Advertising is a cool job because there is a legal concept associated with it called “puffing”: You generally can’t sue somebody for advertising that they are great or huge or the best because a consumer has no business believing that stuff anyway. How liberating! 
HR is supposed to be different, right? So what happens when personnel policy meets Madison Avenue? We get Heinz’s SMUNDAY.
Before going further, to get the full effect, take in the two-minute video at smunday.org, and get the SMUNDAY pitch replete with cute dogs and babies. And cheer for Heinz, leading the campaign to give employees the Monday after Super Bowl Sunday off as a new national holiday to recover from hangovers and the emotional drain of the big game.
Taking a campaign stance, Heinz posted a petition, also at smunday.org, saying, “If we get over 100,000 signatures, it will be sent to Congress”—an empty promise, but hey, it’s an ad. But much more significant, instead of running a Super Bowl commercial this year, Heinz is using that budget to give all of its employees the day off on SMUNDAY, February 6. Leading by example. Yay, Heinz!
57 varieties of truth
But wait, there is some fine print to that ad campaign. First, according to Bloomberg, only salaried people get the paid day off; hourly workers who don’t log the hours don’t get the pay. What does this mean? Hourly workers at the Pittsburg-based company whose beloved Steelers fell one game short of a Super Bowl berth—and who likely need a paycheck the most—won’t be happy to have one fewer paid workday in an already short February. Those aren’t the happy employees I saw in Heinz’s SMUNDAY ad.
But it gets worse. According to a poster on Reddit who claims to be a salaried Heinz employee, as the company added SMUNDAY to its holiday calendar, it dropped one of two paid days off at Christmas. If that is true, Heinz didn’t really grant a new holiday as much as it made this judgment: Our workers would rather recuperate from the Super Bowl than enjoy the most widely celebrated religious and family gathering in the nation. And as much as Heinz touts the fact that 16 million workers call in sick on SMUNDAY, it has to know that its workforce will experience a similar decline from people taking PTO or calling in sick in December.
So net, net, Heinz is ahead of the game. The salaried personnel cost is a wash, trading one holiday for another. Hourly workers will have to use PTO or go without pay if they need to recuperate on SMUNDAY. The play has gotten broad news coverage—Heinz is hoping it can get attention equal to a 30-second Super Bowl commercial without paying the $5 million price tag. A publicity coup.
Of course, there is no law requiring an employer to provide any paid holidays, so granting July 4, Labor Day, Christmas Day, or SMUNDAY is purely optional; Heinz’s alleged sleight of hand, granting SMUNDAY but making a previously provided holiday disappear, would break no law. But this move won’t promote employee morale, according to the slew of comments from Heinz’s employees on reddit.com, who are complaining in droves.
Nor does it seem to meet the company’s code of conduct, which requires all employees to “adhere to the highest ethical standards of conduct,” calling integrity “the basis of all our business relationships.” That policy applies seven days a week—just not on Smunday.
A quandary I don’t relish
I respect employers that go out of their way to promote employee welfare and reward their staff. And I can understand employers that take a “no-frills” approach, keeping employee benefits to a minimum and making no bones about it. But I like to think there’s a small place in Hell reserved for companies that portray themselves as generous employers when they are not. American Apparel was my poster child for that sin, but alas, Chairman Dov Charney’s sexploits have murdered the chain. I need a new standard bearer for employer cynicism.
But it won’t be Heinz. Why? Because—true confession—I love Heinz Ketchup. It is the only ketchup I’ll eat. This scandal must not threaten the company; it cannot suffer American Apparel’s fate. So I’ll sign the petition, go to the website, and—as I’m hard at work the day after the Super Bowl—try to get into a SMUNDAY state of mind.
Mark I. Schickman is a partner with Freeland Cooper & Foreman LLP in San Francisco, California. He may be contacted at schickman@freelandlaw.com.
Excellent article…Well done.