Tag: HR

April 2014 Compliance and Culture Newsletter

“You have a choice. You can make things happen, wait for things to happen, or wonder what happened.” – Dr. Alan Zimmerman

This issue discusses:

  • Editor’s Column: Mindful HR
  • A Scary Poll for HR and Other Executives
  • People, Robots, and Technology
  • Sales Commission Agreements and Post Termination Compensation
  • FMLA Claim Denied Due to Employee Caused Confusion
  • California Court Awards $100,000 Judgment Against Frivolous Plaintiff in Discrimination Case
  • Question of the Month

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

Please click here to view the newsletter in PDF.

Editor’s Column: Mindful HR

“Mindfulness” is fast becoming a buzzword. Long the bastion of New Agers, it’s showing up in everything from the Wall Street Journal to the World Economic Forum. Mindfulness has been championed as a methodology for present-moment awareness—awareness that’s neither judgmental nor critical, but simply aware. There’s a growing body of evidence that mindfulness lowers stress, combats fatigue, and helps address problems related to substance abuse, eating, sleeplessness, and weight gain. The bottom line:  It can be a total or partial antidote to a wide range of maladies. Mindfulness also has an upside. Many of my most creative and innovative thoughts have come when I’ve rested in the silence of mindfulness (“the space between the thoughts”).

You can practice mindfulness many ways, including meditation, yoga, walking, lying down, breathing, and other activities.  It’s less about what you’re doing than who you are in that moment. Hospitals, corporations, wellness programs, and coaches are all expanding the use of mindfulness as a valuable practice.

Much of mindfulness has to do with our intention in the moment. It’s hard to be mindful when you’re running 75 MPH or trying to control a situation. Mindfulness is about being with the situation. If your intention when going into a sales meeting is to see how much money that prospect can make you, he or she will sense this. However, if you’re thinking about how can you serve another human being, the outcome can be profitable on an entire other level.

If you go to an executive meeting intending to see how see how large a budget you can get for your team you’ll have a different outcome than if your intention is to do what’s in the best interest of the company and its customers.

If you aren’t already doing so, I encourage you to use mindfulness in your HR practice. Here are some resources for additional information:

A final note: Mindfulness is not about crystals and New Age froufrou. It has been practiced for centuries worldwide. While it might not all have always been labeled as being “mindful,” millions have enjoyed its benefits.

A Scary Poll for HR and Other Executives

pollThe March 24 CNN Money Magazine Poll of the Month asked “What do you most want for your career and 2014?” More than 6,400 employees responded this way:  33% of employees were out for a raise; 24% sought a promotion; 31% were looking for a new job; and 12% of employees wanted to switch fields. When you add those last two numbers, nearly half of employees (43%) are looking to leave their (your) company – instead of seeking a raise or promotion!

The Gallup organization says that 70% of workers are not engaged in their jobs. When you think about it, this means 27% of the people who are engaged still want to a promotion or raise.  What nerve! I guess they need the money.

When you consider the high costs associated with turnover, these statistics should concern any firm.  Organizations that engage their employees and keep them on board will be in far better financial condition than their competitors. This is yet another reason why HR offers businesses enormous strategic opportunities.

People, Robots, and Technology

People are losing jobs to robots and technology at an accelerating rate. Have you used one of those self-serve checkout stands lately? One, installed at my local CVS only three months ago, felt awkward to use at first, but seems like an old hat now. The manager told me the new system allowed him to let two full-time clerks go—two jobs lost to automation technology that will never reappear. Here are just a few of the other jobs suffering the same fate:

  • robotpharmacists
  • soldiers
  • reporters
  • drivers
  • fast food workers
  • assembly workers
  • bank tellers
  • secretaries
  • stock traders
  • warehouse employees
  • and more …

Technology is transforming the employment landscape. Devices such as the iPhone have led to the layoff of Kodak workers, as well as employees in the mapping, printing, alarm clock, and record industries.

I recently listened to an interesting podcast (all Radiolab podcasts are interesting!) about work in a shipping warehouse for such giant online providers as Amazon. If you thought stop watches were banned in the workplace at the beginning of the last century, guess what – they’re back. Technology is reducing worker output to a competitive logarithm. There’s still a rat race going on only now it’s being reduced to the most minute performance indicators.

Years ago, Buckminster “Bucky” Fuller predicted that the rise of computers and technology would make full-scale employment inefficient; it would be cheaper to pay people to stay at home. We’re getting there rapidly.  Even a good economy has 7% unemployment – and we’re already being asked to pay for people who have to stay at home because there are no jobs.

Most people want to be serviced, entertained, and otherwise cared for by a growing service class economy. This means that the fantasy of returning the middle class to where it was before today’s technology revolution is a pipe dream. The growing division between highly paid knowledge workers and low paid service workers means that sooner or later we’ll end up paying people to stay home or do some form of public service.

FYI – John Henry would be out of a job today. Now trains lay their own tracks.

Sales Commission Agreements and Post Termination Compensation

salesWhat happens to commissions due a salesperson who is terminated or quits? This was the question that Mark Dietrich and his former employer Bell, Inc. have been battling in federal courts since his termination in May of 2011. In Dietrich v. Bell, an appeals court ruled that the contract entitled Dietrich to commissions on the accounts he procured for two years from each customer’s contract start date. This case identifies many of the issues in sales compensation agreements and reinforces the need to have an attorney review these agreements in advance.

Here’s a summary of my employer tips gleaned from the case:

  1. Know what laws apply to sales compensation agreements in your state. Your BNA State Law Summary can help.
  2. There’s a difference between lead generation, customer procurement, and sales. If a salesperson generates leads, is she entitled to all the sales anyone makes from them – or only on direct sales?
  3. What does it mean to “make a sale?” Is the commission conditioned on actual payment? What about returns or other offsets?
  4. How long is the salesperson entitled to commissions on subsequent sales or renewals?
  5. How involved is the salesperson after the sale? If there’s an ongoing service obligation, this will matter in terms of post-termination compensation.
  6. Make sure you have all the above in a signed agreement. As the Court stated, “the contract says nothing regarding termination; it provides no express answer to how the parties intended to terminate their relationship.”

Note that this was a split decision: one of the judges, agreed with the ruling of the District Court that no wages were due.

FMLA Claim Denied Due to Employee Caused Confusion

In the case of Escriba v. Foster 2 Poultry Farms (9th Cir. 11-17608 and 12-15320 2/25/14), Maria Escriba worked in a Foster Poultry Farms, Inc. (Foster Farms) processing plant in Turlock, California for 18 years. She was terminated in 2007 for failing to comply with the company’s “three day no-show, no-call rule” after the end of a previously approved period of leave, which she took to care for her ailing father in Guatemala. Escriba subsequently filed suit under the Family and Medical Leave Act (FMLA) and its California equivalent. The parties disputed the characterization of Escriba’s request for a two-week period of leave. Escriba claims that her termination is an unlawful interference with her rights under the FMLA. Foster Farms responds that, although Escriba provided an FMLA-qualifying reason for taking leave, she explicitly declined to have her time off count as FMLA leave. The district court characterized the case as a classic “he said, she said” matter focused on what Escriba told her supervisors. Escriba’s claims therefore proceeded to a jury trial in 2011. The jury returned a verdict in favor of Foster Farms.

In reading the case you get the clear impression that poor communication was involved. To begin with, the employee’s primary language was Spanish. Whether she was confused or was misunderstood, this entire fight could have been easily avoided using an FMLA leave process. Clearly this was not a sophisticated worker and clearly she had a legitimate right to use FMLA. My guess is that at the time she was looking for paid leave only because that was all she could afford. When she passed the agreed upon non-FMLA leave of absence period she failed to notify the company about her expected continued absence. Not surprisingly she was terminated under Foster Farms’ “three day no-show, no-call rule.”

Lessons Learned:

  1. Make sure somebody can clearly communicate the legal obligations surrounding any leave request to the employee. Without proper training it is hard for a supervisor or manager to be that person. Language barriers can also get in the way.
  2. Make FMLA and other leaves a process and not an event. Taking a checklist approach is a must (which is why we have an FMLA Checklist!).

They could have been compassionate and not fired somebody already stressed about a relative’s health. The FMLA and your policies are only the ground floor of obligation to another human being. Instead of proactively assisting the employee and asking how they can be of help, they fire her prompting a lawsuit; the cost of which I am sure has already exceeded her annual income in expense. If the employer calls that “winning” I disagree with their definition of it.

California Court Awards $100,000 Judgment Against Frivolous Plaintiff in Discrimination Case

californiaThe plaintiff in case of Robert v. Stanford Univ. (CA6 H037514 2/25/14), Francis Robert is an American Indian employed by Stanford from 1997 to 2008. Stanford terminated his employment in 2008 due to his harassment of a female Stanford employee. He had been given several warnings prior to his termination, but he had continued to harass her. His harassment of her led to a restraining order against him, which was upheld on appeal by this court in 2009. Robert initiated this action in 2010. His discrimination case against Stanford alleged that his termination was based on his race. He maintained that Stanford’s reliance on his harassment was merely a pretext for racial discrimination. His only evidence of this employer motive was his personal belief that he was being discriminated against.

While Stanford won at trial, it had to incur $235,000 in legal fees to do so. So much for winning a lawsuit. Despite Mr. Robert’s protests of poverty and good intent in filing the suit, the court awarded Stanford attorney’s fees. It stated: “I am finding that the FEHA claim was without merit and was frivolous and vexatious. It was a legal theory in search of facts. There were none that were presented.” The court also noted that Robert’s non-FEHA cause of action had been decided by the jury “in fifteen minutes.” Since attorney’s fees were not available on the non-FEHA cause of action, the court apportioned fees and awarded Stanford $100,000, which was less than half of the fees it sought.

Fortunately for Stanford the judgment of the trial court was quickly upheld on appeal.

Lesson Learned:  One reason you need EPLI insurance is to guard against nonsense like this. Imagine if it was your company that had to fork out over $235,000 to win a case? Secondly there was no evidence presented of name calling or other acts that are indicative of possible discrimination.

