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Here is my takeaway:

"Thus, the barriers and transition costs employees incur when switching employers have been reduced.

Greater options and lower costs to move mean that employees can be more selective and focus on picking jobs that best fit their personal needs and desires."

Employers are having a harder time recruiting new workers. AP Photo/Marta Lavandier
Ian O. Williamson, University of California, Irvine

Finding good employees has always been a challenge - but these days it's harder than ever. And it is unlikely to improve anytime soon.

The so-called quit rate - the share of workers who voluntarily leave their jobs - hit a new record of 3% in September 2021, according to the latest data available from the Bureau of Labor and Statistics. The rate was highest in the leisure and hospitality sector, where 6.4% of workers quit their jobs in September. In all, 20.2 million workers left their employers from May through September.

Companies are feeling the effects. In August 2021, a survey found that 73% of 380 employers in North America were having difficulty attracting employees - three times the share that said so the previous year. And 70% expect this difficulty to persist into 2022.

Observers have blamed a wide variety of factors for all the turnover, from fear of contracting COVID-19 by mixing with co-workers on the job to paltry wages and benefits being offered.

As a professor of human resource management, I examine how employment and the work environment have changed over time and the impact this has on organizations and communities. While the current resignation behavior may seem like a new trend, data shows employee turnover has been rising steadily for the past decade and may simply be the new normal employers are going to have to get used to.

The economy's seismic shifts

The U.S. - alongside other advanced economies - has been moving away from a focus on productive sectors like manufacturing to a service-based economy for decades.

In recent years, the service sector accounted for about 86% of all employment in the U.S. and 79% of all economic growth.

That change has been seismic for employers. A majority of the jobs in service-based industries require only generalizable occupational skills such as competencies in computing and communications that are often easily transportable across companies. This is true across a wide range of professions, from accountants and engineers to truck drivers and customer services representatives. As a result, in service-based economies, it is relatively easy for employees to move between companies and maintain their productivity.

And thanks to information technology and social media, it has never been easier for employees to find out about new job opportunities anywhere in the world. The growing prevalence of remote working also means that in some cases employees will no longer need to physically relocate to start a new job.

Thus, the barriers and transition costs employees incur when switching employers have been reduced.

Greater options and lower costs to move mean that employees can be more selective and focus on picking jobs that best fit their personal needs and desires. What people want from work is inherently shaped by their cultural values and life situation. The U.S. labor market is expected to become far more diverse going forward in terms of gender, ethnicity and age. Thus, employers that cannot provide greater flexibility and variety in their working environment will struggle to attract and retain workers.

Employers now have a greater obligation than in the past to convince existing and would-be employees why they should stay or join their organizations. And there is no evidence to suggest this trend will change going forward.

What companies can do to adapt

It has been estimated that the cost to the employer of replacing a departing employee is on average 122% of that employee's annual salary in terms of finding and training a replacement.

Thus, there is a large incentive for businesses to adapt to the new labor market conditions and develop innovative approaches to keeping workers happy and in their jobs.

A May 2021 survey found that 54% of employees surveyed from around the world would consider leaving their job if they were not afforded some form of flexibility in where and when they work.

Given the heightened priority employees place on finding a job that fits their preferences, companies need to adopt a more holistic approach to the types of rewards they provide. It's also important that they tailor the types of financial, social and developmental incentives and opportunities they provide to individual employees' preferences. It's not just about paying workers more. There are even examples of companies providing employees the choice of simply being paid in a cryptocurrency like bitcoin as an inducement.

While customizing the package of rewards each employees receives may potentially increase an organization's administrative costs, this investment can help retain a highly engaged workforce.

Managing the new normal

Companies should also plan on high employee mobility to be endemic and reframe how they approach managing their workers.

One way to do this is by investing deeply in external relationships that help ensure consistent access to high-quality talent. This can include enhancing the relationships they have with educational institutions and former employees.

For example, many organizations have adopted alumni programs that specifically recruit former employees to rejoin.

These former employees are often less expensive to recruit, bring access to needed human capital and possess both an understanding of an organization's processes and an appreciation of the organization's culture.

