“Don’t be afraid to take a big step if one is indicated. You can’t cross a chasm in two small steps.” –David Lloyd George (1863-1945), British Prime Minister

This issue discusses:

• Editor’s Column: Workplace Statistics Speak Volumes
• Three Questions Job Applicants Should Be Asking You
• Have You Ever Promoted the Wrong Person Into Management?
• The Importance of Formalized Training
• Data Retention vs. Data Destruction
• Three Keys to Effective Wellness Programs
• Why Workers Don’t Use Vacation Time
• Improving Performance Evaluations
• Spotting Scoundrels
• Leadership Challenges with Millennials
• Most Employees Face Health Challenges
• Considering Obamacare

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Workplace Statistics Speak Volumes

The September 2012 issue of Inc. magazine offered a variety of statistics related to the workplace. Here are a few that I found interesting:

• More than two in five small business owners or managers (43%) say that they feel more stressed now than they did a year ago. This should be a scary sign for all of us, because these folks have created the only real net job growth in the U.S. during the past few years.
• Apparently, 77% of American workers are stressed about something at work. My question is: What’s going on with that other 23%? Are they slackers? Zen Buddhists? Numb? Or have they given up? I don’t know anybody trying to be successful who doesn’t feel at least somewhat anxious and stressed. Stress is generally related to low salary (49%), lack of opportunities for advancement (43%), heavy workload (43%), unrealistic expectations from managers (40%), and long hours (39%). It seems as if you could pick any subject and half of us would be stressed about it.
• Interestingly, among Americans who listed their go-to stress relievers, watching TV came in at 64% for men, and 70% for women, while exercising came in at only 44% for men and only 42% for women – one reason why we have a growing obesity epidemic.
• Inc.500 companies offered these employee benefits: Health insurance (92%), bonus plan (85%), retirement plan/401(k) (66%), Life insurance (49%), Disability insurance (49%), and tuition reimbursement (25%). These are “rich numbers.” I wonder if this is because these companies are so fast growing and successful that they can afford such generous benefits; or does the fact that they provide benefits allow them to attract great employees, who help grow their companies quickly? Chances are that it’s a little bit of both.
• Among Inc. 500 CEOs who took a leadership quiz, 51.7% viewed themselves as creator-builders, happiest at the start of projects. Only 11.9% considered themselves to be people-movers who excelled at spotting, motivating, and nurturing talent. Think about this statistic for a minute – if the CEO is not excelling at the talent game, then who at the organization is? How can HR step into this incredible void and allow those builders-owners to expand and execute on their creative visions?

Three Questions Job Applicants Should Be Asking You

The October 2012 issue of Inc. magazine posted three great questions that applicants should ask you and, in turn, you should be prepared to answer:

1. What do you expect me to accomplish in the first 60 to 90 days?
2. What are the common attributes to your top performers?
3. What are the major factors that drive results for the company?

Have You Ever Promoted the Wrong Person Into Management?

When we asked Webinar participants this question, 76% replied yes. Please take advantage of the Webinar First Time Supervisors and Managersand the White Paper: Critical Transition: From Employee to Manager on the HR That Works program. Here are some pointers that these tools set forth:

1. Promotion into management is a hiring decision.
2. Make sure they want the promotion more than you do.
3. Talk about expectations upfront and what “outs” the company and employee have if these expectations are unmet. The last thing you want to do is let go of a poor manager and lose a great employee in the process.
4. Make sure that these managers have a formalized training process (see the next article)

Here’s another chart from that Webinar. The first hurdle for a new manager is “moving from friend to boss.” The second is “learning how not to do the job of others.”

Think about it this way: If you’re paying an employee $30,000 a year ($15 an hour) and you then promote them to management and pay them $50,000 a year ($25 an hour), every time they do $15 an hour work, you lose. Although nobody is suggesting that friendships end because of a promotion, becoming a boss is a fundamental shift that might require assistance. You can role-play scenarios with these managers. What type of situations show up in your workplace when you ask managers to do the jobs of others, or when people try to influence management decisions with their friendships? Teach your managers how to deal with these situations effectively and you’ll have far better managers.

The Importance of Formalized Training

Two-thirds of HR That Works companies have between 25 and 100 employees. In a recent webinar, when asked “Do you provide your managers with formalized training?” only 43% answered yes. This means that less than half of these companies have a plan to create top-flight managers. I say this because if they don’t have formalized training, I doubt that they’ll have a formalized management success plan. Here’s a list of topics on which all managers should have training:

1. Hiring great people
2. How to manage the performance of great people
3. Keeping great people
4. How to motivate great people
5. Dealing with poor performers and the termination process
6. Compliance basics
7. Effective leadership and management skills
8. Emotional intelligence
9. Business acumen
10. Creativity and innovation
11. Managing across generations
12. Time management

Yes, HR That Works offers training in each of these subjects. Make sure that your managers watch at least one of these programs every month. At the end of the year they are guaranteed to be much better managers. Amazing! In addition, reward them with bonuses, contests, recognition, etc. when they seek out their own training programs.

Data Retention vs. Data Destruction

An excellent article in the September 2012 issue of Corporate Counsel Magazine focuses on the tradeoffs between data management (storage, security, speed, and storage space), information management (storage, organization, and rapid access to information ), and data retention (creating a defensible policy to avoid litigation and regulatory sanctions if certain information is destroyed). According to the author, just because a business can keep data in perpetuity, often in cloud-based applications, does not mean that it should do so. The negative aspects of unlimited data retention include the difficulty of archiving and segregating information for easy access. The gist of the article is that it makes sense to have a retention policy that discards information when it’s no longer required for compliance purposes, backup, or analysis. Click here to read the article.

Three Keys to Effective Wellness Programs

A consensus of six healthcare organizations have released a Joint Consensus Statement entitled “Guidance for a Reasonably Designed, Employer-Sponsored Wellness Program Using Outcomes-Based Incentives.” Anyone in HR, benefits, or who cares about wellness or productivity should read this article.

Here are three major conclusions I gleaned from the paper:

1. Evidence suggests that long-term lifestyle modification and risk factor management require more than financial motivation.
2. The key to a successful worksite wellness program capable of sustaining behavioral change is the creation of a culture and environment that supports health and wellness.
3. You can’t wing wellness; you need a strategic plan to make sure that it works. That strategic plan should provide the right mix of rewards versus penalties and have cultural support, include assessment and screening, behavioral change interventions, engagement methods, measurement, and valuation, HIPAA and ADA compliance, and effective incentives.

Why Workers Don’t Use Vacation Time

A survey by Harris Interactive, Inc., found that by the end of 2012 Americans will leave an average of 9.2 vacation days unused, up from 6.2 days in 2011.

According to a survey by Expedia, here are the top five reasons why U.S. employees don’t use all of their vacation time:

1. I can’t afford a vacation;
2. My work is my life;
3. I have trouble scheduling far enough in advance;
4. I can get paid for my unused vacation days; and
5. Taking off might be perceived negatively at work.

Unfortunately, only the Japanese take fewer annual vacation days than Americans (5 versus 12), compared to 20 in India, 25 in the UK, 28, in Germany, and 30 in Brazil. Although employers want employees to work hard, burnout and disengagement is a real concern. If it were my company, I would make sure my employees used all their vacation!

Improving Performance Evaluations

I don’t like the idea of traditional performance evaluations. Most managers don’t like to give performance evaluations – and most employees don’t like to get them – because they seldom identify the real issues. For example, poor performance can be caused by a number of factors beyond the employee’s control.

• They have a poor boss.Remember, half of all managers are above average, while the other half are below average. What’s the value of a performance evaluation from a below average manager?
• The reviews are seldom honest.Because no one wants to offend anyone else we rate toward the comfortable middle or, if there’s a “let’s get rid of them” agenda, the performance appraisal gets manipulated toward the low end.
• The Peter Principle. The person was moved into a new role (whether through hiring, transfer, or promotion) for which they lack the requisite skills or training. They have the desire, but not yet the ability. Whose fault is that?

Even though there are other difficulties associated with the traditional performance appraisal process, 75% of small to mid-sized companies still do them. What should we do instead? Here are a few points to consider:

1. Make sure you have crystal clarity about what constitutes good performance – in terms of quality and quantity.
2. Allow the employee to own the performance benchmarks.
3. Provide as much feedback as possible on these benchmarks.
4. Catch problems early.
5. See where the “system” might be hampering performance.
6. Think of yourself as more of a coach than a manager.
7. Seek anonymous feedback of your staff and other managers. If you truly want to be a good manager, you need 360˚ input. Solicit it and take any judgment as a gift.
8. Finally, there are only three results to a performance evaluation process: rewarding good performance, coaching poor performance, and terminating employees who just can’t cut it.

This last option is the trickiest because it involves more emotion than any of the others. Nobody likes to end a relationship, even if it’s a bad one. As a manager, you have to embrace the fact that employees won’t be happy about getting fired and will probably begin pointing fingers. If your performance evaluation process is able to identify their shortcomings without surprise, there should be little regret on your part.

Spotting Scoundrels

A recent issue of Scientific Mind discussed studies of truthfulness and physical signals. The bottom line: Opportunists or liars tend to display a cluster of four cues: hand touching, face touching, crossing arms, and leaning away. Although none of these individual clues in itself indicated deceitfulness, taken together they provided a highly accurate indicator. How can you benefit from this insight? When hiring an employee or investigating a matter, make sure to challenge the interviewee. If he or she starts displaying these gestures, beware!!

Leadership Challenges with Millennials

I’ve read numerous books and watched webinars about managing younger workers. Here’s a summary of the key points to remember:

1. Don’t micromanage them.A better approach is to be very clear about the outcomes you’re looking for and allow these employees to play a part in figuring out how to get there. Get them to define and own success benchmarks.
2. Allow them to share their ideas.Even if they’re young and new. Many of their parents raised them to be their peers or friends, so they will expect the same from you.
3. They can expect to be acknowledged and rewarded for participation. So do that.
4. Remember when you were young? Make it fun!

As Millennial work expert Blake Cavignac reminds us: “Remember, you raised us!”

Most Employees Face Health Challenges

I’ve come across a few surveys recently that really got my attention. According to a Gallup – Healthways Wellbeing Index, here’s the health status of full-time employees:

• 13.9% are normal weight and without chronic conditions
• 17.9% are overweight or obese without chronic conditions
• 30.2% are overweight or obese with one or two chronic conditions
• 17.8% are overweight or obese with three or more chronic conditions
• 14.8% are normal weight with one or two chronic conditions
• 5.3% are normal weight with three or more chronic conditions

These are scary statistics for employers and our nation as a whole. Of course, some of these statistics vary with location, job position, employer, etc. Employers are beginning to realize that they should do everything possible to put a dent in these figures – not just to reduce healthcare costs, but also to reduce absenteeism and increase presenteeism, improve productivity, and more.

It’s not just employees suffering from health challenges. According to Manta, 44% of small business owners say that the poor business climate had a negative effect on their health in 2011. A third said that they exercised less; 22% said they gained weight.

This health trend has caused employees to view their benefits as on a par with their compensation. According to a Mercer Workplace Survey, 75% of employees said that as healthcare costs rise, they would rather pay more out of pocket than have their health benefits reduced. The survey also found that 61% of companies offer wellness benefits and 30% of employees say they take advantage of those benefits. Unfortunately, this might be the same 30% who try to keep themselves healthy in the first place.

Considering Obamacare

An interesting dialogue sponsored by AFLAC on how today’s agents and brokers can help their clients navigate healthcare reform offered these pointers:

1. Carriers and brokers will be supplying a Summary of Benefits Coverage in 2013. Payroll companies will help with reporting benefit payments to the IRS.
2. In 2014 we’ll have to worry about obtaining insurance from either federal or state exchanges. Much remains to be worked out before any advice can be given in this area.
3. Agents and brokers will still need to advise their clients on the purchase of Disability, Life, and other insurances and often times on a voluntary basis.
4. Employee education will be essential. Work with an agent or broker that can provide employees with this education so they don’t get their information from the TV.
5. The healthcare exchanges will be providing “navigation services,” and we’re still not sure exactly what that means.
6. Ultimately, employers are going to ask, “What should I do?” and your agent or broker must have the experience and expertise to provide you with insight.

This will be a challenging time as carriers, brokers, employees, employers, and healthcare administrators struggle through the implementation of the Affordable Care Act. The bottom line: Getting your benefits act together with your Health insurer, agent, broker, and employees will provide a significant competitive advantage for your business.

Form of the Month

Team Commitments (PDF) – This form was designed to give you a head start on creating a set of Team Commitments that can work for your company. Make sure you get employee input in the process. Once you finalize this document display it proudly and often.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY: Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2012 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

Podcast: Play in new window | Download

“Your playing small does not serve the world.” —Marianne Williamson

This issue discusses:

• Editor’s Column: Time to Start Delegating
• Raise the Financial Awareness of Your Employees
• Accommodations Related to Commuting to and From Work
• Automatic Transfer to Vacant Position May Be Required as Reasonable Accommodation
• Anyone Not Stressed Out?
• What is HPM?

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Time to Start Delegating

I can’t seem to say this enough: You need to stop doing things in order to grow in your career. This is true for me, you, and anyone else. How do you know when to stop doing something? When should you outsource it, delegate it, or ignore it completely? Here are some potential indicators:

• You’re exhausted, burnt out, a piece of toast.
• You’re spending more than 50 hours per week at the office and taking work home.
• You spend more than half of your day doing low-value work. For example, if you make roughly $50 per hour, this means you spend more than half your day doing work worth $8 to $49 per hour.
• You find yourself doing other people’s jobs for them. This means you clearly haven’t defined a standard operating procedure (SOP) for the job and its benchmarks.
• The opportunity that lies dormant in your career is not being realized. This is true whether you are in HR, not in HR, or run the company! You know that there are cool, exciting, profitable things that can get done, but you’re not able to get to them.
• You’re bored with your work. When you have these fantasies of quitting and moving on, you’re in a dangerous place. It’s time to figure out what excites you and delegate your way to reaching this position.
• You’re not meeting the expectations of ownership. You’re not contributing to the bottom line as they had hoped because you find yourself mired in nonessential, non-strategic work.

In coaching HR executives, I stress that finding the first five hours of a week to delegate are the easiest. Put it this way: if I put you in a life or death situation that required you to stop doing five hours of work, do you think you could do it? Of course you could! Delegation is all about the choices we make. Think of it this way: Find five hours of low-denominator, nonessential, uncool work you do — and then delegate it, outsource it, or stop doing it altogether. You could probably find at least another two hours per week if you stop wasting time in social chat forums, online shopping, checking out scores, texting your friends, etc.

Make sure that the work you delegate is done properly. Don’t give it to someone who’s already overwhelmed, doesn’t have the talent, or lacks the understanding of how to do the job right. Make delegation a process, rather than an event.

Once you’ve found your initial five hours, hunt for an additional hour per month that you can delegate for the rest of the year. At the end of the year, you’ll have made a 16-hour a week difference in your work tasks. You should be able to keep at least two or three of those hours for yourself and focus the rest on adding value to your career and company.

Raise the Financial Awareness of Your Employees

“Think of saving as well as getting.” ̶ Benjamin Franklin

The past five years have been difficult for companies and employees alike. One in seven workers currently faces debt collectors. One in three is living paycheck to paycheck. The “true” unemployment rate remains above 15% and is unlikely to change in the near future. Because of today’s financial challenges, one in four employees don’t expect to retire by the time they turn 65. I believe that this figure is wishful thinking and will end up far higher.

What are we to make of these facts as owners and managers? My answer: Provide financial and accounting education to all of your employees — and don’t wait to do it! Ten years ago, companies began to realize that they couldn’t leave employees on their own when it came to managing their health. As a result, wellness initiatives exploded. It’s time for a similar explosion when it comes to this other malaise of our time: How we manage our money.

To create a financial education initiative in your business, I’d recommend taking these steps, all of which you can find on HR That Works:

1. Make sure that management understands how the financial stress of individual employees affects the company as a whole. We did an excellent webinar on this topic with Coach George from Dave Ramsey’s organization. He gave the workshop Overextended: A Special Program on How the Personal Financial Stress of Your Employees is Impacting Your Business.
2. Give employees a basic education in accounting. This is why we brought in the best teachers in the business — the folks from The Accounting Game. I would recommend having every employee watch their webinar; and then follow up with a workshop so that employees commit to taking action.
3. Provide financial planning. On average, half of your employees don’t have a budget and half don’t have a retirement plan (probably the same half). The webinar Financial Planning 101features a member of the Certified Financial Planners Board sharing the fundamentals of good finance.
4. Expose every employee to the concept of ownership thinking and open book management. Two of the best webinars for this are Jack Stack’s Great Game of Business and Brad Hams’ Ownership Thinking.
5. Stress overall business acumen. To place employee financial education in its larger context, have every employee watch Kevin Cope’s webinar Seeing the Big Picture: Business Acumen to Build Your Credibility, Career, and Company.

I guarantee that doing all of the above will transform your workplace. You’ll see less stress, improved focus, higher profitability — and greater financial security for owners and employees alike. You can’t ask for much more than that.

Accommodations Related to Commuting to and From Work

A frequent question at the Job Accommodation Network is whether the ADA requires employers to provide accommodations for a disabled employee who has trouble getting to and from work because of his or her condition. A related question is whether it makes any difference if the employee’s only disability-related problem is the commute; if once at work, he or she has no problem performing the job.

The answer to the first question is “yes”; employers must consider some accommodations related to commuting problems. The answer to the second question is “no;” it doesn’t matter whether the employee is able to perform the job fully without the need for accommodations at work.

According to informal guidance from the ADA Policy Division of the Equal Employment Opportunity Commission, although employers don’t have to actually transport an employee with a disability to and from work (unless the employer provides this as a perk of employment), employers might have to provide other accommodations, such as changing an employee’s schedule so that he or she can access available transportation, reassigning an employee to a location closer to home when the length of the commute is the problem, or allowing an employee to telecommute.

The underlying reason why employers might have to provide such accommodations is that the employer usually controls employee schedules and work locations; so, when a schedule or work location poses a barrier to an employee with a disability, the employer must consider reasonable accommodation to overcome this problem. As with any accommodation under the ADA, when considering accommodations related to commuting, employers can choose among effective accommodation options and do not have to provide an accommodation that poses an undue hardship.

Linda Carter Batiste, J.D.
The Job Accommodation Network

Automatic Transfer to Vacant Position May Be Required as Reasonable Accommodation

A question that often comes up during the Americans with Disabilities Act interactive process is whether a disabled individual must be reassigned automatically to a vacant position as a reasonable accommodation, or whether a company can require the employee to compete for the position.

The federal appellate courts have split on this this issue. Although the courts have all acknowledged that an employer need not violate other important employment policies in order to provide a transfer; the question turns on what each court would consider a legitimate employment policy. Collective bargaining agreements and entrenched seniority systems are clearly such policies; however, a policy of hiring the best-qualified applicant is viewed differently by the different Circuit Courts that have addressed this issue.

