Last night CBS launched its new series "Undercover Boss" following the Super Bowl. The premise of the semi-reality series is the president of a large company goes undercover as a rank-and-file employee to work for the company and get a bottom-to-top look at how the company operates. [Spoiler Alert –Don’t read further if you have the show DVR’d to watch later]. Last night’s episode exemplified a situation where appropriate and legal policies formulated at the corporate level sometimes get contorted or twisted at the tactical level.
In last night’s episode the President and COO of Waste Management (Larry O’Donnell) went to work undercover as a new employee in various operations of his company over the course of a week. At a recycling plant operated by Waste Management, the company apparently had a policy requiring employees to take exactly a thirty minute meal period. It was unclear from the show whether the policy was required by state law, but an employee had to clock-out for exactly thirty minutes. If the employee clocked in a minute late, local management, docked the employee for 2 minutes of pay. Presumably, if the employee clocked in 5 minutes late, she would be docked 10 minutes of pay. In any event, it is unlikely that Waste Management’s Human Resources or Legal Departments encouraged or condoned the application of the policy in this manner given the potential that such docking of work time (depending on the state and whether the total time docked is de minimus) could result in a wage and hour violation .
The lesson employment lawyers and human resources personnel can take away from "Undercover Boss" is that there is often a difference in how a policy is designed to work and how it actually works in practice. When investigating a potential legal claim to answer a complaint or draft a statement of position to the EEOC, it is often important to talk to the people who are actually responsible for implementing company policies to determine how they really operate in the field rather than relying on middle or senior management who may only know how the policies are supposed to work. Failing to do so can cause employers to make misrepresentations to governmental agencies or courts and can lead to accusations that the employer either doesn’t know what is going on in the workforce or to claims that the stated reasons for taking some action against an employee are pretextual or false.