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People Process Interviews: Bill Coletti Kith

Good morning Ladies and Gentlemen. Welcome to the People Processes podcast, where we dive deep into the tools, laws and yes processes that you need to know in order to scale and grow your organization. We help organizations all across the United States streamline, optimize, implement and revolutionize their HR operations. We’ve helped hundreds of companies and thousands of HR leaders across the world get their people processes right. 

Today, we are interviewing Bill Coletti. We are so excited to have him on. He is a reputation management, crisis communications and professional development expert. He’s been the Wall Street Journal risk and compliance panelist. He’s a best selling author of “Critical Moments: The New Mindset of Reputation Management,” and he has been on the senior counsel in crisis management, corporate communications and reputation defense to a ton of clients such as ATt&T, Target, American Airlines, Home Depot, Xerox, Nuclear Energy Institute, Cargill and major universities. And I can’t wait to get his insight and plans into how we can react to this. Just crazy time. Before we go too deep though, I want to ask you to please subscribe to our podcast. You can find us on iTunes, Google podcast, Spotify, Stitcher, any pod catcher of your choice. You can also subscribe at peopleprocesses.com which will give you exclusive subscriber only content.

Now, Bill, thank you for coming on the show. I’m so excited to have you.

Rhamy, I am looking forward to a good conversation and providing some help to folks as they try to navigate through this unprecedented time we’re in.

Yeah, and it’s going to be a free flowing conversation for you long time listeners. We’re going to skip things like your worst moment in your business career. And we’re just going to deal with what value Bill can give us for our listeners. So, Bill, give a quick rundown of how you got to where you’re kind of a point man on crisis management.

Started my career doing political campaigns. I did politics for ever since I graduated in college and beyond, did that for the first half of my career then went to a large public affairs, issues management agency. And then we were acquired by a large global public relations firm. And I ran their global crisis practice. And then about five years ago, went out on my own and started our firm “Kith”. About what they said five and a half years ago.

Outstanding so for the last five and a half years, you’ve been working under your own shingle, working with people to try and manage these sorts of public relations issues.

Exactly. Just really trying to do it in the word “Kith”, is meaningful to us. If you’re not familiar with it, there’s a phrase from literature called “I’m Going Home to Visit My Kith and My Kin”, you can or your family and your Kith, we subscribe to be kind of your original friends that taught you sophisticated habits so your family teaches you things about making you who you are. your friends, your high school friends, your college buddies. Those are the folks that really teach you a different set of skills, but more sophisticated life skills. And so we try to be the kids to our client, in providing those sophisticated insights and perspectives.

That’s outstanding. We’re learning something already. What a great name. The name of my company for 10 years was Popular Financial, and it was called “Pop” because we started on Poplar Avenue. And when I started my company, it was still pretty new after 911 and Rhamy Alejeal, the insurance agency just didn’t seem like it would fit very well down here in the deep south. So, but yes, we recently changed the People Processes to say what it is we do, which works perfectly. Yeah. Well. So, Bill, right now we have a business. We have it. We have a health crisis. We have a family crisis. But beyond that, we actually also have a relations crisis, right? How do we talk to our clients, our employees, it’s a lot about not just figuring out operationally how to survive, but our communication strategy. And that’s something where you kind of step into, right?

Yeah, exactly. That’s there. So for the past, I’ve lost track of three or four weeks, we’ve been working with clients with their initial responses, and most everybody’s past their initial response here in the United States. And we’re now in this sort of really mushy middle section. And we really spend a lot of time talking to companies, people talking to their stakeholders. So we’re in this unknown period of time in the middle, but we’re starting actually doing a lot of work on planning what is coming back looks like, and how do we actually do that in a smart, rational, but also well reasoned way.

That’s what I want to focus on this interview. Because I think by the time this airs, if we’re lucky, that’s what companies will be considering if we’re not, go ahead and take notes, maybe it’ll be another month after the episode airs give you some good ideas. Before we do though, what should be the guide? What’s the framework around a response strategy? If we have any listeners who are, maybe they’re in that mushy time, they’ve already told everybody, “Look, we’re still open or look, we’re not open.” While they’re monitoring events, let’s say this comes out and we’re still all in lockdown. We’ve got no end in sight, what should they be doing on a daily or weekly basis to guide their decision making?

Awesome. You know, most of us that do crisis communications, our first instinct is external or media relations. That’s most of us that do this. That’s what we think about. All of us have become internal communications or people communicators. Very, very quickly. I’ve always sort of viewed it as a very, very holistically. So I think in this mushy middle, which if we’re all really, quite frankly, it’s not about the media. It is much more about employees and your team. Two main things that we focus on. One is ABC, “Always Be Communicating.” We think that companies need to tell their story to their employees and bring them on a journey. Because if they are doing layoffs, considering layoffs, considering furloughs, whatever the smart things that you advise your clients on all those various permutations, we don’t know the answers to that when you and I are recording this. We don’t know exactly how long this is going to play out. So cash reserves are at different places for different companies. I know some of your clients, as soon as last week, we’re letting people go laying people off. There are some that are holding on to rainy day funds and cash. You got to take people on a journey. So ABC, Always Be Communicating. That’s the challenge in the mushy middle. 

The second thing is, “Listen.” Your teams, it is my fundamental belief, your teams if we create venues for listening, the way we can manage those experts’ dictation is by understanding those expectations. And so if we listen to our teams, get leaders, people, managers, wherever they are in the org chart, use video, use zoom, use teleconferencing. Just check in with the messages that you’re communicating. Since you’re always communicating, your learning, listening, and then that helps shape your next statement. So it is very much a continuous cycle. Sadly, we’re seeing companies do an initial statement. Unfortunately, we’re gonna have to close or unfortunately we’re doing this or whatever we’re doing in response. And the next messaging is, and we’re laying off 3000 people or we’re driving to 100 people. That’s such a tragedy. And what I try to tell people in its simplest form, is that I want the employees that go on this journey. I’m a father of a new college graduate and so she’s got her first job. And if she comes back to me and says, “Hey, I got laid off, or I lost my job. But they handled it in this amazing, wonderful way. They really made me feel good.” If we can do that, and if we can treat everybody the way I want my daughter treated if she gets laid off. That’s I think a success and the way you do that is listening, and always being communicating.

And so, you’re to kind of take that to a slightly more concrete level. Are you a promoter of basically almost radical transparency. So when you’re thinking about that communication to give that journey, you almost have to explain more than. So you mentioned, “Alright, we got to close our retail locations.” That’s communication, one communication to four days later. “And by the way, all those people at the retail locations, you’re all laid off. Here’s your termination documents, talk to the unemployment company. Here’s how you file unemployment.” Right? 

Yep.

You’re recommending a step in between or more communication along the ways that provides a ramp to that. Is that kind of, am I hearing that right?

Yeah. So I think that if we believe in this philosophy of always communicating, is that we have to take our team on a journey. And I would hope that this is native for a lot of companies. I know it’s not. But this shouldn’t be new, we should always be communicating, even in the best of times, to set the stage for our next initiative to reinforce mission and values. But for a lot of companies, that is not exactly how they do things. They do things in a little bit of a, you know, they’re not exactly buttoned up.

Right.

 So, Arnie Sorenson is the CEO of Marriott. On Thursday the 19th, he issued a video to his employees contextualizing this challenge for Marriott and talking about it is worse than 911 and the financial crisis combined. Then on Sunday, he announced the layoff of 3000. See the headquarters staff. And so I believe that yes, radical transparency he talked about. He talked about occupancy rates. He talked about financial impacts, both contextualize relative to 911 in the financial crisis, but also specifically. So yes, I believe in transparency, radical is a little bit jarring because if a CEO hasn’t done this in 2018, and 2019, it could be a little jarring to the organization. So I think it’s a long term conversation. But I’m more aligned in the radical transparency group of sharing what we can share so that people understand we’re good people making rational decisions for a greater cause. And I want you to understand that my team…

So yes, I want to subscribe to that. That’s the key I think, you need to lay out enough information and perhaps even more, but enough information in a teacher like fashion. In a human manner that shows that would allow the employee to go, “I guess I would have had to make the same decision if I were in that CEO role.” 

Yeah.

 Something along those lines to allow that empathy level. 

So wait, can we do that with information?

Right, right. 

Share it.

Yeah. So like, we’re a law firm. We have 200 employees here. We’re gonna have to cut staff by 40%. Right. I mean, again, maybe a law firm, not the perfect example. But let’s say that’s where they’re at, because they’re a law firm that’s primarily interacting with the public. A personal injury attorney or something like that. And along the way they say, “Okay.” The way to do this would be reassurance in the beginning. We’re on top, we’re looking at this, we’re making plans. Step 2, informational, here’s the context of the situation. Step 3, here’s our decision, and why we had to make it. And then the individual communications to the employees, laying them off something along those lines. 

Absolutely. 

A basic framework to handle that. 

And just two tips for people that are in this phase that might not be, you know, if you’re retail, you’ve made dinner or restaurants, you’ve made a lot of these moves already. Middle, we’re going to talk about coming back, but using words like for the foreseeable future, and then do exactly what you just said, sort of explaining the rationale is very valuable. And our best view, that’s another phrase that we’ve been using a lot is our best view and the foreseeable future. And so organizations are using that transparency to sort of, “I don’t believe we can soften the blow of losing your job.” 

Yeah. 

It’s a fool’s errand to say that we’re softening the blow. But we’re at least being honest with the process and not doing it in the dark of the night and sending you on a Friday afternoon with a hatchet. That is not a good practice. And I know you’re like doing that stuff when guides suggest that.

Absolutely. And of course, we always recommend just random HR 101 things. Friday afternoons, the worst time to fire somebody. 

Amen. 

It actually is just random side notes for us listeners, maybe haven’t heard this before. They have nothing to do Saturday or Sunday. If you can terminate someone any other day of the week, preferably the earlier in the week better, they can get their unemployment filings, they can start looking for another job, they can make business contacts. This may not apply necessarily during the COVID crisis. But as a rule while you think Friday afternoon, get them out. You know they won’t infect other employees if you need to ever do a one-off termination. Earlier in the week allows you to control the narrative a lot more the next day. Your employees are going to talk to one another, they’re going to talk to you, you’re going to be there in the office makes a much better sense Friday afternoon very, very rarely is the right choice for layoffs.