The quit rate is likely to stay elevated for some time to come. The sooner employers accept that and adapt, the better they'll be at managing the new normal.

[You're smart and curious about the world. So are The Conversation's authors and editors. You can read us daily by subscribing to our newsletter.]The Conversation

Ian O. Williamson, Dean of the Paul Merage School of Business, University of California, Irvine

This article is republished from The Conversation under a Creative Commons license. Read the original article.

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It is common practice for employers to secure credit reports on current and prospective employees.

While this information can be easily obtained by subscribing to a commercial credit reporting service or by hiring a company specializing in conducting employment investigations, this practice has serious legal pitfalls.

Under the Fair Credit Reporting Act (FCRA), 15 U.S.C. § 1681 et seq. (West, 2005), an employer is authorized to conduct a credit investigation to evaluate a job applicant for employment or a current employee for promotion, reassignment or retention.

In these instances, the employer is required to secure the individual's informed consent to the investigation in writing and to refrain from making an adverse employment decision based, in whole or in part, on a credit report absent full compliance with the safeguards set forth in this enactment.

The FCRA generally requires an employer to provide a copy of the report and a written description of the individual's rights under the Act before taking any adverse action against a current employee or job applicant based on information contained in the individual's credit report.

Within three days of taking adverse action, the FCRA additionally requires the employer to provide:

•Notice of the action taken;

•The name, address, and phone number of the credit bureau from which the report was obtained;

•A statement that the credit bureau did not make the decision to take the adverse action and cannot provide specific reasons why it was taken;

•Notice of the individual's right to obtain a free copy of his/her credit report within 60 days; and

•Notice of the individual's right to dispute the accuracy of the information in his/her credit report with a credit bureau.

While these provisions on their face may appear to provide meaningful protection, it is actually quite difficult to find out whether an employer has followed the letter of the law.

The employer always can claim that it based the turn down or adverse employment action on a reason that was separate and unrelated to any adverse information contained in the credit report. Even with its limitations, the FCRA has the potential of providing relief.

For example, it subjects an employer to civil liability for "knowing noncompliance" with these and other requirements. Remedies include "actual damages" (e.g., lost employment or promotional opportunities and job search costs incurred by the prospective or current employee), litigation costs and attorney's fees. In addition, willful failures to comply with the FCRA may subject an employer to an award of punitive damages and/or criminal liability.

There are several very simple steps that an employer can take to avoid litigation and potential liability.

First, the employer should advise the prospective or current employee that a credit investigation will be conducted and secure his or her express consent to the inquiry.

Second, the employer should inform the prospective or current employee of what type of a credit report will be obtained and how its results will be used.

Third, the employer should provide the affected individual with a copy of any report containing adverse information and invite his or her comments on the accuracy and completeness of this information before making a final decision on employment.

This information should be set forth in clear and concise language on a standard consent or verification form, and the prospective or current employee should be required to sign the form before any credit report is requested. In addition, the employer should refrain from saying or doing anything that might be construed as making an unauthorized use of credit information during an employment interview and/or reference check of any individual.

While these recommendations go beyond the current letter of the law, they make a great deal of sense from a public relations and human resources perspective. Since the law is still developing in this area, providing additional safeguards makes sense from the perspective of employers and employees alike.

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"When dealing with people, remember, you are not dealing with creatures of logic, but with creatures of emotion"
~ Dale Carnegie

"A simple rule in dealing with those who are hard to get along with is to remember that this person is striving to assert his superiority; and you must deal with him from that point of view"
~Alfred Adler

"Business, more than any other occupation, is a continual dealing with the future behaviour of people; it is a continual calculation, an instictive exercise in foresight."
~Henry R. Luce

"If you want to learn how to deal with difficult people, have a few kids"
~ Overheard in a Chicago bar

All managers will have to deal with difficult employees during their careers. It is a chore all managers endure, all managers despise, and few, if any, ever learn to do effectively.

