We Race Together or We Race Apart


In the last week I’ve read several articles discussing race relations in the United States.

First, the Starbucks “Race Together” campaign has been in the news quite a bit. Howard Schultz, CEO of Starbucks, explained in a statement on the company website:

[‘Race Together’] is an opportunity to re-examine how we can create a more empathetic and inclusive society — one conversation at a time.

Despite this idealistic intent, both liberals and conservatives have dumped scorn on the Race Together campaign. Liberals mock it as capitalizing on the oppressive experiences of minorities to sell coffee. Conservatives mock it as not the province of a retail organization, which should focus only on satisfying customers.

So which is it—an attempt to increase profits or a failure at customer service? I doubt it can be both.

I tend to give Starbucks the benefit of the doubt. I think that the CEO’s heart was in the right place in launching this initiative. If we don’t talk about race, how will we improve race relations? And we might each ask ourselves, as apparently Starbucks employees did, “if I don’t start the conversation, who will?”

As Mellody Hobson, a Starbucks board member and an African-American, said,

Race today is still one of the most controversial and uncomfortable issues to discuss in America. . . . Let’s face it, racial discrimination is a long-standing problem that has plagued our country for centuries. But we all know the first step in solving a problem is to stop hiding from it.

After admitting that talking about race can be uncomfortable, Ms. Hobson continued:

It is time for all of us to get comfortable with an uncomfortable conversation about race—black, white, Hispanic, Asian, male, female—all of us.  If we truly believe in equal rights and equal opportunity, we can’t afford to be colorblind.  We have to be color brave.  We need to confront issues of race and diversity with courage, honesty, and understanding.

So how do we become “color brave”? Not by ignoring the problem, and not by ridiculing those who approach it differently than we might.

A second race relations article I read recently was a review in the Wall Street Journal of Shelby Steele’s new book, Shame. See “Shelby Steele’s Thankless Task,” by Joseph Epstein, March 20, 2015.

Mr. Steele is the son of a white mother and black father and grew up in a black neighborhood near the South Side of Chicago. Mr. Epstein writes of Mr. Steele:

He has described his biracial birth as “an absolute gift, the greatest source of insight and understanding. . . . [because] race was demystified for me. I could never see white people as just some unified group who hated blacks.” Although he doesn’t say so, being biracial has also allowed him insight into the hypocrisy of both blacks and whites on the subject of race.

I have heard biracial friends and blacks in interracial marriages make similar statements, as if it takes the closeness of family to overcome the racial prejudices society imprints on us.

Mr. Epstein summarizes Mr. Steele’s philosophy:

What distinguishes him is his openly stated belief that blacks in America have been sold out by the very liberals who ardently claim to wish them most good. He regrets that affirmative action, multiculturalism and most welfare programs purportedly put in place to show racial preference, far from liberating black Americans, have failed to advance their fortunes.

As I read this, what came to my mind was how, despite their similar birth circumstances, Mr. Steele came to a very different philosophy than another man born to a white mother and black father, Barack Obama.

Which brings me to a third race issue I read about this week—white privilege. See “Why White People Freak Out When They’re Called Out About Race,” by Sam Adler-Bell, on Alternet.org, in which he interviews Robin DiAngelo, professor of multicutural education at Westfield State University.

Professor DiAngelo has taught about white privilege and other race issues for years. She described “white privilege” and the perspective it brings to Mr. Adler-Bell as follows:

from the time I opened my eyes, I have been told that as a white person, I am superior to people of color. There’s never been a space in which I have not been receiving that message. . . . We are born into a racial hierarchy, and every interaction with media and culture confirms it—our sense that, at a fundamental level, we are superior.

And, the thing is, it feels good. Even though it contradicts our most basic principles and values. So we know it, but we can never admit it.

And that inability to admit the existence of white privilege sets up

. . . this kind of internal stew . . . . We have set the world up to preserve that internal sense of superiority and also resist challenges to it. All while denying that anything is going on and insisting that race is meaningless to us.

As a result, whites have difficulty talking about race. Professor DiAngelo uses the term “white fragility” to describe

a state in which even a minimum amount of racial stress becomes intolerable, triggering a range of defensive moves. These moves include outward display of emotions such as anger, fear and guilt, and behaviors such as argumentation, silence and leaving the stress-inducing situation.

