With an eye on costs, lawn and garden industry expects growth

BY Ken Clark

Participants in the lawn and garden industry are relatively optimistic about growing sales during the next selling season — and they generally believe that this is a good time for dealers to start stocking more inventory, according to survey results released by GE Capital, Commercial Distribution Finance (CDF). 

Forty-three percent of industry participants said the popularity of lower-cost models will have the largest impact on sales this year. At the same time, 24% said reduced levels of inventory will affect sales, while 20% said long production lead times will have an impact. 

"We have seen a shift in stocking levels and improving inventory turns over the last six months," said Michael Horak, commercial leader of CDF’s outdoor products group. "That tells us that product mix will become an important factor for retailers in the coming months. As consumer confidence starts to improve and product turns accelerate, customers will start looking for alternative product options." 

Respondents generally agreed that this is an appropriate re-stocking period, with 40% saying this is a good time for dealers to stock more inventory and 41% saying they had mixed feelings. 

When asked how much they expect their overall company’s sales to grow in 2013, here were their responses: 22% said sales would grow 0% to 5%, 38% said 5% to 10%, 23% said 10% to 15%, and 16% said 15% or more.

"Although the spring consumer buying season seems far in the future, people in this industry are already trying to predict sales activity for early 2013," Horak continued. "From our point of view, we expect inventories to increase slightly next year due to positive customer sentiment and new product launches. Dealers’ current credit lines are flexible enough to accommodate this increase in inventory levels." 

The lawn and garden industry survey of 100 respondents was conducted in late October. Respondents included retailers/dealers (31%), distributors (19%), manufacturers (18%) and others (32%).


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Who do you view as your biggest competitor?

Lowe’s makes play for high-tech homeowner

BY Ken Clark

Mooresville, N.C.-based Lowe’s will unveil the next wave of products and services for Iris, its cloud-based smart home solution, at the 2013 International Consumer Electronics Show. 

Iris enables homeowners to monitor and control their homes from anywhere via smartphone, tablet or computer with a free basic level of service. Lowe’s will showcase more than 15 new Iris devices and services developed since the smart home solution’s launch in 2012 at the show.

“As the second largest home improvement retailer in the world, Lowe’s recognizes the evolving needs of today’s homeowner, and is well positioned to offer the widest breadth of compatible connected home products and services at an attractive price,” said Kevin Meagher, VP and general manager of Smart Home at Lowe’s. 

Lowe’s will also introduce a new product line for the connected home that will offer homeowners an assortment of routers and switches, as well as Wi-Fi range extenders and Powerline solutions that will help expand network coverage by leveraging existing-home broadband wiring. Lowe’s plans to roll out the new home area network products to as many as 100 stores in the nation in the first half of 2013, with the full rollout later in the year.

“Lowe’s Iris system is an excellent choice for homeowners and renters looking to install a system that improves the safety, efficiency and convenience of their daily lives. Iris is simple and affordable, and it will continue to evolve to manage more elements of the home through a tablet or smartphone,” Meagher said.

Lowe’s has new Iris partnerships with Verizon, Honeywell, Whirlpool, Jarden Safety, Orbit Irrigation Products, Pet Safe, Plastair, Spring Window Fashions, Sylvania, Yale and Pella. It has existing partnerships with Schlage, First Alert, GE Jasco and Radio Thermostat of America. 

The 2013 International CES runs Jan. 8-11 in Las Vegas. 


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Who do you view as your biggest competitor?

How to avoid off-the-clock lawsuits

BY Jonathan Segal

Virtually every week I hear about another employer allegedly requiring, encouraging or tolerating situations in which nonexempt employees are working off the clock. Even large employers with robust compliance programs are not immune to such legal missteps.

Of course, it is not just larger employers being sued. Employers with relatively few workers — that literally cannot afford the cost of defense — are being sued, too.

The goal for employers is not to win “off-the-clock” cases but to avoid them.

Consider these suggestions for minimizing your exposure to such claims and maximizing your chances of winning if such a claim is brought.

Basic principles

Some strategies for avoiding off-the-clock cases should take employers back to the basics, including training and retraining, enforcing policies that prohibit off-the-clock work, and encouraging managers to report suspected off-the-clock work to HR.

Train and retrain. Provide supervisors with training that makes clear they cannot require, encourage or even suggest that nonexempt employees work off the clock.

The most important message to convey is that supervisors cannot direct someone to work off the clock, explicitly or implicitly. Also, include guidance on how to address restrictions on overtime.

The untutored have said, “We cannot pay for any overtime.” Some employees have heard “work it but don’t record it.”

Where overtime is not permitted, make clear that “No one is permitted to work any overtime” as opposed to saying, “We cannot afford any overtime.”

Let supervisors know that if they break the foregoing rule, they will be subject to discipline up to and including discharge.

Carry a big stick. Let supervisors know that if they require, encourage or even suggest that an employee work off the clock, they will be subject to discipline up to and including discharge. This prohibition will help prove that deviations were those of a rogue supervisor and not part of an established corporate culture.

Make clear that among the most serious violations would be altering an employee’s time to reduce the amount owed to him or her to stay within budget. Almost always, such “wage theft” should result in immediate discharge.

Don’t go it alone. Train supervisors to report incidences to HR if they know, or have reason to know, that an employee may have worked off the clock, even if the employee has not said anything.

In harassment cases, it is not enough to avoid objectionable conduct. If employers have actual or constructive knowledge of it and ignore it, they are condoning it. Doing nothing is not a defense; it is an admission.