The EEOC as well as the 9th, 10th, and D.C. Circuits, require automatic transfer, regardless of the relative qualifications of the disabled employee compared with other candidates for a vacant position. The 7th and 8th Circuits, on the other hand, have not required automatic transfer, holding that a reasonable accommodation offered the opportunity to compete for the position. However, the 7th Circuit recently took the unusual step of having the full bench review this position in EEOC v. United Airlines (although decisions are usually issued by a three-judge panel).

The full bench has now issued its decision to overturn its prior ruling in EEOC v. Humiston-Keeling on this issue. Now the law in the 7th Circuit states, as it does in the 9th, 10th and D.C. Circuits, that the ADA requires employers to transfer employees to a vacant position, provided that the transfer does not create an undue hardship, such as contravening a collective bargaining agreement or valid seniority policy. The Court specifically stated that a “best-qualified” hiring policy is not the same as a seniority policy.

At this time, the 8th Circuit remains the only federal appellate court to hold that automatic or mandatory reassignment is not required as a reasonable accommodation. However, because the 8th Circuit’s position was based on the 7th Circuit’s ruling in Humiston-Keeling, it has now become open to question.

For employers, this means that, even if it’s clear that a disabled employee can’t perform the essential functions of his or her position, you probably can’t just terminate the employment relationship. Rather you should review your open positions to determine whether there are any that the employee can perform (with or without accommodation); if the employee is qualified for the position, offer it even if the employee is not the best qualified person for the job. It’s also important to note that the EEOC takes the position that there are no geographic limitations on the open position, meaning that the company must consider positions at other company locations — even those in other states.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Anyone Not Stressed Out?

According to the National Institutes of Health, “We all have stress sometimes. For some people, it happens before having to speak in public. For other people, it might be before a first date. What causes stress for you might not be stressful for someone else. Sometimes stress is helpful — it can encourage you to meet a deadline or to get things done. However, long-term stress can increase the risk of such diseases as depression, heart disease, and a variety of other problems.”

To help your workforce find that healthy balance with stress, check out this excellent web site: http://www.nlm.nih.gov/medlineplus/stress.html — and the tools are free!

What is HPM?

Next year I’ll be speaking for the American College of Occupational and Environmental Medicine (ACOEM) on helping employers and employees manage the “Bermuda Triangle” (the intersection of Workers Comp Return to Work, the ADA, and FMLA). The ACOEM website has this to say about the concept of Health and Productivity Management (HPM):

“The American workplace continues to be at a crossroads. Global economic competition demands increased productivity; technology is rapidly influencing the dynamics of industries and marketplaces; and major demographic shifts are changing the face of the American workforce.

“At the same time, work-related illness and injuries continue to impose a tremendous burden. Each day, an average of 137 Americans die from work-related illness and an additional 17 die from work-related injuries. According to the National Safety Council, work injuries cost Americans more than $132 billion a year — or $970 per worker — in lost wages, lower productivity, higher health care expenses and other costs.

“Now a new factor — chronic disease — has entered the picture. As the percentage of older workers in the United States grows, it’s expected that chronic diseases such as diabetes and cancer will cost employers heavily, as they provide medical benefits for employees and absorb the costs of long and short-term disability claims. One study found that of the nation’s $2 trillion in medical spending, 75% goes toward care for chronic conditions.

“Caught in the middle of this continuously evolving workplace, employers grapple with a growing issue: The impact of worker health on company productivity. As the link between health and productivity has been studied a new discipline has emerged, known as Health and Productivity Management.

“Simply defined, Health and Productivity Management, or HPM, is a concept which directs corporate investment into interventions that improve employee health and business performance. It can also be described as the integrated management of health risks, chronic illness, and disability to reduce employees’ total health-related costs, including direct medical expenditures, unnecessary absence from work, and poor performance at work — also known as “presenteeism.”

“A growing body of evidence suggests that worker health can be measured and managed more effectively for increased profitability and organizational effectiveness. More and more employers have begun to embrace this concept, as the relationship between the health of workers and the bottom line of American business has become increasingly clear.

“Proponents of HPM view the workforce as human capital, which should be managed with the same level of focus and interest applied in the management of financial capital. They recognize the value of managing human capital by focusing on health in the workplace environment. With healthier employees, companies perform better.

“At the heart of the HPM process lies the measurement of workplace health costs, accurate evaluation of the factors that are driving those costs, and the creation of health enhancement programs and strategies for workers. Occupational and environmental physicians can play a pivotal role in helping the workplace understand these concepts and the relationship between health and productivity.

“HPM promotes better individual health, which in the long term improves the overall health of our nation and the stability of our health care system. HPM becomes a win-win, benefiting both the employee and the employer.

“The bottom line: good health is good business, and HPM helps achieve both.”
Just as you need to use lawyers to help prevent HR risks at the front end, you want to use doctors to help prevent Workers Comp and other risks. My longtime friend, Dr. Russ Dunnum in San Diego, has shown companies how to save millions in health and Workers Comp-related overhead. He has also helped many employees in the process.

I would encourage you to go to the http://www.acoem.org/ website to learn more about how to use doctors more effectively in the front end of your business.

Form of the Month

Vision, Mission, Goals Worksheet (PDF) – Use this document to help your employees get on board. It is important for leadership to define the “why” that’s in it for the employee.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY: Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2012 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

Podcast: Play in new window | Download

“Be a mental engineer and use tried and proven techniques in building a grander and greater life.” —Joseph Murphy

This issue discusses:

• Editor’s Column: “I’m Disabled…So Take Care of Me”
• Organizing Through Enforcement of State Employment Laws
• Managing Disabled Workers
• Age Discrimination
• The ABCs of Right-to-Work Laws
• Stupid Boss Tricks
• Incorporate Reasonable Accommodation Practices Into Your ‘Onboarding’ Process
• National Labor Relations Act Update

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: “I’m Disabled…So Take Care of Me”

I read recently that a record 5.4 million workers and their dependents have signed up to collect federal disability checks since President Obama took office. Many unemployed apply for disability benefits as soon as their unemployment benefits run out. There are now a record 10.8 million Americans on disability — double the number since Obama took office. The EEOC has stated a clear agenda to protect the disabled, with an ever-expanding definition of what the term means. The commission is even suggesting that government contracts include hiring of a minimum of 7% disabled.

Politics aside, that’s a lot of disability going on. The ultimate proof of victimology comes from the government labeling people disabled. Uncle Sam classified an astonishing 54 million people as “disabled” in 2005. That’s 19% of the population, or nearly one in five Americans. The U.S. Census Bureau has classified Disabled Americans as the nation’s largest “minority population segment.” Given obesity and longevity trends, we can expect a growing number of disabled, placing considerable strain on the government and employers alike. The crazy thing is most of this “disability” is not due to accident or genetic pre-disposition, but primarily to individual’s lack of exercise, poor diet, and mental attitude.

Of course, the recent jump in disability filings is largely due to current unemployment and poverty levels. The Obama administration is also encouraging it. To see the Department of Labor’s overall approach to this issue, visit http://www.dol.gov/odep/.

Employers need to bone up on ADA regulations, take advantage of the resources on HR That Works and from sites such as JAN.

As a final note, I believe that we should help the truly disabled, especially those who can’t help themselves. On the other hand, people who make poor lifestyle choices and then claim disability as result garner little sympathy from me, as do those who “work the system,” taking precious dollars away from those in the disability community who deserve help. Unfortunately, I don’t see the administration making this distinction.

Organizing Through Enforcement of State Employment Laws

In doing online research, I came across an interesting white paper that discusses how vigorous (and perhaps manipulative) use of non-union laws can help with organizing efforts. Employers must realize that there are many stakeholders in the compliance game — perhaps including those some never thought of! Note: this is relevant to employers in any state, even though this campaign is targeting California employers.

Managing Disabled Workers

Speaking of help for disabled workers, the Office of Disability Policy (ODEP) has launched an excellent Web site to help hire and manage disabled employees. All employers should become familiar with it: www.dol.gov/odep/topics/Employers.htm.

Age Discrimination

Finding that a 41-year-old former tree-trimming foreman had presented sufficient evidence that a jury could find his employer’s stated reasons for his termination pretextual, the U.S. Court of Appeals for the Sixth Circuit has reversed a lower court’s grant of summary judgment for the employer, and allowed the employee’s age discrimination claim to proceed to trial. In Brooks v. Davey Tree Expert Company, the plaintiff, after working for the employer for 12 years, was assigned a new supervisor who almost immediately began making negative age-related comments to him. For instance, he allegedly told the employee that he was too old to be doing the kind of work he was doing, and, on one occasion, called him an “old fart.” The plaintiff was eventually terminated over an incident in which a crew member at the site where the plaintiff was working was injured by a falling tree. The plaintiff had been in his truck, and not out with his crew, at the time of the accident. The supervisor, determining that the accident might not have occurred if the employee had been out with the crew, reported his conclusion to the area supervisor, who terminated the employee based on the supervisor’s report.

After the plaintiff lost his age discrimination case on summary judgment, he appealed. In reversing the grant of summary judgment, the Court of Appeals noted that the age-based comments by the supervisor could be considered “probative of pretext,” even though the supervisor did not make the ultimate termination decision, because the area supervisor based his termination decision on the supervisor’s recommendation. In addition, the Court noted that the employer could not prevail on summary judgment based on the contention that it honestly believed that the plaintiff was responsible for the accident, because the employer had failed to articulate how or why it concluded that the accident would have been prevented if the plaintiff had been out with the crew, rather than in his truck.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

The ABCs of Right-to-Work Laws

The term “right to work” often confuses HR executives, business owners, and employees alike. Roughly half the states in nation are “right-to-work” states, while the other half are not. In a right-to-work state, an employee does not have to join a union (where there is one) in order to obtain work. In non-right to work states they do. Proponents of right-to-work laws point to the fact that employment rates are higher in right-to- work states that allow for individual contracts. In non-right to work states, which have stronger union lobbying efforts, the argument is that employees in right-to-work states take advantage of the hard work of unions, but don’t have to pay any dues for the effort. It’s a fact that wages are higher in non-right-to-work states. However, if you look at geography, Northeastern and West Coast states tend to be the non-right to work jurisdictions where wages are higher in the first place.

State legislatures throughout the nation are continuing to introduce right-to-work laws. A lot has to do with the political balance of power in that state. Of course, conservative Republican states tend to favor right-to-work laws and Democratic pro-union states prefer what some call “forced unionism.” If you enter “right-to-work” in a search engine, you’ll see plenty of arguments both for and against these laws. To a read an excellent Wikipedia article on this topic, go to http://en.wikipedia.org/wiki/Right-to-work_law.

Stupid Boss Tricks

Peter Drucker and Dr. Edward Deming reminded us that poor performance is a management issue, not an employee one. Most managers receive little management training, and some are capable of such brilliant exploits as:

• Bringing somebody on your team going 45 mph. If your team is going 75 mph, what happens when you bring someone onto it who’s going 45 mph? I guarantee there will be crashes, upset, injuries, and fingers pointed. Make sure that you bring employees up to speed before you thrust them onto a team. Unless it’s an emergency, there’s no excuse for not having an excellent “onboarding” process. Remember that who you hire is the most important part of your job; not simply something to get over.
• Focusing on what people don’t get right. All of us screw up every day. Sometimes it’s a basic thing like accidentally deleting a document. At other times, we make some huge mistakes. Either way, when you’re a boss running 75 mph, it’s easy to nitpick. If you find yourself making more negative deposits than positive ones, cut it out.
• Never giving an “atta-boy.” As a corollary, if managers aren’t giving negative jabs, they’re not saying anything at all. There are no positive offsets. They make no time to show they care. Not a five-minute conversation, not a thank-you note, not a pat on the back, nada. How long does anyone want to work for a boss like that, even if they know they’re doing a good job?
• Taking credit for positive results and pointing fingers at the negative ones. We’ve all been around people like this — and not for long. The job of a boss is to make every person on his or her team a better player. When the team wins, the boss shares credit. When there are losses, the buck stops with the boss. When I search for an example of this behavior, Jets football coach Rex Ryan comes to mind. It’s all about “look at me” and, of course, when things go wrong, it’s not his fault; simply poor play by his players. Right.
• Setting employees up to fail. In my litigation days, I met plenty of bosses who went out of their way to create an employee’s failure, whether out of fear, revenge, or stupidity. Managers like this are a cancer on any organization. If an employee isn’t performing and ownership won’t let you fire them, call ownership out on it. If management still fails to make necessary changes and you can’t be at peace with it, then work someplace else.
• Running their own fiefdoms, detached from corporate objectives. I’ve seen many bosses build a bureaucratic wall around them to guarantee their personal survival. I’ve talked to executives who have run multi-million dollar departments more interested in protecting their retirement savings than growing the company. These managers will damage the company eventually. One reason why companies are smart to move managers around every few years is to keep them from building a moat around their department.
• Failing to keep their mouths shut. Managers learn things about people’s personal lives, job histories, medical problems, family problems, nasty little habits, and more. A manager who shares this information with more people than those who “need to know” is a manager who will get employees upset and the company sued. I remember one manager who was so curious about a subordinate’s possible breast enhancements that he snuck into her personnel files, reviewed her medical records, and proved himself “right.” Then the idiot chose to share thus information with his buddies at the company. When the employee got wind of the situation, you can understand her outrage. What this manager didn’t know was that she had undergone a double mastectomy due to breast cancer two years before, which is why she eventually had the enhancements. How does an employee relationship recover from a situation like that?

Of course, there are more horror stories, but that’s plenty for now. The answer: Promote only qualified people into management and train them constantly so they keep improving.

Incorporate Reasonable Accommodation Practices Into Your ‘Onboarding’ Process

Spring is in full swing — and a number of signs are indicating an increase in hiring of people with disabilities in both the Federal and private sectors. With Federal Executive Order 13548 – Increasing Federal Employment of Individuals with Disabilities and the potential changes for Federal contractors in the Office of Federal Contract Compliance Programs’ (OFCCP) Notice of Proposed Rulemaking (NPRM) for Section 503 of the Rehabilitation Act, employers would be wise to review their “onboarding” processes.

The purpose of this process is the smooth integration of new employees into their positions and company culture. If you already have an onboarding process, does your process consider reasonable accommodation issues for your new employees who might have a disability? It should. Take a look at your process and see if you need to incorporate these reasonable accommodation considerations.

A key to the success of any process, including the accommodation process, is education and training for those responsible for implementing it. Know who these players are in your organization. Who sets up a new employee’s workstation? Who provides access to the facility and parking? If a new hire with a disability needs an accommodation to be an effective member of your team, who will make sure the accommodation is in place for the individual’s first day of work? Key players will certainly include your human resources (HR) department, as well as managers and supervisors. Don’t forget to include staff from information technology (IT), facilities, and security departments in this training. Also, when conducting training, be sure to make everyone aware of the need and requirement to keep all medical information confidential.

Once your staff is educated about your company’s accommodation process for new hires, the next step is to make sure new hires know that they can and should ask for an accommodation if they know or think they might need one. Many individuals who know they need an accommodation to do the job successfully will choose to make an accommodation request. However, others might fear the job offer will be rescinded if they do so, and some might not be sure if they need an accommodation, or know how to request what they need. To deal with these issues, the individual who makes the job offer can share information about the company’s desire to facilitate a smooth transition and integration for the new employee — and explain employment policies, including that for implementing effective reasonable accommodations.

Whoever is responsible for responding to an individual who has accepted a job offer should be prepared to describe to the new employee the office location and the type of equipment the company will provide. This need not be detailed, but should include information about the work location and work area, such as: Parking is provided onsite or no parking at the site; standard computer, telephone, cell phone provided; ID card needed to access building; desk workstation/cubicle environment, etc. Also, if the new employee needs to fill out forms before the start date, or to go to a location to obtain an ID, etc., explain this in advance, giving the employee the opportunity to address other potential needs. Having all this information enables new employees to consider if they need to request a reasonable accommodation.

Effective onboarding of employees might require these accommodations:

• Access to Website and online forms
• Print material in an accessible format, including providing media in alternative format as needed (large print, Braille, text file, etc.)
• Accessible parking and building access (keyless entry, security issues, rest rooms, break rooms, exercise rooms, etc.)
• Use of service animals in the workplace
• Computer and communication technology access (alternative input devices, screen reading software, screen magnification, telephone amplification, smart phone or tablet apps, etc.)
• Workspace modifications (furniture, lighting, space, noise abatement, etc.)
• Services or work-related assistance (sign language interpreters, readers, note takers, etc.)
• Emergency evacuation and shelter-in-place plan needs

You don’t need to have all of these accommodations in place for the first day of work; however, an awareness of the potential need and a willingness to implement accommodations as part of your company culture will help you onboard new employees successfully. To help you update your onboarding process if needed, here’s a sample onboarding accommodation assessment form.

Anne Hirsh, M.S., JAN Co-Director

National Labor Relations Act Update

The U.S. Court of Appeals for the D.C. Circuit has found that an employer was required to reinstate an employee who the NLRB determined had been terminated unlawfully, despite his subsequent statements reflecting disloyalty to the employer. In Stephens Media, LLC v. NLRB, the employer appealed the NLRB determination that the employer, a newspaper publisher, violated the NLRA in connection with its termination of two employees.

One employee had been terminated after confronting a manager over the discipline of a co-worker for allowing a union representative onto the premises without management’s prior approval. After his discharge, the employee attended a public event at which he spoke critically about the employer, claiming that the employer failed to staff its newsroom adequately and that he had considered starting a rival newspaper.

In a separate incident, another employee was terminated after making a surreptitious recording of a meeting with management in which he expected to receive discipline but was denied the right to union representation.

With respect to the first employee, the D.C. Circuit upheld the Board’s determination that he engaged in “protected activity” when he confronted the manager over what he reasonably believed was the impermissible discipline of a bargaining unit employee (it did not matter whether he was correct in his belief). Despite the employer’s argument that the employee’s post-discharge comments showed blatant disloyalty, the Court held that his post-discharge comments did not absolve the employer of its obligation to reinstate the employee. The Court noted that where an employer seeks to avoid its obligations based on post-discharge conduct, the employer must demonstrate that the misconduct was so flagrant as to render the employee unfit for further service or a threat to efficiency at the plant. The Court found that the employee’s comments failed to meet this standard. With respect to the second employee, the Court deferred to the Board’s ruling that the surreptitious recording was protected activity because the employee reasonably believed that he was about to be disciplined and that the employer violated his right to have union representation. The Court noted that the company did not have a policy prohibiting audio recordings and that the recording was legal under state and local law.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Editor’s note: if employers don’t get by now what the administration is up to when it comes to protecting disgruntled employees, cases such as this should be a resounding wake-up call! Do yourself a favor and watch our recent NLRB webinar.

Form of the Month

HR Inspirational Posters (PDF) – Use these posters to stress the benefits of an effective Human Relations program for your employees.

Podcast

Click here to to listen to this month’s newsletter podcast.

