There are numerous issues surrounding the use of security cameras in businesses.
Today’s post on security monitoring is brought to you by my friends at SocialMonsters.org.
As surveillance camera systems and other monitoring methods have grown more efficient and more convenient to install and use, more businesses are upgrading their security technology. This has brought major security benefits, but it has also created new privacy concerns. For instance, retail chain Forever 21 is currently facing a $2 million lawsuit after a former employee complained that footage from hidden cameras installed in a company bathroom was distributed to pornographic websites. As this illustrates, indiscriminate use of surveillance technology can land your company in potentially expensive legal trouble. Here are some important things your company needs to know about ethical and legal issues surrounding security monitoring privacy concerns, consent requirements and restrictions on what you can do with surveillance footage.
When businesses are assessing privacy concerns over security monitoring, there are two major principles that determine legality, says attorney and legal author Lisa Guerin. The first is state law. While federal laws have yet to address many privacy issues raised by security technology advances, many states have passed their own laws which employers must take into consideration. For instance, California has particularly strong laws governing employer use of surveillance technology. To take one example, it is illegal in California to install a see-through surveillance mirror in a restroom, fitting room, locker room or shower. Due to California’s strong employee privacy laws, one California sales representative was able to sue her employer after she was fired for uninstalling a GPS tracking app that was being used to monitor her company-issued phone when she was off the clock, a case she might not have won in another state.
In the absence of clear state laws, there are two main factors that generally weigh into the legality of surveillance footage. The first is whether the employer has a legitimate business need to conduct surveillance. For instance, an employer might argue that security monitoring is necessary to prevent shoplifting. The second factor is employees’ reasonable expectation of privacy. For example, employees can reasonably expect not to be filmed while going to the bathroom.
Surveillance may also be restricted under other specific conditions. For instance, cameras that record sound may violate wiretapping laws, and it is illegal for employees to covertly record union meetings. If you’re not sure of the legality of a particular form of surveillance, get clarification from an attorney specializing in employment law.
Recording employees without their consent can increase your legal risk. For instance, in many states, it is illegal to record workplace conversations without the consent of both parties, says employment attorney Kristin Case. Failing to obtain consent can weaken your case in a privacy suit and can even subject you to liability and penalties for wiretapping and eavesdropping.
Before recording employees in the workplace, you should protect yourself by obtaining employee consent, recommends the law offices of Paul A. Samakow. The governing principles here are notice and warning. You can notify and warn employees that they are under surveillance by publishing a written policy and advising employees that they are being monitored. Employees who have been notified and warned are less likely to file a suit against employers, and employers who have given notice and warning are more likely to win against invasion of privacy claims.
Even after obtaining consent from employees to monitor them, there are ethical and legal restrictions on how you can use the resulting surveillance footage. In general, it is acceptable to use surveillance footage to prevent or witness crimes. For instance, many employers today use Ultra HD 4K IP surveillance camera systems to record crime scene details which can be used to identify shoplifters or employees who steal. This is a legitimate use of surveillance footage. Video footage may also be used to monitor employee performance and to weigh disciplinary measures.
On the other hand, just because an employee gives you consent to monitor them for security or performance purposes doesn’t give you a right to violate their privacy in situations such as using the bathroom and changing clothes. It also doesn’t authorize you to sell their image and likeness for commercial purposes. For instance, featuring an employee in an ad without their consent may open the door to a lawsuit. If you wish to use employee surveillance footage in an ad, it is best to build this into their contract ahead of time or obtain specific consent.
Workplace security monitoring should always be conducted in accordance with state law, for legitimate business purposes and in consideration of workers’ reasonable expectation of privacy. Obtaining consent from employees to monitor them can help guard you against potential legal problems. Uses of surveillance footage should be restricted to legitimate purposes such as preventing and witnessing crime, and evaluating worker performance, and should exclude invasions of privacy in bathrooms or changing rooms and unauthorized commercial use of an employee’s image and likeness. To ensure your monitoring practices are in accordance with the law, the best practice is to consult an employment law attorney.