And if you got the last point you just made, is what particularly relevant in a COVID scenario.

Right.

I’m going to be there. And if I have to do this as a leader, or you have to do it as a leader and or whatever, I want to be present. And be like, “Man, this sucks. I get it that this sucks. I’m sorry. But this is just where we are. I want to be the leader that’s present. And I don’t want you to do it for me.”

Right and have them hanging out, you know, calling each other or slacking on Saturday and Sunday to shape that narrative. Much better to be there available. Alright, so let’s say it’s two weeks from now, everyone who’s done layoffs is who at least done their first round if needed. If they haven’t made that decision yet. They’re looking at it. They’ll go, “Look, we got another 30 days of runway for cash reserve,” something like that. What would be there? Let’s say that they’re just a good example of this, we have a couple of firms that are in the more consulting space, CPAs, corporate attorneys, those kinds of things. A payroll company is a great example too, it’s like, we’re not hit by the front. But if 30% of our clients are shutting down, now we’re that second wave, right? So what would be your kind of recommendation for the holding pattern? We don’t know what’s going to happen. We got 30 more days here. Do we start communicating and saying, “Look, guys, if things don’t turn around, we’re going to have to make some hard choices.” “Hey, we need to do salary reductions to give us a longer runway”. Like, how often would you recommend communication, I mean, always, but do you have any for our businesses? 

Yeah. I think every other day, I think this is such a fast moving dynamic. It’s every other day and I have the concept of a broadcast every other day. By the way, another point we should have, I should have made it the topic that we’re advising all of our clients on, is that when we think about communications, we have written and spoken, are the basic tools that we have. I believe that memos and emails written documents are great for information and facts. Pick up your paycheck here, wash your hands every day, we’re not going to be opened on Thursday, the cafeteria is closed. 401k benefits that’s really good for writing if you’re trying to share sentiment and care and concern. That is best done on a video. That is best done in a town hall zoom meeting, something like that. No, we’re not having any physical meetings right now, which is unfortunate, but so I think you need to really think about the message here that I’m trying to share. A fact, a next step, or am I trying to share sentiment or care or concern and so choose your medium, most appropriately.

Really good point. We talked about that a lot in our People Processes broadly around communicating value, not just anything that is beyond pure, you know, sometimes you need a chart, I get it, you need a piece of paper or a digital version. But if you’re trying to communicate value, so this would be explaining why your 401k is important, your benefits, why you made the decisions around them. How valuable they are, you will find that video as a communication medium is significantly more powerful than any pretty document and incomparable to a black and white memo.

And then just let me just add, what we’re doing for right now with clients is they’re doing a video to their employees. They’re explaining this journey. They did the initial announcement. They’re in the mushy middle right now, where they were recording that, saving it, sharing it, and then we’re turning, pulling a really quick transcript, copy, editing it, and have the memo to support the video. So you know, you get a twofer. Not a radical idea, but it’s been useful for people that haven’t done it previously.

Absolutely. And those of us in kind of the more external outreach world, we understand the idea of making a video which turns into a podcast, which turns into a transcript, which turns into a blog post, blah, blah, blah. But it could apply for internal communications as well as start with a video interview style, or Town Hall, have someone taking notes, turn that into your written communication. Very good.

Hey, Rhamy, let me ask you a quick question. Just because I’m working with this on our clients. CEO, senior leader says, “Sure, I get it,” but I’m not the CEO of Marriott. And I’m certainly not Jack Welch from GE or I’m not Bill Gates. I’m not really good at that venue. What do I do? How do I manage it? I’ve got a response. But I’m just curious your reaction when a leader says,

*I get to be on video? I don’t. I’d rather…

I stink in that venue.

Well, I’ll tell you this. My textbook responses, it’s better to hear from the leader. You are the leader. And that’s the thing. Having said that, a couple of my clients I’ve spoken to, I know them well enough to know, “No, they’re right.” And so what I will say is, if you’ve been in business a while, you have a communicator, normally that’s an HR person, maybe it’s your CEO, your CFO, and even in a 50-man company. But someone who’s gonna be the face of this thing, who you can rely on what you don’t want. And this is the caveat I give, if it’s not going to be the CEO, it’s not going to be the owner. Make sure it’s not someone you’re going to fire midway through this thing, alright? So you don’t want to be changing up the face of it, but I would recommend, I would give such a heavyweight to it being the guy or gal in charge of it.

Same guidance we give. 

Yeah. But I used to give that with no caveats. And then it was an accounting firm and the Chief, the owner, the founder, and also the CPA in charge of many other CPAs went through and did his stuff and I thought, “Oh my god, I was wrong. I was wrong. I’m sorry, I was wrong.” This was not about layoffs. This was just about other kinds of cultural communications, but some people are not designed for that and they are not going to learn it now.

So exactly. Alright. I will also say this. This is another thing just about video in general. Don’t stress about video quality. I will say especially in your small shops, your 10 your 20 you’re even under two or 300 on iPhone video turned around. If you got a little mini tripod, great. If not, pop it up on some books and look at it. Maybe not hold In your hands, so it’s not too shaky, but an iPhone video gives you a lot of slack. And if you’re real, it’s authentic, it feels right and no one is going to want you to edit out every arm. You just don’t have to worry about it. If you are a polished video production kind of place that does this all the time, you’ve probably already handled it. But for those of you who are making your first kind of video communication, to drop at the top of an email that’s going out to everybody, please don’t stress about mics and video. Take your iPhone out, prop it up, hit the record button, do one long take and then do it again. Just use the second one perfectly.

So let’s say we’re past the city shut down level, we’ve decided, Alright, look for whatever reason either the virus has died down or the government is taking a different tack and said what we need to do, we need to get everybody sick real fast. I don’t know what for whatever reason, but here it is, two or three weeks out and It’s time to reopen. And let’s use the example of someone who was super hard hit for this. If you had a rough month, but you’ve been like, “Our company’s going to be staying in.” I mean, there’s not expected to be any interruption to operations or any layoffs for us. But for many companies, there’s been a huge disruption. So let’s use the example of a hair cutting salon. Maybe they had 20,30,40 locations, they closed all the locations because no one’s getting their haircut, they can’t protect their employees during this thing. They just had to close and they’ve laid off 300 people and kept a skeleton staff in their admin office to answer phone calls from these people and help them file an employment. How do they get the engine going back up? What are those steps and communication measures that they could take to come back from this better than before? I know there’s an opportunity here somehow.

No, absolutely. There is. So we’ll come to the opportunity in a second. So what we’re advising our clients is you gotta look at this. So even pre that decision by that haircutting salon or the 20 to 40 outlet place. I do not believe in watching this both internationally, as well as what’s going on in the United States. I do not believe that there’s going to be a global or United States lifeguard that’s going to blow the whistle and say, “It’s okay to get back in the water.” I think there we are not going to have that. And in fact, I think we are going to have very spotty mixed messaged government guidance from the CDC, from the White House from the state and or your local government.

They’re not going to want to take that responsibility. 

They’re not going to want to take that responsibility. Right. So understanding that we’re not going to have a lifeguard blow the whistle and say, “Get back in the pool.” The way we’re advising our clients is it’s dangerous on a podcast, but it’s a visualization that we’re trying to articulate. It’s a Venn diagram, is that you basically have science in the middle of the diagram. Overlaying that is financial, social and moral. And the way we’re coaching our clients to think about this decision on how they come back, there are going to be financial considerations. So our hair salon, hair company, has a financial incentive to come back fast. They need to retain their team. And there are all kinds, there are leases, there’s all kinds of financial reasons. So that’s a big consideration. 

There’s a social component that your employees need a rallying point. They want to come back, they want to work, they want to meet with their colleagues, they want to see their customers. So there is a social component to this and corporations and local communities because I would assume those 20 to 40 are just important players in the strip mall that they are there, they’re important. So there’s a social element to this. There’s also pressure even if you’re not a hair salon, but if you’re an office worker. People are frustrated being at home with their kids in the dog and having conference calls and barking and so people want to go back to the office. So you’ve got financial, you’ve got social. I think the last component of all of these overlaid by science is the moral component.

Yes, that hair salon could come back, but they have their employees standing with their hands in someone’s hair, with their shoulder, at their chest, right there is clearly within six feet. And we don’t know the latency of this disease. And so we know this virus. So we don’t know how long people are going to have it or don’t have it so I get the financial pressure. Get online as fast as you can. I get the social pressure. Let’s meet that need. But what does science tell us about all of those, plus, what signage are we doing, how are we keeping our employees safe, how are we keeping our customers safe? Because from a crisis communicator standpoint, to hear that ABC, haircutter Milwaukee had an outbreak or a little mini wave that came pose. That’s a bad scenario. Right. So when you and I are recording this, we’re in this debate with the president and other political leaders about let’s all come back. And we’ve had a political leader in Texas talk about, “It’s the Dow vs. Grandma.” And if we’re over 70, we’ll make a choice between that and the Dow because the economy is so important. I don’t believe most of the leaders I want to work with and that I do work with are going to choose Grandma, they’re not going to choose the Dow and then choose their financial situation.

Yeah, I think I don’t know if that’s actually the choice but it’s a given that choice. Yeah, that’s an easy one.

Yeah. So we’re advising clients to think about it. In all three of those contexts, and then that will show messaging, that will shape what we do and how we come back to. Financially, you need to explain it, we’re going to come back, we’re only going to open 10 stores, and then we’re going to open our second 10. And that’s a financial consideration, social team meetings, bring everybody up to speed, they’re gonna have to adjust childcare, and all the things that they’ve already set up their kids may or may not be back in school, but you’re requiring the work. So there’s a social component that requires messaging, and then there’s moral, additional signage, additional rules of engagement, all of those things need to be worked out. So if we think about it in that framework of science in the middle, financial, social, and moral, we think all of that will then lead to good messaging if you’ve always been communicating. It just is a nice natural segue.