Question of the Month

hiring-questionsQ: We have an employee who has been on leave now for 6 months. We have been paying for his insurance. He says he doesn’t know when he can return to work because he keeps getting migraines. We have 70 employees. What should we do?

A: That’s a lot of question! There are 4 things involved:

  1. Your leave policies and making sure you treat people consistently and in alignment with your culture – If you treat the next person on leave less favorably than this person (you have been generous) you risk their raising a discrimination or retaliation type claim. I also realize some employers look to be generous and caring with employees…and that’s OK. Just be clear that is why you are doing what you are doing…and not because of some sloppy HR practices.
  2. The FMLA – hopefully you gave an FMLA notice (you have over 50 employees as required by law) and let him know that his 12 weeks have passed. Even if you did not give him the notice it does not appear he has been prejudiced in this situation and his 12 weeks have run, so let him know that fact.
  3. The ADA – requires reasonable accommodation. Here’s the best resource for accommodation ideas, including info specifically on migraines https://askjan.org/media/Migraine.html. Open-ended leave is really not an accommodation and if there is no end in sight what he may really need to do is file for disability.
  4. COBRA – since he is no longer actively employed, you should issue COBRA at this point.

Form of the Month

Why I Deserve A Raise (PDF) – Before an employee requests a raise, they should be able to show how they have increased their value by filling out this form.


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:

©2014 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

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February 2014 Compliance and Culture Newsletter

“Your personal brand is what people think of you. Everyone has a brand.” –Larry G. Linne
“Boring is not a brand.” – Don Phin

This issue discusses:

  • Editor’s Column: Should Employers Pay for Employees’ Obesity?
  • Concerns of Corporate Counsel – Can HR Help?
  • Watch Out for Those Zombie Employees!
  • Employers Must Give Lactation Breaks
  • Motivating Entrepreneurial Employees
  • Doing Cool Things in HR
  • Employers Have Duty to Investigate Under FCRA
  • Question of the Month

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

Please click here to view the newsletter in PDF.

Editor’s Column: Should Employers Pay for Employees’ Obesity?

As a result to the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5) both the American Psychiatric Association (APA) and American Medical Association (AMA) now recognize obesity as a disease that requires medical and psychiatric intervention for prevention and treatment.

In a sense, the medical standard has expanded beyond morbid obesity to include one in three workers! It’s easy to see how the medical and drug community would like to expand their opportunities – and why the obese can be quick to claim that they have a disease for which they bear no responsibility. Combine this level of special interest groups working together with an aggressive EEOC, and you can expect to find many frustrated employers dealing with this issue.

Did you know that binge eating, formerly known as gluttony, is a mental disorder characterized by eating large amounts of food quickly at least once per week for three months? I don’t make this stuff up! How do you accommodate a person who shows up sick the day after one of these binges? Did you know that obesity is a defined primarily by body mass index (BMI), which is a far from accurate indicator of a person’s actual health?

It’s important to ask “Why should I have to accommodate (meaning pay for) an employee’s poor lifestyle choices?” The best justification the AMA could come up with is: “The suggestion that obesity is not a disease, but rather a consequence of a chosen lifestyle exemplified by overeating and/or inactivity is equivalent to suggesting that lung cancer is not a disease because it was brought about by an individual’s choice to smoke cigarettes.” My response is that employers should not have to pay for health consequences of employees who choose to smoke either.

Let’s hope that the EEOC will limit obesity accommodation protection to those who truly have an underlying medical disability and not self-imposed poor choices. Time will tell.

Concerns of Corporate Counsel – Can HR Help?

There is no substitute for HR having a good measure of business acumen. HR That Works Members should watch the Webinars we have done on this subject. A recent issue of Corporate Counsel Magazine gives you some of the risk concerns being addressed by corporate counsel across the country. These concerns include the following:

  1. Managing a recalcitrant board of directors.
  2. Preventing internal scandals, ethical compromises, and SEC violations.
  3. Protecting confidential and proprietary property of the company including patents, trademarks, and more.
  4. Deciding who to hire as outside council – Do they deal with the big firms and pay the big prices or do they play with boutique firms who have lower prices and perhaps greater service?
  5. Managing mergers and acquisitions.
  6. Managing compliance concerns.
  7. Social media exposures.
  8. Affordable Care Act changes.

HR would be wise to have a meeting with their corporate counsel to see what role they can play in developing risk reduction strategies in many of these areas.

Watch Out for Those Zombie Employees!

zombieThe Gallup 2013 Engagement Survey produced its usual morbid results. According to the survey, only 30% of employees are “actively engaged” (care about doing a great job every day). Another 52% are “not engaged” (otherwise known as “zombies”) and 12% are “actively disengaged” (purposely trying to work poorly, sabotage, cheat time, etc.).  In many cases, managers bear the responsibility for these unengaged workers either because they hired the wrong people or failed to provide effective leadership. However, assuming that management did not cause the problem, what can you do to improve the situation?

  1. The Actively Engaged – Learn what makes them tick! Thank them and let them know you love them. Find out how you can hire them at twice the rate. Leverage their enthusiasm to motivate the Zombies
  2. The Zombies – Give them something to be excited about, like a decent paycheck or a great company party. Then provide them with a sense of meaning in their daily work. Offer additional financial incentives.  Manage and coach them actively so they have no choice but to perform. You can also go to the Centers for Disease Control and Prevention web site on how to manage Zombies (http://www.cdc.gov/phpr/zombies.htm).
  3. The Actively Disengaged – If they walked off the job would you be upset—or relieved?  In the latter case, make sure you have checks and balances to get them off your bus now! Don’t hesitate to fire these people; the longer you keep them, the greater the risk they pose.

Finally, ask yourself what is motivating or demotivating about your company. Step back and become a keen observer of your own reality.

Employers Must Give Lactation Breaks

feedingThe Patient Protection and Affordable Care Act requires businesses covered by the Fair Labor Standards Act to allow mothers unpaid break time for nursing their child. All employers are subject to the Fair Labor Standards Act break time requirement unless they have fewer than 50 employees and can demonstrate that compliance would impose an undue hardship. This obligation lasts for at least one year after the child is born.

The law requires the company to provide a suitable location  (other than a bathroom) which is shielded from view and is free from intrusion, permit a reasonable break time given the circumstances, and let the worker take as much break time as she needs to express milk.  However, here’s little guidance on what constitutes a “suitable location” and the length of a “reasonable” break. For example, the Department of Labor suggests two or three 15-minute breaks during an eight-hour shift.  There’s also the matter of tracking for the employee’s time: Is she supposed to clock in and out for every nursing break – or can she coordinate a break with a meal or rest period?

To learn more, go to:

http://www.dol.gov/whd/nursingmothers/faqBTNM.htm, http://www.dol.gov/whd/nursingmothers/, http://www.dol.gov/whd/regs/compliance/whdfs73.htm, http://www.usbreastfeeding.org/LegislationPolicy/ExistingLegislation/tabid/233/Default.aspx, and finally, your BNA State Law Summary on HR That Works.

Motivating Entrepreneurial Employees

In a recent survey for the Inc. 500 Companies, entrepreneurs gave these reasons for wanting to work for themselves:

  1. Entrepreneurship has suited my skills and capabilities:  29%
  2. I wanted to be my own boss:  20%
  3. I had an idea I just had to try:  18%
  4. I wanted financial success:  11%
  5. I admired and wanted to emulate other entrepreneurs:  9 %
  6. Other:  13%

Employers are increasingly challenged to hire quality employees, especially those with an entrepreneurially bent.  The question is: why would somebody with these attributes rather work for you than start their own company? What can your business offer these people that they can’t provide for themselves?

Although some jobs (such as piloting an airliner), require working for a large business, many of today’s fastest-growing companies don’t fall into this category. I believe that today’s most successful companies understand that, instead of controlling people as “employees,” they need to liberate them as co-workers and team members. Ask yourself what you can do to help people do their brightest and best work while working for you.

Doing Cool Things in HR

In November I did a webinar on 10 Cool Things You Can Do to Inspire Your Workforce! In the course of that program I asked three polling questions, the results of which I’d like to share with you.

  1. Docool1 you do any cool videos? There’s an incredible opportunity to use video to help brand your company both for customers and internal purposes. Last month when I spoke to a CEO group and mentioned this opportunity, one of the CEOs (of an Internet marketing company) said that the most popular link clicked on a company’s website is the about link and the ones that get the most attention have videos on that page. When people are thinking about hiring you, working with you, or working for you, they’re going to look at your website. Make sure to have some video on it. Also understand that the video doesn’t have to be super high-end glossy stuff but, more importantly, it has to have the right feel. Have one of the 20-year-olds at your company take out their iPhone, shoot some cool video testimonials of employees talking about why they like working at your company, and then let them upload it to YouTube. You can also use cool videos for training. For example, you could have the entire management team do a very quick 3-minute introduction video that people can watch as part of the orientation process. Fact is, the ideas are endless in this area.
  2. cool2Have you stopped doing an uncool thing lately?
    I’m glad to see that at least 39% of the people said “yes.” Understand this, you cannot have more fun or make more money in your career unless you stop doing the uncool low-value work. This requires discipline. This requires time management. This requires clarity about who you want to be when you grow up and what you want to do when you get there. So again my question to you is: What uncool, low-value work will you stop doing today? How will you delegate it, outsource it, or eliminate it?
  3. Lastly, how much fun do you have at your company? Life’s too short not to have fun. When I do my workshops, I ask people if anybody in the audience doesn’t want to have fun doing their jobs. I then ask them what effort they are making to have fun in the job. Just what would it take to “whistle while you work”? Again, this is about the choices we make. If we choose to have a fun work environment then, guess what? We will have a fun work environment. If 16% of companies can say their workplace is always fun then what’s stopping everyone else? Interestingly, many of the participants wanted to know what companies represented those 16% to they could find out how to get a job there.cool3

Unfortunately, most employees and management view HR as boring. If you want to change that perception then it’s time to start doing something cool and stop doing that which is uncool.

