248-409-1900 dburke@mi-worklaw.com

What if Shirley Had Stayed At Crowley’s?

By:  Bill Pilchak 4/10/14

There should be a motive for people who have mastered the challenges of flipping a hamburger

to move on to a more responsible position so that they contribute more to our society.

I noted President Obama’s visit to Michigan last week in an effort to increase the minimum wage to a level one can ostensibly live on ($10.00+) and the nationwide strikes of fast-food restaurants (seeking $15.00 per hour) with Shirley Megge in mind.  In the late 1950’s, after her marriage evaporated, Shirley was single-handedly raising two sons under the age of three and had a job on the sales floor at Crowley’s department store.   The minimum wage was $1.00 per hour then.  It’s unclear whether she earned more than minimum wage, or whether she was ever a full-time employee of Crowleys.  For certain she qualified for government- subsidized housing in Detroit’s Parkside “projects” adjacent to Chandler Park at Conner and Warren.

The low wages and governmental housing subsidy either weren’t enough to raise two boys or weren’t enough for Shirley.  Plus, the projects were a tough environment.  Shirley entered Wayne State University, got two years of education and moved on to a job at Michigan Bell Telephone Company that carried more responsibility and hence was worth more than minimum wage.   Shirley got out of the projects into a house one mile away, saved money for ten years and bought a 1000 square foot “palace” in a blue-collar suburb for $16,000.

Shirley was pleased when she became a “salaried” administrative assistant.  Her earnings were adequate, but didn’t allow for frills.  While she strove for higher positions, her boys delivered papers to earn their own spending money.  Eventually, the older son got a job at one of the first McDonald’s restaurants. He made minimum wage, which was then $1.25 an hour.  The younger son found a restaurant that would hire him at age 14 to wash dishes and buss tables for below minimum wage at $1.00 per hour.

The value of what the boys learned eclipsed the small paychecks.  They learned: one needs to show up when scheduled, that one needs to punch the time clock, that one must listen when instructed on a task because bosses and coworkers become irritated when one doesn’t follow rules, and procedures and instructions.  Mostly, though, the work environment demonstrated that those who hustled got more responsibility, more hours, higher pay and sometimes a share of a waitress’s tips if your hustle made her money.  The younger son was soon assigned more responsible tasks including back-room food preparation and all of the building maintenance.  The fact that he still made less than minimum wage didn’t bother him.  He was learning things that he would use for the rest of his life, and he was, after all, saving money to buy a car and for college.  Apparently oblivious to the fact that the short-order cook was the defacto “boss” of the premises in the absence of the manager and that customers didn’t want to see their steak grilled by a kid, he lobbied hard and was made a cook. He went on to consistently work 38 hours a week while in high school, either at or just above minimum wage, now saving for college.

Shirley insisted her boys go to college.  The older son got his degree in auto repair technology, started a business that has continuously employed the same three technicians and thus supported four families for twenty-five+ years.  Perhaps you guessed that the other went on to law school and became an employment lawyer, himself supplying jobs to others.

I shudder to think what would have happened if Shirley had deigned to stay in a sales position at Crowley and locked me into a life in the projects or even a mile away.  I thank God that she always had her “eyes on the prize” and set her boys’ sights the same.  By doing so, she transformed her own life, eventually worked in the legal department, married a respected engineer, retired and travelled the world, and taught her boys to assume as much responsibility that they could handle.

Clogging up entry level jobs with adults who intend to stay in them, instead of using them as a stepping stone to greater responsibility and societal worth presents a significant danger to society.  Nowhere is it more important to give a young person a job to teach fundamentals of going to work than in the lower socio-economic classes.   Nowadays, not only does the entry-level worker learn the basics of what is expected at work, but it may be the person’s first exposure to the role that technology plays in the work world.  Virtually every new experience in the work environment is a learning experience for someone who hasn’t worked before.  We need a training ground for people to enter the work world.  Why provide a disincentive to move on?  There should be a motive for people who have mastered the challenges of flipping a hamburger to take the next step so that their efforts are worth more to our society and so that they attain as much of the American Dream as they can.

Think Outside the Application Box

By:  Dan Cohen – 4/8/14

How many of you have ever made a poor hiring decision?  If you are being honest with yourself, the answer is “everyone.”  The smaller your business, the more a bad hire can hurt.  In the case of a start-up, a bad hire can kill your new business.

Talent, alone, is not enough.  You want someone with interest and passion who is the right fit for your company.  Finding that diamond in the rough is  challenging and takes some finesse.  A good interviewer not only confirms the information on the application, but listens carefully to answers and digs a little deeper.  Gaps in job history, missing jobs, and an over-abundance of part-time and short-term jobs must be thoroughly probed because they can indicate failures in past jobs.  An illogical inability to find work, an absurd reason for leaving work and the abandonment of a career path are red flags that should be explored as well.

