a Georgetown Law-based think tank, has released a new report outlining a comprehensive set of policy solutions to expand Americans’ access to flexible work arrangements (FWAs) such as compressed workweeks, predictable schedules, and telework.  The common-ground solutions described in the report can benefit both working families and businesses.

The report draws on decades of research on changes in the American workforce – dual earner couples are now the norm; older workers need to work longer to save for retirement; men and women want to share caregiving responsibilities; many lower-wage workers work nonstandard schedules and multiple jobs to make ends meet; and more people with disabilities are working but may need a range of supports.

This increased diversity and complexity within the American workforce – combined with intensifying global competition in a 24/7 marketplace – have raised unprecedented organizational and societal challenges that impact both employers and employees.  And yet, our workplaces have not caught up in a systematic or sophisticated way to these new realities.  We live in a world of changing individuals and often unyielding institutions.

Flexible work arrangements support employees who struggle to meet the demands of work while also fulfilling personal responsibilities – caregiving for a loved one, volunteering, attending religious services, or obtaining job training.  At the same time, they have been shown to help employers support their workforce, meet their business objectives, and increase their competitive advantage.

Workplace Flexibility 2010’s policy platform represents the culmination of years of in-depth conversations with employers, employees, managers, labor, researchers and advocates in Washington and across the country.  It provides a detailed blueprint for advocates, the White House, Congress and other policymakers to build on innovative workplace flexibility strategies – and highlights numerous examples of effective business practices.

In order to make FWAs the “new normal” in the American workplace, the report recommends five complementary prongs:

Spur a national campaign to make FWAs compelling to both employers and employees by:

Launching a strategic multi-media public education campaign; providing awards to recognize and encourage businesses to offer and implement FWAs; and conducting research on the impact of FWA practices on employees, businesses and communities and disseminating the findings.

Provide employers and employees with the tools and training they need to make FWAs a standard way of working by:

Making training and technical assistance on how to implement FWAs readily available to both employers and employees; launching a comprehensive website with information about the needs and benefits of FWAs, FWA best practices, model policies and procedures, and federal laws and programs; clarifying perceived legal obstacles to FWAs; and removing or considering the removal of actual legal obstacles.

Support innovations in FWAs, learn from those efforts, and disseminate lessons learned by:
Experimenting with new ideas through pilot programs – including piloting a right to request in the federal workforce; piloting FWAs for low-wage workers employed by federal contractors; and piloting private sector innovations such as mass career customization and team scheduling with new industries and employers.

Lead by example, making the federal government a model employer by:

Demonstrating high-level support for FWAs in the federal workforce; including FWAs as a key component of the federal government’s human capital management agenda; providing training, technical assistance, and resources to support the implementation of FWAs within the federal government; and regularly assessing how FWAs are working and affecting employees, the workplace and the broader community.

Build an infrastructure of federal, state and community players to implement the first four prongs of the effort by:

Engaging all the players at the federal state and community level who will be key to a successful effort, and creating the infrastructure at each of these levels necessary for an effective partnership among these key players.

This report sets the stage for a national conversation among employee and employer groups, other stakeholders and policymakers about innovative solutions that work well for both employees and employers.  Engaging in this conversation and embarking on the necessary action steps are key to equipping our American workplaces to meet the challenges of our 21st century workforce.

The full report is available at www.workplaceflexibility2010.org.

About the Authors: Chai Feldblum is a Professor of Law at Georgetown University Law Center in Washington, D.C., Director of Georgetown’s Federal Legislation Clinic, and Co-Director of Workplace Flexibility 2010.

Katie Corrigan is the Co-Director of Workplace Flexibility 2010 where she, along with Chai Feldblum, is responsible for overseeing the strategy, legislative lawyering, policy research, media, and constituent outreach components of the effort.

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