First, there will always be difficult employees. In fact, I have observed that what we often deem to be "difficult" or "odd" behaviour in a person is really present in order to help this person maintain their psychological balance. "Difficult" people in this context are the people we don't know how to deal with us or those who are difficult for us to deal with due to (perceived or otherwise) them being stubborn, arrogant, oversensitive, or any trait that needs a special type of treatment Second, it's your job as the manager to deal with them. If you don't deal the problem, it will only get worse and impact the lives of those around you (and the subject employee) who would be looking to you for leadership.

Why Are Difficult Employees Like That?

Difficult employees are that way simply because it is a behavior that has worked for them in the past. They may not know any other behavior, or, they may choose this behavior when they think it will be most effective. You will be successful in dealing with difficult employees only to the extent that you can make these undesirable behaviors no longer effective for them.

In many ways, it's like dealing with children. If every times a child screams, its parents give it candy, what will the child do the next time it wants candy?

The same is true for the employee who "blows up" whenever anyone disagrees with him. When he does that, people stop disagreeing with him and he thinks he has won.

How Can A Manager Deal With Difficult Employees

1. Evaluate:

It is important when dealing with difficult employees to act quickly. Often you will need to act almost immediately to neutralize a dangerous situation. However, it is always appropriate to think before you act.

Clearly if an employee comes to work with a gun, you will need to act more quickly than when someone complains that another employee is always taking credit for her work. In either case, take the appropriate amount of time to evaluate the situation before you act. You don't want to make it worse.

Recognize that most employees can be "difficult" from time to time. This can be caused by stress on the job or away from it. Some employees are difficult more often than others. It is not always your least-productive employees who are difficult. So take a moment to evaluate each situation for the unique situation it is.


2. Do your homework:


Always act on facts. Don't base your actions on gossip or rumor, or even your own preconceptions and/or opinions. You can't allow yourself to be anything but impartial. The person(s) spreading the gossip is a difficult employee in their own way and must be dealt with when the immediate need has passed.

If you have not seen the inappropriate behavior yourself, look into it. Ask the people reportedly involved. Collect all the facts you can before you act. Don't use the fact that you haven't seen the inappropriate behavior as an excuse to delay doing something. It is important to act promptly.

Make sure you aren't part of the problem. It will be much more difficult to remain calm and impartial in confronting the difficult behavior if you are partly responsible. If that's the case, be sure you acknowledge your role in it, at least to yourself.


3. Develop a plan:


You're a manager. You know the value of planning. This situation is no different.

You need to plan the timing of the confrontation. You need to select a quiet, private place where you won't be interrupted. You need to decide whether you need to have others, like an HR representative, present in the meeting. Plan the confrontation and then make it happen.

When you have prepared, it is time to act. You do not need to act impulsively, but you must act quickly. The longer an inappropriate behavior is allowed to continue, the harder it will be to change it or stop it.


4. Confront the problem:


Don't put it off. It may not be pleasant, but it's an important part of your job. It will not "fix itself". It can only get worse. You have planned this confrontation. Now you need to execute.


5. Deal with the behavior, not the person:


Your goal is to develop a solution, not to "win". Focus on the inappropriate behavior; don't attack the person. Use "I" statements like "I need everybody on the team here on time so we can meet our goals" rather than "you" statements like "you are always late".

Don't assume the inappropriate behavior is caused by negative intent. It may be from fear, confusion, lack of motivation, personal problems, etc.

This is the important part; the part most managers never get right: Give the other person a chance to develop a solution to the problem. They are more likely to "own" the solution if they are at least partially responsible for developing it.


6. Try to draw out the reasons behind the behavior:


As you talk with the difficult employee, actively listen to what they say. Stay calm and stay positive, but remain impartial and non-judgmental. Ask leading questions that can't be answered in one or two words.

Don't interrupt. When you do respond to the difficult employee, remain calm.

Summarize back to them what they just said, "so what I understand you are saying is.....", so they know you are actually listening to them.

If you can find out from the difficult employee what the real source of the inappropriate behavior is, you have a much better chance of finding a solution.

Sometimes these confrontations will go smoothly, or at least rapidly, to a conclusion.

Other times it will require several sessions to resolve the problem.