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“You’ve got to find what you love – and that’s as true for your work as it is for your lovers. Your work is going to fill a large art of your life, and the only way to be truly satisfied is to do what you believe is great work. The only way to do great work is to love what you do. If you haven’t found it yet, keep looking. Don’t settle!”  —Steve Jobs

This issue discusses:

• Editor’s Column: Yesterday’s Over With, So Don’t Be a Dinosaur
• HR Wisdom
• Desperate Times Create Desperate Employees
• The End of the NLRB’S Reign?
• EEOC Sues Employers for Accommodation Violations
• EEOC Charges Hit Record Highs
• Making Your Next Hire
• The Ultimate in Religious Accommodation
• NLRB Poster Requirement … One More Time

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Yesterday’s Over With, So Don’t Be a Dinosaur

The past is gone. Poof. No mas! The challenge is that most of us are deeply rooted in the past and find a great deal of comfort in it – whether it was good or bad. We hear ourselves saying to both loved ones and people in the workplace, “When I was young…”

It’s frightening to go through today’s rapid change. As Buckminister Fuller stated, we’re going through a period of “accelerating acceleration” in which things are happening faster and faster — at a faster rate. Today’s rate of change is generating a significant amount of dislocation, uncertainty, and fear — and that doesn’t feel good.

For the first time in generations, we’re looking to those younger than us for advice — primarily in technology. We’re living in a technological age. It’s not just about production and information, but how technology affects every aspect of our lives.

What are you or your company doing to drive past this fear of change? Have you set out to learn from younger workers? Have you invited them to educate and enlighten you on today’s technologies? Will you and your company embrace the need for this invitation or will lose out to competitors who do?

Change makes us uncertain about what we can contribute and how this contribution can create job security and personal growth. If we can’t do things the “old school” way, then what are we going to do? For example, many employees somehow feel affronted when their company decides to offshore everything, from data management to customer service. What’s left for us to do?

How do we drive past this fear? How do we choose not to play victim to the great change? Fundamentalist religion has blossomed worldwide as one answer. In a sense, we’ve decided to prohibit change. I’ve seen bosses and employees take a fundamentalist view about their work too, doing everything they can to block, sabotage, and resist change. The problem is that when we look backward hoping for a sense of security, we can turn into pillars of salt. Although we might not die physically, we’ve surrendered in our minds. Now all you have to look forward to is retirement — and it can’t come fast enough.

I remember speaking to a top executive at a billion-dollar organization about an opportunity in her business. Her entire conversation was about the lack of support she received from other corporate departments and the retirement she’s looking forward to with her husband. When I asked, “what’s your edge?” she didn’t have one. I can tell you that her department will be going in only one direction — and it’s not one that will please shareholders.

It’s very difficult to break up a relationship with another person, especially when this person is the “former me.” The past provides a false sense of strength in the familiar.

I was speaking with a 63-year-old human resource executive who was laid off from a major corporation and then hired by one of my business partners to help implement our program. This man called our customer support service because he didn’t know how to download and open a Word document. Two days later, he called me to ask a question he could have easily found the answer to on the HR That Works web site. When I began to try to show him where he could get the information, he cut me off and told me that he didn’t “like all this new technology” and wasn’t very interested in using it. He actually asked me if I could send him a three-ring binder with the materials from the web site!

The role of Wisdom within all of this change is to understand and communicate what is continuous or cyclical. For example, long-term investors warned novice dot-com and real estate investors about the rule that cuts across investing: “If it’s too good to be true, it probably is.” If these novices listened to the wisdom of the Warren Buffets, they wouldn’t be in a financial mess today. We need to listen to the wisdom that things will always change. Then we have to project our will firmly into the future. We must be open and invite new ideas. We have only begun our life’s story — and many exciting chapters lie ahead.

Here are some steps you can take to reach this goal:

1. Identify those things that you wish could have remained the same. You might wish there were no cell phones or electric cars, then recognize the past is over with, give it its proper funeral, and run like heck to embrace what has replaced it.
2. Invite an Innovation and Wisdom Dialogue among your workforce. What timeless lessons and cutting-edge technologies can be shared? How can we allow the people in our organization whose strength is wisdom to utilize this ability? How do we empower those whose strength is technology to make full use of those abilities?
3. Realize that if you don’t embrace change, you will — or should be — be let go. I’ve seen too many employers face paralysis in letting employees go because they were once productive in the old way of doing things.

We need to force the hand of change. You can create your own game plan for embracing change and moving forward, have your managers do it for you, or start planning an early and unfulfilling retirement. The choice is yours!

HR Wisdom

In light of the discussion about change and enduring wisdom, here’s what I consider the wisdom available to HR managers:

• Great HR practices generate a competitive advantage, whether you have five or 5,000 employees.
• The “tipping point” in human resources is the hiring process, which has a greater impact on productivity, teamwork, constant improvement, profitability, and compliance than any other factor.
• According to the HR That Works Cost Calculator, there’s at least a 10% cost or variance of payroll in your human resource practices. For example, if you have a $1 million payroll, your cost or variance is at least $100,000. You’ll need to bring in, at a minimum, $400,000 to put that $100,000 back to the bottom line.
• The greatest risks in employment practices are uninsurable. Despite all the noise of the legal community, poor hires, high turnover, and lack of productivity left on the table every day have the greatest impact to the bottom line. Every company should cap its employment practices liabilities by purchasing Employment Practices Liability Insurance (EPLI).
• You need to find HR exciting to be any good at it — even if it’s only one of three hats you’re wearing.

Desperate Times Create Desperate Employees

At a recent HR presentation for CEOs, three of the 15 executives present reported that an employee had embezzled from them or engaged in other financially destructive activity during the past few months. We’re getting similar questions on Hotline calls from Members. Here’s the reality: If you don’t have significant checks and balances around your money, you’re conducting a social experiment and making your business easy prey for the desperate, greedy and villainous.

In one of these cases, a new HR director told the payroll company that she was given a substantial raise only days after joining the company, the payroll company never questioned it, and she made off with thousands of dollars. As the Russian proverb states, “Trust, but verify.”

The End of the NLRB’S Reign?

Many employers, including Boeing (which the National Labor Relations Board blocked from moving to an aircraft assembly facility in Charleston, South Carolina), have been upset with the NLRB for the past few years. In this newsletter and our Webinars, we’ve discussed the Board’s efforts to make unionization far easier, as well as to expand the National Labor Relations Act to social media postings. The NLRB has not had a full complement of five board members for five years. When Craig Becker’s term expires this year, the Board won’t have enough board members to rule on labor disputes. Republican lawmakers will surely try to block any nominations President Obama appoints to the Board. Many employers feel that the NLRB is trying to do through administrative pressure what Congress would not do through legislation.

Expect the Board and Administration to push right up to Election Day.

EEOC Sues Employers for Accommodation Violations

According to a SHRM article, the EEOC has filed disability lawsuits against:

• Ford Motor Company for failure to allow an employee with a gastrointestinal condition to telecommute.
• Kohl’s Department Stores for refusing to accommodate a diabetic employee’s request for a regular schedule.
• SITA for rescinding a job offer when it found that an applicant who needed surgery for cancer asked to delay her start date.
• The Scooter Store for refusing to accommodate an employee’s request for a temporary leave of absence due to a knee injury and then firing him.

Here’s the point: The EEOC is on the warpath when it comes to disability accommodation. Go through the process. Take a checklist approach. Treat your people the way you would want to be treated. Get professional help if you need it. The HR That Works Hotline is a good place to a start for Members as is the Job Accommodation Network: http://askjan.org/.

EEOC Charges Hit Record Highs

The EEOC received a record 99,947 charges of discrimination in fiscal year 2011, which ended Sept. 30 — the highest number of charges in the agency’s 46-year history. EEOC staff also delivered more than $364.6 million in monetary benefits for victims of workplace discrimination. This is also the highest level obtained in the Commission’s history. The fiscal year ended with 78,136 pending charges — a decrease of 8,202 charges, or 10%. In previous years, the pending inventory had increased as staffing declined 30% between fiscal years 2000 and 2008. Comprehensive enforcement and litigation statistics for fiscal 2011 will be available in early 2012.

Making Your Next Hire

In this tight economy, many employers are reluctant to make any new hires. This is a big mistake. The first thing to consider is who it is that you should get “off the bus.” Our test has always been this: If the employee quit today, would you be relieved or upset? If the answer is “relieved,” then do what you have to do: Let this employee go or put them on some type of performance plan that guarantees their success or departure. One of the problems with trying to resurrect poor employees is that they tend to look for job security by filing claims, hoarding knowledge, or other conduct which will make their staying on board even more costly. In our experience, when you let these people go you really learn the truth about them.

Now that you’ve “culled the herd,” don’t replace them immediately with the same level of employee. Instead, take away the lowest value work of the existing team and hire an entry-level employee who you can groom in your way of doing business. How much $10, $15, or $20 an hour work can you take away from the existing team? Do they want it taken away from them or not? Instead of hiring an entry-level employee, many companies outsource administrative tasks to consultants and other third parties.

Taking this approach will increase workforce productivity and revenue per employee. You’ll also be able to give existing employees a raise because they’re adding more value to your organization.

Remember, when recruiting entry-level employees, provide them with a career map so they can see the opportunity in your business. HR That Works has sample “career ladders” to consider.

The Ultimate in Religious Accommodation

This summer, New York City enacted the most “progressive” statute on religious accommodation in the workplace. Follow these guidelines, and you’ll be “safe” in any jurisdiction.

According to the new law, the term “reasonable accommodation” means, “such accommodation that can be made that shall not cause undue hardship in the conduct of the covered entity’s business. The covered entity shall have the burden of proving undue hardship. In making a determination of undue hardship … the factors which might be considered include but shall not be limited to:

(a) the nature and cost of the accommodation;
(b) the overall financial resources of the facility or the facilities involved in the provision of the
reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility;
(c) overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees, the number, type, and location of its facilities; and
(d) the type of operation or operations of the covered entity, including the composition, structure, and functions of the workforce of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity.

“In making a determination of undue hardship with respect to claims for reasonable accommodation to an employee’s or prospective employee’s religious observance … the definition of ‘undue hardship’ set forth in paragraph (b) of such subdivision shall apply.

“(b) ‘Reasonable accommodation,’ as used in this subdivision, shall mean such accommodation to an employee’s or prospective employee’s religious observance or practice as shall not cause undue hardship in the conduct of the employer’s business. The employer shall have the burden of proof to show such hardship.

“‘Undue hardship,’ as used in this subdivision shall mean an accommodation requiring significant expense or difficulty (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system). Factors to be considered in determining whether the accommodation constitutes an undue economic hardship shall include, but not be limited to:

(i) the identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer;
(ii) the number of individuals who will need the particular accommodation to a sincerely held religious observance or practice; and
(iii) for an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

“Provided, however, an accommodation shall be considered to constitute an undue hardship, for purposes of this subdivision, if it will result in the inability of an employee who is seeking a religious accommodation to perform the essential functions of the position in which he or she is employed.”

This language should seem familiar because it matches that of disability accommodation. Of course, the definition of “reasonable accommodation” under the ADA is litigated on a case-by-case (Don’t you just love the uncertainty of it all?). To learn more, go to http://www.nyc.gov/html/cchr/home.html.

NLRB Poster Requirement … One More Time

With so many employers taken by surprise, the NLRB extended its poster requirement to April 30. As of April 30, 2012, most private sector employers are required to post a notice advising employees of their rights under the National Labor Relations Act. As a practical matter, the Board’s jurisdiction is very broad and covers the great majority of non-government employers with a workplace in the United States, including non-profits, employee-owned businesses, labor organizations, non-union businesses, and businesses in states with “Right to Work” laws. The notice should be posted in a conspicuous place, where other notifications of workplace rights and employer rules and policies are posted. Employers also should publish a link to the notice on an internal or external website if other personnel policies or workplace notices are posted there. You can get the poster, read a FAQ and learn more by going to https://www.nlrb.gov/poster.

This poster is an invitation for disgruntled employees to organize and otherwise complain about work conditions. The only defense is good personnel practices and readily available legal help if you need it. HR That Works Members should watch or listen to the recorded Webinars we did on NRLA requirements. You are also encouraged to post your literature on the wall. Let employees know the company vision, mission, goals and values. Share employee success stories. Remember, the workforce needs a drama. You have a choice of who will write the script.

Here is the poster language that employers should be concerned with:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.
• Form, join or assist a union.
• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.
• Discuss your wages and benefits and other terms and conditions of employment or union organizing with your co-workers or a union.
• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.
• Strike and picket, depending on the purpose or means of the strike or the picketing.
• Choose not to do any of these activities, including joining or remaining a member of a union.

Under the NLRA, it is illegal for your employer to:

• Prohibit you from talking about or soliciting for a union during non-work time, such as before or after work or during break times; or from distributing union literature during non-work time, in non-work areas, such as parking lots or break rooms.
• Question you about your union support or activities in a manner that discourages you from engaging in that activity.
• Fire, demote, or transfer you, or reduce your hours or change your shift, or otherwise take adverse action against you, or threaten to take any of these actions, because you join or support a union, or because you engage in concerted activity for mutual aid and protection, or because you choose not to engage in any such activity.
• Threaten to close your workplace if workers choose a union to represent them.
• Promise or grant promotions, pay raises, or other benefits to discourage or encourage union support.
• Prohibit you from wearing union hats, buttons, t-shirts, and pins in the workplace except under special circumstances.
• Spy on or videotape peaceful union activities and gatherings or pretend to do so.

Under the NLRA, it is illegal for a union or for the union that represents you in bargaining with your employer to:

• Threaten or coerce you in order to gain your support for the union.
• Refuse to process a grievance because you have criticized union officials or because you are not a member of the union.
• Use or maintain discriminatory standards or procedures in making job referrals from a hiring hall.
• Cause or attempt to cause an employer to discriminate against you because of your union-related activity.
• Take adverse action against you because you have not joined or do not support the union.

If you and your co-workers select a union to act as your collective bargaining representative, your employer and the union are required to bargain in good faith in a genuine effort to reach a written, binding agreement setting your terms and conditions of employment. The union is required to fairly represent you in bargaining and enforcing the agreement.

Form of the Month

I-9 Compliance Frequently Asked Questions (PDF) – There were so many questions after our I-9 Webinar that we created this FAQ to help.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY:

Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2012 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

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“All anyone asks for is a chance to work with pride.” —Dr. W. Edwards Deming

This issue discusses:

• Editor’s Column: Human Resource Information Systems (HRIS) – New and Improved
• Can You Cut Benefits Costs by Moving Employees to Medicare?
• Quantum HR
• Disability Employment Statistics
• Medical Documentation: Think About What’s Needed and Stop There
• ‘Bad Haircut’ and Unequal Policy Enforcement Lead to Trouble for Employer
• Leave as a Reasonable Accommodation

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Human Resource Information Systems (HRIS) – New and Improved

I see Human Resource Information Systems (HRIS) as the equivalent of “QuickBooks for managing the workforce.” They can handle employee data beginning with payroll right through to COBRA administration. Along the way, HRIS systems offer bells and whistles to help manage this data, including payroll, benefits administration, leave management, learning management, and more.

As a rule, companies with 100 employees or more have dominated the HRIS market, because these systems require a significant investment in time and money – with little short-term return. However, increasing competition in the upscale market means that HRIS providers are beginning to target smaller employers.

Here are some of the trends with these systems:

• Integration with social media platforms, including everything from Facebook to Twitter, et al.
• An improved interface that makes the system easier to use and more inviting for employees.
• Tie-ins to insurance billing (real time Workers Comp billing, benefits billing, etc.)
• Mobile access, including for time-keeping purposes, as well as integration with tablet accessibility (iPads, etc.)
• Greater assistance with online recruiting and link to recruiting portals.
• Increased use of “talent analytics” that help with recruitment, workforce planning, and succession planning, together with improved analysis of workforce facts, trends, etc.
• The “gamification” of these systems.
• Influence of “the cloud” — the storage of data maintained on secure third-party Web sites, rather than your own site (like HR That Works). Of course, you’ll have to make sure that these third-party sites are, in fact, secure.
• Integration of career planning “dashboards.”
• Increased usage of paperless technology for everything from submitting resumes to electronic signatures on documents.
• Integration with employee wellness programs.

The main advantage of an HRIS system, as with a QuickBooks program, is having well managed data. HRIS advertising stresses the time saved in pulling reports on such topics as turnover. However, most smaller companies already know their turnover level.

Second, bear in mind that companies using HRIS are already running at 75 mph. Where will they get more time to use the system? When analyzed properly, do these systems really save time? Are HRIS bells and whistles truly related to corporate strategy or are they nothing more than distracting shiny objects?

Can You Cut Benefits Costs by Moving Employees to Medicare?

Many employers are doing everything they can to reduce benefit costs. One of our HR That Works Members posed this question to Alan Levy, a benefits law expert in our network.

“Q: If an employee is eligible for Medicare, can we state/insist that they must leave our company plan and accept Medicare?”

“A: We had this question from a client recently. There are serious penalties for forcing an active employee to give up the employer’s plan and go to Medicare, and offering a personal incentive might pose a problem. However, an employee can change to Medicare voluntarily, without restrictions or charges for pre-existing conditions, etc. This also applies to Medicare supplements and advantage problems. Some employees make the change voluntarily to use the current rule’s automatic unqualified acceptance, as well as to assure any “grandfathered” rights if Congress reduces or alters the program in the future. (Every “reform” proposal seems to exempt anyone already on Medicare.) A bigger problem is what happens to an employee’s spouse who isn’t old enough for Medicare if the employee leaves the company plan and goes to Medicare. Although COBRA works for a while, extension of this period is problematic.

“Finally, an employer offering a Medicare supplement or advantage plan to all who could qualify is not considered an improper incentive; the danger comes when the employer offers an individual some extra amount. The only exception I know of in this regard is the Third Circuit rule (applicable only in PA, NJ, and DE), Erie County, which treats certain variations of this scenario as age discrimination under the ADEA. EEOC says it will not apply the Third Circuit rule anywhere else in the nation, which seems to support the idea that employers offering the supplement, etc. is permissible.”

This advice is limited to the facts of the situation. As Alan points out, the EEOC has not drawn a black and white line on permissible supplements. The Social Security Administration provides an excellent publication on the interplay between private insurance and Medicare payments. (See pages 13-14)

Quantum HR

Our understanding of the physical world grows ever deeper. Quantum physicists have taught us that simply observing matter can affect its activity. We know that bits of matter once bonded together remain “entangled” even when separated by great distances. We should remember from Physics 101 that matter likes to settle into its least active state (entropy).

What do these facts have to do with HR? It’s simple: How people think about doing their jobs has implications that might be far broader than realized. If we accept the teachings of quantum physics at face value, then:

• Due to entanglement, how you go through your day will have an invisible, but perceptible impact on how the people you bond with feel every day. If you’re having a bad day, at some point, many of your co-workers and loved ones will feel this fact.
• Much of our existence depends on what we choose it to be. The very concept of “making your day” has scientific backing. As the proverb says, “As you believe, so shall you achieve.”
• Finally, unless you’re excited, it’s natural to use the least amount of energy possible to do a job. If you want to move yourself to a higher frequency, you have to get excited. Although some of us do this naturally, most people need a little motivation to get going. Don’t underestimate the power of this motivation in your business and personal life.