Of course, interviewers should consider questions that reveal a person’s character and whether he/she should be on your team.   The following questions are worth considering as you narrow the pool of applicants to those that you are really interested in:

  • What is the most difficult problem you have faced in any job?
    • How did you overcome the problem?
    • Have you ever been asked to do something illegal or unethical?
      • How did it make you feel, and what did you do about it?
      • What do you believe are the most important qualities an employer looks for in an applicant?
      • What is your former employer likely to say about you?
      • Have you ever had to terminate an employee and was it the right thing to do?
      • Have you ever been asked to resign? Why?
      • If you could change one thing about most of your past bosses, what would that be?
      • What aspects of your last job did you enjoy the least?
      • Have you ever been accused of harassment in the workplace?  (Never ask if the person made complaints of harassment.)
        • What was the outcome?
        • Would you hire yourself and why?

Don’t just throw a bunch of softballs right across the middle of the plate for the candidate.  Make the candidate work a little bit and convince you he or she is the one.

Are the Days of Catering to Your Customers’ Preferences a Thing of the Past?

By:  Rhonda Armstrong – 4/3/14

Many employers have published dress code policies and grooming standards. These policies project the public persona and image of the business and tend to set minimum standards that all employees must adhere to.  For example, many fast food restaurants want employees to wear black uniform pants and their logo shirt.  Most would expect an employer to be able to tell its employees they cannot wear a Mohawk, lip piercings, visible tattoos and the like. But, what about prohibiting an employee from wearing a beard or dreadlocks, a Muslim hijab, or a skirt when everyone wears long pants? Just ask Abercrombie & Fitch, McDonald’s and KFC. Each paid the price in EEOC settlements: A & F ($71,000) for refusing to let an employee wear a hijab; McDonald’s ($50,000) for refusing to let an employee wear a beard; and KFC ($40,000) for denying an employee’s request to wear a skirt.

The EEOC recently published new “technical assistance” explaining its view about the application of federal employment discrimination law to dress and grooming standards.  The EEOC Guidance offers little hope that an employer can force its employees to look a certain way due to the expectations of its customer-base. According to the EEOC, employers must make exceptions to dress codes and grooming policies to accommodate an employee’s sincerely held religious-based dress or hair request unless doing so would cause “undue hardship” for the employer.  The EEOC contemplates many types of religious dress and grooming practices, such as:(a) wearing religious clothing or articles (e.g., a Muslim hijab, a Sikh turban, a Christian cross or Jewish Star of David); (b) observing a prohibition on wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts); or (c) adhering to shaving or hair length standards (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes).

The EEOC Guidance broadly defines “religion” and extends protection to religious beliefs that are unique, shared by small numbers and even those beliefs that seem “illogical” or even “unreasonable.” Does this mean that an employer is obligated to entertain requests from a member of the Branch Dividians, or Heaven’s Gate? What about having to entertain requests from a member of the Aryan Nation, also known as white supremacists or white Christian separatists?  Well, even though the FBI considers these groups to be terrorists, the EEOC would say “probably,” as long as it is not an undue hardship to the employer. In fact, the EEOC would extend protections to those with no religious beliefs at all.  So, yes, atheists would be protected as well absent undue hardship. The EEOC also would protect an individual’s sincerely held religious belief or practice even if not followed by others of the same religion.

The most controversial provision in my mind is that an individual would be protected where he or she takes on a brand new observance or has an observance only at certain or irregular times. This provision is ripe for abuse. In our office, we consult with clients about their employees seeking to control and/or manipulate their workplace time and time again.  This provision provides one more opportunity for those employees or even job applicants to control/manipulate their circumstances as there does not appear to be anything that would stop an individual from adopting a newly found religious belief just in time for the job interview.  For example, applicants may wear a turban or head scarf to the interview knowing they can cry foul if they do not get hired.  Given this most recent guidance, it seems doubtful an employer would be successful defending a religious discrimination case by showing that the employee claiming a failure to accommodate her use of the Muslim hijab did not consistently wear her hijab in public.  It was this type of evidence that really strengthened one of our client’s defenses in our last religious garb case.

So, what’s the bottom line for employers?  Be prepared for requests to deviate from your dress code and grooming standards.  Treat each request separately on a case by case basis and don’t just reject them out of hand because it would upset your customer-base.  The EEOC guidance is quite clear that an employer cannot cite customer preferences as a reason to deny a request for religious accommodation.  So, the next time you get an applicant who shows up displaying a swastika, or proclaiming the need to wear something weird because of ties to an extremist organization, remember that you must review all the surrounding circumstances, on a case-by-case basis, and determine whether the particular request will pose an undue hardship.

The EEOC’s Fact Sheet is located at:  http://www.eeoc.gov/eeoc/publications/fs_religious_garb_grooming.cfm