I’ve actually got a pending question with one of my attorneys that we’re trying to determine. But when you lay off a bunch of people, one of my questions has been, How much? Yeah, and my understanding at that point is obviously there can be no compulsive work, there is no work at all, but no compulsory meetings, that kind of thing. But I would think and this is a big part that I think I need to stress, communications to your terminated employees is going to be a key. So, one thing that we’ve been putting on our termination checklist is gathering, obviously verify contact information, but get a personal email address guys. You need to be able to remain in contact and if you’re going to be doing like an every other day blast internally, you need to continue to provide that information. I think, to those you’ve laid off, they’re going to stay more in the loop and be more likely to be able to rejoin quickly. We add furloughed employees, it’s different, like if they’re furloughed, and you’re still providing benefits and all these kinds of things. Obviously, you can maintain their company email, those kinds of things, but if you’re doing a full layoff, you may want to make a separate list, however, you want to do it but they need to get your constant communications as well.

So would it be possible while I get the compulsory meeting, we had a company that did this with 30 or so employees of a restaurant chain. And they made the mistake, when they did this, they cut off everybody’s company email. And they were like, “God, gosh, we can’t tell anybody anything.” So they’re fixing that just exactly like you suggested they’re fixing it. Can you keep the company email on for them? You have the product that has to be part of the process, okay.

Unfortunately, your company email is considered an internal asset of the company. You really can’t, really shouldn’t unless you’re another is one exception. Actually, we worked many, many years ago with an AOL distributor, believe it or not, and as part of severance, they gave people their AOL emails, but everybody has AOL emails, it’s a different thing. But in the vast majority of cases, unfortunately, and this is also for protection. If you’re doing a layoff, you need to be doing the cut. If you’re doing a furlough, ie especially among your hourly and actually applies to salary, you gotta keep them from working. I’ve had many companies come and tell me, “You know, we’re doing the layoff, we’re doing the furlough thing, I’m going to cover their insurance and my guys are coming back to me going, you know, Jack, just let me know, I’ll work from home, I’ll do whatever if you need me, I’ll come in, you know, maybe I’m the only guy that day. But we just gotta get through this while I file unemployment.” Don’t do that. Okay, I understand you gotta survive. And I tell people compliance is a spectrum. 

So going 100% and going out of business is not the answer. But you can’t let people you’re not paying do work for you. Okay. It creates fraud on many different levels and will come and bite you a year from now in a way that you will not want. So yeah, so you gotta cut off company emails, part of your termination needs to be collecting the ability to reach out to them. If you’re under 50 employees or maybe 25, I’ll have to go back to my notes, and you do a mass layoff. It’s actually a requirement of the families first Coronavirus Relief Act to bring those people back into the same job over the next year, if you can’t, well, it’s actually the requirement for everybody. But for those under 50, you can say, “Look, I don’t have a job to bring you back into right now.” But you got to communicate with them over the next year and let them know when a new job opens. So maintaining that list of communications is going to be super important from a compliance perspective, but also gives you a place to distribute these communications along the way to keep people informed of what’s going on.

Let’s say…

If you’re always communicating, that’s something to explain because in all the three different relief bills that have come through, there are different HR components in each one. 

Absolutely. 

And depending upon what stage you are and what actions you’ve taken. Here’s my interpretation, or here’s our understanding of our obligations and what we’re going to need to do. And so that’s all, again, that’s in this weird middle phase. That’s all great content to use for ABC.

Yeah, absolutely. If you guys are subscribers to us, and you hear a compliance memorandum or something that you’re like, “Okay.” That’s if I’m talking about it more than likely your employees are hearing about it, maybe it’s something you can address in that every other day video. And again, for you guys who don’t have a video studio in your office or a marketing team that does video, get your iPhone out or your Android, I personally prefer Android and just go every other day, start off with your video of, “Look, here’s what we’ve done over the last two days. Here’s what we’re seeing. We’ve investigated this part, our understanding is it doesn’t apply to us or it does apply to us.” Just keep people in the loop. 

Yeah. 

So let’s go back to that haircutting. So, here it is. Alright, financially we got to reopen. The question for them is there demand, right? They don’t want to open if there’s nobody gonna show up, but we’re seeing all over the country other stuff, other companies are opening up. I think they’re crazy, but they’re doing it anyway. We’re gonna pick our 10 highest performing stores and reopen them. I mean, obviously, there’s an HR side of things. You’re technically rehiring people, your system should have a rehire process, waive waiting periods for benefits if you drop them off your benefits, all sorts of kind of compliancy crap, but in terms of communication, or marketing or PR, how would you recommend addressing that decision? For both employees internally and the external side, how do you get people back through the door?

Yeah. So fight the instinct to label this as a grand reopening or something like that.

Congratulations! We are open.

Okay, yeah, it’s a really bad idea. And so we have to realize that some areas of the country are going to come back slower than others, you know, New York. For big cities going back is different. So it’s going to be very spotty. So I’m really advocating super micro targeted communications, you have to let your customer know, hopefully, you’ve got a customer database. They should be in your consideration set for always communicating to let them know what’s going on, because they’re a stakeholder just like your employee groups are. I think the messaging is there. I think of some coupons, some discounts, things like that are inbounds and in play. I think what the opportunity is, how do you do this with enthusiasm and grace, because not everybody’s going to be the same place that you are at that hair cutter in Milwaukee. Everybody’s not going to be in the same place. And so you’ve got to be special, smart and conscious about that, but recognize you have a business. If you think about it, in those ways that are structured financially, social and moral, I think you’ll make better decisions. trust your gut. I’ve always advised that to communicators and marketers. How does this make me feel? How does this make me feel in the context? And so if it makes me feel like we are way hyping, the fact that we opened three out of our 20 stores, bring that up, think about it, talk about it and do an engagement. We think a scenario in this middle phase, they should be very intentional about the grand opening. And the company should be doing, “What if we did that? What if we did this? What if we did that instead of a tabletop exercise or a theory or a discussion?” A lot of communicators aren’t doing a lot of communicating right now, a lot of marketers aren’t doing a lot of marketing. So I would stand them up, because just you and I’ve created two or three different hypothetical permutations. Organizations should be thinking about that in those contexts.

Something about talking to a crisis communicator, like yourself made me think. All right. You mentioned it in your moral way. What if you reopen and there is a relapse, or your industry in particular, get some bad press or something like that. So I’m not saying that we have a plan for that. I’m saying when you’re weighing the reopening, way a second wave. All right. Well, what if we have to lay everybody back off in two weeks or more, or perhaps even a long term way? What is the risk of creating a bad news article for our company? Let’s mitigate that risk as that’s maybe a relatively low likelihood or maybe highly depending on the size of your organization. 

All we talk about when we do that resets risk planning, basically, what you’re describing, is that what we talked about it is. It’s an X, Y axis of likelihood and impact. Okay, so what’s the likelihood that this could happen? Put it on the X axis and what’s the impact you put that on the y axis, and you get a really clear picture of things that really matter and things that you should really focus on. And then you circle when you’re doing this in a non Corona context. You then circle things that we could have, that we can impact. So force major events, weather events, hurricanes, active shooters, not a lot we can do about that. And there’s not a lot as a company I can do to manage or mitigate the impact of a hurricane or tornado. We’re in tornado season, where you are and where a lot of people in the central United States are. We know that’s going to have a pretty high impact. We also know in the spring, it’s going to be pretty high likelihood, but there’s not much I can do about it. So we said we go through that process. So similarly, as we just do the finite risks about reopening, what happens if we have to relay off? What happens if we have to scale back and we’re 20 stores, we open 10. But we really got to dial that back to five. And then what happens if there’s negative media coverage? What’s our response? We think that there’s always answers to that. And if you are financial, social and moral, if you think about it in that context, there’s rationale and explanation. And you won’t make Cavalier or dumb decisions. If you think about it, by doing what ifs, what if scenarios right now.

Right. A couple of HR notes, those people who are doing these scenarios with either they’re your board, they’re your advisory group that are not employees, that are your friends, family, lawyers, whatever. But if they are employees, do recognize that as paid work, just a random hashtag compliance. When you mentioned a good storm or an active shooter or those kinds of things, you cannot mitigate the likelihood. Well, it’s very difficult to mitigate the likelihood of it. Taking you offline or it occurring, but you can mitigate your likelihood of negative exposure by basic. I mean, you’ll see this in big companies all the time. “Oh my god, I’m shocked to find their sexual harassment at Starbucks. Luckily, we’ve been doing sexual harassment training every year on all employees.”

Even though it doesn’t seem particularly, you go, “Oh, well, that didn’t stop anything.” Well, it did stop the story. That is not only their sexual harassment, but there we had a competitor, I’m not going to mention them years ago. That went under because while they had some bad, crazy internal issues, sex in the stairwells and parties where people were getting roofie and just all kinds of crazy stuff. And they didn’t survive it or they’re still in business, but they lost 80% of their valuation over this. And the real reason wasn’t because in a Silicon Valley startup that’s become a unicorn, that’s grown from five employees to 1600 and two years, these things aren’t gonna happen. It’s because they never addressed them. They never had training, they never even made up freakin policy about it. It was just total blinders. So, I will say that, in this case and others, to circle this back to COVID. The communications matter and they serve the purpose of obviously informing and actually doing work, but they also serve that you did the effort. So if there was a negative event over this, you have a reference to say, “Look, we thought about it, we communicated it. I know it still went wrong, but I promise it wasn’t just a Cavalier or dumb decision. It was what we knew based on the information we had at that time.”

Yeah, I mean, great guidance. And it never ceases to amaze me that in the light of me too, and in light of what we’ve been through since 2015, when this thing really started, but the second half of this decade, where sexual harassment and issues related to that. The companies aren’t doing that training, aren’t thinking about it, recognize that it can happen. It surprises me, the companies that still have that sort of culture. But yes, there are lots of things you can do about it. And from a media standpoint, if you have, it is easy to isolate bad actors, that is not reflective of the company that we are. And that’s the reason we do what we do with our clients in a planning scenario. They need to get the benefit of the doubt. Well, that’s not the company I know. And that’s what we’re actually striving for. It’s not immunity, because these things happen with big enterprises, but it’s not the company, I do get the benefit of the doubt. And actually the assemblance of goodwill. But you gotta walk the walk, not just talk to talk on that. 