7. Repeat as necessary


Minor problems, like being late for work, you may be able to resolve with a simple chat in your office with the employee. An office bully, who has used that behavior successfully since elementary school, may need more than one confrontation before a solution can be reached. Be patient. Don't always expect instant results. Aim for continuous improvement rather than trying to achieve instant success.


8. Know when you are in over your head:


Sometimes the underlying issue with a difficult employee will be beyond your capabilities. The employee may have psychological problems that require professional help, for example. Learn when to keep trying and when to refer the employee to others for more specialized help. Your company may have an EAP (employee assistance plan) or you may need to use resources from the community.


9. Know when you are at the end:

While the goals is always to reach a mutually acceptable solution that resolves the difficult employees inappropriate behavior and keeps your team at full strength, sometimes that is not possible. When you reach an impasse and the employee is not willing to change his or her behavior then you need to begin terminations procedures in accordance with your company's policies.

Coming to a Solution

The desired result from confronting a difficult employee's inappropriate behavior is an agreed upon solution, and the inappropriate behavior will continue unless you and the employee agree upon said solution. You will get more buy in and greater results if the employee plays a role in crafting the strategy on how to get there.

Your employees will always needs to know what is inappropriate about their behavior just as much as they also need to know what is appropriate behavior. The need for a manager to communicate clearly is always high, but it is especially important in these situations. Make very sure the employee understands the requirements, what is expected of him, and, if necessary, the consequences.

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You decided to become a newly minted franchisor.

And when that day finally arrived how exciting was that?

You were going to conquer the world with your franchise brand.

Here's what you did right.

Started with a tested business model with a verifiable proof of concept.

Hired a competent and experienced franchise attorney to develop your franchise agreement and franchise disclosure document - FDD.

Your franchise attorney strongly suggested (or insisted) since you have a strong proof of concept for your franchise model that you include an Item 19 Financial Performance Representation - FPR and you did it.

Developed an operations manual, training system and support system that is scalable as you grow your franchise system.

You had a reasonable budget to market for franchise recruitment.

But, after a while, you will hate being a franchisor. Here are your 7 biggest beefs.

  1. Early franchisees you selected seemed very passionate about being franchise owner/operators but they are not living up to what they promised and you're more than disappointed.
  2. Multi-unit franchisees are not current with their development objectives and they expect you to not hold them to what everyone agreed to. They want some or all of the following extensions, refunds or credits against franchise fees and in return you get nothing. Not even what you originally bargained for.
  3. You have a great training program and franchisees are shortcutting what your program offers and requires.
  4. Franchisee local market success depends on local store marketing, your franchisees don't make the investment in it. And they complain to you that sales are too low and your brand is not well known enough in their area.
  5. Franchise owners expect you to fix their unit level problems with employees, landlords, suppliers, insurance, local municipality, their business & operating partners. You had no idea that you'd be expected to do so much hand holding and babysitting when you set out selling & opening franchises.
  6. Franchise recruitment for a new franchisor is tough. However you couldn't have imagined how difficult generating and managing leads would be. And the cost per new franchise recruited is far more than you anticipated.
  7. You discovered that your management team had a much greater learning curve for transitioning your business to a franchise development and operations company. And now you're faced with some tough staffing decisions as you move forward.

This is not an exhaustive list of awful franchise things and readers can feel free to add to the list.

Good news is that you had a good underlying business at the outset. And all these franchising challenges can be remedied.

If this sounds llike your franchising story & you want some help solving your problems call me at 443.502.2636 [email protected]. Lease the talents of 20+ year proven franchise executive, who has seen and solved these problems before.

Employee retention can be impacted by a number of different organizational forces, which start the moment the employee steps in the door to interview for the job.

One of the most important things to remember is that first impressions can set the tone for the whole experience.

You want to make sure that both the employee and the organization are on the same page and know what to expect from each other.

Some effective steps:

Start with the Interview

  • A successful retention strategy starts with the first interview and continues throughout the employee's career. The interview is an essential tool for both the prospective employee and the interviewer to gauge each other's needs, abilities, and future plans. An employee's career starts with interviewing, it is their first impression of the company and how they operate.