Because any organization is a collection of individuals, these concepts apply to the group as a whole. A positive company culture means that there’s a positive vibration among the workforce.

Disability Employment Statistics

The Institute on Disability at the University of New Hampshire has just issued its Annual Disability Statistics Compendium. Here are some of the stats related to employment in 2010. Click here to see the entire report.

Among the 19,048,426 individuals with disabilities ages 18 to 64 years living in the community, 6,368,644 were employed — an employment rate of 33.4%. In contrast, among the 172,089,634 individuals without disabilities ages 18 to 64 years living in the community, 125,358,735 were employed — an employment rate of 72.8%. The employment rate for people with disabilities was highest in North Dakota (54%) and lowest in Kentucky (25.7%).

The employment rate for individuals with disabilities ages 18 to 64 years living in the community was 33.4% while the rate for individuals without disabilities ages 18 to 64 years living in the community was 72.8% — an “employment gap” of 39.4%. The employment gap was greatest in Maine (48.9%) and smallest in Wyoming (27.7%).

The employment gap between individuals with and without disabilities ages 18 to 64 years living in the community was 39.4%, compared with 39.1% in 2009.

Among the 19,048,426 individuals with disabilities ages 16 to 64 years living in the community, 3,834,727 were employed fulltime, year-round — a full-time, year-round employment rate of 20.1%. In contrast, of the 172,089,634 individuals without disabilities ages 16 to 64 years living in the community, 88,683,091 were employed full-time, year-round — a full-time, year-round employment rate of 51.5%. The full-time, year-round employment rate for people with disabilities was highest in North Dakota (32.1%) and lowest in Maine (15.2%).

Finally, the full-time, year-round employment rate for individuals with disabilities ages 18 to 64 years living in the community was 20.1%, while the full-time, year-round employment rate for individuals without disabilities ages 18 to 64 years living in the community was 51.5% — a full-time, year-round employment gap of 31.4. The full-time, year-round employment gap was greatest in Maine (38.8%) and smallest in Utah (24.1%).

What can an employer take away from this?

• Obtaining gainful employment can be a real struggle for people with disabilities.
• Some communities are more “open” to employing the disabled. Some of this difference has to do with the types of jobs available, employment programs, and incentives.
• As “good people” we can rise above any perceived limitations and employ those with disabilities based on the results they are capable of producing.

To help with accommodation ideas go to http://askjan.org/.

Medical Documentation: Think About What’s Needed and Stop There

In our experience at JAN, there seems to be a great deal of confusion about medical documentation under the ADA. Employers aren’t sure what they can ask for, when they can ask for it, or whether the ADA Amendments Act has changed the rules for medical documentation. Employees aren’t sure what medical information they have to provide or how much to disclose. Medical professionals aren’t sure what documentation will be most helpful in getting their patients the workplace accommodations they need. Most of these questions come up when an employee requests an accommodation.

The good news: The medical inquiry rules that apply when an employee requests an accommodation are less complicated when they might seem. The general rule is that when the disability or need for accommodation is not obvious, an employer may require an employee to provide documentation that can substantiate that s/he has an ADA disability and needs the reasonable accommodation requested, but can’t ask for unrelated documentation. So when thinking about what medical information to request or to provide, think about what is needed and stop there!

Let’s start with the documentation needed to substantiate that the employee has a disability. The definition of disability for accommodation purposes is “a physical or mental impairment that substantially limits a major life activity or a record of such an impairment.” To determine whether an employee has a disability, the employer can ask whether the employee has (or had) an impairment. If yes, you can ask whether the impairment affects (or affected) a major life activity. You can also ask whether the impairment substantially limits (or limited) the major life activity.

This is where the ADA Amendments Act has made some changes. Although the definition of “disability” remained unchanged, the threshold for showing substantial limitation is much lower than before. This means that the documentation needed to show that an employee has a disability should be far less extensive.

What about the documentation needed to substantiate the need for an accommodation? The ADA Amendments Act did not change the reasonable accommodation provisions of the ADA, so the rules for medical documentation likewise remained unchanged. An employer may verify that the accommodation is needed, ask questions about the employee’s limitations that are causing the problem, and get other relevant information about the request to help determine effective accommodations.

For more information, see recently updated JAN publications related to medical documentation, including:

• How to Determine Whether a Person Has a Disability under the Americans with Disabilities Act Amendments Act (ADAAA)
• Medical Inquiry in Response to an Accommodation Request
• Sample Medical Inquiry Form
• Practical Guidance for Medical Professionals: Providing Sufficient Medical Documentation in Support of a Patient’s Accommodation Request and Sample Accommodation Support Letter

- Linda Carter Batiste, J.D., Principal Consultant

‘Bad Haircut’ and Unequal Policy Enforcement Lead to Trouble for Employer

In NLRB v. White Oak Manor, the Fourth Circuit Court of Appeals enforced a decision by the National Labor Relations Board finding that an employer violated the National Labor Relations Act when it discharged an employee for allegedly photographing employees at work without permission. The Court agreed with the Board’s findings that the employee was actually discharged because of protected concerted activity and that the employer had not enforced its photography and dress code policies consistently.

Nichole Wright-Gore worked as a supply clerk for White Oak Manor. White Oak’s policies prohibited employees from wearing hats and taking photographs inside the long-term care facility. Wright-Gore was embarrassed about a bad haircut and started to wear a hat to work, without comment from any supervisor. After a week, however, when supervisors told her to remove the hat, she refused and was sent home. The next day, White Oak employees dressed up in costumes for Halloween. Wright-Gore’s costume included a hat, but her supervisor made her remove the hat pursuant to company policy. Wright-Gore complained that White Oak was enforcing the hat policy unequally, but her supervisor told her to worry only about herself and gave her a written warning for insubordination because she had refused to remove her hat the day before.

During the next few weeks, Wright-Gore photographed several employees wearing hats to work and violating other White Oak dress policies, such as failing to cover up their tattoos. She photographed some employees with their consent, but also took photographs of employees without their consent. She also shared the photographs with other employees and discussed the unequal treatment with them in an attempt to build support for her argument. White Oak eventually discharged Wright-Gore for violating the photography policy.

She then filed an unfair labor practice charge alleging that White Oak interfered with her right to engage in protective concerted activity. The Administrative Law Judge (ALJ) found that Wright-Gore’s complaints became protected concerted activity when they evolved into an effort to have White Oak enforce its dress code policies fairly. Another important issue was whether she lost protection of the Act by taking pictures of other employees without permission, in violation of White Oak policy. The ALJ held that she did not, in part, because there was evidence that other employees took pictures of each other without permission, and even displayed the pictures around the facility, without repercussion. The Board affirmed the ALJ findings.

On appeal, White Oak argued that Wright-Gore could not have engaged in protected concerted activity because she initially acted out of pure self- interest, and did not intend to act on behalf of a broader group. The Fourth Circuit rejected this argument and enforced the Board’s decision. As the court noted, “[t]hat an employee’s self-interest catalyzed her decision to complain about working conditions does not inexorably bar a determination that her actions were protected and concerted.” Thus, the fact that Wright initially acted out of her own self- interest did not remove her actions from the protections of the Act. Moreover, the court’s decision emphasized the fact that White Oak had not enforced its photography or dress code policies consistently.

This case reinforces the importance of employers enforcing workplace policies consistently and the reality that seemingly individualized complaints can lead to employer decisions which conflict with the National Labor Relations Act.

Courtesy of Worklaw® Network firm Franczek Radelet.

Leave as a Reasonable Accommodation

One of the more vexing issues facing both employers and employees involves leave time related to a medical condition, especially when the period of leave exceeds an employer’s permitted leave allowance or otherwise violates an established attendance policy. Although such situations might be challenging and confusing, employers must confront them directly because using leave necessitated by an employee’s disability constitutes a “reasonable accommodation” under the ADA.

The U.S. Equal Employment Opportunity Commission’s (EEOC) Reasonable Accommodation Guidance provides examples of some of the reasons an employee with a disability might require leave:

• Obtaining medical treatment or rehabilitation services related to the disability.
• Recuperating from an illness or an episodic manifestation of the disability.
• Obtaining repairs on prosthetic device or other equipment such as a wheelchair.
• Avoiding temporary adverse conditions in the work environment (for example, an air-conditioning breakdown causing unusually warm temperatures that could seriously harm an employee with multiple sclerosis).
• Training in the use of a service animal or assistive device.
• Training in the use of Braille or sign language.

Here’s a discussion of some frequent and confusing leave-related issues that employers and employee have presented to JAN.

How Much Leave Is Reasonable? The ADA does not set a specific amount of time relative to the use of leave as a reasonable accommodation. As with any accommodation situation, you should consider a period of leave for an employee with a disability on a case-by-case analysis. If an employee needs a leave of absence that exceeds his or her accrued paid leave, the employer should permit the employee to exhaust the paid leave and then allow the use of unpaid leave absent undue hardship.

Although there’s no limit on the amount of leave used as a reasonable accommodation under the ADA, the EEOC has held that employers need not grant indefinite leave as a reasonable accommodation (see the EEOC Guidance on Applying Performance and Conduct Standards, Question 21). However, the employee need not provide a specific, fixed date of return. A request for leave is acceptable with an approximate date of return (e.g., around the end of August) or a range of dates for a return to work (e.g., sometime between August 24 and September 23).

ADA and the Family and Medical Leave Act (FMLA). An employee’s rights under the ADA and the FMLA are separate and distinct. The EEOC has ruled that when an employee is entitled to leave under both laws, the employer should allow leave under the law providing the employee with the greater rights (see the EEOC Fact Sheet on the FMLA, ADA, and Title VII). Additionally, employers should note that the ADA might require them to grant leave beyond the 12 weeks allowed under the FMLA as a reasonable accommodation. In this case, an employer can consider the FMLA leave taken in determining whether the requested leave time poses an undue hardship.

Erratic or Unreliable Attendance. The ADA can require employers to modify attendance policies as a reasonable accommodation in the absence of undue hardship. This does not mean that employers must exempt an employee from time and attendance requirements completely or accept irregular and unreliable attendance unquestionably. Frequent occurrences of tardiness or absenteeism, particularly during an extended period and without adequate notice, could certainly impose an undue hardship in many situations. See the Commission’s Guidance on Applying Performance and Conduct Standards for a detailed discussion with examples of specific scenarios.

Alternative Accommodations. Although it makes sense for employers to give an employee’s choice of accommodation primary consideration when more than one reasonable accommodation is possible, they can ultimately choose the accommodation to be implemented, assuming that it’s equally effective. Accordingly, under the ADA an employer can offer a reasonable accommodation that requires an employee to remain on the job, as long as it’s effective and doesn’t interfere with the employee’s medical needs.

Holding the Employee’s Position. The ADA requires an employer to consider returning the employee to his or her same position in the absence of undue hardship. If undue hardship applies, the employer must consider reassignment to a vacant, equivalent position for which the employee is qualified.

Undue Hardship. As with any other reasonable accommodations, whether an employer should allow the use of leave as an accommodation will sometimes come down to an undue hardship analysis. In the case of leave, undue hardship will generally relate to a possible disruption in operations of the entity. For instance, the absence of an employee who performs highly specialized duties might create legitimate undue hardship issues, as might leave that occurs in a frequent and unpredictable manner. Generalized assessments are not adequate, because undue hardship must be determined based on individual and specific circumstances. Additionally, the EEOC has ruled that an employer cannot base an undue hardship claim on the argument that a reasonable accommodation might affect the morale of other employees negatively or that other employees might have to cover for the employee who is on leave.

What to Remember. Ultimately, much of the confusion involving leave as an accommodation occurs when there are no clear and open lines of communication. Lack of communication is usually the major obstacle to executing an effective accommodation solution. All parties need to be aware of any relevant updates or concerns, and everyone should make an effort to keep the information flowing. If you need ideas on how to encourage ongoing communication during the accommodation process, contact JAN.

- Bill McCollum, MPA, Consultant

Form of the Month

I-9 Guidelines Audit (PDF) – Use this form for auditing your I-9 Forms, which verify the citizenship status of employees.

Podcast

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“Being the richest man in the cemetery doesn’t matter to me … Going to bed at night saying we’ve done something wonderful … that’s what matters to me.”  — Steve Jobs (1955-2011)

This issue discusses:

• Editor’s Column: Improving Employee Productivity
• Oklahoma Health Care Workers Get More Than $244,000 in Back Wages
• Sage Advice
• Do You Have a Funny Human Resource Story You’d Like to Share?
• When to Use Experts in Trials
• The Reality of Retirement Planning
• Exclusions from Coverage Under EPLI Policies
• IRS Issues Rules for Employer-Provided Cell Phone

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Improving Employee Productivity

Over the years, I’ve written and spoken about performance improvement/ productivity many times. Here’s what I’ve come to notice and believe:

• People can only perform as well as the system within which they work. As Dr. Deming said, “Most employee failures are management failures.”
• People can’t perform beyond their abilities. This “Peter Principle” means we have to be very clear in testing and assessing folks’ natural abilities and desires.
• We need a clear definition of “good performance.” This involves two questions: What are the most important things you do every day? And, how would you know if you were doing them well without having to ask me or without my having to tell you because the benchmarks are clear?
• Create 90-day goals, weekly To-Do lists, and daily task lists. Share your goals, discuss them, support them, and reward them.
• Praise specifically and as often as possible. Instead of saying “You did a good job today” say, “I particularly like how you handled that customer when … “
• Nurture and support your best performers. Unfortunately, because these folks are too busy to generate drama, managers often ignore them to focus on people more interested in being right about things than getting work done.
• Surprise people. Hand them a gift card for dinner, put an article about them in the paper, nominate them for a reward, throw a surprise birthday party for them, etc.
• Don’t hang on to losers or victims. If people aren’t performing after you’ve done your best and they seem more interested in drama than productivity, you must let them go. If you don’t, you’ll undermine your culture and goals in the process. Make sure to deal with poor performance now, and follow the lawyers’ recommendation to document any significant concerns.

Oklahoma Health Care Workers Get More Than $244,000 in Back Wages

Health Management Associates Inc., which operates Midwest Regional Medical Center (Oklahoma City, OK), has paid $244,341 in overtime back wages to 1,064 registered and licensed practical nurses and certified medical assistants. Wage and Hour Division investigators found violations of the Fair Labor Standards Act, including deductions that were made for lunch breaks when employees were not taking an uninterrupted lunch and failure to maintain required record keeping. The company cooperated with the investigation, and agreed to pay back wages and comply with the FLSA in the future. For more information, read the News Release.

Sage Advice

A recent issue of Volleyball USA shared wise advice from 12 of the top volleyball minds in the nation. As someone who not only has coached kids’ teams, but also many executives, I found valuable pearls of advice in the article that can help all of us to be better managers and leaders:

• Control the controllable. Don’t spend time dwelling on the last play – good or bad. This holds true of the workplace. What was not controllable is what Dr. Deming would call a general variation. Eliminating general variations is the responsibility of management. Trying to control uncontrollable or special variations is extremely difficult and tends to be a waste of time. Don’t dwell on mistakes made. Correct the problem and move on.
• Pursue perfection. It’s unattainable, but striving for it will bring out the best in your players. Again, Dr. Deming would say “Amen.” He taught Japanese industry to manufacture toward perfection, not toward a tolerance. This is one reason why the Lexus brand is “the relentless pursuit of perfection.” Do your best to generate perfect hiring, retention, performance, motivation, teambuilding, and compliance practices. Settling for anything less is a mistake.
• Have fun! The team has to be able to laugh, and sometimes it’s at the coach’s expense. Life is too short to not have fun managing and working with employees. Having fun is a choice. So is being a fun boss – or employee.
• When under stress, call a timeout. I’ll often call a timeout and gather my work team to do a head check, outside of our “normal schedule.” Owners and coaches have to be sensitive to when it’s time for a timeout.
• Coaching and functional teams are about relationships of trust. If you want to develop trust in your team, you have to prove yourself to be trustworthy. I believe that trust is the single most important factor in the workplace. People who trust each other perform better. People who trust each other don’t sue each other. The basis for trust lies in both the ability and the desire to perform. That’s true of you and anyone you manage. One of the best ways to know that you can trust somebody is to test their skills and assess their character.
• Talent isn’t rare. What’s rare is a talented athlete who has the work ethic to become the player they’re capable of becoming. We’ve all seen “talented” employees underperform just because they’re not driven toward excellence. In a sense, they’re wasting their talent. There are also times when management can dampen the desire to perform, especially when most of the energy focuses on pointing out mistakes rather than acknowledging victories.
• Championship teams find ways to win when it’s difficult to do so. Things aren’t going to be rosy all the time – just ask anyone who’s been in business for the past three years. However, even in a recession many companies have survived and thrived. As the saying goes, “when the going gets tough, the tough get going!”
• Although coaches are change agents, they need to buy in before there can be any significant change. Bosses are change agents, too! How well are you selling your vision and getting buy-in? How can you make the notion of change something that people embrace rather than try to protect themselves against?
• Design your offensive and defensive system around your athletes, not your athletes around your system. Determine the strengths and weaknesses of your employees and design a system that plays to their strengths. Again, there’s a consistent theme of being clear about employee skill sets and affinities. None of us are good enough to guess at these things – that’s the value of using testing and assessment tools. Ultimately, you need to put a square peg into a square hole.
• Winning is a by-product of taking care of your players. Focus on helping them become better people and they will become better players. I’m always amazed how many employers don’t understand this. Very few employers are willing to invest in their employees and prefer to squeeze what they can out of them. If you’re not engaging in education, teambuilding, and other ways of growing your people, there’s no way you’ll be a long-term winner.
• The worst mistake you can make is being afraid to make mistakes. Amen! In fact, we have to make mistakes faster than our competition. We try to mitigate against the potential of making a mistake. See the Webinar I did on “Stop Making Mistakes!”
• As a coach, you get what you tolerate, whether errors, technique, or behavior. As the Buddha said, “What comes to you comes from you.” What are you tolerating in yourself or others? Are you the type of coach/boss who settles for mediocrity because demanding excellence might require a different quality of effort on your part?
• The “we” is greater than the “me.” Business is a team sport. As they say, there’s no “I” in team. Are you focused on providing incentives for the team first or individuals first? Remember, a rising tide floats all boats. Check out the five-minute video I did on a powerful team-building technique.
• Don’t allow your people into the game until they’re ready to play. Do your employees come to work ready to perform? How many employees prefer to begin the workday by gossiping? As one of the coaches stated, “Once they walk in, it’s time to go to work.” They should do their talking, texting, and lounging elsewhere.
• Get the best athletes who qualify for your program. There’s no substitute for getting the right person in every seat on the bus. Great coaches know this – and so do great business leaders. The book Good to Greatmakes this point loud and clear.
• If players have excellent results using their own style, do not change their technique. This is always a Catch-22, especially in the sales arena. For example, you might want your salespeople to sell a certain way that goes against the grain of how a very successful person is selling currently. Remember, what matters most is producing results.
• Select the skills to teach by identifying the most athletic movements, and copying the great players. This idea of “modeling” applies to successful people and companies. What’s the most important activity or function that your most productive employees perform? What is it about the “how” of their performance that all people who perform this function should consider a “best practice” (bearing in mind the advice about letting top performers stick to their own style)?
• Enter the gym with the beginner’s mind. Every day offers an opportunity to improve, as long as players remain open to learning. The same thing holds true for coaches and bosses. Do you come to work every day with a “beginner’s mind”? Conversely, do you think you’ve figured it all out already? A great question to ask yourself is: “What can I learn today?”