The same principle has been adopted in the wage and hour context. Even if employers don’t require, encourage or suggest that an employee work off the clock, employers cannot allow it if they have reason to believe it may have occurred.

Supervisors need training on the obligation to report to HR potential off-the-clock work so that HR professionals can talk with the employee and determine whether and what is owed to him or her. If there is a pattern of working extra hours without permission, this may be cause for discipline of the employee, but the employee almost always should be paid.

Clear policies

Don’t leave employees guessing about the organization’s policy on off-the-clock work. Spell out the employer’s policy on payment for time worked, but make it clear that off-the-clock work is not permitted and that there may be disciplinary action for it. That said, set up a process encouraging employees to report off-the-clock work to HR without fear of retaliation.

Pay up: Develop a procedure HR professionals can use when they speak with employees who report off-the-clock work.

Use the procedure to determine if they are telling the truth, and then make sure they are properly paid.

If a supervisor reports that an employee has or may have worked off the clock, an HR professional should contact the employee. HR needs to determine whether the employee performed any off-the-clock work and how much time is involved. An appropriate adjustment must be made.

Sometimes, HR professionals make the mistake of assuming that no money is owed as long as the employee does not go over 40 hours in a workweek or eight hours in a day in California. Payment may be owed for off-the-clock work, even if the employee does not become eligible for overtime.

For example, assume that an employee is paid a salary for working 35 hours for a workweek. If the employee works additional hours but is short of 40, the employee generally must be paid for the “gap time.”

Be specific: Develop a policy that prohibits off-the-clock work. Leave no doubt that employees must record all time worked.

Make clear that you will not tolerate any off-the-clock work and that all work must be on the clock.

A general rule is not enough. Spell it out. For example:

“An employee may not do any work before clocking in, and, if he or she does, management must be contacted to override the start time so that he or she will be paid for all time worked.”

“An employee may not do any work after clocking out, and, if he or she does, management must be contacted to override the stop time so that he or she will be paid for all time worked.”

Have an open-door policy: Develop a complaint procedure with appropriate assurances of nonretaliation so that employees can report concerns without fear of retribution.

There must be a strong policy and a robust complaint procedure. Contacting their supervisors should not be employees’ only option. After all, supervisors often are the perceived perpetrators.

At a minimum, employees should be given the option of speaking with HR as an alternative. Employers may want to go one step further and provide another option outside of HR, just in case the problem employee works for HR.

Of course, the policy should prohibit retaliation, which should be defined broadly. If employees don’t feel comfortable raising their concern in-house, they could consult with a plaintiffs’ lawyer and you could end up in court.

Automated backup

Technology can be HR’s friend or foe in preventing off-the-clock work. On the one hand, time-keeping systems may be adjusted to provide HR with notifications about interrupted meal breaks or other off-the-clock work.

While technology may facilitate telework, however, telecommuting poses unique compliance risks to employers, particularly regarding their nonexempt employees.

Tweak time-keeping system. Determine whether questions should be included in your time-keeping system that ask employees if they have done work off the clock, so that you can follow up with the employees, capture any time worked but not recorded, and then pay them for it.

Most employees are honest, but some are not. How do you protect yourself against those who may claim later that they worked hours off the clock but then bring bad-faith claims?

Most modern time-keeping vehicles include the potential for questions at the beginning or end of each shift. The answers may be helpful in ensuring that employees are paid in real time, as they should be, and in defending against false claims.

For example, at the beginning of every shift, employees can be asked before they clock in if they have done any work since they clocked out on their last shift. If they answer yes, HR should receive notification and speak with the employees.

Similarly, at the end of the day, ask a question about the employee’s meal break, such as “Did you enjoy an uninterrupted meal break of 30 consecutive minutes?” If the answer is no, either HR would be contacted to determine if payment is owed or the unpaid meal break would be automatically converted to paid time.

If an employee who responds affirmatively to the meal break query later claims that he or she was interrupted almost every day but not paid, any subsequent allegations are inconsistent with his or her prior answers, sometimes referred to as attestations. This should weigh heavily against an employee’s credibility.

Limit telework: Establish clear rules about whether and when employees may work remotely, such as checking email, and how to ensure that time is properly documented and paid.

Sometimes it is your hardest-working employees who can cause trouble in this area because they log in at all hours and perform work. While their intentions are likely noble, you could pay a handsome price for such dedication.

Set boundaries for remote work, even for stellar employees. For example, you could block remote access to your network by nonexempt employees. Or, you could allow access only if approved and provide guidance on how to record the time to ensure proper payment.

A similar issue arises with personal digital assistants. The safest policy legally is to deny your nonexempt employees smartphones, BlackBerry devices and the like. But is that smart from a business perspective?

There may be times when nonexempt employees need these devices, so set limits as to when they can use the devices and pay them appropriately.

For example, you might set a specific block of time outside of working hours when an employee away on business can use his or her BlackBerry. If you allow such periodic use, under the continuous day rule your duty to pay could be continuous, too. Even if you have not developed specific policies yet, if you have reason to know an employee may have done work remotely, you must speak with the employee and pay him or her accordingly.

To illustrate this point: A client forwarded me an e-mail from her assistant regarding information that we needed to respond to a U.S. Equal Employment Opportunity Commission charge. The message was “Good news. See below.”

My response: “Not really. See when your nonexempt assistant sent it to you!”

The author, a partner with Duane Morris in Philadelphia and managing principal of the Duane Morris Institute, focuses on counseling, training and strategic planning to minimize litigation and unionization. 

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Who do you view as your biggest competitor?