I have participated in several #NextChat sessions for #SHRM18. One of the frequent topics of discussions is networking. People are provided with all kinds of advice. Some of this includes:
Bring business cards to help break the ice
Don’t bring business cards, that will make you look outdated
Talk to people at the lunch tables
Talk to people in while you are waiting in line
Talk to people sitting next to you in sessions
Force yourself to get out of your comfort zone
Make an effort to meet new people
and many other suggestions. These are all good suggestions, but in the reality of your network, they are of limited use according to author David Burkus, author of the book, Friend of a Friend.
According to Burkus most of us hate going to networking events, or to events where it is expected that you should network. He says there is limited value in just getting to know new people. Don’t get me wrong there is value in getting to know new people, as long as you stay in touch with them. So make sure you bring business cards and exchange them, but then make contact with these people after you have returned home from the conference. Try to keep in periodic touch with them, even if it just once a year. This is where they start to become more valuable to you.
Many of us think that our close friends, family, and close co-workers are out best network when we need something, especially a new opportunity. Burkus says that is a mistaken notion. The network that is of most value to us is that group of people on the fringe of our network. Former co-workers, people we know from committee work, or volunteer work, or those people we have met at conferences that we have stayed in touch with after the conference.
The fringe of your network is where you will find people who are aware of opportunities that your close contacts are not. Burkus gives numerous examples of companies that were started as the result of former co-workers joining back up after a breakup of the company where they had first met. I have taught certification classes for about 18 years and I always tell students to get to know each other and to stay in touch. The reason? I tell them that is likely to be where their next job will come from. And that has proven true many times.
So for you introverts who are fearful of the numbers of people you have to meet at #SHRM18, relax. Don’t worry about meeting thousands of people. Just make sure you meet some and then keep in touch with them.
Futurists think in terms of “multiple futures” rather than one. Not only does this increase the chances that one will have a plan for the actual future, but it also “intellectually conditions” one to adapt to change.
Futurists also see value in challenging basic assumptions.
That made me think of this post I wrote earlier in the year about habits that you can learn to help you apply “futurist” thinking. Some of this we are starting to see in the DisruptHR meetings that are occurring around the world. So read this and apply some of these principles to your way of thinking.
Yesterday I wrote about the work habits of a genius. Today I want to expose you to the work habits of a futurist. Why you ask? I want you to think like a futurist, at least to be aware of things that will have an impact on you, your job, and your company. The futurist I refer to is Richard Watson. He was profiled in an article in Quartz by writer Ephrat Livini. He is an interesting person, but I don’t necessarily agree with all of his habits. I will, however, tell you about the ones from which I think you can learn.
Practice selective ignorance
In today’s world, it is very easy to get overwhelmed by the massive amount of available in today’s world. Afterall, 2.5 exabytes are produced every day. That is the equivalent of 250,000 Libraries of Congress, every day! You would not be able to get through one Library of Congress in a single lifetime. Pick quality over quantity and try to move from breadth and depth in areas that are important to you.
Burst the bubble
Just like we perform random acts of kindness to improve the world we should practice random acts of interest. Pick up a magazine or book or strike up a conversation with a stranger. As Livini says “These random acts of interest in strangers and unusual communications break your information consumption routines and expose you to unique insights.”
Find the tall poppies
Back in 2010, I wrote Performance & Recognition: Does Your Unspoken Culture Weed Out the Flowers? where I described the phenomenon of people trying not to stand out in society because they get taken down by other members. Watson, however, wants you to look for these “tall poppies” because these people provide us with “a network of curious and remarkable people who are hungry for interesting information and can guide our thinking.”
Carve out designated reading time
Bill Gates reads all the time but he also takes an annual “think week” each year. This reading fuels innovative thinking throughout the year. You can do something similar.
“Learn how to look and listen deeply. Stop talking. Start listening. Be curious all the time.” This is not a far cry from what Walter Isaacson said that Leonardo da Vinci did. Silence allows you to be an observer, and observation can reveal many things to you if you allow yourself time to see and listen.
Watson suggestsiInstead of focusing on what everyone is already talking about, hunt down unusual knowledge. This is the arena that may produce innovative ideas and relevant foresight.