To what degree are the owners, managers, and supervisors at your company following these well-tested bits of coaching wisdom?

Do You Have a Funny Human Resource Story You’d Like to Share?

Human resources can tend to be a “heavy” subject. It’s seldom about fun and games; However, I’ve also experienced the humor in HR over the years. Please share with us any fun anecdotes/stories about the human resource process, including those in these areas:

• What bosses and others have said to you about human resources in general, or the fact you’re in HR in particular.
• The hiring experience.
• Employee performance or nonperformance.
• Compliance concerns (believe it or not, there are some funny stories).
• The termination process.
• Any other wacky HR/personnel-related stories.

In an effort to keep us all sane, I’ll combine and publish the best of these stories and share them with our HR That Works members. Remember, if you provide us with a story, you also give us permission to use that story.

When to Use Experts in Trials

A recent article in the California Labor Employment Law Review discussed the dos and don’ts of using HR experts in trial. Here’s a list of “appropriate” uses:

• Common techniques of employee screening and selection.
• Methods of employee evaluation.
• Techniques for selection of employees for promotions.
• Operation of seniority rules in a unionized workforce.
• Processes for employee discipline.
• Adequacy of policies prohibiting harassment and procedures for reporting it.
• The “interactive process” of accommodating an employee with a disability.
• The reasonableness of a proposed accommodation in a specific business context.
• Adequacy of investigations into workplace misconduct or “whistleblower” complaints.
• Management of employees with work-related illnesses or injuries.
• Design and application of employee compensation and benefit plans.
• Design and application of ethics codes.

What you are doing to bring this level of expert knowledge into your company proactively – thus avoiding the need for an expert at trial?

The Reality of Retirement Planning

In August 2011, CNNMoney.com polled more than 8,000 individuals asking whether their retirement plans are on track. More than half (51%) said “Yes,” 29% said “Not quite but we’ve got a plan,” 12% said “Retire? I’ll be working forever,” and 8% said “Haven’t got a clue.” This is consistent with other polls I’ve seen about how people manage their finances. For example, roughly half of Americans have a personal budget and the other half don’t. Chances are that the half with budgets has their retirement plans on track. Many employees will be working much longer than expected, in large part, due to their financial ignorance.

What implication does this have for employers? Consider this:

• More than one in three workers (36%) say they expect to retire after 65, and one in four workers (25%) actually do so. How do you expect to manage this fact? How will it affect any succession planning? What will be its impact on productivity and customer relations? If you’re an HR That Works user, please watch our Webinar, Rehirement vs. Retirement! Understanding, Attracting and Retaining the Mature Workforce, presented by Gail Geary.
• Don’t underestimate the importance of financial education. Two years ago, we did a Webinar that remains relevant today with Dave Ramsey’s business coach, George Campbell. This Webinar explained how the financial stress of individual employees compounds to affect a company as a whole. We’ve also brought in the nation’s top teachers of accounting to do a Webinar on The Accounting Game. We’re currently setting up a Webinar with the Certified Financial Planner Organization to teach basic financial planning on the home front.

As employers, we have to acknowledge that if we don’t address the two greatest concerns of our employees – how they handle their health and how they handle their money – the impacts of those challenges will fall on our organizations. Please make sure to attend the Webinar on Financial Planning.

Exclusions from Coverage Under EPLI Policies

In addition to General Liability, Errors and Omissions (E&O), and Directors and Officers (D&O) policies, some employers also buy Employment Practices Liability Insurance (EPLI). An EPLI policy usually covers claims by employees and former employees under federal, state, and local discrimination laws, including Title VII, the Americans with Disabilities Act (ADA), etc. EPLI policies usually exclude claims arising under the National Labor Relations Act (NLRA), the Employee Retirement Income Security Act (ERISA), and sometimes the Fair Labor Standards Act (FLSA).

A recent federal district court ruling, that an EPLI policy did not cover a lawsuit brought by the Equal Employment Opportunity Commission (EEOC), reinforces the need for employers to do a careful review of possible exclusions in their EPLI policies.

In Cracker Barrel Old County Store, Inc. v. Cincinnati Insurance Co., the EEOC sued the employer alleging systemic sexual and racial harassment based on ten EEOC charges. The employer settled the lawsuit and signed a consent agreement with the EEOC to pay $2 million. The company had an EPLI policy and submitted the claim to its insurer. However, the insurer refused to cover the costs of the settlement, arguing that a suit filed by the EEOC was not a “claim” against the employer under the EPLI policy, which defines “claim” as “a civil, administrative, or arbitration proceeding commenced by the service of a complaint or charge, which is brought by any past, present or prospective employee(s).” The employer sued the insurer for indemnification. The trial court dismissed the company’s suit, holding that because the EEOC, rather than an employee, filed the suit, the EPLI policy did not cover the claim.

This case highlights the potential cost when an employer does not understand the scope of insurance coverages. Employers should review their policies to ensure that they have a complete understanding of what their EPLI policies will and will not cover. Although this review should occur when the policy is purchased, at a minimum, the employer should review its coverage with the insurer after a lawsuit so that it has a full understanding of what will be covered.

Article courtesy of Worklaw® Network firm of Shawe Rosenthal.

IRS Issues Rules for Employer-Provided Cell Phones

The Internal Revenue Service has issued guidelines to clarify the tax treatment of employer-provided cell phones. The guidance relates to a provision in the Small Business Jobs Act of 2010, which removed cell phones from the definition of listed property, a category under tax law that normally requires additional recordkeeping by taxpayers.

The Notice provides guidance on the treatment of employer-provided cell phones as an excludible fringe benefit. According to the Notice, when an employer provides an employee with a cell phone primarily for non-compensatory business reasons, the business and personal use of the cell phone is generally nontaxable to the employee. The IRS will not require recordkeeping of business use in order to receive this tax-free treatment.

Simultaneously, an IRS memo to its examiners announced a similar administrative approach that applies to arrangements common to small businesses that provide cash allowances and reimbursements for work-related use of personally owned cell phones. Under this approach, employers that require employees, primarily for non-compensatory business reasons, to use their personal cell phones for business purposes may treat reimbursements of the employees’ expenses for reasonable cell phone coverage as nontaxable. This treatment does not apply to reimbursements of unusual or excessive expenses or to reimbursements made as a substitute for a portion of the employee’s regular wages.

Under the guidelines, when employers provide cell phones to their employees or reimburse employees for business use of their personal cell phones, tax-free treatment is available without burdensome recordkeeping requirements. The guidance does not apply to the provision of cell phones or reimbursement for cell-phone use that is not primarily business related, because such arrangements are generally taxable.

Details are in the memo and in Notice 2011-72, posted on IRS.gov.

Form of the Month

Guidelines for the Secure Use of Social Media (PDF) – Use these legal recommendations to develop your social media usage policy.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY:

Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2011 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

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“Sandwich every bit of criticism between two heavy layers of praise.” – Mary Kay Ash, Founder, Mary Kay Cosmetics

This issue discusses:

• Editor’s Column: Managing the Second-Greatest Risk at Your Company
• Frequent Absences from Work Don’t Necessarily Render an Employee Unqualified Under the ADA
• Doctrine of “Unclean Hands” Bars Employee from Recovery
• Court Limits Reinstatement Obligations After 12 Weeks of FMLA Leave

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Managing the Second-Greatest Risk at Your Company

The greatest risk any business, including yours, faces is lack of proper sales and marketing. With today’s commoditization of products and services, it’s the experience that tends to matter most. Those companies that produce the best sales and marketing experience will usually be the most profitable. That’s why roughly half of all training dollars go for sales and marketing training. If one salesperson outsells another one 2 to 1, you have a 100% variance. That’s a good reason to spend money on sales training. The remaining training dollars go toward everything else: From operations, technology, customer service, finances, to — you guessed it — HR!

The second greatest risk your company faces is not having quality HR practices. Most companies have randomized ones. Do you? Anytime I’ve run the HR That Works Cost Calculator for a client, the “variance,” cost, or risk associated with the company’s HR practices come to at least 10% of payroll. This figure combines a company’s hiring practices, employee productivity, turnover, teamwork, time management, safety record, employment practice exposures, and other factors. When you think about it, the only other area of your business with this high a variance might be customer service. This means that sales, marketing, human resources, and customer service have the greatest variance within an organization – and, thus, the greatest amount of risk. Unfortunately, few businesses can insure themselves against these risks. It’s Darwinism at its best.

If any other part of your business had a 10% or greater variance, you’d be in a heap of trouble. If you have a 10% variance in how you manage your financial books, you’d probably be in jail. A 10% variance in product quality would mean you’d be facing liability suits regularly. A 10% variance in how you deliver your professional services would lead to a high frequency of E&O claims.

I’ll be the first to admit that HR isn’t sexy. However, my point is that it can be and should be! Sales and marketing is all about “them.” HR is about “us” – about who we are as human beings, not just human resources. I’m amazed that more HR professionals don’t take greater advantage of the HR opportunity. Perhaps you’re primarily engaged in administrative or financial functions and have been handed the HR role. That’s awesome. If you don’t like the idea of HR, then call it something else, such as the “People Excitement” role. Call it whatever will work. However, don’t underestimate the opportunity you’ve been handed.

One of the roles of HR is to make sure that our employees are promise keepers. They have to live up to the promises our sales and marketing communications make. Ultimately, the sales and marketing promise means delivering great client or customer experiences. That’s what matters now more than anything else. How can you, as an HR manager, help employees deliver great customer experiences?

If neither you nor anybody else in the company wants to jump on this opportunity, hire somebody part-time to help you do it. Think about it this way: How would you like to have poor hiring practices, high employee turnover, low productivity, poor teamwork, lousy training, high Workers Comp and Employment Practices claims, misuse of benefits — and a ton of unnecessary and expensive and destructive drama? All of a sudden, having good HR practices doesn’t seem like such a bad idea.

What’s most important is what needs to be done now. Where’s the stress in your organization? What feels unfair to people? We can certainly try to help eliminate some of the victimization in the workplace. At the same time, we have to ask, “What’s going exceptionally well?” How can we support getting twice of that? How can this provide a model for other departments or functions?

The unfortunate truth is that most people who wear the HR hat in small to mid-sized companies aren’t really excited about their job; in a sense, they got the job by default. Chances are that they didn’t say, “I can’t wait to get a hold of this and kick you know what!” Let’s hope that you or your HR manager isn’t that kind of person. Don’t give up on trying to make a difference just yet. Focus on the value to help generate greater productivity, profitability, and joy on a daily basis. Focus on the potential that exploiting such an opportunity can provide, not just for the company, but for the manager’s career and well-being.

How can you start being this person if you wear the HR hat? My answer: Begin by doing at least one proactive thing every month to improve some part of the HR function. Don’t have a narrow view of what HR can stand for. It’s not just about payroll, benefits administration, and making sure that you’re compliant. It’s about tapping into people’s heads and hearts so that you can create something special together. There are plenty of tools on HR That Works to support you on this journey. Begin to educate yourself by reading the newsletter or listening to podcasts, and then you tackle one proactive strategy a month. Take a look at the HR Implementation Plan to give you some great ideas. Do this for a year and you’ll be able to look back and be proud of the body of work you’ve generated. Also, make sure to report to ownership or management the strategy you’ve developed and how it will impact the company (a one-page memo will suffice). Here are 10 quick steps you can take to start making a difference today:

1. Make sure your employee handbook is up to date. Have an attorney review it. Then bring it to life. To see the sample employee handbook we did for the San Gabriel YMCA, click here. Now that’s an awesome employee handbook!
2. Skill-test all your employees. Go to www.Previsor.com to see what test(s) they offer for each one of your positions. The cost will probably come to $20 to $50 per employee – an investment that’s more than worth it. The test results will give you facts, rather than assumptions, letting you know which employees have the skill sets and which need some training.
3. Make sure everyone—managers and rank-and-file employees alike—has gone through sexual harassment training. They need to know the company’s policy and acknowledge it annually. When I spoke to a CEO group recently, one of the participants told me that her company had just settled a sexual harassment case that she felt was frivolous for $350,000! Fortunately, the company had Employment Practices Liability Insurance, which offset much of the settlement cost. HR That Works offers a variety of lawsuit prevention tools and training.
4. Create your team rules. Look at the sample Team Rules template on HR That Works and tweak it to work for your company. Make the rules something in which you can take pride. Once you finalize it, go down to Kinko’s, have it blown up and laminated, and then have all your employees sign it so that they can walk by and have an attachment to it every day.
5. Require use of the Overtime Authorization Form. One of our printing press clients with 80 employees saved roughly $100,000 in one year by using it. “Unwarranted” overtime fell by $5,000 the first month they used the form – a $60,000 annual saving. Next, the company analyzed those clients who were causing “legitimate” overtime and realized that it wasn’t passing along this added expense to them – which meant that the firm was barely breaking even or losing money on these jobs. They let their clients know about the costs of last-minute demands and told them they would charge them a premium in the future. The company sent clients who didn’t want to go along with this program off to its competitors. Finally, to minimize overtime stemming from poor internal practices, the company applied TQM to these activities.
6. Set up a lunch-and-learn program (preferably monthly) for your management team. Use these programs to do “workshops” in which you set a theme, present a challenge, and work as a team to come up with some solutions. Other meetings can focus on a learning mode. Watch one of the excellent HR That Works leadership Webinars — any one of them will suffice as a start. Most managers outside of the sales arena get very little training, perhaps because businesses are concerned about its time and cost. If you have employees who are classified as exempt, you’re certainly allowed to have them eat a healthy lunch and hold a one-hour training session or workshop. You might get so excited about the idea that you even start doing these on a bi-weekly basis.
7. Join a “mastermind group” with other HR executives. These groups support each other, challenge each other, and put your feet to the fire. All the successful executives I know are in mastermind groups. I ran a group for senior HR executives because they realized that had a personal need for it. If you’re an HR That Works Member and would like to start such a group, e-mail me, and I’d be happy to send you a whole protocol and process that will help you get started.
8. Distribute the Employee Compliance Survey. This is the single most powerful compliance form ever designed. Plaintiff’s lawyers don’t want you using it because it can cut the amount of employment law litigation in half. Because I no longer litigate, I have no qualms about making sure you use this powerful document. I don’t know of a single company using this tool that has suffered an employment verdict. An attorney from Tennessee told me that his client had won a summary judgment using the form; I also had a call from a company in Fort Lauderdale who said that after employees wrote “Fifth Amendment” across the form they did an investigation and found a serious sexual harassment situation that was about to evolve into an employee lawsuit. I would suggest distributing the form twice a year.
9. Run your numbers in the HR That Works Cost Calculator by clicking here. I’d encourage you to watch my explanatory video first. These numbers will help you identify your HR story from a bottom-line perspective, and provide all the ammunition you need to liberate some of your time so you can do a better job of working on HR – not just in HR.
10. Survey your management team by using the HR Department Survey. Don’t guess at what types of support the rest of the management team needs from HR. Survey them to find out. I find that in companies where HR is not strategic in nature, it will receive good scores for payroll and benefits administration and low scores for hiring, performance management, or training.

Conclusion: Those are a handful of ideas to help get moving on doing something with this opportunity. There’s magic in doing one of them today!

Frequent Absences from Work Don’t Necessarily Render an Employee Unqualified Under the ADA

The U.S. Court of Appeals for the First Circuit ruled recently that an employee who frequently missed time from work due to chronic fatigue syndrome had the right to present her Americans with Disabilities Act (ADA) claims to a jury. The Court found significant the fact that the employee had been accommodated in the past through a flexible work schedule that allowed her to work regularly.

Facts of the Case: In Valle-Arce v. Puerto Rico Ports Authority, the employee, who worked in the human resources department of the Puerto Rico Ports Authority, suffered from chronic fatigue syndrome (CFS). Her symptoms included insomnia, joint and muscle pain and weakness, and headaches.

To accommodate her insomnia, her doctor had suggested changing her work start time from the employer’s standard 7:30 a.m. start time to 9:00 a.m., and she communicated this to her employer. For two years, the employee’s supervisor accommodated her request by allowing her to come in to work later, as long as she completed the requisite 37.5 hours per week or accounted for any shortfall with vacation or sick leave.

Subsequently, the employee was assigned a new supervisor who began to question her flexible schedule almost immediately and monitor her entry and exit times. In addition, the employee alleged that her new supervisor harassed her by, for example, reprimanding her for late arrivals, telling her that insomnia was not an excuse for absences and, sometimes requiring her to obtain doctors’ notes covering absences of one or two days, when the employer’s policy required such notes only for absences of three days or more. Over time, according to the employee, her new supervisor’s alleged harassment caused her CFS symptoms to worsen, to the point that she needed to take two extended medical leaves.

After she returned from her first period of leave, the employee’s supervisor recommended disciplining her for mishandling the reasonable accommodation request of a coworker. The company eventually terminated the employee because she allegedly violated confidentiality rules in handling an employee’s reasonable accommodation request and used her work computer and other work resources for a personal matter during work time. At trial, the lower court granted the employer’s motion for judgment as a matter of law, finding that the employee was not a qualified individual under the ADA because attendance was an essential function of her job. The employee then filed an appeal.

The Court’s Ruling: On appeal, the U.S. Court of Appeals for the First Circuit vacated the lower court’s decision. Although acknowledging that attendance is an essential function of any job, the Court noted that the employee presented evidence that the flexible work schedule she had requested as an accommodation would have allowed her to fulfill the essential function of attendance. The employee testified that she had never been reprimanded during the time her former supervisor had allowed her to work a flexible schedule; and that the stress caused by her new supervisor’s alleged haranguing about her attendance led to her having to take extended medical leave, leading to the long absences on which the trial court based its ruling that she was unqualified.

The Court also held that a jury might have considered the employee’s testimony regarding poor treatment by her new supervisor to be evidence of disability discrimination or retaliation for her requests for a reasonable accommodation.

Finally, the Court noted, the employee presented enough evidence for a jury to question whether her termination was retaliatory, as she testified that other employees used their computers for personal matters and that she did not violate any agency policies in her handling of her co-worker’s reasonable accommodation request.

Practical Impact: The ADA Amendments Act of 2008 makes it far easier for employees to show that their health condition qualifies as a disability. In this case, the employee was accommodated under the regime of a prior supervisor, but her new supervisor was less willing to accommodate her request for flexible work hours.