Right. And I think it almost goes back to what you’re talking about in this particular crisis. I mean, in a very Machiavellian way, by providing this information, by showing the reality of the situation, giving the information needed for your frontline employees to understand what’s going on. You are allowing them to give you the benefit of the doubt, even when, obviously, this is impacting them, and everybody else very negatively. If you aren’t putting any effort into the communication side, they have no almost have no choice but to assume this is not the best decision, right? If you aren’t willing to give us communications. Well, Bill, we’re getting towards the end. And so what I’m hoping now is we’re going to talk about when a company should contact you guys and how to do so. But let’s imagine for a minute, I’m a seven man construction company or a 25 man daycare or a 75 man, we run into this a lot in school, those kinds of things. They’re at their end cash wise, they’re strapped out, they don’t know what to do. After listening to this, get out a piece of paper or set up a conference call, and do electronically. What would be like 2,3,4 or five actions that we could enumerate right now, that they could do on their own that would be worth, “Hey, I listen to this interview for an hour. I learned a lot. But I want to do these couple of steps and it’s gonna make an impact on our end result after we get out of this thing.”

Always be communicating, pull out a video just like you said, your iPhone, Android, whatever. And tell your team what’s on your mind. All right, just tell your team these are the things we’re thinking about. These are the financial impacts that have hit our organization. So I think that everyone agrees that you always fit. ABC makes sense to shoot a video and tell a story. And let people know what’s on your mind. Have some sort of either if you’re seven to 70, I think in your examples that were there is that you should have a subset team meetings. Listen. So open your ears, have a group meeting. It’s your call, whether you do 70, or whether you do in groups of 10, whatever the case may be, but have a team meeting. Listen, because I fully believe, and I believe it almost just about everything that we do, the marketplace will tell you the truth. Just have to ask it. And you just have to be open to hearing what the marketplace will tell you. So I think those three things are if you do them, well, that will set you on a stage and in this hypothetical of where you’ll be In the future. 

The other thing, as a leader, surround yourself with experts. I think find people that encourage you and allow you to the HR processes, the stuff that you’re expert at. Surround yourself with experts and start soliciting. Get your financials in order, look at your accounting, have your team prepare forecasting, put a 20% budget together, a 50% budget together and kind of like an old crap budget, if 50 percent not, oh, crap. So I think those are without sort of rambling, but I think those three specific communications things really get your posse together, because I really think that’s critical to do that.

I like that. Let me recap. First up, a layout of the situation. Do it via video, tell people just where we’re at, what’s going on, how this is impacting our business. Same video next video. Start doing a every other day communication on what’s happened, what’s going to happen, what we’re thinking about how we’re at Three, and this is an interesting one, because I’m telling you, I don’t think many companies are doing this. team meetings, internal open forums, town halls, whatever you want to call them, where you’re there to listen. Let’s dive into that a little bit in just a second. And then four, start putting your expert team together, you need HR, you need marketing, communications, you need law, operations, whatever your team is, start getting it together, make a plan, make your projection and start going, “Hey, how do we come out of this in two months, three months, two weeks, six months, what’s going to be our plan? Let’s go ahead and start doing the work.” They may not have much else to do right now, might be a good time. Now ,your HR guy, he’s got a lot to do. But your marketing team may be going, “Hey.” We have a client about 70 employees, 70 marketing people and they do outsourced marketing and of course they’re taking a big hit right now, they’re advisors down, all those kinds of things. I don’t know, they may or may not have to go through layoffs, that kind of thing in the next while. 

But I’ll tell you this, the leadership, we’ve been growing so fast for the last three, five years. This is our opportunity to revise our internal operations and make explosive plans for our clients. When the clients come back and go, “Hey, it’s time.” They’re going to be blown away by what this marketing company has for them. They’re considering it the reason they’re not doing layoffs as the owners are pooling money. And deciding this is going to be an investment. We’re turning our company into a think-tank for the next three months for all of our clients and potential clients and we’re going to come out of this in a whole new way and I have all the power to them. I think that’s outstanding. I’m cheating and copying their ID and a lot of ways.

Then, Rhamy, one thing I would add just on that experts list. We’ll follow up on the other point but the experts list you could rattle off everything that is really important, mental health and thinking about your people’s mental needs. Now, perhaps your HR legal communications folks might dabble in that or might have some resources. But I think that best in class employees that care about the whole employee are thinking about getting a mental health expertise or at least a pamphlet.

A very good point. I’ll just hit this real quick. Most of you who provide group health insurance. Your larger big fives are Humana United, Cigna, Aetna. Your blues depends on your blue but the others are all pushing heavily, lots of resources around mental health, wellness and of course, televisions.

For free, aren’t they? 

Yeah, they’re almost all free. I mean, I know some of these, Humana especially has really impressed me with their materials and about availability mode. They’ve opened their employee assistance program to a lot of companies who weren’t paying for it. If you’re one of their clients, and their record they’re providing marketing materials and outreach to give internally. They’ve up staffed and seem to be handling the volume pretty well, which is downright surprising. And yeah, that’s an absolutely great point in some of these internal communications. 

There you go. So what we talk about every other day is communication video, one of them,” How do you take care of yourself guys and here are the resources you have on hand to explore and if you need support and counseling, here’s a way to get it. But even beyond that, when you have a sore throat and you don’t think it’s COVID, here’s how you access your telehealth. You’re working from home now stop eating the potato chips. Here’s some guidance on ways to work out at home. I know it sounds silly, but your insurers really, really want you to not all go up 20 pounds in the next two months.” On that team meeting, going around and circling back to that, we’ve got what’s on our mind, we got a situation we put our expert team together, we’re using this as an opportunity to get our plans in order. We email all of our employees and lay off employees and say, “Hey, we’re having an open town hall. We want to hear feedback,” like, what are we asking for here? We’ll start maybe in the email, say, “Hey, for the first 15 minutes, I’m going to cover where we’re at. But the main purpose of this is to get…” Yeah.

Exactly. 

Why are we having this?

So it’s a three part recipe on my part. First of all, now, this may or may not work for a town hall. We’ve actually got a client doing one tomorrow and we’re doing an experiment on this. So these are the three things and whether they scale to town hall or they scale just to people managers in their 10 to 12 People. Number 1 is, “How are you? We haven’t talked in a while, we haven’t been connected in a couple days. How are things with your family? How are things with you? What are you hearing?” So I think that’s Objective Number 1, simply be a good human and ask that context to reflect and comment on what we’ve already shared. So we’ve got this client that’s doing it tomorrow. They have issued three videos through this journey elements in subsequent written materials. “Is there any questions, anything we can clarify on what we’ve shared?” is the second thing. And then the third thing is, :What do you need from us? What can we be telling you? What questions do you have?” And so those are the three steps that we’re encouraging managers to do. I don’t know if that’s going to scale at a town hall meeting. Right? You’re always going to find you know, there are always people who say crappy things.

Right and they’re gonna be pissed and you’re gonna have 700 people sitting there. While someone complains.

Exactly. I think there’s a large group management tactic that you can use in that. So I’m actually in this unique environment pretty bullish on these, and that you can manage the bad because I think there are so many good people that are there. People have shared with me, well, Facebook tells me all I need to know. And I’m like, “No and Glassdoor, Glassdoor,” or Facebook or whatever, online, and I’m like, “No”. There are a lot of companies I really like, but I’m not going to write about it. But if a company pisses me off, that’s when I’m going to write it. So why don’t we give a chance for your fans and friends to say good things about you at a town hall. And so it’s a courage leap. And then you know, I don’t want to make up a statistic but it’s a small number. Two out of 10 of our clients are actually trying something like that because there is the inherent risk, the things that you and I talked about.

Right.

But I think in this as a unique environment, now’s the time to share

I think if I were talking to one of my clients and they were concerned about that, I would say, “Start small. Go by store, start with your leadership team. Then have your leadership team do it with their direct reports.” Break it out and maybe along the way you find, “Hey, a big, big family meeting.” A big whole company meeting would be a good idea. 

But baby steps. No need to jump in the deep end. 

I think even just just laying that out. What are we going to talk about? If we have a 10 man company, “God, guys, so how are you guys? How are we doing? Any news you want to share? How’s your family impacted?” We did this yesterday. You know, one of our employees, their husband, their mother, their father and their brother have all been laid off. They are the only person in there, you know, parent or family group that has a job left. And it’s like, we talked about that in a group. And, you know, we expressed our sympathies and moved on. And I find out later, our employees are literally reaching out and being like, what does your brother do? You know, what do your parents do? How do we fit? You know, can we help? Turns out with a mother’s a baker, she had to shut chew, she worked at a bakery. That was, you know, one of our employees contacted me. And then another company, they did a giant bakery order for her to do in her house. Right. So just getting that connection and tightness will be huge. 

Getting feedback on what you’ve done up till now. That’s a great reason to do small groups to start with, figure out what the sentiment is and then especially ask what questions are you getting, what can we help you with will give you fodder for your future communications? That’s the most important question. I think that’s great. That’s outstanding. So we’re wrapping up now and we got to head out. But Bill, if someone’s listening right now, and they go, “God, I agree, but I don’t know where to start.” And they have a larger size, what is it? What is the size of the company? What’s going through their head? What situation that they need to go to, Kith.co. And reach out to you. Like, what is that person? 

It’s typically a middle market company that has a thoughtful leader, that’s concerned about reputation, that’s concerned about kind of getting communications right. Someone that wants to hear what other people are doing. We are trying Kith, our firm, we are trying to be as generous as we can be. And so we take phone calls with everybody, don’t know if they’re ever going to be a client. And so we’re being really, really helpful. We’ve got a number of different ways people engage, they can buy my time by the minute, if they just want to call and talk and have me just sort of rattle off what we’re doing with other people, we can do that. A retainer relationship was our standard model that we work with our clients on so if you’re a thoughtful leader, you just want to shoot it and have a conversation. I’m absolutely happy to do that, you know, packed calendars nowadays, but love to find that time and just to be helpful, because we’ve got a unique set of skills. Because this is all we do as crisis communications. And we think now’s the moment to share it as broadly as we can. So little bit less about the “who” and a little bit more about the “how” call and you can reach out to us our phone numbers on the website, email, lots of LinkedIn, Twitter of different channels, you can find us, but we’re doing a lot of those conversations of simply being helpful because we think that’s important to do as a firm in this unique environment that we find ourselves outstanding. 

so if you guys want to reach out, you can find him at Kith, that’s K I T H.co.