Employee Orientation

  • The employee orientation provides a chance for the new hire to become familiar with their new surroundings. This should be a time of low stress for the employee, giving them the opportunity to meet co-workers, learn the layout of the office, and further their understanding of the vision and mission for that organization. Why do you need to do an orientation? It sets expectations for both parties at the beginning of the job and helps to develop positive attitudes, job expectations and job satisfaction.

Designing Your Orientation Program

  • The first thing you want to do when creating an orientation program is to define what you want to accomplish with the program. In doing this, keep in mind what kind of impression you want to make on the employee, in other words what are the stories they will be bringing home to their families after their first day/week on the job.

Get Them up to Speed Quickly

  • Have their email address, phone number etc already set up prior to their arrival. Give them a glossary of common terms, all orgs have their own language. Pre-arrange a "buddy" who will be there if they have any questions or concerns. Prepare a quick "help" card listing contacts for different questions.

Tips & Tactics

  • Who is doing the interviewing? Are they up to speed on the job? Do they understand the legal framework for questions? Are they a "people" person? All of these things will impact how interviews are conducted and how effective they are.
  • When designing an orientation program it can be helpful to sit down and make a list of what you need the first day, the second day, the first week, and so on.
  • How can you reduce the first day jitters for new employees? Send them a letter prior to their first day with info in it: What time to arrive, where to go, where to park, who they will be meeting with, what to bring with them (documents for I-9 form etc). Also celebrate their arrival by doing something such as hanging a welcome sign with their name on it by their office.
  • Onboarding: This is the modern term for the process of interviewing, hiring, orienting and successfully integrating new hires into an organization's culture. The best onboarding (orientation) strategies will provide a fast track to meaningful, productive work and strong employee relationships.
  • Who should be Involved: The people who need to be involved in the onboarding process include the HR department, team members of the new hire or a "buddy" from that area, and members of other functional areas they will be working with on a regular basis (ex: payroll/finance), their direct Supervisor, and a member of the management Team.

A Lasting Impact

  • A well thought out orientation program, whether it lasts one day or six months, will help not only in retention of employees, but also in productivity. Organizations that have good orientation programs get new people up to speed faster, have better alignment between what the employees do and what the organization needs them to do, and have lower turnover rates. Which translates into dollars.
  • For a comprehensive online Human Resource Compliance service that provides support in areas including employee hiring and orientation, check out HRSentry.

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Steve Jobs often said that making things simple is hard. The same can be said of training.

Training franchisees or their employees is simple, but it takes a lot of hard work to make it that way.

Here are ten training tips to keep in mind:

#10: Respect people's time. If you're going to ask people to spend the time and possibly money to attend a training session, it should go beyond valuable to indispensable. This is especially true of classroom or other in-person training, which are typically longer and more expensive.

#9: Utilize online learning. This helps you achieve #10. Using online learning wisely allows you to make the most of in-person. One way is to present the concepts in an online delivery and then practice the needed skills in-person, thus reducing the amount of classroom or coaching time but increasing its effectiveness.

#8: Invest in an LMS (Learning Management System). There really is no excuse not to have an LMS. The franchise structure makes them the perfect tool for your training. There are too many good, inexpensive LMS options out there right now not to have one. This should probably be #1. It can be the foundation for all the training you do.

#7: Don't overwhelm. Know why M&M's are great? Because they're so small you can eat either 5 or 50. Break training into itty-bitty bits. If people want more, than can always combine bits.

#6: Spread it out. Relates to #7. Eating a whole bag of M&M's in one sitting might make you sick (who's up for some hands-on research?!). Building skills takes time, so should your training.

#5: Be holistic. I don't mean eating tree bark to cure a cold. I mean develop a strategy for your training based on an analysis of your franchisees' and employees' needs, and create a curriculum plan utilizing multiple delivery methods. Don't slap together several workshops from outside experts and call it a day.

#4: Speaking of outside experts, how about inside experts? You will be amazed, shocked and stupefied by how much your people know, if you just ask them. Trust me on this.  Plus, you'll save a boat-load of money on consulting fees. 