Grey hair does not mean that someone wants to retire.
In the scheme of things in the working world, I am an old man. As I approach my 67th birthday (July 7th for those of wishing to send gifts) I am continually frustrated by reading stories and listening to friends talk about incidents of age discrimination. I just recently had a friend feel compelled to remove the first decade of her working life from her resume because it dated her. We workers, over the age of forty, are protected from discrimination by the Age Discrimination in Employment Act (ADEA), but even with that law, the judiciary is undecided about the scope of age discrimination.
Upper limits on experience
Everyone knows or should know, there are words that need to be avoided in job ads. A current trend in job ads or postings is to put an upper limit on the amount of experience that will be acceptable. That has actually been around for several years but seems to be gaining in popularity. A recent ruling by the Seventh Circuit Court of Appeals interprets these ads as having a disparate impact on workers over the age of 40. When a job posting or ad says “No more than 8 years of experience” it is basically saying “OLDER WORKERS STAY AWAY.” According to Amy Kett and Paul Skelly of Hogan Lovells, the Eleventh Circuit Court sais “that age-neutral recruiting practices that merely disparately impact older applicants do not violate the ADEA.” So two different courts have differing opinions.
There are many reasons given for putting in upper limits in job ads. The most common is that people with that level of experience cost more. There is some truth to that, but that is not the entire story. There is an expectation that an older worker will have higher salary requirements, but that is not always the case. In today’s world of second, third and fourth careers, many workers are re-inventing themselves. They are venturing out into new areas and subsequently have much more reasonable salary expectations. In other situations perhaps that worker is financially capable of taking a lower salary in order to do something they find interesting.
However, I often think that the wage cost reason is just a guise to avoid having older workers. Many younger managers have problems in managing older workers, be they reasons of authority, respect, feeling like they are being judged by someone their parent’s age, or just a “fit in the younger culture” reason.
Reasonable Factors Other than Age
In 2012 the EEOC issued a ruling on Reasonable Factors Other than Age, or RFOA. The EEOC said “…the ADEA prohibits practices that, although facially neutral with regard to age, have the effect of harming older workers more than younger workers (known as “disparate impact”), unless the employer can show that the practice is based on an RFOA.” The EEOC does provide a list of factors that should be considered in assessing “reasonableness”. These are:
The extent to which the factor is related to the employer’s stated business purpose;
The extent to which the employer defined the factor accurately and applied the factor fairly and accurately, including the extent to which managers and supervisors were given guidance or training about how to apply the factor and avoid discrimination;
The extent to which the employer limited supervisors’ discretion to assess employees subjectively, particularly where the criteria that the supervisors were asked to evaluate are known to be subject to negative age-based stereotypes;
The extent to which the employer assessed the adverse impact of its employment practice on older workers; and
The degree of the harm to individuals within the protected age group, in terms of both the extent of the injury and the numbers of persons adversely affected, and the extent to which the employer took steps to reduce the harm, in light of the burden of undertaking such steps.
Many employers have a tendency to want to hire younger workers because of the misguided notion the younger worker will stay longer. In reality, a younger worker starting out on their career will often consider moving to another job in order to improve their situation. An older worker will have a tendency to stay longer. A sixty-year-old may stay 10 years, whereas a younger worker may only stay three years.
Sometimes an employer will make the assumption that the older worker is just looking for a place to retire. Indeed, that may be true for some, but for many, it is not. They are looking for a place that will provide them with a challenge. Retirement at age sixty-five no longer exists. The age at which an older worker can get full Social Security benefits is now beyond age 65 and increasing every year. Older workers are healthier than in the past. Plus, retirement can be boring.
Don’t reject someone on the basis of their age
Rejecting someone on the basis of their age being older than forty is not only illegal, it is short-sighted. You may be rejecting someone who can bring insight and work ethic to your job that you might not be able to find with younger candidates. You may be surprised with the skill set an older worker brings to the job. Make sure you are making good business decisions and not biased ones.
FLSA violations can result in prison sentences and not just fines.