There is a moral dissonance, because we know we are not superior to people of color, yet receive society’s constant messages that we are. She told Mr. Adler-Bell:

For white people, their identities rest on the idea of racism as about good or bad people, about moral or immoral singular acts, and if we’re good, moral people we can’t be racist – we don’t engage in those acts. . . .

In large part, white fragility—the defensiveness, the fear of conflict—is rooted in this good/bad binary. If you call someone out, they think to themselves, “What you just said was that I am a bad person, and that is intolerable to me.” It’s a deep challenge to the core of our identity as good, moral people.

So how do we learn to talk about race in ways that do not make anyone seem good or bad, accusatory or defensive, victim or persecutor?

Hands touching a globeOne conversation at a time. Between people who are willing one more time to put aside their defensiveness. Between people who are willing to listen with hearts and minds, who will look at the other as an individual and not as a representative of a race.

None of us is qualified to represent an entire race’s point of view. There is no reason I should expect Barack Obama and Shelby Steele to have the same outlook on life, just because of their parentage.

We can each only represent our own point of view. But because we each only have a single point of view, we have an obligation to listen to others on the subject—others like ourselves and others different than ourselves. We have an obligation to seek out opposing points of view.

The Starbucks “Race Together” program and Professor DiAngelo’s white privilege lectures are two brave ways to tackle the issue of race relations in this country. Both are difficult to do well, because most of us are not skilled in talking about race. Perhaps for that reason, these are necessary. Perhaps for that reason, we should not mock them.

What experiences have you had that taught you the most about diversity?

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Favorite Firing: Termination for Admitting Violation of Employer Policy Is Retaliation Under FLSA


policeman-146561_640I’ve mentioned before that retaliatory discharge claims under Title VII are hard to defend, but retaliation claims are equally problematic under other employment statutes. In Avila v. Los Angeles Police Dep’t, (9th Cir. 2014), a police officer alleged he was fired for testifying in a co-worker’s lawsuit claiming non-payment of overtime wages in violation of the Fair Labor Standards Act.

The Facts: Leonard Avila was a police officer for the Los Angeles Police Department. He testified in another officer’s lawsuit alleging unpaid overtime wages and admitted he had frequently worked through his lunch break without reporting the extra hours, in violation of the LAPD’s policy.

Shortly thereafter, Officer Avila was discharged for insubordination. The insubordination? His failure to claim overtime wages in violation of department policy.

The LAPD Board of Rights that recommended Officer Avila’s termination found:

“Prior to 2008, you [Officer Avila], while on duty, were insubordinate to the department when you failed to submit requests for compensation for overtime that you had worked, as directed through department publications.”

The Ninth Circuit opinion states the facts as follows:

“Leonard Avila, a police officer, periodically worked through his lunch break but did not claim overtime. According to his commanding officer, Avila was a model officer. The Los Angeles Police Department (LAPD), however, deemed Avila insubordinate for not claiming overtime and fired him.

“Not coincidentally, that termination occurred only after Avila had testified in a Fair Labor Standards Act (FLSA) lawsuit brought by fellow officer, Edward Maciel, who sought overtime pay for working through his lunch hours. Avila then brought this action, claiming that he was fired in retaliation for testifying, in violation of the FLSA antiretaliation provision, 29 U.S.C. § 215(a)(3). The evidence at trial was that the only officers disciplined for not claiming overtime were those who testified against the LAPD in the Maciel suit, notwithstanding uncontested evidence that the practice was widespread in the LAPD.”

The Moral: As the dissenting opinion in Avila stated, “retaliation claims based on federal statutes are increasingly a major part of employment litigation in federal courts.” That is probably the single biggest moral to be taken from this case.

The dissent focused on the fact that Officer Avila and the other officers discharged after their testimony admitted violating department policy in that testimony:

“the only officers singled out for discipline were those who testified at the Maciel action and who admitted under oath that for years they knowingly and repeatedly violated policies that they were specifically told would subject them to termination.” [emphasis in original]

The dissent argued that employees should not be immunized from the consequences of their admissions, but the majority upheld the jury verdict in favor of Officer Avila. The case focused primarily on jury instructions, and, finding no error in the instructions, the majority affirmed.

So another moral from this case is that employers cannot necessarily rely on admissions of wrongdoing by employees, if those admissions are made during lawsuits against their employer. Employers must be careful when seeking to discharge any employee who has raised any type of employment claim or participated in any way in another employee’s claim. As I’ve said before, the retaliation claims are often more difficult to defend than the underlying complaint, whether it be for illegal employment discrimination, unpaid wages, worker’s compensation, or any other employment action.