#3: Social media. Yes, you've been told that social media can cure every ill that ails your company but in the case of training, it is a powerful tool. That doesn't mean you need a complicated system. Do you know what social media is? Knowledge Sharing. Do you know what knowledge sharing is? Bob has a problem. Julie has a solution. Julie tells Bob the solution. Done. I've seen it in action, my friends, and it is amazing.

#2: Training should not be just fun. I always get push back on this, but I don't understand the obsession to make learning fun. Training should not be boring, agree. Training should be useful and relevant, agree. Training should be engaging and experiential, agree. There's nothing wrong with some levity, but most, if not all, people will choose good training over fun training.

#1: K.I.S.S. Keep it simple, stupid. It's easy to get distracted and swayed by fancy talk and one-size-fits-all solutions. Remember the ultimate goal of training. Your company has business goals. In order to meet those goals, your employees and franchises have to perform. In order for them to perform, they need skills. Determine which of those skills are lacking and train them. Done and done!

If you want improve your  franchise training and onboarding, connect with me on LinkedIn and let's talk.

Last month the Philadelphia Franchise Association (PFA) had a terrific meeting at Maggiano's in downtown Philadelphia.  I want to again thank our terrific panelist, Tom Monaghan, Steve Beagelman and Mr. Ade Lawal.  Each brought excellent stories and practical advice on how to recruit, hire and train key employees.

I believe the most insightful part of the presentation was the insistence by all the panelist that the hiring process must be exactly that, a process.  If a company can define what steps it needs to take and then follow those steps they will have a much better chance at being successful than those companies that wing it each time they have a need for a new team member.

Having a defined process will enable companies to refine and improve that process over time.  Key elements to a good process that we discussed were:

- Written and consistent interview questions

- Simple outside and objective tests such as background, IQ, personality test, etc. (I was intrigued to learn that some really helpful tests can be done for very little money)

- Hire for attitude, train for competence

- Hire slowly and fire quickly

The key of course is to actually implement what you have learned at a session like this and to be disciplined enough to be objective about your own systemic shortcomings.  The first step is to write down what you are doing, and then look at it objectively and write down what you ought to be doing. 

The final remark I heard after the meeting that really resonated with me is that a company is only as good as its people, no more and no less

Scenario: Your candidate arrived for her fourth and final interview.

Having passed a lengthy assessment process with managers and executives, the candidate was confident the company would offer her the senior management position. You weren't so sure, yet.

Your are responsible for this candidate's final assessment and your company has been under pressure to fill this role - it has been open too long.

Thirty minutes into the interview, it was clear to you that the company was poised to make a costly hiring mistake. Both candidate and company had invested time in the interview process, but your additional review at this critical juncture saved time and money for all concerned.

Had this candidate been hired:

• The department would be led with 20% of the experience required for the job.

• Operating procedures would fail and progress would be reversed.

• The team would take a beating due to lack of leadership.

• The company would lose money and time, only to start the recruiting process over 3 - 6 months down the road.

• The new hire would be frustrated, disrespected by peers, and faced with a significant career mistake.

How could you avoid this costly mistake?

• Practiced Active listening.

• Gathered specific, factual examples of experience, which had been missed.

• Assessed real experience against job requirements.

• Avoided hiring a manager because of time pressures.

Let's focus on the first two, practice active listening and gathering specifics.

1. Practice Active Listening.

The right candidate means he/she meets the minimal requirements for the position and will be a "high performer", a huge success, in the role.

Your mission in an interview is to listen carefully and get factual examples that will confirm you can match the right candidate to the job requirements.

It's natural for candidates to come to an interview ready to sprinkle strategic words across the conversation in order to impress the interviewer.

Most candidates have enough experience or general knowledge about the position to make use of words and phrases that will make your eyes sparkle.

The key to success is to gather facts and examples that support the candidate's knowledge and "fit" for the job. Does the candidate have solid experience or is he/she simply throwing around key strategic words to impress you?

2. Gathering Specifics - whenever you hear something that sounds "great" you must determine if it's good or not.

Here's an example:

Candidate: I was often recognized for my abilities in product development. (Sounds great!)

Interviewer: How so?