In a press release from early May, the USDOL announced that a conclusion had been reached in a case reaching back to 2009. According to the release:
The U.S. District Court for the District of New Hampshire has sentenced Kevin Corriveau, owner, and operator of Kevin Corriveau Painting Inc. of Nashua, to six months imprisonment; two years of supervised release, post-imprisonment; and a $25,000 criminal fine for one count of obstruction of justice….Corriveau pled guilty on Dec. 15, 2017, to obstructing two U.S. Department of Labor Wage and Hour Division (WHD) investigations and a subsequent civil lawsuit filed by the Department of Labor’s Office of the Solicitor for alleged violations of the Fair Labor Standards Act (FLSA). In his plea, Corriveau admitted that he caused an employee of his company to provide false information to WHD investigators in 2009 and 2011 and knowingly created and provided fraudulent information to the Department of Labor attorneys in 2013 in connection with the civil suit.
In a related case, Sharon Mercuri, the company treasurer, and office manager pled guilty and was fined $10,000 on Dec. 21, 2017, for two counts of criminally violating the FLSA, including willfully failing to pay proper overtime and knowingly making a materially false statement in connection with the WHD’s investigation.
The company had been investigated for not paying wages properly. They had not paid wages due of $200,000. In covering this action up, and in lying to the USDOL attorneys, the owner ended up paying a much heavier price. The owner discovered that improper FLSA actions may result in more than just a fine and back pay.
In previous action taken by the DOL, the department had resolved the original civil action by obtaining a consent judgment that orders Corriveau, and fellow defendants Brian Corriveau and Sharon Mercuri, to pay $427,300 — $213,650 and an equal amount in liquidated damages — to 157 employees who were denied payment of overtime and/or minimum wage. One worker who was retaliated against received $10,000 in compensatory and punitive damages. The order also prohibited the defendants, from violating the FLSA’s anti-retaliation provisions and prevented them from threatening to report any employee to immigration authorities to inhibit employees’ rights under the FLSA.
Better to fess up and pay up
In this particular case the defendants learned that when caught making mistakes or in wrong-doing, it is better to face the music and make things right. In trying to hide and cover up their actions, this management team paid personally both financially and with jail time. Don’t make the same mistake.
The arena of human resources is not a static one. Rather, one of the main challenges for people in the profession is the fact that rules, regulations, and practices are changing all the time. In that vein, I have several things in the news of which you need to be aware.
Exempt salary level
Back in 2016 the salary level to be considered to be an exempt employee was supposed to change to $47,476 per year. That was going to be the minimum salary level for anyone to be considered an exempt employee. As we all know that got stopped in the court system and remains stopped today. The USDOL had originally thought they would publish a new salary level in September 2018. They just announced they would issue a Notice of Proposed Rulemaking in January of 2019. There was speculation this would delay actual implementation of a new salary level until 2020. That is only a year and a half away, so you could be working on what you will have to do. I would suggest that you consider a salary level of $35,000 and make your plans accordingly.
Legislation introduced to get rid of “right-to-work”
Former presidential candidate Bernie Sanders, who was and is back heavily by unions, has introduced legislation aimed at making it easier for workers to unionize. Buried in this bill, however, is a proposal to amend the NLRA to eliminate the ability for a state to enact “right-to-work” legislation, which allows workers to choose to not belong to a union, even when a union represents other workers in the company. Twenty-eight states have this written into their constitutions, but Sanders wants that stripped from the NLRA. Sanders, who gets 70% of his support from unions, obviously is paying the piper with this proposed legislation. In my opinion, this bill has little chance of success, just on the state’s right issue alone.
Keep alert for these items and others. The USDOL is also looking at changing the definition of the “regular rate” of pay we all have to use. They are also looking at changing some child labor definitions that could free up some apprenticeship opportunities for 16 and 17-year-olds.
I am amazed sometimes at the things employers will do to avoid paying overtime. If this is done unintentionally, it is a sign of ignorance and lack of proper understanding of the requirements of the Fair Labor Standards Act. If this is done intentionally this falls into the category of wage theft. Below is a list of the ways that overtime is missed.