Employers Have Duty to Investigate Under FCRA

Employers may be liable to former employees under the Fair Credit Reporting Act (FCRA) for failing to investigate a complaint that false or incorrect information was provided to a consumer reporting agency.

courtFacts of the Case: Most employers are aware that they must comply with FCRA’s notice and authorization requirements when they obtain background checks for applicants and employees from a third-party consumer reporting agency. What many do not know, however, is that there are certain obligations that FCRA imposes on employers as to former employees, as illustrated in Maiteki v. Marten Transportation, Ltd. et al.

Three former employers of a truck driver reported inaccurate negative information about the driver’s accident record to a consumer reporting agency. Because of the negative reports, prospective employers refused to hire the driver. When the driver first discovered the inaccurate information, he contacted his former employers and asked them to correct it. He was told by each of them that they would investigate and remove the false reports, but none of them did so. This resulted in further rejections of employment, which caused the driver to repeat his requests to his former employers, again to no effect. He also contacted the consumer reporting agency, which followed up with one former employer. No corrections by the former employers were ever made. The driver then sued each of his former employers under FCRA.

The Court’s Ruling: The federal district court found that FCRA does not provide a cause of action against former employers for providing false or inaccurate information to a consumer reporting agency. If an employer is informed by a consumer reporting agency that there is a dispute about the accuracy or truthfulness of information that they have provided to the agency, however, FCRA does impose an actionable obligation on employers to “conduct an investigation with respect to the disputed information.” In this case, it appears that each of the former employers failed to meet this obligation.

Lessons Learned: Employers should be careful to provide accurate and truthful information about former employees to a consumer reporting agency. (This information may include driving records, licensing, salary, termination information, etc.) In addition, if an employer receives a complaint that the information provided is not correct, it is important for that employer to investigate the complaint and make any necessary corrections promptly.

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

Question of the Month

hiring-questionsQ: We have an employee who is interested in joining the Army, and becoming a reservist. Everything I read regarding USERRA appears to apply only to those employees who are already reservists or veterans. Is there any job protected leave/benefits/etc. as it relates to an employee who wants join the armed forces and become a reservist?

A: USERRA prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve in a “uniformed services”.

Uniformed service includes active duty, active duty for training, inactive duty training (such as drills), initial active duty training, and funeral honors duty performed by National Guard and reserve members, as well as the period for which a person is absent from a position of employment for the purpose of an examination to determine fitness to perform any such duty.

USERRA provides that returning servicemembers are to be reemployed in the job that they would have attained had they not been absent for military service, (the “escalator” principle), with the same seniority, status and pay, as well as other rights and benefits determined by seniority. USERRA also requires that reasonable efforts (such as training or retraining) be made to enable returning servicemembers to qualify for reemployment. If the servicemember cannot qualify for the “escalator” position, he or she must be reemployed, if qualified, in any other position that is the nearest approximation to the escalator position and then to the pre-service position. USERRA also provides that while an individual is performing military service, he or she is deemed to be on a furlough or leave of absence and is entitled to the non-seniority rights accorded other similarly-situated individuals on non-military leaves of absence. The time limits for returning to work are as follows:

  • Less than 31 days service: By the beginning of the first regularly scheduled work period after the end of the calendar day of duty, plus time required to return home safely and an eight hour rest period. If this is impossible or unreasonable, then as soon as possible.
  • 31 to 180 days: The employee must apply for reemployment no later than 14 days after completion of military service. If this is impossible or unreasonable through no fault of the employee, then as soon as possible.
  • 181 days or more: The employee must apply for reemployment no later than 90 days after completion of military service.
  • Service-connected injury or illness: Reporting or application deadlines are extended for up to two years for persons who are hospitalized or convalescing.

Health and pension plan coverage for servicemembers is also addressed by USERRA. Individuals performing military duty of more than 30 days may elect to continue employer sponsored health care for up to 24 months; however, they may be required to pay up to102 percent of the full premium. For military service of less than 31 days, health care coverage is provided as if the servicemember had remained employed. USERRA pension protections apply to defined benefit plans and defined contribution plans as well as plans provided under federal or state laws governing pension benefits for government employees. For purposes of pension plan participation, vesting, and accrual of benefits, USERRA treats military service as continuous service with the employer.

With some exceptions, a service member loses his re-employment rights if his cumulative military service is more than 5 years.  There are important exceptions to the five-year limit, including initial enlistments lasting more than five years, periodic National Guard and Reserve training duty, and involuntary active duty extensions and recalls, especially during a time of national emergency. USERRA clearly establishes that reemployment protection does not depend on the timing, frequency, duration, or nature of an individual’s service as long as the basic eligibility criteria are met.

Online Resources:



Form of the Month

Things To Get Done (PDF) – Use this form at least weekly and perhaps daily to get things done!


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:

©2014 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

12 Ways to Grow Your Value as an HR Executive

I often talk about the opportunity in strategic HR practices. What follows are some insights gleaned from recent books read about marketing a growing business. They apply equally to marketing a growing HR career.

  1. Your customers don’t care about you or your department. They care about themselves. Don’t profittalk about HR, talk about your internal customers and what they want.
  2. A small portion of your customer base is providing the lion’s share of results. Identify these critical workers and communicate with them separately and frequently. Let them know that you value them. Show them the love…and the money.
  3. Understand what your customers want from you. HR has numerous stakeholders—primarily ownership, management, and employees. Survey these people. Talk to them. Observe. Show them that you have solutions that can help with their problem.
  4. Do multichannel marketing. Communicate to those stakeholders using at least three of four media channels including e-mail, companies newsletters, written notes, and status updates.
  5. Make sure your marketing campaign has the four elements. This includes the Big Idea and, the Big Promise, specific claims, and proof of those claims.
  6. Understand that complaints from your customers are the keys to growing your business. And HR career. Each complaint represents an opportunity for improvement and increase strategic standing.
  7. The buck stops here. Don’t simply hand off a problem presented to you. That’s the easy way out. Even if you bring someone else into the discussion, remain active in it.
  8. Fight against customer inertia. Lethargy and apathy are the main reasons that companies ignore HR. Help to automate your interaction with these stakeholders, understanding that there is an ongoing battle to remain top of mind.
  9. Every product line needs its own branding. What branding can you give to hiring, orientation, performance management, benefits, or training?
  10. Understand your customer’s core business. Unfortunately, many HR executives don’t invest the time necessary to really understand what’s going on within the industry they work. Or at their company, including its financials.
  11. Give before you expect to get. This is ancient wisdom. One way to give is to let people know you’re grateful for them. Find the good in them and let them know that you’ve observed it.
  12. Be confident and enthusiastic when you sell. Don’t be afraid to make a great HR sales pitch. As they say, you can’t hit the ball out of the park if you don’t swing.

As I have suggested over the years you can learn a lot about being a strategic HR executive by reading sales and marketing literature. Cross out the word “customers” or “clients” and put in the word “employees” or “owners” or “managers” because these are in fact your customers and clients.

Great HR Executives vs. MOST HR Executives (…and Many Others as Well)

It’s not easy being a great HR executive. Great HR executives are in the top 10% and, by definition, do things differently than most HR executives.

  1. Most HR executives are primarily concerned about protecting their ego. The last thing they want to do is look bad or suffer someone’s judgment. As a result, they play it safe and look to protect the status quo more than anything else. This is how you kill a career and HR HRopportunity by a thousand cuts. Great HR executives know that when you stick your neck out critics are sure to show up! They welcome the feedback and judgment as it is a source of growth.
  2. Most HR executives get stuck in their policies and procedures. They listen to the noise about how they should manage the workforce without stepping back and thinking how such an approach affects the growth of the company. Policies and procedures are necessary and fine so long as they help grow companies, not stymie them. Great HR executives know that these policies and procedures will affect company culture. I have all the HR executives I coach read Gordon MacKenzie’s Orbiting the Giant Hairball. The hairball is a metaphor for policies and procedures. When you orbit, you allow yourself freedom and creativity, so long as it is tethered to the vision, mission, values, and goals of the company.
  3. Most HR executives are deathly afraid of change and trying something new. Anytime I’ve ever coached an HR executive, I do a personality assessment on them. Four out of five times it indicates they are very rules-oriented (see policies and procedures above) and resistant to change. The resistance to change is about some fear that will manifest itself in the future. Typically, it’s related to someone’s judgment should things not work out right (see above).Great HR executives know that growth is about constant change…and they invite it!  So, if you adopt a change and fail, whose judgment are you concerned about and how realistic is your fear? How can you take a safe first step?
  4. Most HR executives keep their fingers crossed and hope for the best. While most HR executives are willing to sacrifice and work long hours, they look to be comfortable. Great HR executives realize that while hard work is a requirement, they realize it’s not the hours that matter, it’s the results that do. Different results require moving out of a comfort zone. As Paulo Coelho reminds us “Only the mediocre are ever truly comfortable.”
  5. Most HR executives will begrudge another’s success. It’s human nature. Like the folks in sales or marketing. It feels unfair that they have more _________than I do (insert words like opportunity, pay, access to leadership, etc). What they won’t do, however, is do what Great HR executives will do to get that success for themselves. If they modeled the behavior of the successful folks they envy, they will in turn be the source of someone else’s envy.
  6. Most HR executives do very little reading or personal growth work. As with most people, their learning ended in school. Few read even a book per year. Maybe they will go to a compliance workshop or two. Great HR executives are non-stop constant learners. They read a couple of books a month, numerous HR and industry-related periodicals, as well as their own personal growth material. Remember, in order to do more, you must become more. You must learn more. It’s very hard to help create a learning organization if you are not a learner yourself.
  7. Most HR executives don’t take care of their health. It always disappoints me how many overweight and out-of-shape people there are in the HR profession (have you been to an HR conference lately?). How can we help our company fight high healthcare costs, high absenteeism, presenteeism, and produce true wellness if those are not our personal habits? Again, great HR executives lead by example and that includes how they manage their health. .
  8. Most HR executives don’t have a plan—either for their department or their career. They are simply winging it and find themselves on constant overwhelm. As Mary Kay famously stated, “Most people plan their vacations better than their career”…and HR executives act like most people. Great HR executives have detailed plans for both their department and career. Do you?
  9. Most HR executives are deathly afraid of stepping out there and making a decision. They destroy themselves with constant second-guessing. Great HR executives know what they stand for, are willing to take risks, and willing to make decisions. They’re also willing to stick their necks out and suffer any judgment that may come with it.
  10. Most HR executives wouldn’t know a financial statement if it hit them in the head (unless of course they came to HR from accounting). Knowing numbers is not what gravitates most people toward the profession. Are you capable of having a robust financial conversation with the CPA, director of operations, or company president? If not, it’ll be very difficult for you to get a seat at the table. Great HR executives know their numbers. You can begin by watching The Accounting Game webinar on HR That Works or by reading the book.
  11. Most HR executives do a terrible job of managing their time. When I ask HR executives what blocks them from being more strategic, 80% of the time the answer is their lack of time. Yet few of these executives spend any time learning how to better manage their time! Only great HR executives do that. We have a great Time Management Training Module on HR That Works. If interested, contact me and I’ll email you a fun book I wrote, The Bathroom Book of Time.