Candidate: My colleagues knew I was the person to talk with for product development expertise.

Interviewer: How did they know?

Candidate: Well, they knew that it was my responsibility.

Interviewer: Just so I'm clear, when you say, "recognized for your abilities", did you receive an award, or a thank you letter from your Manager, or a public acknowledgement on your abilities for product development?

Candidate: Well, no. I mean, I wasn't actually 'recognized' but people knew I was responsible for the job.

Most interviewers stop at the beginning of this dialogue, making a note that the candidate was "often recognized for his accomplishments in product development."

In the example above, we ask what the candidate did instead of assuming that "recognition" was a specific accomplishment.

Here is another example:

Candidate: That year, the whole team went above and beyond the call of duty. I was proud of the team spirit and everyone's hard work. Of course, there were some challenges along the way; but we pushed through and met the deadline.

Interviewer: What kind of challenges did you meet?

Candidate: We hit a few quality issues, recognized them quickly, and took action to improve?

Interviewer: What kind of quality issues?

Candidate: Well, normally, we averaged 2% variance and at one point we hit 8%; but we got it down quickly.

Interviewer: What happened?

Candidate: Honestly, in pushing for the deadline, we lost control of quality. Unfortunately, we also lost a key client; but we learned a lot and improved for the future.

Interviewer: That's certainly a challenge. Were you able to recover the client?

Candidate: No, and it was one of our largest, a 10 million dollar account. It was not a good period for us.

Again, most interviewers would have stopped at the beginning, taking a note along the lines of, "Wow, this candidate is a team player, cares for his team, and was able to meet the company's deadlines in a challenging environment".

When "digging in" and getting more specific, candidates will almost always share details surrounding the actual situation. From there, you can determine if the experience is a good match for the position you need to fill.

Stop making up stories for your candidates! Get the facts.

By slowing down, listening carefully, and backing up examples with facts, you gain data that helps make a more informed decision.

You saved your company, your team, and the candidate from a costly and painful 'mis-hire' experience, by following the right interview steps. Congratulations!

For the 5 Most Fascinating Stories in Franchising, a weekly report, click here & sign up.

If you need to brush up on your interviewing skills, contact Michelle at Management Success China, especially if you are hiring managers in China.

She can help your company avoid the cost of mistaken hires. When you need this type of advice, connect with her on LinkedIn.

Some History

For better or worse, tipping has become an accepted part of American commerce. It is a practice that first emerged in the late 1800s. In 1917, the California legislature passed a law for the first time prohibiting employers from taking any portion of employees’ tips. However, the courts struck down the law as a violation of constitutional due process. The legislature tried again in 1929 and this time succeeded. However, now the law permitted employers to credit tips against employees’ wages, i.e., use tips in place of wages. It wasn’t until 1975, after repeated failed attempts, that the legislature was finally able to pass a law that prohibited the practice of “tip credits”.

 

Labor Code § 351

California Labor Code § 351 now reads:

No employer or agent shall collect, take, or receive any gratuity or a part thereof that is paid, given to, or left for an employee by a patron, or deduct any amount from wages due an employee on account of a gratuity, or require an employee to credit the amount, or any part thereof, of a gratuity against and as a part of the wages due the employee from the employer.

Every gratuity is hereby declared to be the sole property of the employee or employees to whom it was paid, given, or left for.

An employer that permits patrons to pay gratuities by credit card shall pay the employees the full amount of the gratuity that the patron indicated on the credit card slip, without any deductions for any credit card payment processing fees or costs that may be charged to the employer by the credit card company. Payment of gratuities made by patrons using credit cards shall be made to the employees not later than the next regular payday following the date the patron authorized the credit card payment.

Interestingly, the federal law – the Fair Labor Standards Act – continues to permit “tip credits”, though with restrictions. As usual, California laws continue to offer greater employee protections than their federal counterparts. While federal laws usually trump or “preempt” state laws, courts have ruled that this is not the case with the FLSA and the California Labor Code. Tidewater Marine Western, Inc. v. Bradshaw (1996) 14 Cal.4th 557, 567; Skyline Homes, Inc. v. Department of Industrial Relations (1985) 165 Cal.App.3d 239, 250-251.