The Atkinson, Andelson, Loya, Ruud & Romo law firm, which represents employers, wrote on its blog:

“This decision is important as the Court of Appeals’ analysis suggests that an employer is restricted from exclusively using information obtained from an employee’s protected activity for purposes of initiating an adverse action.  Instead, the Court of Appeals focused on the fact that the City did not have other independent evidence of alleged wrongdoing beyond Avila’s protected activity when terminating his employment to avoid liability under the FLSA’s anti-retaliation provision. Ultimately, the Court of Appeals left open the question as to whether an employer is strictly forbidden from using any information of employee wrongdoing that is obtained during testimony in another lawsuit.”

And as Branigan Robertson, a plaintiff’s attorney, said on his blog:

“Avila v. Los Angeles Police Department is a win for employees as it shows employers that they need to be extremely careful when firing someone for complaining or being part of a legal proceeding against them.”

In my opinion, the LAPD would have been wiser to have documented a warning to Officer Avila and the others who admitted violating department policy and told them that any future violations would be grounds for termination.

Perhaps that shouldn’t be the case, but this was an expensive lesson for the department. Officer Avila received $50,000 in liquidated damages, and his attorneys were awarded $579,400 in attorney’s fees.

What do you think—should LAPD have lost this case?

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Obamacare at the Supreme Court Again: Is a State a State?


Supreme Court building, from Wikipedia

Supreme Court building, from Wikipedia

Last week the Supreme Court heard oral arguments in King v. Burwell, on the issue of whether the Affordable Care Act authorizes the IRS to grant subsidies to people buying health insurance through the federal exchange, Healthcare.gov, or only to people buying health insurance through state-run exchanges. The debate focuses on Section 1401 of the Act, and in particular on the phrase that provides that subsidies are available to people who buy their insurance “through an Exchange established by the State.”

Does the quoted phrase mean only exchanges established by the state, or does it also mean exchanges established by the federal government? The plaintiffs argue for a plain meaning of the words—a state is a state. The government argues that Congress couldn’t possibly have intended to only help people who used state-run exchanges, particularly because it turned out that most states did not create their own health insurance exchanges. The government says the phrase is ambiguous and the IRS interpretation is reasonable.

However, one of the Senate bills leading up to passage of the ACA did condition exchange subsidies on state cooperation, and some House Democrats complained. Still, the plain meaning of the final language of the ACA appears to limit the subsidies to state-run exchanges.

Moreover, an early draft of the IRS regulations interpreting the subsidy provision originally restricted the subsidies to state-run exchanges. Only when the issue began to be publicized in 2011 did the IRS change their interpretation of this section.

It is likely that no Democrat would have passed a bill that kept citizens of more than half the states from getting subsidies on the federal exchange. It is likely that they never anticipated that more than half the states would decline to establish an exchange.

This is another example of why complex statutes almost always need technical corrections. The problem is that the Democrats don’t have the votes to pass the corrections they need.

Because of the way that the ACA was passed—with only Democrat votes in support, and all Republicans in Congress opposed—the law has no bipartisan underpinning to foster compromise. The Democrats are now reaping the effect of their actions in cramming the legislation down an unready nation’s throat.

So what will the Supreme Court decide in King v. Burwell?

Based on the oral arguments, it seems probable that four justices—Justices Breyer, Ginsburg, Kagan and Sotomayor—will vote to uphold the IRS interpretation and provide subsidies to people who used the federal exchange. It seems likely that three justices—Justices Alito, Scalia and Thomas—will vote to overturn the IRS interpretation.

As is often the case, Justice Kennedy is harder to read, but asked questions indicating he was uncomfortable with the practical result of overturning the IRS regulations. On the other hand, Justice Kennedy voted to overturn the individual mandate the last time Obamacare reached the Supreme Court, in National Federation of Independent Business v. Sebelius, decided in 2012.

Chief Justice Roberts said very little during the King v. Burwell oral argument on March 4.

My prediction is that we will either have a 6-3 vote to uphold the IRS interpretation, or we will have a 5-4 decision against the government. I think the Chief Justice will want to be in the majority on this case, so he can at least assign the opinion, and quite likely keep it for himself. That way, he can shape the future of the Affordable Care Act, as he did in National Federation of Independent Business v. Sebelius.