Acts of omission
Acts of omission are those that are done with no intention to cheat employees. They include:
Paying employees a salary and thinking that nullifies the requirement to pay them overtime. There are two classifications of employees. Exempt employees must be paid on a salary basis. That, however, is not sufficient to avoid paying overtime. To truly be exempt the worker must meet the exemptions stated in the FLSA. Salary, however, does not equal There is any number of workers who, by the definition of their job, are nonexempt and thus must be paid overtime.
Having an automated time system that automatically deducts for a lunch period. For a lunch to not be compensable it must be more than 30 minutes and the employee must be fully relieved of all duties. Many managers assume their employees are taking their lunch, so most time systems automatically adjust timesheets to deduct for the assumed lunch period. Without checking to verify that indeed the employee was fully relieved on their lunch period, time that could qualify for overtime may not be paid.
Paying employees in comp time for any overtime worked. This type of arrangement is prohibited in the private sector. Governments can compensate employees with time, but private sector employers cannot.
Having employees working for separate, but jointly owned, companies. If an employee works thirty hours for one company, then works another thirty hours for a second, but jointly owned company, the employee is likely owned 20 hours of overtime.
This list is in no way exhaustive, but these are four of the more common “mistakes” that are made. If you are making these mistakes you need to correct them and pay the required overtime to the employees. If you do not then you are committing an intentional act of “wage theft.”
Acts of commission
All of the unintentional acts listed above can become acts that are intentional if they are knowingly engaged in by an employer. There are other acts that will almost always be considered intentional. These include:
Requiring workers to work off the This is not too much different than sticking a gun in their ribs and asking for their wallets.
Only paying straight time for any hours worked over 40 in a week.
Continually changing the definition of the work week in an attempt to avoid paying overtime. Employers do have the right to set the workweek and it does not even have to be the same for every employee. But once you set it and people are working that schedule you must be very careful in changing it. There must be good business reasons (other than avoiding overtime payments) for making schedule changes.
Not paying employees who worked overtime without your permission. The law requires for you to pay for any time If you don’t want the employee to work that overtime again you must handle that as a disciplinary process.
Like the list above, this is not a comprehensive list. Employers have gotten very creative in ways to avoid paying overtime. That may save them money in the short-term but eventually, they will be caught. Settlements in the hundreds of thousands of dollars will more than make-up for any savings gained through cheating.
Be an ethical business. Pay what you owe, when you owe it. Don’t cheat employees.
Collaboration is a skill that will preserve human jobs.
Reading an article on megatrends in the job market I came across a statement that said “But I’m convinced that the future belongs to women. Why? Because they tend to possess the human characteristics that will give them the advantage in the new jobs of the Fourth Industrial Revolution. Like the capacity for collaboration (instead of competition), empathy, creativity, listening and learning.” That made me think. Is this author implying that this is a skill that only women have? Or are we just not training boys and men to be collaborative?
A learned skill
The author’s implication was that men are inherently competitive and thus not good at collaboration. The author must have never played any teams sports, where collaboration is of vital importance. And if competition takes away from collaboration, are we not reducing girls ability to be collaborative in the future by stressing the nature of competition for them in team sports?
I think that collaboration is an inherent trait after all humans have existed by forming groups that worked together from the get-go, modeling our primate ancestors. But collaboration is also a learned skill that gets better with training.
More and more we stress the importance of collaboration in the workplace. The advantages are many. One article said, “When members of a team collaborate, they are able to utilize the knowledge, experience and skills of everyone involved.” It develops skills and speeds up solutions as well. Yet there appears to be no emphasis on this in the educational arena. A friend, who is a college professor says, in his experience, “There is no prime directive from a college to say we have to emphasize collaboration in the classroom, and it is really up to faculty to determine how much group work is necessary or sufficient in their classroom.” He further says that “collaboration varies from professor to professor and major to major.”
When I hear the word collaboration I think of the German word “Gestalt”, which loosely translated means the whole is greater than the sum of the parts. What we get out of collaboration is more than just the individual efforts of the collaborators. It is the creation of new ideas, it is the support that everyone receives, it is the additional learning that occurs in that collaborative process.