No “M.”

He’s also on LinkedIn at Bill Coletti. Links will be at peopleprocesses.com. Also on Twitter at BColetti. Bill, thank you so much for coming on sharing your expertise with us. I think it has brought a ton of value. So thank you for coming on. 

Rhamy. Thank you. And thank you for what you’re doing. If you haven’t had a chance to check out his, the 123. And I think that it’s going to be more Q&A sessions. It’s really fabulous stuff. I think a lot of companies are making it up as we go along. And so any good inbound information is really valuable. 

Thank you so much, Bill. Have a great day. Cheers.

Ladies and gentlemen, thank you for tuning in. My name is Rhamy Alejeal, I’m the CEO of People Processes, and I hope you found this useful. I hope you learn something. It’s time for you to go out there. Have a great day and get your work done.

Learn more about Bill Kith here:

https://kith.co/

https://www.facebook.com/kithconsult/

https://twitter.com/kith_co

https://www.linkedin.com/company/kith-consulting/

COVID 19 Q&A PT 3: Can an employee refuse to come to work because of fear of Coronavirus?

Good morning Ladies and Gentlemen, and welcome to the People Processes podcast. I’m Rhamy Alejeal, CEO of People Processes. And we are here to help you dive deep into the tools, laws and yes, processes that you need in order to scale and grow your organization. 

Today, however, we are doing Part III of our COVID-19 Q&A, so we’re gonna be talking about Coronavirus. Today’s Part III is all about, basically, employee’s right of refusal to come to work, what sort of things you have to deal with in terms of unreasonable expectations of security equipment. How does that work? We’re going to be going in there now. 

Part I. We talked about telecommuting guidance.

Part II. We went into what actually needs to happen if someone is sick or suspected of having the virus.

Tomorrow or on our next episode, we will be talking about the, “How group health insurance coverage section Coronavirus? What sort of ways can you take advantage of that?”

Part V. We’re going to talk about the employees who are calling in sick. So we’re about Wage and Hour related issues related to Coronavirus. Do we have issues with how are we going to pay these people when they’re working from home? Those sorts of issues.

Finally.

Part VI. We’re gonna talk about employer liability. Probably the least important part of this but we do need to cover it. Are you on the hook if your employees get sick at work from coronavirus? 

So, let’s dive into Part III here. 

Can an employee refuse to come to work because of a fear of infection? 

This question and others like it we get through our social media and from our clients directly who are needing help. If you want to submit a question of your own, please check us out on Facebook, LinkedIn, Twitter @peopleprocesses. We’d love to hear from you there. We really appreciate subscribers there. It makes us feel like someone’s out there listening. And we’re just not talking to the ether. So take a look. Let us know if there’s anything we can help you with, ask any questions. 

If an employee refuses to come to work because of their fear of infection, the question is like, “Is that like a disciplinary issue?” Right, I need you at work. Well, employees are only entitled to refuse to work if they believe they are in imminent danger. This is Section 13(a) of OSHA. This is the Occupational Safety and Health Act, not the OSHA administration. It defines “imminent danger” to include, “any condition or practices in any place of employment which are such that a danger exists which can reasonably be expected to cause death or serious physical harm immediately or before the imminence of such danger can be eliminated through the enforcement procedures otherwise provided by this act.” OSHA discusses imminent danger as where there is “threat of death or serious physical harm,” or “a reasonable expectation that toxic substances or other health hazards are present. Exposure to them will shorten life or cause substantial reduction in physical or mental efficiency.” 

So, the threat must be immediate or imminent, which means that an employee must believe that death or serious physical harm could occur within a short time, for example, before OSHA could investigate the problem. Requiring travel to China or to work with patients in a medical setting without personal protective equipment at this time may rise to that threshold. Most work conditions in the United States, however, do not meet the elements required for an employee to refuse to work now. Once again, I guess I should say this is being recorded on March 14 2020. If you’re listening to this in April, things are going very badly, may be different. But right now, the conditions aren’t there. This guidance is general and employers are going to need to determine when this unusual state exists in your workplace before we’re determining whether it is permissible for employees to refuse to work. 

In addition, Section 7 of the NLRA. The National Labor Relations Act extends broad-based statutory protections to those employees (in union and non-union settings) to engage in “protected concerted activity from you to mutual aid or protection.” So, just keep in mind, such activity has been defined to include circumstances in which two or more employees act together to improve their employment terms and conditions, although it’s been extended to include action, expressively undertaken on behalf of coworkers. So if you got a real loud employee who is agitating on behalf of the safety of the employees. If you want to put it very negatively, that’s likely a protected act. 

So keep in mind that you don’t want to be in a position where you just want to not punish behavior that the NLRB might consider organizing activity, “talking with one or more employees about working conditions,” “participating in a concerted refusal to work in unsafe conditions,” “joining with co-workers to talk to media about problems in your workplace.” Employees are generally protected against discipline or discharge for engaging in such activity. So that’s a little different. But just keep that in mind as a side note, in general, though they can’t refuse to work, that can be a disciplinary issue. 

Now, can employers in the United States refuse an employee’s request to wear a medical mask or respirator? 

Yes, under most circumstances, I have a link on the website peopleprocesses.com where we go into the justification a bit more under the OSHA respiratory protection standard, which is a link on our site 29 C.F.R. 1910.134. It covers the use of most safety masks and the workplace, a respirator must be provided to employees only “when such equipment is necessary to protect the health of such employees.” Likewise, OSHA rules provide guidance on when a respirator is not required: “an employer may provide respirators at the request of employees or permit employees to use their own respirators, if the employer determine that such respirator use will not in itself create a hazard” (29 C.F.R. 1910.134(c)(2)). In almost all work situations, however, there are no currently recognized health or safety standards – even when employees work near other people and thus no need for a mask or respirator. 

WHO has stated that people only need to wear face masks if they are treating someone who is infected with COVID-19. WHO has also said that wearing masks may create a false sense of security among the general public. Doctors agree that the best defense against COVID-19 and influenza is simply washing your hands. Thus, the consensus is that there are more appropriate measures of defense than wearing a surgical mask or respirator. So you can refuse that request. 

Now, can an employee refuse to work without a mask? So they say, “I want to wear a mask” and you’re like, “No, that would be very strange. You can’t wear a mask if you feel sick, don’t come to work, but otherwise, you know, come to work.” And then they say, “Alright, well, I’m not coming to work unless I can wear a mask.” 

Can an employee refuse to work without a mask? 

OSHA has addressed this common question of whether employees can simply refuse to work in unsafe conditions. The safety agency file provided the following guidance, which wouldn’t require the use of mask or respirator in most situations. An employee’s right to refuse to do a task is protected if all of the following are met:

1. Where possible, you’ve asked the employer to eliminate the danger and the employer failed to do so;

2. You have refused to work in “good faith.” That means you must genuinely believe that an imminent danger exists;

3. A reasonable person would agree that there is real danger of death or serious injury; and

4. There isn’t enough time, due to the urgency of the hazard, to get it corrected through the regular enforcement channels, such as requesting an OSHA inspection. 

Given the consensus that face masks are only necessary when treating someone who is infected with the COVID-19 coronavirus or influenza, masks are likely not necessary to protect the health of most employees. Therefore, most employers do not have to provide, or allow employees to wear, a surgical mask or respirator to protect against the spread of COVID-19 or the flu for that matter. The use of the word “may” in OSHA’s respiratory protection standard makes it clear that when a respirator is not necessary to protect the health of employees, it’s within the discretion of the employer to allow the employee to do it or not. Accordingly, you are well within those OSHA standards to say no, denying employees requests to wear a surgical mask in pretty much every situation. Again, now if you’re a hospital, and you’re treating COVID-19 patients, that’s different, right. But in most cases throughout the United States, you don’t have to allow it. 

Absent a legally recognized disability, unique physical condition or an occupation where employees work directly with those impacted by conditions such as COVID-19, you’re generally not required to allow them to wear masks at work. 

Okay. All right. Now, I want to very briefly since we’re talking about, let’s say an employee comes, he says, “Hey, I want to wear a mask, or I’m wearing a mask now and you can’t make me take it off.” You’ve explained that, “Hey masks are not necessary in this job. They say it’s not. There’s no reason to suspect that this is it, you’re in any danger being here more than you would being at Walmart right now shopping.”

Though you don’t need a mask, you may want to be able to respond with Steps you can take now to minimize the risk of transmission.

So now I’m going to talk about things you can actually do besides wearing a mask that would actually help. So repeatedly, aggressively encourage employees and others to take the same steps they should be taking to avoid the seasonal flu. For annual flu, SARS, avian flu, swine flu and now COVID-19. The best way to prevent infection is to avoid exposure. So the messages you should be given to employees are:

  • Wash your hands often with soap and water for at least 20 seconds. If soap and water are not available, use alcohol-based hand sanitizer. 20 seconds feels like a long time. Come up with a song. Sing it while you’re washing your hands. That’s 20 seconds long.
  • Avoid touching your eyes, nose, mouth with unwashed hands. 
  • Avoid close contact with others, especially those who are sick. 
  • Refrain from shaking hands with others for the time being. 
  • Cover your cough or sneeze with a tissue and then throw that tissue in the trash. 
  • Clean and disinfect frequently touched objects and surfaces; and
  • Stay home when you are sick. Go away if you are sick. 

Okay, as an employer, you should be doing the following:

  • Ensure that employees have ample facilities to wash their hands including water and soap, and that third-party cleaning/custodial schedules are accelerated. 
  • Evaluate your remote work capabilities and policies (see that earlier podcast episode where we talked about that). Teleconference or use other remote work tools in lieu of meeting in person if that’s available. 
  • Consider staggering employee starting and departing times, along with lunch and break periods, to minimize overcrowding in common areas such as elevators, break rooms, those sorts of things. If you’re in an environment that has it. 
  • Have a single point of contact for employees for all concerns that arise relating to health and safety, highly recommended you need a health and safety officer anyway. If you’re, if you’re a very small company, that’s okay. Tell people, the person to contact should be probably the owner in that case: and
  • Follow updates from the CDC and World Health Organization regarding additional pre call precautions. 