In that case, Chief Justice Roberts turned the individual mandate that the Democrat proponents of the ACA had very carefully not called a tax during their negotiations over the law into a tax, in order to uphold the mandate under the Constitution.

If the IRS regulation is upheld because the statutory language is ambiguous—which is the best the government can hope for—then the next Administration could rewrite the regulation.

It seems Nancy Pelosi was wrong. It takes more than passing the law to know what’s in it. It takes several years of legal battles that go up to the Supreme Court, so the nine justices can decide what the thousand-page law means. It would be better if both Republicans and Democrats compromised, and we developed a workable healthcare system. The system we had before Obamacare was not working, and the ACA system is not working.

Sausage and statutes. As Otto von Bismarck said, it is better not to watch them be made. Some of us, however, revel in the goriness.

What’s your prediction on the decision in King v. Burwell?

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Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

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Making the Tough Calls: It’s What Leaders Do


toughdecisionsWe had a big project underway in our Human Resources Department—combining the company’s vacation and sick pay policies into a paid leave bank. The HR group had recommended this change for several years, but it had taken time to get the company’s leadership on board. This time, it looked like it was a go. We would make the change at the beginning of the next calendar year. It was October, and we were ready to communicate to managers, and then to the employee population at large.

We held one last meeting with the IT folks to confirm that our time reporting systems could handle the transition. They’d been confident in prior conversations. But this time—with the HR manager spearheading the project (one of my direct reports), my boss the Vice-President of HR, and me all present—the IT guys said, “It will take us two man-years and $150,000. Can’t be done in less than six months.”

I knew immediately that however much I wanted to support my project manager who had worked hard to bring the paid leave bank to fruition, the project was dead in the water. We couldn’t proceed without the systems in place to track employees’ time. It was a decision I didn’t want to make, but the only reasonable choice for the company at that time.

My boss and I looked at each other. I couldn’t look at the project manager, who was facing a year’s work going down the toilet. “We have to pull the plug,” I said. “We can’t do it this year.”

Whose fault was it? IT’s for not being honest in earlier meetings? My project manager’s for not pushing IT harder? It didn’t matter, the decision was clear. Ranting about who was at fault was not going to help, though the project manager and I had a couple of private conversations later about the problem.

A recent article on Inc.com, How to Control the Damage When Making Unpopular Choices, by Alix Stuart, for the March 2015 issue of Inc. magazine, reminded me of this situation.

Image from Forbes

Image from Forbes

There are times in every leader’s career when he or she must make hard choices. Do you push for what you want, or settle for what you can have? Do you take a risk or play it safe? Do you pursue Product X or Product Y?

Many times the choices are not as clear as the choice I faced over the paid leave bank. The Inc.com article makes good points about trying to communicate well in the time leading up to the decision. But ultimately, leaders have to make the call and deal with the consequences.

Dealing with the consequences requires listening to the people hurt by the decision, mitigating the harm where you can, and standing firm when you believe your decision was right. I spent many hours listening to my project manager after the decision, helping him plan our next foray into paid leave banks (which was successful). But I never thought we had any good alternative to the decision I made.

When have you had to make a tough decision and face the consequences?

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A Kosher Deli, A Modern Bakery, and Religious Accommodation


side-images-deli-platterMany years ago I was planning a party at my home for a large crowd. I planned to serve sandwiches, so I called a local deli that had been recommended to me. I discussed the kinds of meat the deli offered, and ordered several pounds of pastrami and corned beef and turkey.

“What about ham?” I asked.

“No ham. We’re kosher,” the proprietor responded.

I hadn’t realized the deli was kosher, but I could do without ham, and I added another pound of pastrami to my order. “And I’d like a cheese platter also,” I said.

“We don’t serve cheese with meat.” Now the proprietor’s tone was curt.

OK Kosher CertifiedI was embarrassed. I knew that keeping kosher meant keeping meat and milk products separate—”thou shalt not boil a kid in its mother’s milk” being one of the dietary commandments in Exodus and Deuteronomy. But I had forgotten. I knew the deli offered both meats and cheeses for sale, but apparently they did not sell them together.

I was a member of the public placing an order with this deli. But it never once occurred to me to insist that I be sold both meat and cheese in violation of the proprietor’s religious beliefs. In fact, I felt I had been insensitive to his desire to operate his business in accordance with his religion. It was my faux pas, not his, I thought, though I did think he could have been a little more gentle in his response to me.