Although new supervisors are generally free to enforce attendance standards that a prior supervisor did not, if the new supervisor rejects a prior accommodation that allowed the individual to meet the essential functions of their position, as was the case here, the employer could face liability under the ADA.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (http://www.shawe.com/).

Doctrine of “Unclean Hands” Bars Employee from Recovery

In the California case of Salas v. Sierra Chemical Co., the court denied an ADA and Workers Comp retaliation claim when the employer discovered after the fact that the Social Security number that Salas had used to secure employment with the company belonged to a man in North Carolina! In making its ruling, the court noted that Immigration Reform and Control Act of 1986 (IRCA), requires that employers refrain from knowingly hiring or continuing to employ unauthorized aliens.

However, the IRCA also “prohibits aliens from using or attempting to use “any forged, counterfeit, altered, or falsely made document” or “any document lawfully issued to or with respect to a person other than the possessor for purposes of obtaining employment in the United States.”

“These facts, if not genuinely disputed by Salas, would entitle Sierra Chemical to judgment as a matter of law based on the complete defense of the after-acquired-evidence doctrine … Salas misrepresented a job qualification imposed by the federal government, i.e., possessing a valid Social Security number that does not belong to someone else, such that he was not lawfully qualified for the job. Further, Salas placed Sierra Chemical in the position of submitting a perjurious I-9 form and filing inaccurate returns with the Internal Revenue Service and the Social Security Administration. In these circumstances, Salas should have no recourse for an allegedly wrongful failure to hire.”

The court further ruled that the “unclean hands doctrine” barred the plaintiff’s wrongful discharge and contractual claims because “[p]laintiff’s misrepresentations went to the heart of the employment relationship and related directly to her wrongful discharge and contractual claims … In light of the nature of the misrepresentation, the fact that it exposed Sierra Chemical to penalties for submitting false statements to several federal agencies, and the fact that Salas was disqualified from employment by means of governmental requirements, we conclude that Salas’s claims are also barred by the doctrine of unclean hands.”

As a last-ditch effort to continue his case, the plaintiff tried to rely on a California bill passed to provide broader protections to workers under state law. The court dismissed this effort as well, stating that, “the provisions of SB 1818 make explicit California’s preexisting public policy with regard to the irrelevance of immigration status in enforcement of state labor, employment, civil rights, and employee housing laws. Thus, if an employer hires an undocumented worker, the employer will also bear the burden of complying with this state’s wage, hour and Workers Compensation laws.”

“However, while SB 1818 provides that undocumented workers are entitled to [a]ll protections, rights, and remedies available under state law, the enactment does not purport to enlarge the rights of these workers, instead declaring that its provisions are declaratory of existing law. Existing law precluded an employee who misrepresented a job qualification imposed by the federal government, such that he or she was not lawfully qualified for the job, from maintaining a claim for wrongful termination or failure to hire … This rule applies regardless of immigration status. Moreover, it does not frustrate the purposes of SB 1818 because it allows undocumented immigrants to bring a wide variety of claims against their employers as long as these claims are not tied to the wrongful discharge or failure to hire … Accordingly, at the time SB 1818 was enacted, an undocumented immigrant possessed no right under state law to maintain a claim for an allegedly discriminatory termination or failure to hire when the claim would otherwise be barred by the after-acquired-evidence or unclean hands doctrines.”

Bottom line for employers: Make sure that you do proper immigration and other background checks and act on any misrepresentations. (We recommend you use http://www.globalhrresearch.com/ for this purpose). Also, have a policy that declares that any misrepresentations in the hiring process will result in termination of employment. Add this policy to your job applications. Remember, nobody has a right to lie their way into a job. Also, bear in mind that this is a “narrow” decision, and there are many circumstances (such as wage payments or Work Comp coverage) in which immigration status is not a factor under California law.

Court Limits Reinstatement Obligations After 12 Weeks of FMLA Leave

In the case of Rogers v. County of L.A., the court ruled that an employee who was out on more than 12 weeks of leave no longer enjoyed protection under the FMLA for job reinstatement. Here’s the court’s ruling (edited for brevity):

First, the CFRA statutory language (which mirrors the FMLA) expressly allows an employee “to take up to a total of 12 workweeks in any 12-month period.” The statute also requires an employer to provide “a guarantee of employment in the same or a comparable position upon the termination of the leave.”

Second, other obligations under the CFRA are tied expressly to the 12-week protected leave policy. For example, the employer may require the employee to use accrued sick leave “during the period of the leave.” The employer is only required to maintain and pay for coverage in a Group Health plan “for the duration of the leave, not to exceed 12 workweeks in a 12-month period.” Under certain circumstances, the employer can recover premiums paid for maintaining coverage for the employee under the Group Health plan if the employee “fails to return from leave after the period of leave to which the employee is entitled has expired.”

Third, other courts interpreting the CFRA and the FMLA have concluded that the statutes only ensure protected leave for a 12-week period. In the Neisendorf case, the court cited three federal cases holding that an employer does not violate the FMLA when it fires an employee who is unable to return to work at the conclusion of the 12-week protected period.

Finally, policy considerations underlying the FMLA, which closely parallels our CFRA, support our conclusion. In enacting the FMLA, Congress was concerned about “inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods. “The purposes of the FMLA are: “(1) to balance the demands of the workplace with the needs of families, (2) to entitle employees to take reasonable leave for medical reasons, and (3) to accomplish [these] purposes … in a manner that accommodates the legitimate interests of employers.”

Bottom line: Let employees know that there is no ADA job protection after 12 weeks of leave. Also, remember that you might still have an accommodation obligation under the ADA to do the job for which you hired them, unless doing so constitutes an undue hardship (which was not argued in this case).

Form of the Month

Creativity Checklist (PDF) – Use this list to stimulate your (and your employees’) creative juices.

Podcast

Click here to to listen to this month’s newsletter podcast.

REPRINT POLICY:

Reprints are welcome! All you have to do is include the following notation with reprinted material:

©2011 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

Podcast: Play in new window | Download

“What really impresses me is when someone organizes the decision process and then clarifies what they need from me before I’m even on the scene … To have people who can really clarify the key points and make those decisions, I think, is the most valuable. They’re not wasting my time.”

– C.J. Buck, President, Buck Knives

This issue discusses:

• Editor’s Column: Is Your Workplace Engaged?
• What We Fear Most …
• Three Oldest Employees Selected for RIF Failed to Prove Age Bias
• Take Note!
• Decision-Maker’s Lie Leads to Loss in Employment Discrimination Lawsuit
• HR and The Four Agreements

We have also provided you with the Form of the Month.

Please click here to view the newsletter in PDF.

Editor’s Column: Is Your Workplace Engaged?

The idea of employee “engagement” remains a corporate buzzword. I find it interesting that the term “engagement” implies only a willingness to commit, without consummating this commitment. Webster’s defines “engage” as:

1. Involved an activity
2. Pledged to be married
3. Greatly interested
4. Involved especially in a hostile encounter

None of the above has anything to do with productivity. For example, you can be involved in your work without being motivated to do anything about it! Likewise, you can be greatly interested but inept. Interestingly, the word derives from the French word “gage,” which means something thrown down by a knight as a token of challenge to combat. Historically “engagement” means to be in the process of battle. True to the “at will” nature of employment, it seems that we’d rather have engagement than true commitment.

My diatribe on word choice aside, the 50 Most Engaged Workplaces Award identifies these eight criteria as the foundation for generating employee engagement:

• Leadership
• Communication
• Culture
• Rewards and recognition
• Professional and personal growth
• Accountability in performance
• Vision and values
• Corporate social responsibility

Essentially, this is a checklist of good management practices. You might as well cross out the word “engaged” and substitute “profitable.”

Noticeably absent from that list is any mention of compensation. I continue to believe that pay is the No. 1 reason why people go to work every day. However, once employees earn what they perceive to be a fair day’s wage, then these other factors come into play. Of course, another way is to look at what drives “engagement,” or its older equivalent, “motivation,” in Maslow’s Hierarchy of Needs, which focuses on the need for survival, security, belonging, ego gratification, and self-actualization.

After surveying numerous organizations and speaking in confidence with thousands of business owners and employees, I can tell you that the No. 2 concern at work is also the No. 2 concern at home: The quality of communication. Ultimately, we’re looking for some financial security at work and at home and then communication that’s clear, caring, and allows a safe place for dialogue. When you do a good job of communication, you support all the other factors mentioned.

Although all of the award criteria mentioned are great, your primary concern should be what matters most to your company and its employees. One way to learn this is to ask questions. Of course, unless you’re deaf, dumb, blind, or uncaring, you usually realize the major concerns. The question is, do you really want to do anything about it?

What We Fear Most …

Things can look great on the surface. However, dig a bit deeper and all of us share at least some of these fears:

• The fear that we won’t live up to our expectations of ourselves.
• The fear that we won’t live up to expectations of someone else.
• The fear that while we are successful, we’re doing the wrong thing. As the saying goes, we might have climbed to the top of the ladder, but it’s leaning on the wrong wall.
• The fear that no matter how successful we might be now, it’s still not enough.
• The fear that we aren’t always a good person.
• The fear that we aren’t attractive or well liked.
• The fear that we’re disconnected with ourselves.
• The fear that we’re disconnected from family members and other loved ones.
• The fear that there has to be more, but we’re not sure what it is.
• The fear that we might fail.
• The fear that our “secret” might be disclosed.
• The fear that we have to do it all alone.
• The fear that we’re exhausted and out of balance.
• The fear that people will leave us.
• The fear that we’ll waste what we’ve accomplished because we have no loved ones with whom to share it.
• The fear that we’re out of control.
• The fear that our time and health are slipping away.
• The fear that we’ll become obsolete and put out to pasture.
• The fear that our children would rather have more of us than the money we earn or, conversely the fear that they would rather have our money instead of us.
• The fear that our greatest successes lie in the past.
• The fear we won’t be able to afford retirement.

Although I focus on the word “fear,” the term “unfair” also applies. What feels unfair to you? Why is that the case? What is it that you fear related to the unfairness? For example, if an employee doesn’t hand a project in on time, this feels unfair. However, it goes deeper than that. What lies behind the unfairness is fear that the employee is incompetent or doesn’t care, that you have misjudged or mismanaged them or will end up doing their work, or that your customer or client will misjudge you.

What does this have to do with management and HR? Absolutely everything!

Here’s the point: Nobody escapes feelings of unfairness or fear. Dr. Deming preached that one of the 14 Principles of Management is to drive fear out of your company. Acknowledging the fact that something feels unfair and then finding the fear behind it can be a powerful source of revelation. In my experience, the answer is to remain grateful and find the lesson that you need to learn. This is the ultimate responsibility; the source of growth that gives you the opportunity to let go without guilt and move on, knowing you’ve done your best. What more can you ask for?

Three Oldest Employees Selected For RIF Failed to Prove Age Bias

The U.S. Court of Appeals for the Eighth Circuit has ruled that an employer had legitimate, non-discriminatory reasons for laying off its three oldest employees through a reduction in force (RIF). The Court found that the employees, who sued their employer for age discrimination under the Age Discrimination in Employment Act (ADEA), failed to prove that the employer’s stated reason for the RIF and the criteria it used to determine which employees to let go were pretextual.

The Case: In Rahlf v. Mo-Tech Corp., Inc., after a manufacturer of molds for the automobile, medical, consumer products, and computer industries laid off its three oldest employees as part of a RIF, the employees sued for age discrimination under the ADEA. The employer claimed that the RIF was necessary due to a change in client needs and anticipated reductions in workload and profitability. The employer further explained that technological advances in the mold-making process reduced the company’s need for manual mold makers such as the plaintiffs. To determine which mold makers to lay off, the employer ranked each based on several factors, including their proficiency with the new computerized manufacturing process, general mold-making efficiency, and management’s personal knowledge of each employee’s work performance. Based on these criteria, management agreed that the three plaintiffs should be let go.

The Ruling: The Eighth Circuit upheld the district court’s grant of summary judgment in favor of the employer, rejecting the plaintiffs’ claim that the employer’s stated reasons for the RIF were meant to conceal the real, discriminatory reasons for their terminations. The employees argued that the RIF was not necessary because within a year after they were fired, the employer hired five new employees. The court, however, noted that none of the new hires were mold makers. Rather, the new employees filled lesser skilled positions or were skilled in the computerized manufacturing process. The court also held that the fact that the remaining mold makers were busy and the company’s sales increased after the three employees were terminated did not support an inference that the RIF itself was pretextual. The court ruled that an employer does not have to demonstrate financial distress to justify its RIF decision, and then rejected the employees’ attack on the employer’s methods to determine which mold makers to terminate.

The employees contended that the employer’s failure to review positive performance evaluations and its reliance on the subjective evaluations of management were evidence of pretext. However, the court noted that given the small number of mold makers considered for the RIF (11) and management’s close involvement with the daily operations, subjective knowledge of each employee’s work performance and skills was relevant to the ultimate termination decision. Moreover, the employer relied on both objective and subjective criteria. The company measured each employee’s productivity and profitability objectively, based on whether hours budgeted for particular jobs were met or exceeded. The employer also consulted a computer program that assessed each employee’s performance. As for the employer not considering positive performance reviews, the Eighth Circuit held that it was not required to consider them in making its RIF decision because it had many other relevant factors under consideration. Finally, the court dismissed the employees’ argument that the employer provided inconsistent rationales for the layoffs, where there was no evidence to support the claim. Indeed, the Court of Appeals found that the employer maintained consistently that the reason for the RIF was shifting client needs and an anticipated decrease in workload and profits.

Lesson Learned: Because reductions in an employer’s workforce often give rise to litigation, it’s important to establish legitimate, business-related reasons for the move in advance. Although using objective criteria provides the best defense against a discrimination claim, the Rahlf decision shows that subjective factors can also be relevant. Whatever your reasons for doing an RIF, identify them clearly and base them on documented facts in case the reduction leads to litigation. See the RIF Checklist and Report In HR That Works.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

Take Note!

Confidentiality Provision in Employment Agreements. In NLRB v. Northeastern Land Services, a non-union temporary staffing agency terminated an employee in violation of the confidentiality provision in his employment agreement after he complained to a client of his employer about the amount of pay he was receiving for the use of his personal computer for work.

The Court of Appeals for the First Circuit upheld the NLRB’s decision that the confidentiality provision, which prohibited the employee from discussing the terms of his employment, as well as his compensation with “other parties,” was overly broad and a per se violation of Section 8(a)(1) of the NLRA. Section 8(a) (1), which bars employers from interfering with employees’ right to discuss the terms and conditions of their employment with others. The NLRB had found that employees could reasonably understand this provision as prohibiting from discussing their compensation with union representatives.

The First Circuit held that the NLRB did not have to consider the employer’s justification for enforcing the confidentiality provision, which the employer stated was to prevent employees from disclosing its labor costs — one of the key components of its bid to clients.

The court held that when a discipline is imposed pursuant to an overly broad rule, this discipline is unlawful, regardless of whether the conduct could have been prohibited for lawful reasons.

If the employer had not relied on the confidentiality provision, but instead on the employee’s disruptive conduct, the employer probably would have been within its right to terminate him.

However, by relying on the overly broad provision, the employer lost any defense against the termination.

Decision-Maker’s Lie Leads to Loss in Employment Discrimination Lawsuit

For an employer embroiled in a discrimination lawsuit, summary judgment is usually the last opportunity to get the case dismissed before going to trial. A decision by the District of Columbia Court of Appeals demonstrates how lying about the reason for an adverse employment action can torpedo an employer’s defense to a claim of discrimination on summary judgment and allow the case to proceed to trial.

The Case: In Colbert v. Tapella, a 30 year-old African American female employee of the federal Government Printing Office sued her employer for race and gender discrimination after she was passed over for two different promotions that were filled by white males. The decision-makers for the positions did not interview the candidates. Instead, they evaluated each on their written applications, respective qualifications, responses to a questionnaire, and any personal knowledge of the candidates’ work performance. During the initial EEO investigation, one of the decision-makers told the investigator that he did not select the plaintiff, in part, because she “wandered.” When the decision-maker was later deposed, he admitted that he did not tell the truth when he said that the plaintiff wandered. Despite the employer’s attempt to downplay the admission, the decision-maker’s stated rationale for passing over the plaintiff was called into question.

The Ruling: The D.C. Circuit overruled the district court’s grant of summary judgment in favor of the employer, finding that the lower court erred when it required the plaintiff to prove both that the employer’s reason for not promoting her was pretext, and that race and gender bias was the actual reason she was passed over. The Court of Appeals held that “a jury can conclude that an employer who fabricates a false explanation has something to hide; that ‘something’ may well be discriminatory intent.” Although a plaintiff cannot always avoid summary judgment by showing that the employer’s explanation to be false, the evidence in this case demonstrated that the employer’s proffered non-discriminatory reasons for the non-promotion was unfounded. The court found that the evidence in the record did not support the decision-maker’s statements that the plaintiff was less qualified and lacked the same experience as the white male applicants who were selected for the positions. The Court further noted that there was insufficient, independent evidence that no discrimination had occurred. Instead, the decision-maker’s lie about the plaintiff wandering, his lack of knowledge about the plaintiff’s actual experience, and the employer’s record of failing to promote minorities, provided enough evidence of discrimination to defeat the employer’s motion for summary judgment.

Lesson Learned: An employer must base its reason for taking an adverse employment action on a legitimate, non-discriminatory reason that should be supported by facts and not change over time. Changing the articulated reason for taking the adverse action only reveals that it might not have been the real reason for the action. Bear in mind that the people who evaluate your responses might have a different perspective from you. What you might see as a benign misstatement can be perceived by a jury as evidence of a malicious, discriminatory act. It might be trite, but honesty is always the best policy.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

HR and The Four Agreements

One of my favorite books is The Four Agreements by Don Miguel Ruiz. I’ve read it a couple of times and listened to the audio book more than once. It offers unique insights. Ruiz believes that we have been “domesticated” — to the extent that we base much of our thinking and activity on the story that we’ve been handed or have developed without full awareness. To live to our fullest potential, we need to avoid disempowering agreements by empowering ourselves through The Four Agreements.

I’d like to give my insight on how each one of these agreements can affect the HR function.