P.S. The above is true not just for HR executives but many others as well. Which kind of executive are you?

January 2014 Compliance and Culture Newsletter

“Education is the most powerful weapon which you can use to change the world.” –Nelson Mandela (1918-2013)

This issue discusses:

  • Editor’s Column: Think For Yourself
  • Poor Timing for a Termination
  • The Top Three Traits of Outstanding Leaders
  • American CEOs’ View of Human Capital: Room for Improvement
  • California Court Allows a Class Action Wage Claim to Include Independent Contractors Provided by a Leasing Company
  • Your Company’s Exposure When It Provides an Employee with a Vehicle to Use
  • Question of the Month

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

Please click here to view the newsletter in PDF.

Editor’s Column: Think For Yourself

You either choose your story for yourself or let others choose it for you. As Don Miguel Ruiz reminded us: we can become domesticated into our stories. This means that they’re often not of our own making. As I say, they are gifted to us. Often these stories are so familiar to us that we are unaware they even exist. They can affect us both good and bad for a lifetime.

It took a revealing experience in my mid-thirties which caused me to become an independent thinker. In a workshop, I had the highest winning score ever in a betting game designed to teach win/win thinking. The only instruction they gave, or would give, was to win as much as you can. There was a guy in the corner with a megaphone continually barking out this instruction to the participants.

I dutifully manipulated the game (as instructed) and won more than anyone else by a large measure. Heck, being a lawyer, the game of manipulation came natural. Of course, this meant I helped generate a number of really bad…and upset… losers. During a group debriefing afterwards, I was asked if I could see that I could have played a win/win game where all participants could prosper. I said sure I could see that, right away in fact, yet I justified my high score by saying “I was only following instruction! Those were the game rules and we lawyers are trained to follow rules. In addition I was raised by a 6’3” Marine Corps Sergeant. (I felt like his last soldier at times.) You better believe I learned about following rules early on in life!”

The facilitator then asked me an insanely powerful question: He said “Do you always listen to the noise?” My brain stopped dead in its tracks. Wow. The noise. Why did I blindly follow instruction? What other rules am I following that are not of my own making? Do they really make sense? As Gurdjieff might ask, “Am I truly an automaton?”

From that day on, I determined to think for myself; to become 100% responsible for my lot in life. I decided that I could no longer do the safe thing, the thing I had trained myself to do, the thing I did so well; but rather to evolve and do what I should do. For 17 years as a plaintiff’s attorney, I had been feeding off the story that litigation was how I could make a difference. When I stopped listening to the noise and reality hit, I had a midlife crisis. I couldn’t live my passion using litigation to actualize it. Nobody wins a lawsuit. There had to be a better way!

Sometimes we question our sanity when reinventing ourselves. Change is fearful even if it is exciting. Will they let me champion this idea I have? Is this new career or business going to survive? Am I going to go bankrupt – again? Will a competitor come along to put me out of business? Do I really want to do this anymore? Am I too inexperienced to do it? Am I nuts?

If you try to do the exact same thing, the exact same way for the next three… or thirty… years, you’ll be guaranteed to turn into that automaton and regret missed opportunities.

Don’t listen to the noise. Don’t let others decide what your story will be. Think for yourself.

Poor Timing for a Termination

The California case Rope v. Auto-Chlor System  reinforces the futility of an employer trying to terminate an employee so as to avoid liability. Plaintiff Scott Rope informed his employer at the time of his hire that he planned to donate a kidney to his physically disabled sister. He had requested to be given leave to do so. He later requested that leave be extended and paid under newly enacted Donations Protection Act, which was to take effect January 1, 2011. Rope was fired two days before the DPA came effective; Auto-Chlor clearly hoping to avoid the 30-day payment obligation. The court agreed that the employer could not be held liable under a law that had not yet taken effect. However, it added that, under the circumstance, Rope had a potential claim, because the disability of his relative was a substantial factor motivating the employer’s decision, otherwise known as “associative discrimination.”

The court cautioned:

“Our holding should not be interpreted as a siren song for plaintiffs who, fearing termination, endeavor to prepare spurious cases by talking up their relationship at work to a person with a disability; such relationships do not, by themselves, give rise to a claim of discrimination. An employer who discriminates against an employee because of the latter’s association with a disabled person is liable even if the motivation is purely monetary. But if the disability plays no role in the employer’s decision, there is no disability discrimination.”

The case was sent back to the lower court to determine whether the plaintiff’s disability or that of his sister played any role in the employer’s decision. If it was purely an economic choice, there was no disability discrimination. (The court indicated that Rope himself did not have a disability as the result of donating a kidney, nor did the company act as if he had one).

The Top Three Traits of Outstanding Leaders

According to the 2013 Inc. 500 CEO survey, the top three attributes of outstanding leaders are trustworthiness, sincerity, and a capacity to inspire. This survey can be viewed as a self-prophecy. Perhaps this is how most of the CEOs view themselves. Of course, they see themselves as trustworthy, sincere, and inspiring. But is that how their employees view them?

According to Inc. magazine, likability was the last of 21 characteristics for making great leaders. In my experience, you don’t have to like a boss to work for him or her, but the chances are you won’t work there very long. However, if you like the boss, you’re likely to stay remain much longer, even if you could make more money elsewhere. To see the survey results, go to http://www.inc.com/magazine/201309/how-the-inc.500-approach-leadership.html

American CEOs’ View of Human Capital: Room for Improvement

In its research report, The Conference Board CEO Challenge 2013, American respondents ranked concerns about operational excellence, government regulation, customer relationships, and innovation above challenges related to human capital (human resources). This fifth-place ranking is the lowest among CEOs surveyed across the world. Let’s think about the role of human resources in all of this:

  1. HR should be directly involved with improving operational excellence by understanding total quality management and similar tools. Bring that same level of excellence to the HR function.
  2. HR should manage government regulation as it relates to human capital. This job is considerably more difficult in states like California and if you have offices abroad. There’s no substitute for audits, surveys, training, and running data to make sure you are meeting these obligations.
  3. The quality of customer relationships depends primarily on how well HR supports the hiring of these employees. HR can also work with the marketing department to brand the importance of great customer service to the workforce.
  4. Finally, HR has to improve its willingness to innovate. Most people view HR as boring, unimaginative, non-innovative, etc. – largely because it’s true. How many HR experiments have you implemented in such areas as of hiring, retention, performance management, generating employee suggestions, and so forth?

This survey tells me that American CEOs continue to undervalue the opportunity in human resources. The challenge for HR professionals is to step up and give these executives a reason to change their minds.

California Court Allows a Class Action Wage Claim to Include Independent Contractors Provided by a Leasing Company

In the California case of Benton v. Telecom Specialist (TMS), the proposed class consisted of approximately 750 cell-phone tower technicians, most of whom were hired and paid by staffing companies that contracted with TMS. The plaintiffs alleged that TMS was the employer of these contracted employees. While the direct employees received an employee handbook which discussed the rest and meal period breaks, the contracted employees may or may not have received an employee handbook from their companies. Of course, all the staffing companies stated that they had “no way of knowing” whether their technicians were taking breaks or working overtime while working on TMS jobs. The court spent a great deal of time discussing recent changes to California meal and break law. That law pretty much states that employees are responsible for taking their meal and rest periods unless they work under severe time constraints or other management direction that precluded them from taking “proper meal and rest periods.”

Even though the employees were contracted for, the Court stated that TMS was a joint employer with the staffing companies and therefore allowed the class action case to move forward. The plaintiffs argued that TMS was required to personally authorize and permit meal and rest periods because it exerted self-control over the technicians’ worksite and the manner which they reported their hours. As a result, TMS may not delegate its meal and rest break obligations or overtime requirements to a co-employer staffing company.

Tips for employers: The bottom line is that if you use contract employees consider yourself responsible for safety obligations, wage and hour obligations, and others. Make sure you’re covered in any agreement and you also have clear personnel practices.

Your Company’s Exposure When It Provides an Employee with a Vehicle to Use

Most employers understand that when an employee is on the job using a company vehicle that they are liable for any of the employee’s tortious actions. The question arises about what is within a scope and course of employment. For example, if they use a company vehicle going to and from work then that is considered in the cost of employment. However, what happens if they take a side trip in the process? That was the case in a lawsuit brought against in the consolidated cases of Halliburton v. Carly Baker. Halliburton supplied Troy Martinez with a pickup truck to drive, allowing him to run personal errands during breaks as well as to and from work. Halliburton had a written policy that company vehicles were not to be used for personal business but could be used to commute between home and work “and make a stop directly enroute for personal reason traveling to and from work.”

On the day in question Martinez left his shift, traveled home where he met his wife and daughter at a car dealership to purchase a vehicle for his wife. The deal fell through and Martinez and his family went to a restaurant and had lunch. Martinez then began a return trip to work. On his way back to work he was involved in an accident causing injuries to six people. Martinez’s pickup went off the pavement, traveled up a mound of dirt in the center divider and was launched into the air, landing in the opposite lanes of the freeway where it collided with the plaintiff’s vehicle. The plaintiff sued Martinez, and Halliburton as his employer, and also Caltrans as being responsible for a dangerous condition of public property that contributed to the accident. Of course all the defendants sued each other for amenity and contribution.