We have linked on our website, OSHA’s Guidance on Preparing Workplaces for an Influenza Pandemic, which gives some additional kinds of steps you can take. More specific ones like engineering things around air conditioning, but also personal protective equipment. It just really goes in a lot more depth linked right on our website @peopleprocesses.com. 

I hope this helped you answer the question of whether an employee can refuse to come to work because of their fear of Coronavirus and what you can do in response. Thank you for taking the time to listen. You can find us on Facebook LinkedIn, Twitter, Instagram and @peopleprocesses.com. On peopleprocess.com bottom right hand corner, there’s a chat button, bright green. We’re open regular business hours, but leave a message overnight. I’ll reach back out to you. I’d love to hear from you. If you have any questions or need to go by or some help around this, we have staff standing by to help you. We’re just doing that right now. There’s no charge. You just have questions, ask, okay. Maybe the basis of a future podcast episode. I just reply to you via email. Whatever we need to do to help us is kind of our way of helping. If an employer is in a position where they’re not sure what to do, and they need some advice. Just reach out. We’ll help. Thank you for tuning in. Have a great day. Now go out there and get your work done.

Reference links here:

Yes, Guidance on Preparing Workplaces for an Influenza Pandemic 

COVID-19 Q&A Part I & II links here:

Part I – Should we send everyone to work from home with this Coronavirus?
Part II – I think an employee may be sick… what do I do?

COVID 19 Q&A PT 2: I think an employee may be sick… what do I do?

Good morning Ladies and Gentlemen. This is Rhamy Alejeal, CEO of People Processes and I want to welcome you to the People Processes podcast. Here we dive deep into the tools, laws and yes processes that you need to know in order to scale and grow your organization. This is Part II of our coronavirus COVID-19 QA. 

We’re going to be talking about what to do here when you think an employee may be sick or you’ve received words that they’re sick or that they come in contact with someone sick.

We’re going to go around the actions to take this as Part II of our QA, hopefully you’ve listened to Part I already. Where we talked about implementing a remote work policy and putting in telecommuting in your organization. 

Part III. After this we’re gonna talk about when an employee can refuse to come into work because of a fear of coronavirus. “Can they refuse to work if they don’t have a mask?Can they all be allowed to wear a mask at your retail store?” Like, “How do we deal with that? 

Part IV. We’re going to talk about group health insurance, and its interactions with coronavirus. We’re gonna talk about ways to take advantage of what’s covered, what’s not. 

Part V. We’re going to talk about Wage and Hour. We’re going to talk about what we have to pay here if we send people home because they’re sick, if they’re calling in sick and you don’t think they’re sick, because they just want time off, like, “How does that work?” We’re talking about the wage and hour implications. 

Part VI. We’re talking about liability. “Is this a worker’s comp issue? Are we liable as employers if employees come in and get sick?” 

We’re going to cover that in Part VI. For now, check us out. These questions have all come from social media and our clients. So hop on Facebook, Twitter, Instagram, LinkedIn. Message me, let me know if you have any questions so we can add them as we go.

All right. So here’s the first question I get. 

Can we send an employee to ask them to stay home or leave work if they exhibit symptoms of Coronavirus COVID-19 or just the flu? Like, Should we can wait?

Yes, you are permitted to ask them to seek medical attention and get tested for COVID-19. The CDC states that employees who exhibit symptoms of influenza like illness at work during a pandemic should leave the workplace and be made to do so. During the H1N1 pandemic, the EEOC (Equal Employment Opportunity Commission) stated that advising workers to go home is not disability-related if the symptoms present are akin to seasonal flu, or in that time the H1N1 virus. Therefore, an employer may require workers to go home if they exhibit symptoms of COVID-19 coronavirus or the flu. So if someone’s there, and they’re sweating, they’re looking like a favor, or they’re hacking and coughing or they’re sneezing. It’s like, “Bro, go home, you can’t be here.” 

Okay. So, first of all, if they’re exhibiting flu-like symptoms, you can send them home. But that goes on to one more thing like what if they’re sweating and you go, “Well, maybe I should take their temperature.” 

Can you take the employees temperature at work to determine whether they might be infected?

This is a complicated one. The ADA (Americans with Disabilities Act) places restrictions on the inquiries that an employer can take into an employee’s medical status, and the EEOC considers taking an employee’s temperature to be a “medical examination” under the ADA. The ADA prohibits employers from requiring those exams and making disability-related inquiries unless (1) the employer can show that the inquiry or exam is job-related and consistent with business necessity, or (2) the employer has reasonable belief that the employee possesses a “direct threat” to the health and safety of the individual or others that cannot otherwise be eliminated or reduced by reasonable accommodation.

Taking an employee’s temperature may be unlawful if it’s not job-related and consistent with business activity. So the inquiry and evaluation to whether taking temperature is job-related, is fact-specific. It’s going to vary a lot. The EEOC’s position during a pandemic is that employers should rely on the latest CDC and state or local public health assessments to determine whether the pandemic rises to the level of a “direct threat.” Direct threat, that’s the key. The assessment by the CDC as the severity of the COVID-19 will provide the objective evidence needed for medical exams. If the COVID-19 coronavirus becomes widespread in the community, as determined by state and local health authorities, the employers may take the employee’s temperature at work. But if you’re in a place that hasn’t had a case yet, maybe there’s five cases in your state, none in your city, it’s not a direct threat. You can send people home because you’re scared or you feel like they’re scaring other people, or hell, they may have it, but you don’t want to do the actual temperature test.

Having said all that, as a practical matter, people can be infected with COVID-19 without exhibiting recognized symptoms such as fever, so temperature checks may not be the most effective method for protecting your workforce anyway, long and short is going as far as to take their temperature is about big step, you need to have a very good reason. If you’re in Washington State, Seattle, and you got hundreds of cases popping up around you make sense. But other than that, of course, you may be listening to this. So two, three weeks from now, who the hell knows where it’s going to be at that point, but unless it’s a direct threat, you don’t want to do the temperature, you just want to decide where they’re going to send them home, ask them to give a test.

Speaking of testing, an employee has tested positive for COVID-19. What do we do? 

You should send home all employees who work closely with that employee for a 14day period of time to ensure the infection does not spread. Before the employee departs, ask them to identify all individuals who worked in close proximity (that’s three to six feet) with them in the previous 14 days to have a full list of those who should be sent home. When sending the employees home, do not identify by name the infected employee or you could risk a violation of confidentiality laws. You may also want to consider asking a cleaning company to undertake a deep clean of your affected workspace. If you work in a shared office building or area, you need to inform building management so they can take whatever precautions they deem necessary, long and short is from the point of interaction. You need a 14-day quarantine with anyone who worked in close proximity. You want to send them home. So this, we actually had a case client right now. It’s medical so it’s a little different, but they did rounds with someone who’s suspected to have COVID-19 , it’s Saturday. Now, they did that on Monday, I believe so it’s been six days. They just found out today they’re experiencing no signs or symptoms, but they need to quarantine for another week. They need 14 days as a rule of self quarantine from that interaction. 

What if, though we don’t have a positive test, we just have a suspected but uncommitted firm case, What do we do if one of our employees is suspected but unconfirmed?

You just want to do the exact same thing as above, treat the situation as if the suspected case is a confirmed case for the purpose of sending home potentially infected employees. Communicate with your affected workforce to let them know that the employee has not tested positive for the virus, but has been exhibiting symptoms that lead you to believe a positive diagnosis as possible. Okay. Only the effective workers don’t cause panic as a rule. But yeah, you just want to send them a call saying assume any symptomatic cases are a case.

How do we distinguish between those suspected about unconfirmed cases of COVID-19 and just a typical illness that people get the flu?

There’s absolutely no good answer to this. There is no easy way for you to make this determination. But you just generally just kind of want to let logic guide your thinking. The kinds of indicators that will lead you to conclude an illness could be a suspected but unconfirmed case of COVID-19 include whether that employee traveled to a restricted area that is under a level 2, 3, 4 travel advisory warning, whether the employee was exposed to someone who traveled to one of those areas or similar facts, or if the prevalence of it in your area. Again, if there’s no one in your city who has it, you can kind of know, and they’re just in there, they got a call. It’s like, don’t think that’s coronavirus, necessarily. I mean you can even be cautious without just overblowing this, okay? But if there’s any reason to think about how there’s a decent connection, then it’s like, alright, that’s probably that we should assume it’s tough.

If COVID-9 becomes severe, inquiries into an employee’s symptoms, even if disability-related, are considered justifiable by the EEOC. So the general idea is that the more prevalent it is, the more okay it is for you as an employer to say, “Hey, bro, you got this thing. Help us figure this out.” Basically, even if these inquiries would normally be protected, they’re not. According to the EEOC, as a “reasonable belief based on objective evidence that the severe form of a pandemic influenza poses a direct threat.” Again, that direct threat language, you gotta maintain all information about employees and illnesses by the way in a confidential medical record, in compliance with the ADA. So don’t be just sticking that out and putting it in a company newsletter, “Hey, Jack’s got COVID. Don’t do that. No need to. 

All right. What about not a suspected case with an employee but one of your employees self reported that they came in contact with someone who had a presumptive positive case of COVID 19. What do we do?

Same thing as above, treat the situation as if the suspected cases would confirm the case for purposes of sending home potentially infected employees. Communicate with your affected workers to let them know the employees asymptomatic for the virus. But you were acting out of an abundance of caution. Great, great language to use.

One of one of our employees has been exposed to the virus but only found out after they had interacted with clients or customers, What do we do? 

Again, send them home for 14 days. Check out the coworkers list, do the same 14-day self quarantine treating the situation as if the exposed employee has a confirmed case of COVID-19 and you’re sending home the potentially infected employees you came in contact with. As for the third parties, you need to communicate with customers and vendors that came into close contact with the employee to let them know about the potential of a suspected case. It’s not going to be fun, but you need to drop an email, give a call and say, “If you may have come into contact with an employee of ours who has a suspected case of this on this date,” something like that. “We are acting out of an abundance of caution; they have no symptoms. But there’s a suspected case here or there that has symptoms and is in quarantine.” It’s like okay, so give him a heads up. 