1. Be impeccable with your Word. It’s a gift from God. How we use our Word defines our lives. It’s not just about what we say, but who we are. We can use our Word with others as well as with ourselves. Unfortunately, such factors as fear and greed can have a negative impact on our Word.
   How can we be impeccable with our Word when it comes HR? Begin by clarifying expectations for ourselves. Do we really want to be great HR executives? Have we committed our Word to this fact? Do we have the integrity to follow up and keep the promises we make to ourselves and to others? Are we willing to expose those who are less than willing to have integrity?
2. Don’t take things personally. Ruiz tells us this is the main reason for conflict at home, work, and on the world stage. It dovetails with my scenarios concerning Victims, Villains and Heroes. When we play Victim, we can’t wait to take things personally. When we take things personally, there’s always the potential of turning a molehill into a mountain. Of course, the person that we attack or blame will begin with their justifications, launch a counter-attack — and then the drama really begins! Here’s my question: Where are you taking things too personally? Are you taking the lack of support for the HR department personally? Do you take things the owner or managers say to you personally?
3. Don’t make assumptions. You know what the word “assume” means. However, we’re assuming all the time. It would be hard to run your life without making some assumptions along the way. For example, we assume that when we step on the gas that the car will move forward. We also assume that when the light is green nobody will be traveling through the intersection from the cross street. If we move blindly forward with our assumptions, we might be hit by someone who ran the red light. We have to watch the assumptions or stories that we place on people or circumstances — often without even knowing them. I have an assumption about this person, and they’re upsetting me by not living up to the assumption. As the fox said in Aesop’s fables, “I was just being a fox.”
   Where do you make too many assumptions? Do you assume that you have your HR act together? Do you assume you have the best possible employees on every seat of the bus? Do you assume that the recession is now history, and we won’t have to worry anymore about layoffs or RIFs any time soon?
4. Do your best. This is all we can ask of ourselves and anyone else. Do your best and then let go. Of course, the question is are you doing your best or is something else happening? Are you really making an effort to improve your value to the company or are you stuck on auto-pilot? Are you willing to take a risk and do something new, or will you remain rooted in your comfort zone? Doing our best requires us to stretch ourselves and make mistakes, like toddlers who fall down repeatedly before they learn how to walk and run. So, here are my last questions: Where can you honestly say you’re not doing your best? Where are you trying to ignore, bury, or deny the fact you’re not giving it your best? How will you feel when you’re finally “found out” about this known area of weakness?

Do yourself a huge favor and pick up a copy or audio book of The Four Agreements. You’ll be glad you did!

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“Knowledge has to be improved, challenged, and increased constantly, or it vanishes.”  — Peter Drucker

This issue discusses:

• Editor’s Column: What CEOs are Looking for from HR
• Seven Ways To Improve Your Employees’ Experience
• Social Security ‘No-Match’ Letters Return
• The Accommodation Process: Hurdles, Pitfalls, and Getting Out of Your Own Way
• Deductions From Pay: Dos and Don’ts

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Editor’s Column: What CEOs are Looking for from HR

When I gave a webinar for nearly 500 CEOs in the Vistage community, they asked me to respond to these questions:

• How do you drive productivity and customer service where the primary delivery is person-to-person?
• Would you address the Employee Free Choice Act?
• When facing downsizing, how do you keep key staff motivated?
• How do exempt and non-exempt employees differ?
• What are the best practices for hiring?
• What are the best practices for performance reviews?
• How do you engage employees?
• How do PEOs and outsourcing HR impact employee productivity?
• How do you get managers and supervisors on board when they, as well as employees, focus on this downward economy?
• What are the barriers to changing organizational culture?
• How do you structure a bonus plan that’s objective and motivates everyone, especially top performers?
• What can we do to help departments work together?
• How do you increase productivity and, in general, change corporate culture with an older “veteran” workforce?
• What do we do to calm the nerves of people who remain employees during layoffs?
• How do you hold people accountable without making them feel that you’re beating up on them or getting overly defensive?
• What are the best practices for employee retention? What metrics do you monitor?
• What’s the most successful method to reduce “blame games?”
• How do you get people to admit responsibility for their actions?
• With our current economic conditions, how do you perceive HR as an asset to an organization, i.e., revenue generating?
• How can I help people with strong and different personality types get along so they can truly listen to one another?
• In a small company where people wear many hats and must adjust expectations quickly, how do you conduct performance reviews?
• What’s the single largest change we could make to improve productivity?
• How do you feel about using profit per employee as a productivity metric?
• What are your thoughts on the pros and cons of telecommuting?
• What are the top five techniques for getting the most from contractors?
• Which Web sites can we use to find information about our specific state laws?
• What are the keys to success for a new work-from-home employee?
• What are the major differences in manufacturing environments versus office or other workplaces?
• How do you keep a pipeline of qualified desirable employees even if there are no openings at present?
• How would you handle operating in a community with high drug use, high turnover, and absenteeism?

These questions are similar to those that all employers face — focused on hiring, performance, and retention. HR That Works offers excellent tools in each of these areas to help. So use them today!

Seven Ways To Improve Your Employees’ Experience

Management is concerned about employees meeting the specifications of their jobs. Beyond this, it makes sense to manage your employees so that they motivate themselves to exceed these requirements. Here are some guidelines that can help the cause:

• Be clear about what you expect from employees. One of my favorite questions is: “What are the five most important things you do in your job and how would you know if you are doing then well—without you having to ask me or without me having to tell you?” Until all of your employees can answer this question, they don’t understand their job clearly. Make sure that the employee’s “job description” covers not just what they do, but how they should do it – and what results you expect from them.
• Respect their need to manage their time. Don’t ask employees to waste time on nonsensical or nonrevenue producing tasks. Allow them to work in their highest and best use. If you want employees to grow you must delegate work to them. Even better, invite them to take work away from you and when they do, help them figure out a way to delegate their lowest-value work, perhaps to a new employee, intern, or third party.I would also help employees do a better job of understanding time management. Most managers and employees have not taken time management classes. To join the class I’ll be doing on July 14th, click here. If you can’t make it live as an HR That Works Member, you’ll be able to view the presentation on a stored basis later.
• Help them to understand the difference they make every day. Do your employees understand the “processional impact” of what they do? For example, does the tailor fully understand the joy a well-sewn dress brings to the bride? Does the customer service rep truly understand how good service that they deliver to a client or customer will pay dividends? Do we understand that how we treat each other ends up affecting how we treat loved ones? When we understand these “processional impacts” of our work, we can move closer towards the goal of self-actualization – literally feeling good about the work that we do every day. When employees create connections with fellow employees, customers, clients, vendors, etc. they make their work that much more meaningful.
• Encourage their personal growth. Let employees know what their future at the company can look like and what it would take for them to get there. Then offer them the skill testing and training they need to move forward.
• Consider their health. Whether it’s how you manage your employee health insurance or your wellness program, helping employees do a better job of managing their health will go a long way towards boosting their productivity, attendance records, general mood, creativity, etc. Find out how your health insurance broker can help you install a wellness program at your company.

Those are a few ways in which you can improve your employees’ work experience and gain their commitment. Think of how you can use these factors in your workforce.

Social Security ‘No-Match’ Letters Return What’s an Employer To Do?

From 2009 until recently, the Social Security Administration did not issue “no-match letters” – the notices from SSA that alert an employer to a mismatch between an employee’s name and social security number. The SSA halted these letters due to substantial controversy – and litigation – that challenged rules promulgated by the Department of Homeland Security mandating how employers had to respond. Now that the SSA has resumed sending these letters, you need to understand what responses are and are not appropriate.

A mismatch between an employee’s name and SSN might be due to a simple mistake (a misspelled name, oversight in registering a name change with the SSA) or illegality (an undocumented worker using a fraudulent SSN). Under the SSA’s new procedures, employers will get a no-match letter when the individual can’t be reached directly about the discrepancy. The letter states, “This letter does not imply that you or your employee intentionally provided incorrect information about the employee’s name or SSN. It is not a basis, in and of itself, for you to take any adverse action against the employee, such as laying off, suspending, firing, or discriminating against the individual.” The letter warns that taking action against the employee might violate the law. However, failing to take action in response to the letter or taking the wrong action can subject an employer to criminal investigation and prosecution, such as for knowingly employing or “harboring” unauthorized workers if the worker is in the country illegally.

A guidance document from the U.S. Department of Justice’s Office of Special Counsel (OSC) offers these recommendations for employers in responding to these letters:

• Check company records to see if there’s a clerical error.
• Ask the employee to verify the exact name and SSN number on his/her card. Although the OSC guidance does not so state, the no-match letter specifies that, while an employer should ask the employee for this information, “the employee is not required to show you the Social Security card. However, seeing this card will help ensure that the records are correct.”
• If the mismatch remains, have the employee contact the SSA to resolve the matter (and give them reasonable time to do so). An OSC frequently asked questions document notes that, although no statute defines “a reasonable period of time” SSA discrepancies can take up to 120 days to resolve.
• Meet with the employee periodically to learn and document the status of their efforts to address or resolve the mismatch.
• Follow the same procedure with all employees regardless of citizenship status or national origin.
• Review any document the employee offers that demonstrates resolution of the mismatch and submit any corrections to the SSA.

The OSC guidance document also makes these recommendations about what an employer should not do:

• Do not assume a mismatch conveys information about an employee’s immigration status or work eligibility.
• Do not use the letter as the sole basis to terminate, suspend, or take other adverse action.
• Do not attempt to re-verify the employee’s employment eligibility immediately by requesting the completion of a new I-9 based solely on the letter.
• Do not require that employees present specific I-9 documents to address a no-match.
• Do not require employees to provide a written verification report from the SSA as it might not always be obtainable.

Neither the SSA nor the OSC provides any guidance on what to do if the employee is unable to resolve the mismatch. However, consistency in the way you address these issues is critical to avoid violations of anti-discrimination laws (including discrimination based on national origin or immigration status), and you must make decisions about whether to keep employing individuals who can’t resolve the matter. Otherwise, you might face a charge of “constructive knowledge” that you employed undocumented workers. We’d recommend that you work with counsel to develop policies that address these matters and resolve individual “no-match” cases.

Provided courtesy of the Worklaw® Network firm Shawe Rosenthal.

The Accommodation Process: Hurdles, Pitfalls, and Getting Out of Your Own Way

What causes the accommodation process to break down? Job Accommodation Network (JAN) studies on the costs and benefits of job accommodations for people with disabilities show that there are three major hurdles to effective job accommodation solutions:

Hurdle #1. Lack of information on what medical documentation an employer can request. Employees might not understand that their employers can request them to provide certain medical documentation in response to an accommodation request, and if they fail to do so, they might not be entitled to the needed accommodation.

To determine whether a particular employee has a disability, you may request medical documentation that shows whether the person has an impairment that substantially limits one or more major life activities. You may require that this documentation come from an appropriate health care or rehabilitation professional, including – but not limited to – doctors (including psychiatrists), psychologists, nurses, physical therapists, occupational therapists, speech therapists, vocational rehabilitation specialists, and licensed mental health professionals.

For more information on medical exams and inquiries, including forms for employers, individuals, and medical professionals, visit http://AskJAN.org/topics/medexinq.htm.

Hurdle #2. Lack of clarification on determining the essential functions of a position. Employees might request the removal of an essential job function without realizing that this isn’t required as a reasonable accommodation.

You may require an individual with a disability to meet the skill, experience, education, and other job-related requirements of a position, including the performance of its essential functions with or without an accommodation. To determine whether a job function is essential, begin by determining if the employee in the position is actually required to perform the function. According to the Equal Employment Opportunity Commission, other criteria include: (1) a limited number of other employees available to perform the function or among whom the function can be distributed; and (2) the need for special expertise or ability to perform the function. To determine whether a job function is essential, consider these factors:

• The employer’s judgment
• A written job description prepared before advertising or interviewing applicants for a job
• The amount of time spent performing the function
• The consequences of not requiring a person in this job to perform a function
• The work experience of people who have performed the job in the past and are currently performing similar jobs.

Although employers are not required to eliminate an essential function, lower production standards, or provide personal use items, they can do so if they wish. For information on identifying the essential functions of a job, including other relevant factors and examples, visit http://AskJAN.org/links/ADAtam1.html#II.

Hurdle #3. Lack of agreement on effective reasonable accommodations, including the role of temporary accommodations, leave time, and reassignment. Employees might reject an offer of reassignment, not realizing that reassignment to a vacant position is a form of reasonable accommodation when there is no accommodation available in the current position.

In most situations, you should first consult with the employee who requested the accommodation to clarify what the individual needs and identify the appropriate reasonable accommodation. The employee will often be the best resource for information about accommodation needs. By talking with the employee who requested the accommodation and obtaining medical information if needed, you should be able to identify the problem, which is the first step in determining effective accommodation solutions.

Once you have identified the employee’s limitations and abilities, the next step is to determine how they impact the employee’s ability to perform the job. To make this determination, consider what specific job tasks, work environments, equipment, or policies are creating barriers to successful job performance. It might sometimes be necessary to go beyond a traditional job description and consider other factors, such as the equipment used to perform a task, where the work is performed, and why certain policies are being followed.

Once you have identified the employee’s limitations and abilities and determined how they impact job performance, you’re ready consider accommodation options, such as temporary accommodations, leave time, and reassignment.

For more information on determining accommodations, see JAN’s Five Practical Tips For Providing And Maintaining Effective Job Accommodations at http://AskJAN.org/media/FivePracticalTips.doc.

You can often avoid these hurdles by discussing the situation in advance and expedite the process by understanding your rights and responsibilities. To discuss your case in detail, contact JAN directly for one-on-one consultation.

Thanks to JAN Principal Consultant, Beth Loy, Ph.D.

Deductions From Pay: Dos and Don’ts

Many employers are confused over what they may or may not deduct from pay. Here’s what the FLSA has to say:

“[T]o qualify for exemption under the FLSA generally an employee must be paid at a rate of not less than $455 per week on a salary basis. As a rule, if the exempt employee performs any work during the workweek, he or she must be paid the full salary amount. An employer may not make deductions from an exempt employee’s pay for absences caused by the employer or by the operating requirements of the business. If the exempt employee is ready, willing and able to work, an employer cannot make deductions from the exempt employee’s pay when no work is available.

“To qualify for exemption, employees generally must meet certain tests regarding their job duties and meet certain compensation requirements. Job titles do not determine exempt status. You should also review the other sections of this Advisor for help in determining whether the employee meets the duties tests for exemption.
“Deductions from pay are allowed:

• When an employee is absent from work for one or more full days for personal reasons other than sickness or disability.
• For absences of one or more full days due to sickness or disability if the deduction is made in accordance with a bona fide plan, policy or practice of providing compensation for salary lost due to illness.
• To offset amounts employees receive as jury or witness fees, or for temporary military duty pay.
• For penalties imposed in good faith for infractions of safety rules of major significance.
• For unpaid disciplinary suspensions of one or more full days imposed in good faith for workplace conduct rule infractions.
• In the employee’s initial or terminal week of employment if the employee does not work the full week.
• For unpaid leave taken by the employee under the federal Family and Medical Leave Act.

“In addition, deductions may be made from the pay of an exempt employee of a public agency for absences due to a budget-required furlough, and special rules apply when such employees take partial-day (or hourly) absences not covered by accrued leave.”

Each of these allowable deductions is described elsewhere in the Compensation Requirements section:

What kinds of deductions are not allowed?
“Deductions for partial day absences generally violate the salary basis rule, except those occurring in the first or final week of an exempt employee’s employment or for unpaid leave under the Family and Medical Leave Act. If an exempt employee is absent for one and one-half days for personal reasons, the employer may only deduct for the one full-day absence. The exempt employee must receive a full day’s pay for the partial day worked. Other examples of improper deductions include:

• A deduction of a day’s pay because the employer was closed due to inclement weather.
• A deduction of three days pay because the exempt employee was absent for jury duty.
• A deduction for a two-day absence due to a minor illness when the employer does not have a bona fide sick leave plan, policy or practice of providing wage replacement benefits.
• A deduction for a partial day absence to attend a parent-teacher conference.

What’s the effect of isolated or inadvertent improper deductions?
“Improper deductions that are either isolated or inadvertent will not violate the salary basis rule for any employees whose pay had been subject to the improper deductions, if the employer reimburses the employees for the improper deductions.

What if the improper deductions are not isolated or inadvertent?
“If an employer makes improper deductions from employees’ pay (as opposed to isolated or inadvertent improper deductions), the salary basis rule will not be met during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions. Therefore, the affected employees will not have been paid on a salary basis as required for exemption during that time-period.

How do you distinguish between isolated or inadvertent improper deductions and an actual practice of making improper deductions?
“A practice of making improper deductions demonstrates that the employer did not intend to pay employees on a salary basis. The factors to consider when determining whether an employer has an actual practice of making improper deductions include, but are not limited to:

• The number of improper deductions, particularly as compared to the number of employee infractions warranting discipline.
• The time period during which the employer made improper deductions.
• The number and geographic location of employees whose salary was improperly reduced.
• The number and geographic location of managers responsible for taking the improper deductions.
• Whether the employer has a clearly communicated policy permitting or prohibiting improper deductions.

“If an employer has a clear policy prohibiting improper pay deductions that includes a complaint mechanism, reimburses employees for any improper deductions and makes a good faith commitment to comply in the future, the salary basis of pay will not be violated unless the employer willfully violates the policy by continuing to make improper deductions after receiving employee complaints.

What if the employer does not reimburse the employee for the deductions?
“If the facts show that the employer has a practice of making improper deductions and the employer fails to reimburse employees for any improper deductions or continues to make improper deductions after receiving employee complaints, the salary basis rule is not met and the exemption is lost during the time period in which the improper deductions were made for employees in the same job classification working for the same manager(s) responsible for the actual improper deductions.”

Readers lucky enough to have to comply with California’s laws can go to http://www.dir.ca.gov/dlse/FAQ_Deductions.htm for more information.

Form of the Month

HR Monthly Report (PDF) – Use this form to inform your CEO about the strategic activities you engage in every month.

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“Soon is not as good as now.” – Seth Godin, Poking the Box

This issue discusses:

• Editor’s Column: What’s Going on Out There and How it Affects Your Business
• Are Your Employees Worth What You’re Paying Them? Really?
• The Causes of Workers Compensation Retaliation Claims
• The Indirect Cost of Accidents and Lawsuits
• The “Going and Coming” Rule
• Failure to Communicate Ruins Employee’s FMLA Claim

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Please click here to view the newsletter in PDF.

Editor’s Column: What’s Going on Out There and How it Affects Your Business

Every week I read Time, Business Week, and The Economist, together with about a dozen other periodicals. I’d like to share a number of the main themes “going on out there” and how they might apply to running your business. Remember, what’s going on out there is a reflection of what’s going on “in here.”

1. Education equals wealth. All three magazines tend to piggyback stories from each other. All three have discussed recently how income disparities nationwide and worldwide are impacting society. Fact is, those with the greatest level of education also have the most amount of wealth. The U.S. remains a world leader in education. We have nine out of the world’s top 10 endowed universities and remain the primary source of global innovation. For example, Harvard faculty members have earned more Nobel prizes than either France or Russia.

According to one of the articles, the world’s standard for wealth remains at $1 million in the bank. Another article concluded that it takes approximately $70,000 per year to be happy (i.e., middle class).

How this applies to managing your business: The wealthiest companies will also be the most educated ones, with the most educated owners, managers, and employees. They will place a high value on constant training. Successful companies will give employees an opportunity to learn more so they can earn more.