In summarizing the law, the court stated that “the most common, obvious cases in which respondeate superior liability arises are those in which the employee commits a tortious act while performing his or her ordinary duties for the employer at the employer’s place of business. In certain circumstances, the employers are ordinarily reliable for the employee’s tortious act, even if holy unauthorized and without benefit to the employer. An exception is made when an employee has substantially deviated from his duty for personal purposes at the time of the tortious act. While a minor deviation is foreseeable it will not excuse the employer from liability, a deviation from the employee’s duties that are so material or substantial as to amount to a departure from those duties will take the employee’s conduct out of the scope of employment.” For example, when the employee leaves the employer’s premises on a lunch break, to get lunch or run a personal errand and the employee is not engaged in any errand or task for the employer, the employee is not acting within the scope of his or her employment.

Further, if the main purpose of the employee’s activity is still the employer’s business, it does not cease to be within the scope of employment for reasons of personal incidental personal acts, slight delays, or deflections from the most direct route. In this case, the plaintiffs and Caltrans, who sought indemnification from Halliburton, was not able to plead a case as the court ruled that his going to the auto dealership with his family was a substantial deviation from the commute to pursue his own personal business.

What should employer should do:

  1. First of all, make sure you have full auto coverage for any employees who use any of their or your vehicles as part of their work activities.
  2. Secondly, have a policy that makes it very clear that the employees are not entitled to engage in substantial deviations from their commute to work with the company owned vehicles.
  3. Make sure anybody driving their vehicle on work time or your vehicles during work time has a clean driving record as well as sufficient insurance on any personal vehicle used for work purposes.

Question of the Month

Do you have a comprehensive list of which laws wireless device laws apply in which states?

We don’t, at least not structured like that.  If the state has such a law it can found on the BNA State Law Summary for example here is a screen shot from the California summary.

However, I did some digging and found two good resources:  http://www.lawireless.com/cephlawbyst.html and http://drivinglaws.aaa.com/laws/distracted-driving/. There may be helpful info here too http://www.distraction.gov/

Form of the Month

Annual HR Game Plan Worksheet (PDF) – This is the year to commit to a constant HR improvement process! Take on one strategic objective per month.


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:

©2014 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

An HR Career Story

career-storyOnce upon a time there was an HR executive that really wanted to make a difference. For herself and the company. Over time she looked for unique strategies, tools, and motivation. One day a friend told her about what she felt was the best HR program ever—HR That Works. Because of the referral she signed up for a 30-day free trial and began digging around in the program. She quickly realized that HR That Works was different. It wasn’t just about what companies can’t do with employees; it was as much about the opportunity that lies in great HR. She understood the potential power of the HR That Works program and became a subscribing member.

Over the following year she took on a new strategic initiative monthly. She followed the HR That Works approach, including giving her CEO monthly progress reports. Fellow managers began to view her as a true resource and no longer called her the Dept. of No. Until finally one day, her CEO came to her and told her that she’s really picked up her HR game and without her having to ask, offered her congratulations… and a raise.

The End.


December 2013 Compliance and Culture Newsletter

“All labor that uplifts humanity has dignity and importance and should be undertaken with pain-staking excellence.” – Martin Luther King, Jr.

This issue discusses:

  • Editor’s Column: 24 Recent Thoughts and Statements
  • Does Telecommuting Work?
  • A New HR Story
  • Holiday Party Reminders & Religious Accommodation
  • Managing Outrageously
  • Random Thoughts About the Future of Work
  • Question of the Month

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

Please click here to view the newsletter in PDF.

Editor’s Column: 24 Recent Thoughts and Statements

I do a lot of reading. Here are some thoughts inspired by the latest round:

  1. No person who produces from the heart will go for naught.
  2. Career success requires both inner and external engineering.
  3. As the scope of your life becomes bigger, less will be under your control.
  4. “I will be happy….. when” is meaningless. Be happy now!
  5. Comfort is an illusion if sought from the outside. Do you want to be comfortable or awesome?
  6. To map your career path, askWhere can I help the most people with the least amount of energy?”
  7. When overwhelmed by information, we lose clarity of thought, which comes in the spaces between information – yet another reason to meditate.
  8. Do you identify with your limitations – and let them define you?
  9. Have these “limitations” blocked you from career success?
  10. Personal peace is about our internal chemistry. All happiness, despair, and other human experiences have a biochemical basis.
  11. Every person is an energy field functioning at different levels of capability.
  12. How loyal, engaged, and awesome do you want your people to be?
  13. You can’t bullshit yourself into wellbeing.
  14. Situations don’t make you – they expose you.
  15. Use time off to reward employees.
  16. Personality comes from the word persona, which in Greek drama meant a “mask.” Like a mask our personality is a construct – a story we tell ourselves about ourselves.
  17. All creativity is an imitation of nature.
  18. Conduct scavenger hunts, field trips, lunch-and-learns, suggestion meetings, crossword puzzles, jeopardy games, volunteer projects, blood donations, fun clubs, etc.
  19. If people feel good, they will ______________.
  20. Over-committed heroes end up becoming martyrs. Avoid this behavior pattern!
  21. Can you be peaceful where you are or must you go someplace to feel that way?
  22. HR’s focus on the negative does a disservice to human wellbeing.
  23. Work doesn’t cause stress; your reaction to it does.
  24. Have a plan for where you and your business will evolve.

Does Telecommuting Work?

In early 2013 Yahoo! CEO Marissa Mayer decided to eliminate telework, with an eye towards innovation and collaboration. “Some of the best insights come from hallway and cafeteria discussions, meeting new people and impromptu meetings,” said EVP of People and Development Jackie Reses, adding that “speed and quality are often sacrificed when we work from home.” Best Buy also announced it was canceling its Results Only Work Environment (ROWE) program, largely supported by telecommuters.

Many believe that occasional telecommuting allows people to deal with one-time events and promotes a less stressful work environment – however, it comes with a price!

To learn more about the pros and cons of this issue, check our Telecommuting That Works Training Program, which includes checklists, policies, forms, and a training video. If you don’t have access to HR That Works send an email to don@hrthatworks.com and I’ll email you a copy of the report.

A New HR Story

Once upon a time, HR was viewed as a boring corporate wasteland “Oh no! Sally got transferred into the HR department… her career is over. Poor Sally!” Even though companies hired, managed, and fired people all the time, management still saw HR as an administrative backwater.

That view gradually changed. Books such as Good to Great helped owners and managers understand that hiring great people was essential for greatness; and that to do so required strategic initiative. They began seeing they couldn’t rely on yesterday’s performance management approaches, created in an industrial era, when working primarily with knowledge workers. Managers such as Jack Welch, Herb Kelleher, Howard Schultz, James Sinegal, and Tony Hsieh used a strategic HR approach to build great companies – GE, Southwest Airlines, Starbucks, Costco, and Zappos. The result: cutting-edge executives and managers realized that HR provided a competitive advantage.

Then the recession struck – and management neglected HR to concentrate on survival and building productivity. When the economy began recovering, valuable employees moved on to greener pastures, either working for themselves or for a company where they could feel fully engaged. Once again, businesses became desperate to reduce turnover and find good hires.

Tomorrow’s successful companies will win the talent wars by attracting and challenging the best, brightest, and most productive employees to grow and innovate for themselves and their employer. This shift in culture will have the unintended effect of reducing workers comp, employment practices, cyber-liability, and other insurance exposures – with HR helping lead the way.

Businesses will see HR as a strategic resource that’s as essential as sales, operations, and finance. That’s the new HR story.

Holiday Party Reminders & Religious Accommodation

Eggnog, latkes, old friends, parties – and a lot of beveraging! HR That Works wishes you a safe and happy holiday season! As the host of your company party, you have a legal obligation to make sure that attendees get home safe. Here’s our list of tips to help you meet this responsibility:

  • Make party attendance voluntary.
  • Hire bartenders trained to spot and handle intoxicated revelers.
  • Provide non-alcoholic beverages.
  • Give each guest a limited number of drink tickets, instead of an open bar.
  • Serve filling food – not just chips and pretzels – whenever alcohol is available.
  • Cut off alcohol service at least an hour before the party ends.
  • Stop serving intoxicated guests immediately; don’t wait until they’re ready to leave.
  • Never ask an apparently impaired guest if they’re able to drive home – they aren’t.
  • Provide a taxi service for guests who require or request it.
  • Have a friend or family member pick up intoxicated guests.
  • Arrange for discounted rooms at the event location or a nearby hotel.

Finally, have a fun party. Think like good ‘ol Mr. Fezziwig!

Accommodating Religious Needs

The holiday season is an ideal time to focus on religious accommodation in in the workplace. Title VII of the Civil Rights Act of 1964 prohibits discrimination based on religion. We’ve seen more of these claims in recent years, with thousands of claims filed in 2012. Unsurprising, many of these cases include allegations of discrimination based national origin (i.e. someone claims discrimination because they’re of Arab origin, as well as Muslim).

The EEOC offers this definition of “religion:”

“In most cases, whether or not a practice or a belief is religious is not an issue. However, the EEOC defines religious practices to include moral or ethical beliefs as to what’s right and wrong, which are sincerely held with the strength of traditional, religious views. The fact that no religious group espouses such beliefs, or that the religious group to which the individual professes to belong might not accept such belief, will not determine whether the belief is a religious belief of the employee or prospective employee. The phrase ‘religious practices’ includes both religious observances and practices.” Also, bear in mind that:

  • It’s unlawful for an employer to fail to accommodate reasonably the religious practices of an employee or prospective employee, unless the employer demonstrates that accommodation will mean undue hardship in conducting its business.
  • An employer may not ask about an employee’s religious background unless justified by business necessity.”

For more information on religious expression in the workplace, check out: 1) EEOC guidelines and FAQS on religious discrimination: 2) an EEOC memo on accommodating religious expression; and 3) religious accommodation practices at the University of Missouri ( a great education, period).