All right. Last thing we got, which is a terrifying question, is if we learn or suspect that one of our employees has COVID-19, Do we have a responsibility to report this information to the CDC and have the check on this one? 

The answer is no. There’s no obligation to report a suspected or confirmed case of COVID-19 to the CDC. The healthcare provider that receives the confirmation of a positive test is a mandatory reporter. And they will handle that responsibility. Okay, so it’s on the doctor. It’s kind of important you’ve not. I haven’t found a case where this is violating HIPAA or any of that kind of stuff. But it seems to me that if they know they have a case that a doctor knows and the doctor is the one who by law has to tell the CDC so they already know no action for you to take. 

I hope that was helpful for you. Just giving you a brief guide of what you need to do if you have an employee or suspected employee who may be sick with this virus. We’re going to go on to Part III next.

I hope this was helpful to you. Reach out to us on social media LinkedIn, Twitter, Facebook, Instagram @PeopleProcesses and Rhammy Alejeal. I would love to have your questions and if we can provide any help, we’re here to do so. Okay, if you need go-bys, if you need a sample document, if you’re just going, “Hey, I don’t even know where to start with us.” Reach out at peopleprocesses.com, there’s a chat button in the bottom right hand corner. There are downloadable materials for subscribers. We want to help in any way we can. Best of luck. Now it’s time for you to go out there and have a great day and get your work done. I’ll see you in Part III.

COVID 19 Q&A PT 1: Should we send everyone to work from home with this Coronavirus?

Good morning Ladies and Gentlemen, welcome to the People Processes podcast. Where we dive deep into the tools, laws and yes processes that you need to know in order to scale and grow your organization. I’m going to cut the intro short and introduce myself briefly. My name is Rhamy Alejeal. I’m the CEO of people processes. And this is going to be part one of six of our COVID-19 QA. 

We’ve received many, many questions coming in about the coronavirus. And we’ve broken this into six short key episodes, where we’re just going to talk about some of the key pieces that are relevant to your organization as we try to deal with this pandemic. There are a lot of moving pieces going on. So I guess I should say that this was recorded on March 14 2020. They will be coming out over the next two weeks at the latest, hopefully faster as they go through production and we will be getting them out each day or every other day or so until they are through. 

We’re going to first talk about a question we’re getting the most of which is remote work and how to send everyone home.

Part I. Should we send everyone home because of the coronavirus?

Part II. We’re going to talk about what happens if we think an employee may be sick. “What should you do?”

Part III. “Can employees refuse to come to work because of their fear of coronavirus?”

And the sub-questions about that:

“What if they don’t want to wear a mask?”

“What if they are saying they won’t work without a mask?”

Part IV. We’re going to talk about group health insurance and how it is reacting to coronavirus. What things are covered automatically, what aren’t how those work and additional ways you can take advantage of those and communications you should send to your employees.

Part V. “What about paying these employees that either you sent home sick, they call in sick?” Maybe they’re saying they’re sick but they’re not. You’re just you know, they’re just saying they are. “How do we deal with the wage and hour implications of this.”

And finally, we’re going to talk about workers compensation and answer the question of the employer liability.

Part VI. If an employee gets sick with coronavirus and where that falls and that’s going to be Part six.

Let’s dive into part one. Real quick reminder, you can find us on Facebook, Twitter, Instagram, LinkedIn, reach out to me on LinkedIn, Rhamy Alejeal. People Processes on Facebook, Twitter and Instagram. Send us your questions. If you need help, sample communications, message me. All of our clients have already received communications to us with employees checklists on telecommuting, all sorts of things. I definitely want to assist in any way we can during this time. So if we can be of help, please let me know. 

Alright, let’s first talk about this question.

Should we put in a temporary remote work policy in light of coronavirus? I mean, Should we send everybody home?

Whether you do this or not is entirely dependent on your organization’s circumstances and the area of the country where your workers reside. You may not want to introduce a new system like this. If you’ve not yet had the time to test and develop remote work capabilities, it could very likely cause you more problems than it solves. On the other hand, if you’ve got established protocols in place, this is a great opportunity to leverage them. In our company, we’ve been allowing telecommuting for years, everyone is outfitted with laptops, biometric security devices, separate security key fobs, all these things that allow us to confidently allow our employees to do their job from home. Our employees are disciplined and working from home, they understand the ins and outs of it. They know about problems with childcare, all sorts of things. But if you’ve never done it before, it’s quite different. The key is to make sure your decision is educated and intentional, not reactionary and spur of the moment. If sending people home, you feel competent, everything can still get done and there’s no cost to it. 

Well, that’s an easy decision. Wouldn’t be asking. But for those of you maybe in a law firm or CPA organization, an architecture firm or all these places where maybe you’ve always worked together in a service based business and you’re thinking, “How do I do this at home?” It’s time to figure that out. For those of you who do much more in depth work, and you want to send them home to do it, like obviously, you can’t do retail, but even light manufacturing, quality assurance testing, lots of different things call centers could be distributed rapidly. That’s much more questionable because you have to think about how you are going to provision them. And more importantly, can it cause more problems than it solves? 

What infrastructure should we have in place for a remote work plan?

You’re going to want to identify the roles that are critical to your business operations and determine whether those individuals specifically can carry out their jobs while working remotely. So start with that. A lot of times maybe in your organization, not everyone can work over work remotely. But if you start with your most critical people, you can then figure out if they can work remotely. Then the next step is to assess your technological capabilities. Do you have the support in place to assist with the inevitable questions and IT problems that will arise? Because there’s going to be a ton of them. Do you have sufficient security and privacy protocols in place? Considering these questions are going to help you determine whether you can move towards a remote workplace. I want to stress that security and privacy protocols. When you start working from home on people’s laptops or their personal computers, you’re exposing data, the liability associated with doing this in an ill prepared way could lead to well, much bigger problems for your organization than even a month long, late, sabbatical for everybody. 

So you just want to think about, what is the risk you’re exposing yourself by implementing this? So let’s say you decide to do it.

How are we going to prepare for that remote work scenario?

First, take an inventory of the types of equipment your workers need to get the job done and ensure they have access to them. This could include laptops, desktop computers, monitors, phones, printers, chargers, office supplies, similar materials. Then you need to encourage your employees to prepare for the possibility of an immediate introduction to work from home. Ask them to develop a “ready bag” that they can take home with them at the end of each day that would allow them to begin working remotely the next day. This would obviously include their laptops, smartphones, other related technology, but could also include physical items (such as binders, documents, folders, materials) calendars, those sorts of things. And those will be the things that you’ll forget. Everyone’s going to remember their laptop but the number of unique case files that you left at work. Those sorts of things are often forgotten. 

Make sure you consider and clearly communicate with your workers about which physical items are acceptable to be taken from the workplace and which need to stay in your location at all times. If you have certain things that cannot leave the office, you need to tell them that otherwise you’ll come in and everything else should be gone. Desks and chairs included. So you want to take a minute and just kind of lay out , “Hey, here are the things to take home. Don’t take this.” I know it sounds silly. Think of it as a moment of levity. You may want to take the time now to digitize any relevant physical materials to make remote working easier. This is a quick prep that could be done over the weekend, with some overtime, any current files that are still paper based, now’s the time to get rid of them. You may want to communicate with your workers about whether they can and should take digital photos of physical calendars, whiteboards, Kanban boards with sticky notes, or whether they’re prohibited from doing so. This is an important item if you brainstorm or keep important metrics, not in a digital dashboard, but in a physical place. You may just want to give a heads up if you’re concerned again. The likelihood is if you tell people they’re going to work from home and you need to prepare for it and you give them a list of stuff. If there’s anything you don’t want them to take or take a digital copy of, that’s the thing you need to stress. 

Alright. The most important part though, is you need a remote work policy if you do not already have one in place. And review and update your existing policy as it relates to this specific situation.

What should be included in a remote work policy?

And what should be included in it? Your policy for remote work lays out the expectations you have for your workers as they embark on their temporary remote work routines. The number one item you should convey to them is that you expect them to help your organization maintain normal business operations during this period of time to whatever extent possible. Consider all aspects of their work, make sure they understand what is expected of them.

  • How strict is your policy going to be? Are you going to have your workers?
  • Are you simply going to encourage them to work at home or are you going to absolutely bar them from coming to the office?
  • Will there be exemptions for “essential” personnel that need to be at certain physical locations?
  • Will they need to be available at all times during work time hours, or will remote meetings and appointments be scheduled ahead of time? (Take into account that your workers’ lives may be highly disrupted in other ways because of the coronavirus, and therefore they may not be able to maintain normal working hours during this time or maybe somewhat distracted by family or medical obligations during certain times of the day.)
  • Since, as we know, most schools are closing, there’s all sorts of knock on effects of this. Will remote meetings take place online, over the phone? Do they need a webcam?
  • Will you prohibit employees from meeting together in person during this period?
  • Will you only restrict in-person meetings of a certain size (no more than three to five workers)? A lot of times when you go remote work, people will then meet up at a coffee shop, which may not be the best thing right now.
  • Will you prohibit employees from meeting with third parties while doing company business during this time? If you’re saying don’t come to the office, you may also want to say also don’t meet with that vendor for that steak lunch or meet with potential clients. We’re going to suspend in person meetings with clients, is that something you want to do? You want to think about that. 
  • Will you prevent workers from performing work outside of their homes (coffee shops, libraries) because of security concerns? I recommend you consider this heavily depending on your industry. If this kind of work is permitted, do you have sufficient security infrastructure in place (encryption, password protection, log out lock requirements, third, party two factor authentication, biometric security), and are your workers aware of your requirements to prevent data breaches and other losses? So I just want to stress that you want to put limitations on this, depending on your work, but in ours, especially when we consider our telecommuting over the last few years. Data Security is paramount and it’s one of the top fears what we did have in allowing this. We invested many thousands of dollars per employee just in security on the devices themselves. And on top of that, training and remote access policies and ways of keeping all of our data safe. So you just want to think about this.
  • Finally, can the workers perform the work on their own devices? And if so, do you have a comprehensive BYOD (Bring Your Own Device) policy in place? That’s a separate policy and it talks about what they can do on their devices for years. If this is an emergency and you are sending everyone home for the first time, with little preparation, you may not have laptops, desktops, or laptops, the associated accessories to go along with it for everyone. So if they’re going to use their own devices, you need to talk about what that’s going to be. You need to include an anticipated date in your work remote worker announcement if this is temporary and inform your employees that you will provide weekly updates regarding the status of the remote work period. If you, I highly recommend this and you may also want to just just whack on there you’re at will reminder. But the key that I would just say is, “put an end date”, say we’re going to go remote work, we’re going to close down the office, we’re not allowing client meetings, no more than three people meeting at a time, blah, blah, blah. But we expect this policy to end in 30 days, something like that. We’ll provide you updates. It’s always good to put an end date on it. Makes people feel a lot better. And it keeps this from being a permanent policy that you have to restate. 