If collaborative effort has all these benefits and the jobs of the future are going to be dependent on this ability we need to spend more time in education teaching collaboration. We need to make boys as collaborative as girls. We need to make sure men are as collaborative as women. The future of work and jobs is about the competition against automated work as opposed to being competitive with each other. Each of our workplaces needs to emphasize collaboration and if workers arrive without training in collaboration that is some of the first training they need to have. The future of the worker, the work, and the company may depend on it.
Alcohol and drug use in the workplace isn’t something to take lightly. Serious harm can occur to your property and staff if an affected employee causes an argument or accident.
Promises, a treatment center for drug and alcohol addiction, states that over 70% of all substance abusers in the United States have at least one job.
Private studies have shown that over the course of a year, one out of four American workers between ages 18 and 34 will use illegal drugs at some point. It is an important problem that safety managers need to acknowledge and address.
How can you tell when or if someone is intoxicated?
Beaumont Occupational Services, a drug and alcohol testing company in Texas, has put together a list of 13 signs that they’ve witnessed firsthand when conducting post-accident, reasonable cause, or random drug and alcohol testing:
Passing out on the job
The smell of alcohol on the person’s clothing and/or breath
Excessive absenteeism or tardiness for seemingly no reason
A decline in personal appearance and hygiene
An overall decrease in moral
The employee becomes standoffish and combative towards customers, co-workers, and clients
The employee seems anxious or jittery
Physical symptoms like teeth grinding, blood-shot or glassy eyes, and profuse sweating
Change in mood, attitude, and demeanor; may include irritability
Decrease in alertness; the employee may have sluggish movement or speech and doze off frequently
Other employees complain about said person’s behavior
Causing accidents that may result in injury
Do not risk your property or workers. If you think drug and alcohol abuse may be occurring at your job site, it is critical that you take action before it’s too late.
About the author: Faith Munsell | Digital Marketing Specialist | Bizzuka, Inc.
Health insurance premiums may be on the rise in 2019.
I seldom write about the Affordable Care Act and the subject of insurance. It is just not my thing. But I read an article in Modern Healthcare, written by healthcare reporter Shelby Livingston, that indicated that the year 2019 may be very expensive.
Double-digit premium increases
Insurance companies are starting to put in requests for rate hikes with state governments. Livingston reports that Maryland and Virginia have already announced the requested rates from the insurance companies for the ACA marketplace. Livingston says:
In Maryland, the two insurers selling individual insurance plans on the ACA marketplace are asking for an average rate increase of about 30% for 2019 coverage. That would amount to an average monthly premium of about $592 per member, compared with $449 per month in 2018.
In Virginia, the rate picture is more varied with Livingston reporting:
Virginia insurers asked for a wide range of rate increases. CareFirst is seeking a 26.6% rate hike for its HMO plans in the state, and 64.3% for its PPO plans for the same reasons as its Maryland rate increase requests….Cigna Corp. filed for a 15% increase; Kaiser asked for a 32.1% increase for its individual plans; and Piedmont Community HealthCare requested an 18.3% rate increase.
Not all insurers in Virginia are increasing substantially. According to Livingston “Anthem’s HealthKeepers subsidiary asked to increase 2019 rates for its on- and off-exchange plans by 5.6% on average, while Optima is seeking to lower rates by an average 1.9%.”
Why the increases?
A number of factors have lead to these requests. First, the pool of people using the insurance has fallen in size and have become sicklier. Healthier people have opted to not take coverage, rolling the dice on becoming ill as opposed to paying expensive premiums. Second, there is still a lot of uncertainty about where the ACA is headed, and uncertainty means higher prices, in almost everything. Livingston said:
Though repeal efforts fell flat, questions remain about how many people will enroll in individual coverage in 2019 and how sick and costly that population will be. The elimination of the individual mandate penalty and the extension of short-term medical plans to a maximum of 364 days will likely be the biggest drivers of 2019 rates.
Ms. Livingston concludes her article by saying “The Congressional Budget Office projected that premiums for the most popular silver plans on the ACA exchanges would jump an average 34% next year.” So everyone who is covered by the ACA should expect some sort of increase in their premiums next year. Many of my consultant friends and gig economy workers may be hit hard.
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