Managing Outrageously

I recently read an updated version of the book Marketing Outrageously by Jon Spoelstra. What I would like to focus on is a chapter in that book entitled Employees to Kill For. Anyplace that Spoelstra worked he pretty much followed the Southwest Airlines formula:

  1. Treat your employees fairly, inspire them and let them try outrageous things and they will work harder and smarter, more caringly, more outrageously, and they will not leave the company.
  2. This in turn will cause customers to love your company, because it has such happy employees, buying more, tell their friends about the outrageous company, and bring in new customers who will buy even more.
  3. This will in turn pleases shareholders and owners because of the increased buying, lower costs, higher profits, and more.

This is one of the things that drives me nuts about HR more than anything else—they have the opportunity to drive this initiative, which will in fact generate increased profits—yet few do! A few of Spoelstra’s ideas are as follows:

  1. Create a fun employee handbook. As I’ve often stated, we treat customers and clients in color but our employees in black and white. There’s no reason you can’t get your graphics folks to work on your employee handbook, no matter the size of your company. See the excellent example of the San Gabriel Valley YMCA employee handbook housed on HR That Works.
  2. Provide a free education. Spoelstra would typically pay half or more of an employee’s tuition no matter what subject they wished to study. If they wanted gardening lessons they’d pay for it. Golf lessons, they’d pay for it. The increase in self-esteem and energy this generated for employees more than paid for itself.
  3. Have a no miss policy. If you surround yourself with people who have a great work ethic, you don’t want to have them miss important family events. When he ran the New Jersey Nets, employees were not allowed to let work cause them to miss important functions. If they wanted to miss them for reasons of their own that was okay but they could not use work as an excuse.
  4. Forced vacations – Spoelstra was not a big fan of employees building up a vacation bank. He required them to use their vacation. They could not spend their vacation time at work and while they were on vacation they couldn’t phone in, not even once.
  5. A six-week paid sabbatical after working three years. The only requirement is they have to propose to do something a little more interesting than sitting on the beach, like helping out a nonprofit cause.
  6. Help people in negotiating their next job – Odds are your employees won’t be working for you forever. Spoelstra realized that there are times when it’s in an employee’s best interest to move on and it’s in the company’s best interest to help them do so in a constructive way. As he would explain to young staffers, “Because a lot of you are quickly developing valuable skills, other teams will want to steal you away. That’s okay. We don’t want to lose you, but we know each of you has your own career. If you can take a giant step along the career path with another team, we’ll help you. When another team approaches you, let us know; if it’s something you want to do, we’ll help you negotiate the best deal. We don’t want to lose you, but if we have to, we don’t want it to be for a piddling amount of money. We want you to get a lot more money and a lot more responsibility when you leave.”

There’s a reason why Spoelstra was able to turn around every single organization he ever went to and make himself quite wealthy in the process. And, there’s absolutely no reason why these insights can’t be applied at your company.

Random Thoughts About the Future of Work

  1. Years ago Buckminster Fuller surmised in his book The Critical Path that because of computer and robot technology we would arrive at a place where few of us had to go to work. This is similar to predictions made at the beginning of the manufacturing age. Fact is, instead of being liberated from work we figure out more and more things to do with our free time and then create an economy to support those activities. What these robots are doing is helping to eliminate the middle class!
  2. We’ll continue to spend less and less time making things and more time servicing people. The greatest expansion of service will be in healthcare and technology utilization.
  3. Companies will be ever more transparent. Everything from leadership practices, hiring methodologies, performance management approaches, guiding values, financial numbers, you name it, will be readily available to the public. Even if you’re a private company.
  4. The amount of information/data we’ll face in only a few years is expected to more than quadruple. It is impossible for any one of us to keep up with the vast amount of information today, never mind the quadrupling of it. What will be important is identifying which information is most critical to your success and then finding out the best way to obtain that information. Think of it, for thousands of years, civilization had a very limited sources of information be it word of mouth, stone tablets, or daily newspapers. Only 50 years ago we had twenty a.m. radio stations, three TV stations, and a handful of papers to learn from. Now the information is limitless and, like the universe, tends to expand on itself.
  5. Most of the growth economy will be built around the edges making an already good human existence that much better. Of course there will be poverty, simply because of circumstances or how people choose to think about themselves. There will be two classes of workers, those who produce, manage, publish, analyze and apply information, and those people who service those people who do. There will be two social classes, the educated information class and the uneducated service class. Governments will be there to close the financial gap between the two requiring additional taxation on the haves. The last thing anyone wants is rioting in the streets.
  6. The workforce will continue to look different. As the 2012 election bore out, the country’s demographics are rapidly changing. Older, multi-racial, more women in power. Yesterday’s Mitt Romney image of the executive is changing in light of today’s realities.

These are some of the fundamental changes coming our way. The opportunity is to embrace and exploit these changes, and not react to or get run over by them.

Question of the Month

hiring-questionsWhat kind of limitations can I put on an employee that smokes? Not just at the office, but if an employee is going to a customer’s house?

You can tell an employee that they can’t smoke on jobs, driving in your vehicles, at the office, etc. They can smoke on breaks and at lunch, if away from work or in a designated area. Here’s a good summary of the law in California.

Form of the Month

25 Benefits of Good Health (PDF) – This document lists a variety of benefits from maintaining a healthy lifestyle. We’d blow it up and place in the lunchroom so your employees see it every day!


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

©2013 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.

What’s Most Important to CEOs

A snapshot of what a recent group of CEO’s told me is most important to them:


Here’s my quick question: Do you think the HR folks at these companies know what the most important HR concerns are of their owners? Do you know what is most important to your owners?

How Much Reading Are You Doing?

I recently received a marketing email from SHRM (no surprise there) on the top 50 books for HR practitioners. Below is a quick description of those books. Let me discuss the main categories addressed and share my thoughts.

  • Change management
  • Performance management
  • Dealing with poor performers
  • Emotional intelligence
  • Compliance auditing
  • Compliance in general
  • Employee handbook templates
  • Managing new supervisors
  • Motivation and team building
  • Understanding the math of HR

Each of the above is a critical HR function at any sized company. Most of our Members have between 15-500 employees and don’t have the large HR departments many of these books are aimed at. All of these bases are covered on HR That Works. For example, there are webinars on change management, performance management, emotional intelligence, managing new supervisors, how to be strategic and know numbers (hint: take a look at the Cost Calculator). There is everything you will ever need for compliance, including the BNA State Law Summaries. Of course we have a great employee handbook template and a deal with the Worklaw® Network attorneys to help you go final for only $997.

Perhaps the single most important program on HR That Works is the Time Management one. It is the biggest thing stopping any executive from adding more value and growing in their career. Know this: You can’t add more value until you STOP doing low value work. This requires discipline, confidence, and the ability to delegate or say “no”.

My suggestion: If you wish to move beyond the ordinary, spend at least one hour each week reading a report, watching a webinar, implementing a strategic HR tool, etc. If you ever get stuck, give me a call. Here’s to your continued learning and growth.


Transformative HR: How Great Companies Use Evidence-Based Change for Sustainable Advantage
This book demonstrates how some of the world’s most admired and prominent organizations are redefining HR leadership by using evidence-based change to inform human capital

Nine Minutes on Monday: The Quick and Easy Way to Turn Managers into Leaders
The No. 1 reason why managers fail to increase productivity and get the best out of their people is they neglect to keep their leadership priorities in front of them.

The Crowdsourced Performance Review
With The Crowdsourced Performance Review, you’ll create a review system that gathers the feedback of many, so you can make better, more informed decisions.

Emotional Intelligence 2.0
This “other kind of smart” is the No.1 predictor of success, both personally and professionally. This book helps readers identify their emotional intelligence and turn their skills into strengths.

Auditing Your Human Resources Department, 2nd edition
Business units everywhere, and especially human resource departments, are under the gun to prove their effectiveness and strategic value. Now you can accurately gauge how well you’re doing with this new edition of Auditing Your Human Resources Department. The comprehensive guide walks readers through a rigorous, in-depth self-assessment process that is far less costly and intimidating than an outside audit.

Harassment: Sex, Religion and Beyond
This popular training series brings this message home, showing that bad behavior is not OK—whether it applies to sex, religion or anything beyond.

New Supervisor Training
New Supervisor Training will enable you to help up-and-coming supervisors make the transition from individual contributor to leader.

The HR Answer Book, 2nd edition
Written in question-and-answer format, this essential reference book addresses more than 200 areas of concern and provides insight into real HR situations. Includes ready-to-use tools!

Create Your Own Employee Handbook, 6th edition
This book and CD-ROM provide information and policies all managers, HR professionals and business owners need to create their own reader-friendly guide, no matter what state they are in.

How to Deal with Annoying People
The world is filled with annoying people, but there is hope and help! Churches, individuals, couples, employees and managers will benefit from this look at personality styles and close, sometimes conflicted, interaction.

The Essential Guide to Workplace Investigations, 3rd edition
The new edition of this best-selling book documents the 10 steps to legally and successfully investigate and resolve any type of workplace complaint or problem.

Creative Onboarding Programs
Fully updated with new case studies of best practices from successful companies, this book helps employees do their best work from the minute they first walk in the door.

101 Sample Write Ups for Documenting Employee Performance Problems, 2nd edition
This bestseller, with CD-ROM, covers dozens of problems likely to occur in the workplace, and the 101 samples help you generate a corrective action notice.

2600 Phrases for Effective Performance Reviews
This book puts the right words at your fingertips, with ready-to-use phrases, action items and descriptions you can use to evaluate performance, prepare development plans and more

The Definitive Guide to HR Communication: Engaging Employees in Benefits, Pay, and Performance
Two experienced HR communications consultants show how to dramatically improve the effectiveness of every HR message.

Got a Minute? The 9 Lessons Every HR Professional Must Learn to Be Successful
Designed to help HR professionals deal with challenging employees in the workplace, this best-selling book presents several real-life stories of employee behavior within a broad range of circumstances

Tweet This! Twitter for Business
This handy guide offers basic instruction as well as advanced networking and marketing strategies for consultants, entrepreneurs and small-business owners.