Now let’s talk about the requirements. Let’s talk about a couple of best practices for how we can ensure our remote work time is productive and successful.

There are a number of steps you can take to ensure that the temporary remote work time goes well for your workers and for your organization.

  • From a functionality standpoint, you may want to agree on a single communications platform that all workers will be required to participate in. I highly recommend this. It could be email but I recommend instant messaging of some kind, Slack, Zoom, Skype. I love Google Hangouts personally, that’s what our company runs on. Microsoft Teams is great, but you need a live immediate chat, you need to talk about responsibility. During this time, it’s very important to communicate with your employees that, “Hey, if you’re on the clock, and it is work time, I expect you to go on that hangouts app or update your calendar when you’re available or not. However, you’re gonna do it so that when people message you, it’s just like walking in the room. If you’re not there, they’re gonna wonder where you are.” That kind of thing.
  • You need to take an honest approach internally with yourself about whether any concerns you have regarding reduced productivity among your workers while they’re working at home, are realistic or overblown. Recognize that you aren’t babysitting your employees while they’re performing work at the office, so you shouldn’t begin to micromanage them when they’re at home. Right? If they work hard at the office, they’re probably going to work hard at home. Keep an eye on the bigger picture and track overall productivity, but not moment by moment activities. They have the flexibility by doing this.
  • In fact, experts say that overwork is more likely for remote workers than lack of productivity, especially in the first week of a remote worker assignment. So keep an eye out for employee burnout, overstressed workers and address your concerns as appropriate. It will shock you, then you may have trouble returning to the office. Telework has been outstandingly good for our company in many, many of our clients if you go into it, with eyes wide open and the processes in place to track it.
  • Another concern for workers not used to working remotely is that they may feel untethered or disconnected from the organization during the time period. Some tactics to prevent and overcome this problem include:
  • Developing distributing an agenda for all team get togethers and meetings, as well as meeting minutes and task lists after they’re completed so that those unable to attend can feel part of the action.
  • You want to schedule virtual team lunches or social time where workers can interact on a social level. Our offices open 30 minutes after the phones close and sometimes like on that one that’s crazy day. But we normally end or begin our day with just a kind of a breakout team size five to seven people per video call sometimes more, sometimes 1020. But normally smaller teams and just catch up on everybody. You would do it in the office. And if you do it, if you make it intentional, it really does make a huge difference in the cohesiveness of the team.
  • Connect workers new to remote work with your experienced remote workers. If you have an aim to serve as informal mentors available to answer questions or give advice, and they may also be a kind of a backup tech support, that’s also quite helpful.
  • Consider other ways to ensure your workers feel connected with each other. That’s going to be the keys. In daily meetings, frequent phone calls or texts and other actions can go a long way towards ensuring their peace of mind. You will find if you go into a messaging application, that it can become your default and that’s probably fine. But if it’s anything complex, hop on a quick video call, get some face to face time and get that connection you’ll understand a lot better what’s going on that way. 

I hope that was helpful for you. We covered when and if you should go into remote work, the steps you need to take to do so. And some best practices. Our next Q&A is going to be on “What happens if you think an employee’s sick or the employee tells you they’re sick, or they tell you that their family is sick or that they came into contact with someone who may be sick.” We’re going to go through those, start giving some pieces here, but I wanted to get this out because many of you are trying to do this right now. So there’s your quick guide. If you need more help, email us, message us, chat with us, you can go to peopleprocesses.com, there’s a chat button in the bottom right hand corner, you can subscribe on there as well. We’d love to hear from you. And if you know we can provide some helpful documents or go-buys, I’d love to do so. Best of luck, stay safe, but don’t panic. It’s all okay. We’re going to get through this and we’re going to have a wonderful and happy productive year once this is taken care of. So if you need anything, reach out. Thank you again for your time. My name is Rhamy Alejeal. And now it’s time for you to go out there and have a great day and get your work done.

New Overtime Guidance explains Lump Sum Bonuses!

Good morning, Ladies and Gentlemen. And welcome to the People Processes podcast. My name is Rhamy Alejeal and I’ll be your host today. I’m the CEO of People Processes. And on this podcast, we dive deep into the tools, loans and yes, processes that you need to know in order to scale and grow your organization. We help organizations all across the United States streamline, optimize, implement and revolutionize their HR operations. We’ve helped hundreds of companies and thousands of HR leaders across the world get their people processes right. 

Today, we’re talking about a new guidance that came from the FLSA that explains how to handle a lump-sum bonus, a little bit more in depth than we’ve had in the past. I really am excited about this because it answers some questions that have been pending for 60 years. Before we go too deep though, I want to ask you to please subscribe to our podcast. It makes a huge difference to us. You can find us on iTunes, Google podcast, Spotify, Stitcher, pretty much any pod catcher of your choice. You can also subscribe @peopleprocesses.com, which will give you access to some exclusive subscriber only content. 

Department of Labor regulations provide that the bonus amount is added to the employees other earnings for the week. Total earnings are divided by the total hours worked to arrive at the regular rate. So they make 1000 bucks. They worked, well, let me do it easier. They made for a hundred bucks. They work 40 hours a week, they make 10 bucks an hour, you give them $100 bonus, and now they’re making an extra $2 and 50 cents per hour for 1250. Right? And that’s their regular rate of pay. If they work 4142 4344 hours, then that regular rate of pay is multiplied by 1.5 to give you that overtime rate of pay. But what if the bonus covers multiple work weeks? That was the issue addressed by the DOL’s Wage and Hour Division and their new opinion letter. We haven’t linked on our website, it’s WHD Opinion Letter FLSA 2020-1. It’s from January 7, 2020. 

Alright, so let’s take a fact here. An employer informed its employees in advance that they would receive a lump-sum bonus of $3,000 if they successfully completed 10 weeks of training and agreed to continue training for an additional eight weeks. Employees did not, however, have to actually finish the additional eight weeks to receive the lump-sum bonus. For example, if an employee completed the ten weeks of training and signed up for the additional eight weeks, the employee received the bonus even if he or she only completed one week of the additional training and dropped out. 

In the scenario that was presented to the DOL, an employee who received the lump-sum bonus ordinarily worked 40 hours per week. However, in week 5 of the 10 week original training, the employee worked 47, and in week 9 the employee worked 48 hours. The employer asked for advice on how to count the bonus and the employee’s regular rate for the weeks that the employee worked overtime. 

The DOL gave a little conclusion. So in its opinion letter, the Wage and Hour Division concluded that it was appropriate for the employer to use Method #1—that is, to allocate the lump-sum bonus over three times. And equally to each week have a 10 week training period. According to the opinion letter each week of the 10 weeks counted equally and fulfilling the criteria for the bonus, since missing any week would disqualify the employee from receiving the bonus. Moreover, there were no facts being inappropriate to assume equal bonus earnings per workweek, and a court has held that dividing a bonus equally among workweeks is not unreasonable even if the employee worked more or less than 40 hours in a given week. That case link to our site as well as its Vasquez vs TVC admin. 

Bottom line. Assume that the employee in the scenario presented to the DOL normally earns $10 per hour straight time. Using Method 1#, the employer would allocate the $3000 bucks equally over the 10-week bonus period, adding $300 to the employee’s pay for each week to be included in calculating the employee’s regular rate of pay. So, for example, in the week that the employee worked 47 hours, the employee’s straight-time earnings would come to$ 770 bucks. That’s (47 hours x $10 bucks + $300 bucks), resulting in a regular rate of $16.38 (770 straight time /47 hours). Therefore, the employee will be entitled to an overtime pay of $24.57 (1 ½ x 16.38) for each one of the seven overtime hours, right? So 2447 times seven.

By comparison using this Method, Method #2 would allocate the bonus on an hourly basis. And that would mean that they’re actually paid more. I’m not going to go through the math, but because podcasts are great for math, as I’ve learned, the long and short is when you have a bonus. It’s normally right. Well, it’s totally fine normally to allocate it evenly over the weeks in which the bonus was earned. As long as the earnings were similar each week. It’s not about the hours worked. If, for example, any given week, they could have lost the bonus because of their action, then it’s probably safe to assume that you could have just distributed equally. If however, the hours themselves are the thing that generate the bonus then you need to distribute using Method #2, dividing out by the number of hours worked each week makes a big difference. If you don’t know what the heck I’m talking about, by the way, what do you mean when I give a bonus I have to go back through and up my overtime. You’re missing something, check out our academy, academy.peopleprocesses.com or reach out to us on social media. There are some past episodes where we’ve gone into depth on this. 

Just a quick reminder, bonuses come over a pay period, when did they earn the bonus. And if they earned overtime during that period, by giving them a bonus, you are adjusting their regular rate of pay, which means they do additional overtime. There are quick and easy ways around this, primarily, around bonusing a percentage of pay rather than a flat amount. If you’re going to do a flat amount, you have to keep in mind that the period in which they earn the bonus, you have to go back and recalculate overtime. Hope that’s helpful. You need help, contact us social media, Twitter, Facebook, LinkedIn, Instagram, love to hear from you. Again, my name is Rhamy Alejeal. I appreciate you tuning in today. It’s time for you to go out there, get your work done and have a great day.