2. Tiger moms, tiger bosses, and the tiger self. Battle Hymn of the Tiger Mother by Amy Chua, a book written by a controlling Asian-American parent, describes the strictness with which she raised her two daughters. It caused a lot of discussion online, in the media, and among my wife and her friends. Of course, the liberal reaction was that the parent was too harsh. By her own admission, this was sometimes true. However, look at the results. She has two highly talented, healthy, and well-behaved young adults who claim to have no regret with their mother’s tough parenting style. On the other hand, we have an entire generation of parents more interested in being their kid’s best friend than a parent. Many of these kids get to do whatever they want to do, including watching hours of TV, texting friends, or playing video games. These children are disconnected and will not be prepared to compete with the tiger children. Their only hope will be to be more innovative than their counterparts. Unfortunately, I don’t see how hours of TV or video games will help them to be more innovative.

Dan Kennedy reminds us that if we want to be rich, we shouldn’t do what the huddled masses do with their time – which includes watching TV, engaging in gossip, spending hours on social media, fantasy football, and anything to do with Kim Kardashian or Charlie Sheen. I believe that there will be a demarcation not just between the intelligent and the unintelligent, but also between the watchers and the doers.

How this applies to managing your business: Are you a tiger boss? Are you overly demanding of your employees? Do they appreciate or resent your strict ways? Do you have a tiger self? Are you tough on yourself? Are you unnecessarily tough on you? In my opinion, the workplace, like the home, requires a balancing act. I expect nothing but the best from myself and the people around me at work and home. Anything less than excellence is simply not acceptable. I understand the importance of discipline, planning, and process. I also understand that my employees need permission to think for themselves and not to be so afraid of punishment for making mistakes that they fail to push themselves to higher levels.

3. A continuing loss of faith in institutions. There’s a breakdown in confidence with our financial, educational, political, and business institutions. Politics and economics are transitory. Yesterday’s regime is not current enough to be trusted and today’s is not experienced enough to be trusted. As we lose faith in institutions, we’re gaining faith in communities. We trust those who are closest to us. Given the advent of social media, somebody can be very “close,” yet 6,000 miles away. On the other hand, you might connect with a political activist two blocks away from you that you’ve never met before.

How this applies to running your business: Business is an institution. Statistics have shown and common sense reveals that we’re less enamored with our institutions today than ever, whether it’s Congress, the local school board, GM, or your company. There’s less loyalty to business entities among consumers and employees than ever. Employees today trust in and are loyal to the communities that involve their work and personal activities. Today’s leader realizes that they have to foster those communities and motivate them toward profitable ends. You can entertain and talk with people all day long, but as the IBM commercial says, “How do you make money at this?” The answer is to build this community outside of your four walls with your clients, customers, and prospects. A recent book I read, Crush It, encourages us to talk about what we’re passionate about. Do your employees have permission to do this? This might be something as simple as an account manager talking about the passion she has for doing a great job for her clients every day.

4. Hard times for democracy. There’s been a decline in democratic governments. Certainly, imbalances in wealth could be one cause for this challenge. The age-old challenge of trying to get government to spread the wealth through capitalist and democratic means is falling prey to fear and greed. Even here at home, we’re losing faith in our democratic institutions, even as we continue to realize that they’re the least of all evils.

How this applies to your business: First, the workplace is not a democracy, even if it’s unionized; it’s a business. The challenge I see is that business owners in tough times who operate more out of fear than greed, can move toward an authoritative management style. This will produce short-term results at best and resentment and eventual overthrow at worst. Ask how you can be more “inclusive” of the thoughts and feelings of your workforce.

5. The Consumer Electronics Show. Listening to and reading about what went on in Las Vegas assures me that people are becoming increasingly detached from their natural environment. Whether it’s Apple TV, Wii games, or new tools for texting, it appears that the only way we’ll be connected in the future is through digital means. I saw a news video recently in which a woman, while texting to a friend at a mall, tripped over a knee-high wall and fell in to a water fountain in the middle of the mall. One of the employees released the video thinking it was hilarious, and it became a YouTube sensation. Of course, the woman expressed her outrage at this insensitive act and her lawyer had the guy fired! Amazing.

What this means for your business: First, it’s hard to fight today’s reality. Think Kung Fu. Go with the flow! We have to be willing to communicate through these tools as owners and employees. Sticking our head in the sand or playing dinosaur means going out of business. However, as John Naisbett warned more than 25 years ago, the more we go “high-tech,” the more we need “high-touch.” Today, the company that can go high touch will win not just people’s minds, but their hearts and wallets as well. Going high touch in a high-tech world is the single most powerful way to show you care.

6. Us versus Them. Where would the good ol’ plot be without “goodness triumphs over evil?” More than half of the content in these leading news magazines focuses on some type of conflict: Democrats vs. Republicans, North Sudan separating from South Sudan, Arabs vs. Jews, Libyan vs. Libyan, China vs. the world — and all of the violence, destruction, pain, and war that these conflicts create.

What this means for your business: No matter how hard you try to be a good boss, at some point you’ll need to deal with conflicts — employers vs. employees, like cats vs. dogs. As leaders, we need to acknowledge this fact, stand it on its head, and not let workers portray themselves as our victims. If you want to play us vs. them, then do it with the competition.

7. Increasing financial and environmental debt. It doesn’t seem that this trend is going to stop or go away any time soon. Grim realities such as the mortgage scandal, the oil spill, and global warming aren’t going away. In fact, there’s no reason for things not to get worse. We’ve been mortgaging our future for our present and will leave an awful legacy for our children and grandchildren.

What this means for your business: First, we have to teach employees financial literacy. HR That Works members can start by watching the Accounting Game Webinar. Then watch Coach George’s webinar on what you can do about the impact of financial stress on your workforce. You don’t have to become LEED-certified, but you can certainly attempt to recycle paper and reduce waste. Encourage your employees to come up with suggestions about how you can make a greener company. It’s a “cool” thing for them to do.

8. Sometimes the greatest risk lives next door. If the Tucson tragedy taught us anything, it’s that mayhem can show up anyplace at any time.

How this applies to your business: Sometimes we’re so busy looking at the risks we face from the “outside” we forget that the greatest risks that lie closest to home. For example, most auto accidents occur within a one-mile radius of our home or business. The greatest risks we face in our business generally come from the inside as well: The sales manager who did such a bad job that sales were cut in half; the marketing executive that endorsed a risky campaign damaging our brand for years; the driver addicted to crystal-meth who drove head-on into that family. In the end, the greatest risk to you or your business is … you and your business!

9. Last, but not least, there’s been a change in our Zodiac signs! Millions of new-agers have been thrown into psychic turmoil. Think of all the wasted horoscopes. The horror of it all.

What can you do about this at work? Absolutely nothing but to sympathize with those folks who thought that it meant anything in the first place.

That’s my report of today’s news and how it affects your business.

Are Your Employees Worth What You’re Paying Them? Really?

In an interesting Freakonomics podcast, authors Levitt and Levine discuss whether expensive wines are worth the price. Their conclusion: They are not. Here’s an example of an interesting experiment. Participants were asked to rate two different wines. All they knew was that one was a $10 bottle and one was a $50 bottle of wine, when in fact it was the same $20 bottle. The participants overwhelmingly chose the $50 bottle as having the better taste. Interestingly, some participants asked the testers if it could, in fact, be the same bottle of wine. When told that they’d have to decide for themselves, most of them reached the “logical” conclusion that they had to be different wines because of their different pricing – so they rated the more expensive wine as better.

Here’s the point: We often value things more simply because we pay more for them. If this holds true for wine and cars and dates, then why wouldn’t it be true for employees? Employers have tried to finagle with compensation systems from Day 1. What’s the right mix of compensation to help generate the greatest return on investment of an employee or workforce? Because it’s a mistake to underpay or overpay employees, how do we decide just how much to? Here’s an easy three-part solution:

1. Identify the market rate. What does the “average” employer pay for a certain level of employee? You can learn this by going to the statistics at BLS.gov, your state labor agencies, sites such as Salary.com, or your local employers’ group. You might also have industry-related associations and can hire some competitive intelligence to provide these rates. In my experience and opinion. To pay anything more than 25% above grade is essentially throwing away money. For example, in the fast food industry if $8.50 is the norm, it might make sense to pay $10.50, as In-N-Out Hamburger does in California, or the premium Costco pays its employees. However, it doesn’t make sense to pay even 1% above grade if it’s not going to buy you a more productive employee. Perhaps there are other ways to attract productive employees. You might be able to attract them by being the most outrageous or flexible or cutting-edge workforce.
2. Think team bonuses. When I perform employee surveys at companies, I always ask whether employees prefer incentives based on individual performance, on that of a team, or of the entire company. Over the years, I’ve found that where there’s a great deal of trust, people prefer team-based incentives. If trust is low, they prefer individual incentives. Of course, we trust those people to whom we’re closet. As an owner, if I wanted to help generate trust, I would offer team-based incentives. As the saying goes, “A rising tide floats all boats.” I would recommend a bonus (say 10% of net profits) and then distribute it based on employee’s gross compensation. For example, if one employee makes $50,000 per year and one employee makes $25,000, the person making $50,000 gets twice the bonus. This is a simple formula that avoids a lot of wasted time and energy trying to finagle 2% here, 4% there, etc. If an employee displays outstanding performance, the chances are that they’re in line for a raise or promotion. This is how you manage going forward.
3. Award people immediately on an individual basis when they go the extra mile. According to Barber’s 1001 Proverbs, “The greatest benefit is the one last remembered.” Don’t underestimate the power of: (a) rewarding what you want to reinforce, and (b) doing it immediately. These rewards need not be expensive; they’re as much about acknowledgment as they are about money. Of course, a little bit of cash helps too.

The Causes of Workers Compensation Retaliation Claims

I conducted an examination of California Labor Code, Section 132(a) Workers Compensation retaliation claims filed over many years. When filing a Section 132(a) claim, “in addition to establishing that the industrial injury has resulted in some detriment, the worker must also prove that he or she was singled out for disadvantageous treatment because of the injury.” This is typical of how other states handle Workers Comp retaliation claims. Some states allow workers to bring separate claims outside the comp system. Here’s a summary of these cases:

Conduct that will not result in a 132(a) verdict:

• Where there is truly no work available.
• Where the employee is unfit for duty because they will risk further injury or aggravation to an injury.
• Where there are safety issues related to the employee or third parties.
• Where there’s a business necessity (such as lack of funds or a change in company direction).
• If they were terminated for cause (and consistently with how others were treated in engaging in similar wrongdoing).
• If there’s a layoff or reduction in force.

What’s not OK:

• If there/s a change in pay, hours or duties without a business justification.
• Where they were “singled out” or otherwise treated “differently” than others.
• Where the company makes return-to-work or light-duty decisions without medical proof.

Note that ERISA often preempts benefit discrimination claims in this area.

The Indirect Cost of Accidents and Lawsuits

Risk management experts, safety experts, accountants, actuaries, and other professionals make the distinction between direct and indirect costs of accidents, lawsuits, and so forth. For example, the cost of turnover in the HR That Works Turnover Cost Calculator includes the direct costs (such as paying for a Help Wanted ad) and indirect costs (such not growing the business due to lack of manpower). Two of the most commonly insured employee risks are those for work-related injuries and employment practice claims. This means that the direct costs associated with a Work Comp injury are those related to medical expenses and expense reimbursement, which the Workers’ Compensation carrier usually pays.

We usually recommend that our clients pay the compensatory portion of the claim because if they don’t, the insurance company will pay it and then get their money back by increasing your experience modifier over the next three years. In a sense, they don’t pay these claims, they finance them. In addition to the increase in the experience modifier (MOD) and cost of future insurance, there are also indirect costs:

• Damage to property (building, tools, machinery, etc.)
• Emergency supplies, cost
• Possible media exposure/brand change
• Investigation time, claim management time
• Affect on employee morale
• Overtime, costs of replacing employee
• Increased experience modifier
• Damage to client relations if accident is “on site”
• Injury to third parties
• Additional legal fees

Of course, these ratios depend on the type of claim or injury, type of business, days lost from work, and so forth. When it comes to an employment practices claim, direct costs are for attorney fees, litigation costs and any settlement or verdict payout. The indirect costs include: Loss of employee morale, damaged customer and client relations, copycat claims, loss of knowledge base, training, and experience.

The risk management literature offers a wide range expert opinion on the range of direct to indirect costs. Only one out of seemingly dozens of surveys identifies indirect costs as lower than a 1:1 ratio to the direct costs. Some go as high as 20 times the direct costs (for example, when an expensive piece of machinery is destroyed in the process). Based on my personal experience and that of experts I agree with, we can safely assume at least a 1:1 ratio in most circumstances. For example, you might have to pay out $50,000 to settle the lawsuit, plus another $50,000 to replace the employee! Unfortunately, these indirect costs are often uninsurable, and in many cases dwarf the insurable costs in a given risk scenario. Interestingly, the indirect cost ratio has been diminishing as medical and legal expenses continue to soar.

These ratios also depend on such factors as:

• Type of claim/injury
• Type of business
• Claim value
• Days lost from work
• Legal jurisdiction
• Management response

Finally, check out the $afety Pays e-tool.

The ‘Going and Coming’ Rule

The theory of respondeat superior makes employers vicariously liable for wrongful acts committed by employees during the course and scope of their employment. However, the “going and coming” rule generally exempts employers from liability for wrongful acts committed by employees while on their way to and from work, because employees are said to be outside of the course and scope of employment during their daily commute. A well-known exception to the going-and-coming rule arises if the use of the car gives some incidental benefit to the employer. Thus, the key issue becomes whether the employer derives an incidental benefit from the employee’s use of the car. This has been referred to as the “required-vehicle” exception. The exception can apply if the use of a personally owned vehicle is either an express or implied condition of employment, or if the employee has agreed, expressly or implicitly, to make the vehicle available as an accommodation to the employer, and the employer has “reasonably come to rely upon its use and [to] expect the employee to make the vehicle available on a regular basis while still not requiring it as a condition of employment.”

For example, Section 401.011(12) of the Texas Labor Code, which codifies this general rule, states:

Course and scope of employment means an activity of any kind or character that has to do with and originates in the work, business, trade, or profession of the employer and that is performed by an employee while engaged in or about the furtherance of the affairs or business of the employer. The term includes an activity conducted on the premises of the employer or at other locations. The term does not include:

(A) transportation to and from the place of employment unless:

• the transportation is furnished as a part of the contract of employment or is paid for by the employer;
• the means of the transportation are under the control of the employer; or
• the employee is directed in the employee’s employment to proceed from one place to another place; or

(B) travel by the employee in the furtherance of the affairs or business of the employer if the travel is also in furtherance of personal or private affairs of the employee unless:

• the travel to the place of occurrence of the injury would have been made even had there been no personal or private affairs of the employee to be furthered by the travel; and
• the travel would not have been made had there been no affairs or business of the employer to be furthered by the travel.

In insurance policies, the general definition describes coverage, and travel must meet both its components to be in the course and scope of employment. Subsections (A) and (B) are exclusions, each followed by exceptions. Subsection (A) has three, disjunctive exceptions; if any one is met, the exclusion does not apply, and travel to and from work is not excluded from the course and scope of employment. Subsection (B) has two, conjunctive exceptions and applies unless both are met. Subsection (B) is somewhat convoluted. More simply put, it does not exclude work-required travel from the course and scope of employment merely because the travel also furthers the employee’s personal interests that would not, alone, have caused him to make the trip.

A recent California case, Lobo v. Tamco, 182 Cal. App. 4th 297 (Cal. App. 4th Dist. 2010), interpreted this standard very broadly. Here are the facts of this case:

“Daniel Lobo, a San Bernardino County deputy sheriff, was killed on October 11, 2005, as the result of allegedly negligent operation of a motor vehicle by defendant’s employee Luis Duay Del Rosario, while acting in the course and scope of his employment by defendant Tamco. Del Rosario was leaving the premises of his employer, Tamco. As he drove his car out of the driveway and onto Arrow Highway, he failed to notice three motorcycle deputies approaching with lights and sirens activated. Deputy Lobo was unable to avoid colliding with Del Rosario’s car and suffered fatal injuries.

“Deputy Lobo’s widow, Jennifer Lobo, filed a wrongful death suit on behalf of herself and the Lobos’ minor daughter, Madison. Kiley and Kadie Lobo, minor daughters of Deputy Lobo, filed a separate wrongful death action through their guardian ad litem. Both suits alleged that Del Rosario was acting within the course and scope of his employment by Tamco at the time of the accident…..

“When Del Rosario left Tamco on the day of the accident, he was going home. However, if he had been asked to visit a customer site, he “would have gotten in [his] car and used [his] car to go to that facility,” just like on any other day. He kept boots, a helmet, and safety glasses in his car.

“This evidence is clearly sufficient to support the conclusion that Tamco requires Del Rosario to make his car available whenever it is necessary for him to visit customer sites, and that Tamco derives a benefit from the availability of Del Rosario’s car. Tamco, however, emphasizes that it was rare that Del Rosario visited customer facilities or jobsites, and contends that in all cases in which the “required-vehicle” exception to the going and coming rule has been found applicable, driving was an “integral” part of the employee’s job and that Del Rosario’s occasional use of his own car to visit customers is insufficient as a matter of law to invoke the exception.

“Tamco has not cited any case in which a court has addressed a contention that the employee’s use of his own car was too infrequent to warrant application of the exception and we have found none.”

Lesson learned: Realize that allowing employees to use their personal vehicles on company business can expose you to liability. Make sure that employees know the parameters and have good driving records, and make sure there is plenty of insurance to handle any possible claims.

Failure to Communicate Ruins Employee’s FMLA Claim

The Seventh Circuit Court of Appeals recently upheld the termination of an employee who sued, alleging FMLA interference and retaliation after termination for failure to contact his employer during a nine-day leave of absence to address a medical emergency involving his mother. In Righi v. SMC Corp. of America, a sales representative, while attending a mandatory training seminar, received word that his mother was experiencing a medical emergency. The employee left the training session and, despite informing a co-worker that he was leaving due to a family emergency, made no attempt to contact his supervisor. The next day, the employee sent his supervisor an e-mail stating that his mother, who was a diabetic, had slipped into a coma. After stating that he would need the next few days off to make arrangements for his mother’s care, he wrote: “I do have the vacation time, or I could apply for the Family Care Act, which I do not want to do at this time.” Upon receiving the e-mail, the supervisor repeatedly attempted without success to contact the employee by phone to inquire further about his need for leave.

Finally, after nine days of silence, the employee called his supervisor and was terminated the next day for violation of the employer’s leave policy, which provided that an unapproved absence of two or more consecutive days was grounds for termination. After the district court granted summary judgment on the employee’s claims of FMLA interference and retaliation, the employee appealed. The Seventh Circuit Court of Appeals held that the employee’s e-mail, in which he mentioned that his mother was in a diabetic coma, was sufficient to alert the employer that the employee might qualify for FMLA leave, and that the employer was obligated at that point to make further inquiry regarding the employee’s need for FMLA leave. The Court also found that the employer properly attempted to fulfill its obligation by making numerous calls to the employee and that the employee’s failure to respond to his employer’s calls caused his FMLA claims to fail. The employee was required under both the FMLA and his employer’s written policy, to contact his employer to let the employer know of the likely duration of his requested leave, which he failed to do.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

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