Section 351 seems pretty simple and straightforward. However, it also left open some important unanswered questions that the courts took it upon themselves to answer.

 

Can My Employer Take My Tips?

Yes. . .

Many industries, particularly the restaurant industry, have a “house” practice of mandatory tip-pooling, in which the employer takes employees’ tips, pools them, then allocates the money to its employees as it sees fit. Tip pooling is nowhere mentioned in section 351 and that would therefore seem to make it an illegal “taking” of the employee’s “sole property”. However, the courts engaged in some fancy analysis to conclude it is permissible, so long as the distribution is “fair and reasonable”. Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. So to that extent, yes, your employer can take your tips away from you.

. . . and no

But the employer can’t take any part of your tips for itself either. Even if your employer sets up a mandatory tip pool, it and its “agents” (meaning any employee with managerial/supervisory functions) are prohibited from getting any of the money from that pool. That is clearly stated at the very beginning of section 351: “No employer or agent shall collect, take or receive any gratuity or part thereof . . .”.

So Who Can Participate in the Tip Pool?

Here is where things get tricky because the courts seems to be all over the place. Section 351 makes it clear that employers and their supervisory/managerial agents cannot get any of the money from a tip pool. But it is unclear what other employees can. Can the tip pool monies be allocated to dishwashers? Busboys? Sushi chefs? Janitors? Accountants? Security guards? Etc. Where do you draw the line?

Since 1990, the bright-line rule was that only those employees who are involved in “direct table service” are entitled to participate in the tip pool. Leighton v. Old Heidelberg, Ltd. (1990) 219 Cal.App.3d 1062. However, that all changed recently.

In March 2009, a court held that employees who did not engage in direct table service could still participate in the tip pool, so long as they were in the broader “chain of service”. Etheridge (Brad) v. Reins International California, Inc. (2009) 172 Cal. App. 4th 908. So, for instance, bussers who clear away plates after a customer has already left might not qualify as having engaged in “direct table service” but would qualify as having been involved in the “chain of service”, and so could participate in the tip pool. Another court held that bartenders could participate in tip pools, even if they never directly brought drinks to the customer’s table (although there the court stuck with the old model and ruled that this was “direct table service”). Budrow (Aaron) v. Dave & Buster’s of California, Inc. (2009) 171 Cal. App. 4th 875.

In June 2009, a court reversed an $86 mil. judgment when it held that supervisory/managerial agents could share in “collective tip boxes” because they were not “tip pools” but “tip allocations”. Chau v. Starbucks Corp., 174 Cal. App. 4th 688 (Cal. App. 4th Dist. 2009). I call this one the “Starbucks exception” because it only seems to apply if you work at Starbucks.

So the question of which specific employees can participate in a tip pool remains up in the air, to be answered on a case-by-case basis. The key for the courts is the intent of the tipping customer. If the tipper (arguably) intended that a type of employee share in the tip, then they are participants in the “chain of service” and/or “direct table service”. An accountant or security guard probably would not qualify under this standard, but a bartender and busser probably do.

 

My Employer Has Violated the Tip Laws, Can I Sue?

Yes you can. At the moment, it is unclear whether you have a private right of action under section 351. The California Supreme Court is considering that question at the moment.Lu (Louie Hung Kwei) v. Hawaiian Gardens Casino, Inc., 2009 Cal. LEXIS 5505 (Cal. May 26, 2009).

However, as your lawyer can explain to you, you can still probably bring a claim for violation of the California Unfair Competition Law (California Business & Professions Code 17200 et al.) and/or for penalties under the California Private Attorney General Act (California Labor Code § 2698 et al.). But I recommend you leave that to your lawyer.

 

This was a guest post by Eugene Lee, a lawyer in the Los Angeles, California area. All  he does is labor and employment law – it’s his passion and calling.  He is also proud  husband, married to the love of his life, and a father of two kids who give him a dose of sunshine every single day.

If you’ve got a problem in the workplace, call him anytime at (310) 906-0039 or go to my law firm website.

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