Human Resource Essentials: Your Guide to Starting and Running the HR Function, 2nd edition
From staffing, training, and performance management to compensation and benefits and policy creation and review, this best-seller offers the information needed to design, run and manage the HR function

Reality-Based Leadership: Ditch the Drama, Restore Sanity to the Workplace and Turn Excuses Into Results
Expert Fast Company blogger Cy Wakeman reveals how to be the kind of leader who changes the way people think about and perceive their circumstances without drama or defensiveness.

You’re Not That Great: A Motivational Book
Psychologist and leadership coach Dr. Daniel Crosby offers You’re Not that Great as an anecdote to the saccharine self-help books that promote happiness and self-esteem at the expense of personal integrity. Arguing against complacency, Crosby encourages his readers to consider rules for successful living that are based on the pursuit of excellence rather than the assumption of it.

Leadership Training
Leadership Training shows you how to integrate 10 key leadership competencies to create leadership training programs that get results. Companion CD-ROM included.

The Five Dysfunctions of a Team
Leaders and teams alike turn to The Five Dysfunctions of a Team for additional tools and materials to bring the dysfunctions to life on their own teams and organizations.

High-Impact Interview Questions
This book shows you how to use competency-based behavioral interviewing methods that will uncover truly relevant and useful information.

The Essential Guide to Family & Medical Leave, 3rd edition
This book provides information and forms you need to comply with the FMLA and answers vital questions such as “Who qualifies for leave?” and “How much leave can employees take?”

HR Transformation: Building Human Resources from the Outside In
Named as BusinessWeek’s No. 1 Management Educator, expert Dave Ulrich and his team of authors bring human resources a whole new way of thinking and practicing — moving the focus from internal issues to actively helping to set business strategies. Businesses of the future need “all hands on deck” when implementing new ways to stimulate growth and cost-efficiency, and this includes human resources.

New Employee Orientation Training
A flexible, icon-driven format and dozens of worksheets, exercises, handouts and assessments allow you to develop customized new employee training. Includes companion CD-ROM

Business-Focused HR: 11 Processes to Drive Results
Business-Focused HR provides the tools for HR leaders and people managers across the organization to become more business-focused with the processes that they execute.

From Hello to Goodbye: Proactive Tips for Maintaining Positive Employee Relations
The lessons provided in this best-selling book will make you more proactive and prepared, and will reinforce the fact that a successful last day of work begins on that very first day of work.

Aligning Human Resources and Business Strategy, 2nd edition
Approved for Strategic Credit
Learn how to strengthen the relationship between people strategy and business success through your approach to performance and development, and impress at the highest levels.

Lean HR: Introducing Process Excellence to Your Practice
Lean principles have been used for years in the manufacturing world, and have started to make an impact in the office as well. These tools can provide the foundation to building a systematic approach to improving your HR practice and lowering costs.

Supervisor’s Guide to Labor Relations
This booklet outlines in practical language the do’s and don’ts of avoiding unfair labor practices during an organizing campaign.

Becoming the Evidence-Based Manager: Making the Science of Management Work for You
This book covers a wide range of critical people management skills, such as hiring, inspiring, training, developing, motivating and coaching. Readers gain a thorough understanding of how to put the science of management to work for themselves and their organizations.

180 Ways to Spread Contagious Enthusiasm
This handbook gives you 180 morale-boosting ideas to help you bring more caring, communication, respect, and appreciation to the place where you work.

Help Them Grow or Watch Them Go: Career Conversations Employees Want
Studies confirm that career development is the most powerful tool managers have for driving retention, engagement, productivity and results. This book identifies the tools you need.

The Essential Guide to Federal Employment Laws, 4th edition
The new edition of this best-selling guide covers 20 of the most important federal employment laws, including the FLSA, the FMLA and the ADA, and provides plain-language explanations of what each law allows and prohibits; which businesses must comply; record-keeping, posting and reporting requirements; penalties for violating the law; and more.

301 Ways to Have Fun at Work
301 Ways to Have Fun at Work offers a complete resource anyone can use to create a dynamic workplace that encourages and inspires fun-and-games camaraderie among employees.

Dealing with Problem Employees, 6th edition
Filled with proven techniques and effective solutions for managing problem employees, this book covers a broad range of topics — from avoiding bad hires to legally firing workers who won’t improve.

A Necessary Evil: Managing Employee Activity on Facebook, Twitter, LinkedIn … and the Hundreds of Other Social Media Sites
This first-of-its-kind people management book will help managers guide employees in their use of social media sites while balancing productivity, and it will help HR professionals set policies that do both.

The Employer’s Legal Handbook: Manage Your Employees and Workplace Effectively
This guide shows you how to comply with the most recent workplace laws and regulations, run a safe and fair workplace, and avoid lawsuits.

Employment Law: The Essential HR Desk Reference
As a human resources professional, it’s important to have quick access to the information you need to do your job. Employment Law: The Essential HR Desk Reference is an all-in-one, easy-to-read guide every HR pro should have handy.

The Job Description Handbook, 3rd edition
This all-in-one resource can help you create HR documents that provide the details of every job’s duties, requirements, qualifications and much more. Includes a CD-ROM.

Social Media Strategies for Professionals and Their Firms
Social Media Strategies for Professionals and Their Firms shows professionals and marketers a new approach to familiar marketing tactics, and it offers step-by-step instructions on how to put social media to work for your professional practice.

Perfect Phrases Series
Packed with hundreds of handy phrases, these quick-reference guides can be real lifesavers — on the job, at school, anywhere.

The Power of Stay Interviews for Engagement and Retention
“In today’s world, employees are such an important asset to the success of any business. Every employee who voluntarily leaves their company is a financial and cultural loss to the organization. Retention has become such a burning issue for so many companies. The author reminds us that it’s not rocket science, there is no silver bullet, it simply comes down to knowing what makes an employee want to stay one person at a time, and holding managers accountable for doing so.” — Lisa Doyle, Senior Vice President, Human Resources, St. David’s HealthCare

How to Measure Human Resource Management
The basic methodology in this book enable you to objectively evaluate all your HR activities including staff planning, pay and benefits systems, employee and labor relations, HRIS services, and more!

Up, Down and Sideways: High-Impact Verbal Communication for HR Professionals
This book was written to help HR practitioners — at all levels — become better verbal communicators, thereby making them better at their jobs and more valuable to their companies.

The Performance Appraisal Handbook
The Performance Appraisal Handbook is a must-read for every manager, whether you’re writing a performance review for the first time or the hundredth.

The HR Scorecard
HR’s strategic role begins with designing an HR architecture — the HR function, the HR system, and strategic employee behaviors — that emphasizes and reinforces the implementation of the firm’s strategy.

Handbook of Compensation and Benefits Formulas
In the past three decades, the world of compensation and benefits has experienced a revolution. And, while the role of today’s total rewards professionals has become more strategic and business oriented, some fundamentals of the job will always hold true. One such fundamental is math. In this “Handbook of Compensation and Benefits Formulas,” World at Work Press has combined two of its most popular math-oriented resources: “Calculate This!” and “Excel Tips,” a collection of nearly 100 columns.

September 2013 Compliance and Culture Newsletter

“The speed of the boss is the speed of the team.” –Lee Iacocca

This issue discusses:

  • Editor’s Column: Dealing with Speed
  • How Do You Feel as You’re Going to Work?
  • The Broad Possibilities of Reasonable Accommodation
  • Gender Change and the Law
  • The EEOC Systemic Expedition
  • Are You Willing to Learn?
  • The Aging Workforce and Disability Concerns
  • Question of the Month

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

Please click here to view the newsletter in PDF.

Editor’s Column: Dealing with Speed

I listened to an outstanding NYC Radiolab podcast on the subject of speed. To begin with, Radiolab is one of my favorite podcasts. The subjects are always interesting, but this was one of those episodes that causes you to really do some deep thinking. Many years ago the great thinker Buckminister Fuller coined the phrase “accelerated acceleration.” In a sense, things happen faster at an ever faster rate: Speed feeding on itself.

The podcast discussed relative aspects of speed; for example, how it affects stock trading. No longer are stocks traded on the floor, but through ten thousand servers, all connected to a motherboard on Wall Street. Trades are made in microseconds. This technology-driven speed has ended the career of many old school traders. While we might bemoan the good old days, this change has lowered the cost of trading for you and me.

The whole concept of speed is reengineering the workforce dramatically. Pretty soon, there will be an algorithm or program that solves just about every puzzle — the Watson computer being an excellent example. Our best and brightest will continue to create those tools and figure out how to put them to good use. Technology has driven the middleman out of stock trading, just as in many aspects of business and much of the retail sector.

  • How is this affecting your company?
  • Where will the speed of transactions have an impact on your career?
  • Who will get squeezed out next?
  • What new jobs will be created?

Speed is directly related to time. All of us feel the stress of this speed on how we manage our time. I describe it as running 75 mph. Many think they can outdo the other guy if they run 80 mph. Years ago this was termed the rat race – and as Lilly Tomlin reminded us, “even if you win the rat race, you’re still a rat.” Nothing less than a fundamental reexamination of how we do our work will be required to survive the speed of change.

I highly encourage you to listen to this podcast: www.radiolab.org/2013/feb/05/. The last part of it is amazing and will blow your mind. It certainly made me want to learn more about the latest discovery that is shared. I won’t spoil it by telling you what it’s about. I had to listen to it three times for it to fully sink in. I’d be curious to know what you think after listening to this podcast.

PS…If you haven’t yet done so, get thee to the Time Management Training Module on HR That Works. In order to manage the rate of speed better we have to better manage our time.

How Do You Feel as You’re Going to Work?

Do any of these sentences pop up into your head when you’re arriving at the workplace?

  • I really dread coming in here today
  • I’m afraid of that __________ today
  • I feel tired just walking into this place
  • This place is a disaster waiting to happen
  • I wish it was Friday
  • I wish I was anywhere but here
  • I’m ready for the fight because I know I’m right
  • I don’t care if they fire me today, they’re going to learn how I feel about it
  • I have to get so much done and I don’t know when I’m going to be able to do it.

Guess what? These thoughts pop up in the heads of your employees, too. My question is what will you do to turn it around?