If I did not get indignant at my desire for cheese being refused, why do homosexual couples think that the owner of a bakery who believes gay marriage is not acceptable must sell them a wedding cake?

And why do people wanting birth control medications or devices think that a pharmacist must sell such goods when the pharmacist believes birth control is immoral?

Should I have insisted on getting my cheese at the same place as my meat? I don’t think so. Or canceled my meat order because I couldn’t get the cheese? That was my perogative, but it wasn’t worth bothering. There were plenty of other places to get my cheese.

I recognize that our nation’s history is full of examples of people being refused service because of their race, their gender, their national origin, their religion. I believe that in most of those situations, the business owners were wrong.

But let us also recognize that our nation was founded by people seeking the freedom to practice their religion as they saw fit. Religious freedom is one of our bedrock principles.

In most situations, we should permit business owners to set their own terms for what they will and will not offer for sale and when they will sell certain products. We should accommodate people’s attempts to make their livelihood in a manner that is consistent with their consciences. In a society as pluralistic as ours, there should be room to accommodate our differences.

Why can’t we just give each other some space to live and let live?

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Fair Labor Standards Act and the Expanding (or Contracting) Work Week


laptop-260x173I’ve written before about the need to update the Fair Labor Standards Act. A recent article on the Knowledge@Wharton website reminded me of this need again. See Management, If Not 40 Hours, Then What? Defining the Modern Work Week, Jan. 28, 2015.  As the article states, “With the advent of telecommuting, flexible hours, globalization and answering emails after hours and on vacation, the American worker has entered the era of the fuzzy work-home divide.”

The blurring of work and home lives began decades ago for many professionals. As an attorney in the early 1980s I could bill hours from home or on the road, though face time at the office was definitely important. But today, with smartphones in the hands of every worker, even many traditionally hourly occupations can be performed anywhere and anytime. Whether this is a positive or detrimental development depends on how it is managed—both by management and by employees themselves.

There are also differences in what workers want. Some want longer work weeks for more pay. Others want shorter work weeks for more time for other activities. Similarly, managers want more work for the same pay, but they also want productive workers who are engaged in their roles (which requires that the rest of their lives also be running smoothly).

1. Which Direction Are We Headed?

The eight-hour day was one accomplishment of the early 20th century labor movement, protecting workers from terribly long hours in dismal factory conditions. It was also intended to spread work out across more laborers during the Great Depression. The eight-hour day and forty-hour week were certainly not traditional in the agrarian society that predated the Industrial Revolution. There is nothing set in stone about the eight-hour day or forty-hour week, other than that it is mandated for non-exempt employees under the FLSA and similar laws in other nations.

The Wharton article focuses on a number of possible developments in defining the work week of the future, mostly focused on requiring fewer hours in the week. And yet, U.S. workers currently work an average of 46.7 hours per week, and 18% work more than 60 hours.

Will workers continue to increase their time spent working? Will managers permit more flexibility?

With today’s more flexible work and more flexible technology, the fixed eight-hour day may have outlived its usefulness. Yet in which direction will the work week of the future move—toward more hours or fewer? There are strong arguments for both. Whichever direction we take, managers will be challenged to comply with regulations that change much more slowly than the workplace does.

2. How Do We Manage?

imagesTraditional management: One option in managing work time is for companies to forbid any work by hourly employees except during certain hours. This makes compliance with the FLSA easier, but the trade-off is that company policies typically then do not permit employees to perform personal assignments during working hours. Otherwise, productivity suffers.

This option also penalizes employees who want to put in extra time or have flexibility in when and where they do their work. Unfortunately (or fortunately, perhaps, depending on your perspective), the FLSA is set up to regulate defined work times and to require payment for all time spent working.

Tracking Time: Another option for managing time is to require hourly employees to keep time sheets, where they log on and off the clock to handle personal matters. This is a difficult policy to enforce, and also runs the risk of violating the FLSA’s requirements that non-exempt employees must be paid for all breaks unless the break is long enough for them to leave the premises. So, employees could be permitted a half-hour of personal time in the middle of the day, but not a series of five-minute breaks to handle personal phone calls.

I predict that companies will develop diverging policies on this issue. Some will become more flexible, despite the management challenges. Others will hold to traditional schedules, at least until the FLSA changes significantly.

Congress should debate this issue and develop 21st Century laws for 21st Century workplaces.

What do you think? Should the FLSA permit more flexibility?

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