Many folks will wallow in a horrible complacency. Others will realize that if it’s going to change, they have to create this change. It’s both an inside and outside job.

Look at your situation like a new employee excited about the opportunity!

Also, take a look at the Creating a Fun Workplace Checklist.

The Broad Possibilities of Reasonable Accommodation

accommodationIn managing today’s disability laws, attorneys advise you to not fight whether something is in fact a disability, but simply to worry about whether you can reasonably accommodate limitations to meet productivity standards. A variety of accommodations might be available, depending on the circumstances. Here’s a list of possibilities. To learn more we encourage you to visit the Job Accommodation Network www.askjan.org.

  1. Make existing facilities accessible. This might include access to break rooms, restrooms, training rooms, parking, furniture, equipment, etc.
  2. Allow applicants or employees to bring assistive animals to work (of course under limited circumstances).
  3. Transfer employees to a more accessible worksite.
  4. Transfer employees to a different job that they can, in fact, do. Note that you are not required to create a new job as an accommodation.
  5. Provide assistive aids and services such as qualified readers or interpreters to an applicant or employee.
  6. Restructure the job by the reallocating or redistributing of nonessential job functions in a job with multiple responsibilities.
  7. Provide a part-time or modified work schedule (not as a permanent solution, but only as an accommodation).
  8. Permit an alteration of when or how an essential function is performed (i.e. instead of being required to come to work at 9 they can come to work at 10).
  9. Provide an adjustment to modifications of exams, training materials, or policies.
  10. Allow an employee to work for from home (yes, disabled employees may have a greater right to do so than your nondisabled ones).
  11. Provide a paid or unpaid leave (no law requires you to offer an indefinite leave).

Of course, by now you’ve been drilled to understand that what’s a reasonable accommodation versus an undue burden varies on a case-by-case basis. You’ll need to consider the cost and nature of the accommodation, and the overall financial resources of the company, the type of operations, geographic location, and other factors. Take a look at the ADA forms and the checklists in HR That Works.

Gender Change and the Law

gender changeAccording to the Human Rights Campaign (HRC), 17 states and D.C. prohibit discrimination based on sexual orientation and gender identity. Those states are CA, CO, CT, DE, HI, IA, IL, MA, ME, MN, NJ, NM, NV, OR, RI, VT, and WA. As of December 2012, 57% of the Fortune 500 companies prohibit discrimination based on gender identity. The EEOC has also argued that gender identity discrimination is covered under Title VII.

HRC states that employees who have gone through gender transition have found disclosing their new identity to be a fearful process. What they look for more than anything else is respect and acceptance of their new identity. These employees also want to be able to use the restroom appropriate to their transgendered identity. Creating a separate restroom for them singles out their difference.

Although the number of transgendered employees is small, their transition can cause a great deal of attention, fear, ridicule, and prejudice. Some workers and managers won’t find it easy to accept the transgendered for religious, moral, and other grounds. However, the law requires employers to tolerate these differences, without harming their transgendered employees. As good people, we can accept these differences and move on with life.

For more information, go to the Human Rights Campaign website at www.HRC.org.

The EEOC Systemic Expedition

In the April 2013 issue of Corporate Counsel an article entitled It’s a Systemic World Out There discusses the EEOC’s pursuing large “systemic” cases. For example, in fiscal year 2011 they conducted 580 systemic investigations, filed 84 systemic lawsuits, and settled 35 systemic cases for total $9.6 million. Although your company might not be large enough to be on the EEOC’s radar screen, I can tell you that attorneys are also suing small to midsized companies on a class basis. An employee walks into a lawyer’s office because they didn’t receive their final paycheck, and before you know it they’re filing a class-action lawsuit against your company for missed overtime and meal periods. The article provided a few golden nuggets of advice:

  1. When responding to an EEOC inquiry, don’t use the phrase “pursuant to our consistently applied policy.” This only invites a broader request for information.
  2. Do not submit more information than is necessary.
  3. Conduct your own statistical analysis before submitting data.
  4. Do preventative analysis looking for adverse impacts in the hiring, promotion, or termination practices.
  5. Validate pre-employment tests.
  6. Conduct preventative compensation analysis periodically.
  7. Cover all internal analysis with attorney-client privilege. This might be impossible in smaller organizations, but you can certainly retain outside counsel to instruct you on how to conduct such analysis and report back to them.
  8. Listen to your employees. As I have always recommended, you should survey your employees, including use of the Employee Compliance Survey that can be found in HR That Works.
  9. Invigorate that underutilized internal complaint system. Again, go one step further and ask if there’s a problem—don’t wait for them to tell you there is one.
  10. Stay current with legal trends. This is one reason why HR That Works membership is so valuable.
  11. Walk the talk. Are you sensitive to the potential for your practices to cause adverse impacts? Frankly, in my experience, I can tell you that some business owners could care less about whether a practice causes an adverse impact. All they care about is getting the best employees they can, damn the EEOC. Of course, few companies appreciate a risk until they’re hit with it.

Finally, the article points out how large corporations can gather the data requested by the EEOC easily because they have such large HRIS systems. However, most companies with less than 500 employees don’t have this data readily available, and collecting it can be an over-burdensome process. This is one reason to make sure that you hire an attorney any time you receive a communication from the EEOC or another regulatory agency.

Are You Willing to Learn?

To those unwilling to learn I do not teach anything.“  – Confucius

educateYou could take this quote in two different ways. Literally one could surmise that Confucius simply refused to spend any time even making an effort with non-learners. I think, however, this quote has a less obvious meaning—there are teachers all around us, but only those willing to learn will gain any wisdom from them. One of the greatest frustrations whether you’re a leader, boss, parent, or expert, is to want to help people who really don’t care to be helped or to help teach people who really don’t care to learn. For the person intent on learning and improvement, this type of person is unfathomable. How could they actually think like that? Why don’t they want to be a constant learner? Why don’t they want to know more, so that, in turn they can do more? Don’t they have a sense of achievement or personal accomplishment? Don’t they want to be awesome!?

Napoleon Hill, author of Think and Grow Rich and similar books surmised that only 2% of people are really willing to do what it takes to be highly successful. My own personal experience tells me that the ratio may be closer to 10 to 20%, which still leaves 80 to 90% of people behind.

This Pareto Principle is alive and well in the workplace. There are few natural learners. There are few driven to be highly successful. Most people seek out a life of comfort and stability. What many of these people fail to realize is that only the mediocre are truly ever comfortable. They don’t understand that when you seek out comfort and stagnation you’re ready to die – because, basically, you’ve already done so.

Although the Bible instructs us to be our brother’s keeper, many resent the fact they are asked to do for others what those others won’t do for themselves. I think our best chance is to be the influence in their lives that they don’t have any place else. Perhaps, these people aren’t being motivated at home or by coworkers or by their friends and so on. You can be that shining light in their life. You can turn them on to learning and the fruits of success!

The Aging Workforce and Disability Concerns

Cornell University has published an interesting report outlining employer concerns about: an aging workforce. Absence and Disability Management Practices for an Aging Workforce: http://digitalcommons.ilr.cornell.edu/cgi/viewcontent.cgi?article=1320&context=edicollect. As you can see by their chart below, there’s reason for concern! For example, somebody still working at 73 has twice the likelihood of becoming disabled as an employee 10 years younger.

According to the report, concerned employers are looking at seven ways to manage this exposure:

  1. Flexibility
  2. Maintaining and enhancing benefits
  3. Wellness programming
  4. Safety checks
  5. Accommodation
  6. Stay-at-work and return-to-work programs
  7. Communication and recognition

If you have older employees I encourage you to read the entire report. Most importantly, don’t let older employees play dinosaur on you. Keep them sharpening their saw no matter what their age.

Question of the Month

I have an employee that was witnessed using alcohol during working hours. He was counseled approximately 2 weeks ago and advised that this was unacceptable behavior that could result in termination. Behavior improved for a few weeks, but now there is reasonable suspicion this employee is drinking alcohol again on the job. A decision to terminate may be forthcoming, however, before such decision is made, we are requesting support on the proper way to handle. We do have a Drug Free Workplace Policy and have the ability to send the employee for testing.

Answer: The general rule is you can fire somebody for active drug or alcohol use on the job. While current drinking is not protected activity, alcoholism is and it sounds to me like he may be an alcoholic. Most people won’t put their job at risk once warned to stop…unless they can’t. Here’s the JAN website info on it http://askjan.org/media/alcohol.html. As it states on that page:

Does an employer have to allow use of alcohol at work as an accommodation?

No. The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol (EEOC, 1992).

Are tests for alcohol use considered medical tests under ADA?

Yes. Blood, urine, and breath analyses to check for alcohol use are considered medical exams, and therefore are subject to ADA limitations. According to the Equal Employment Opportunity Commission (EEOC), an employer’s ability to make disability-related inquiries or require medical examinations is analyzed in three stages: pre-offer, post-offer, and employment. …. At the third stage (after employment begins), an employer may make disability-related inquiries and require medical examinations only if they are job-related and consistent with business necessity (EEOC, 2000).

You can and should have somebody drive him to be tested if you reasonably believe he is currently intoxicated. There is really only one accommodation for alcoholism—stop drinking. If he needs time to get his act together, that is one example of a possible accommodation. If you haven’t had that conversation yet, now would be the time to do it; when he is sober. Terminating him for cause, if he has caused no harm to this point, may be a risky step without first considering the accommodation dialogue. Many companies have been sued for doing so.  If he fails to sign up for and complete a program then he can be fired. The ADA does not require that you tolerate a relapse or refusal to obtain help when given the appropriate accommodation.

Lastly, has he been a good worker, a good person? If so, then work with him. Maybe he’s going through a tough time. We all do now and then.  However, if he’s recalcitrant, belligerent, or denies he has a problem when you talk with him, then you can and should fire him.

Form of the Month

50-Question Advanced Compliance Quiz (HTML) – Think you know the law like an expert? Test yourself to find out! Username: guest@hrtw.com, Password: 123


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:

©2013 Reprinted with permission from HRThatWorks.com, a powerful program designed to inspire great HR practices.