Tag: HR

August 2014 Compliance and Culture Newsletter

“The most important thing in communication is to hear what isn’t being said.” – Peter Drucker

This issue discusses:

  • Editor’s Column: What if All Doctors Went on Strike?
  • Creating an HR Experience
  • Shifting for HR Success
  • Protecting Your Data
  • 5 Things You May Not Know About the ADA
  • 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: What if All Doctors Went on Strike?

I recently spoke to a group of physicians about frustrations with their practices. They complained how the insurance industry has taken their practices from a profession to a business. I realized each one of these physicians was under a great deal of emotional stress.

I don’t know about you, but I don’t want my physician to be under much stress, especially when treating me. I don’t want my physician to think of me as simply another account to be rushed through the office. And I know my physician doesn’t want to practice medicine that way either. Fast medicine, simply for speed’s sake, is dangerous medicine.

One of the physicians asked me what I thought the solution was. Without hesitation I told them that physicians must heal thy selves. They cannot control out there nor can they blame or justify why they find themselves in their current condition. Their only salvation is to take 100% responsibility for their condition and be determined to do something about it.

I asked them this question “What if all the doctors in United States decided to go on strike tomorrow saying we won’t take this anymore? How long would it take for there to be immediate action in Congress and insurance company boardrooms?”

One problem is there are many physicians who love Big Medicine. They love playing medical entrepreneur. Many are getting rich doing so, whether ethically or otherwise.

Physicians and their lawyers will have to work around the insurance system. Concierge medical programs are one example but that option is limited to the well off. Canadian physicians have been working around the problem for many years with alternative service structures.

Or you can downsize your practice and lifestyle and live a simpler and saner existence where you are whole and can be fully engaged in providing real medical care. You may not make as much money but you can practice like the doctor you grew up wanting to be.

Creating an HR Experience

HR executives are most valuable when they help create a great employee experience. Creating a great employee experience begins with a clear understanding of the company’s vision, mission, values, and goals. Collectively they make up the company’s culture.

While it is important to hire skillful employees, it is equally important to hire for their behavior, attitude, and personal culture. All must align with the company culture. This means HR must visit the shop floor. They have to walk among the employees and observe their behaviors and attitude. They have to train employees on proper behaviors and attitude.

Southwest Airlines continues to set the benchmark for employee experience in the airline industry. They’ve also been the most profitable company in the industry. They continue to attract the most talented people in the industry. Southwest knows that when they create a great employee experience, they can do the same for their customers—and that grows the bottom line.

Shifting for HR Success

successTory Johnson’s New York Times bestselling book, The Shift, talks about how she lost 62 pounds in a year. For her shift she developed five specific questions to help her meet her goals. Let’s look at how each of these steps would apply to your HR career:

  1. How fed up are you, really? Do you have the expertise you want, recognition you want, success and financial rewards you want? Are you truly ready for a change yet?
  2. What are you willing to give up? Fact is, to grow in your career, give things up and become highly focused. If I followed you around today and asked how important is this activity toward your strategic and career goals what would your response be?
  3. What’s your plan? Fact is, few HR executives have a plan for their career, never mind their department. If you are an HR That Works member and haven’t yet done so, I encourage you to sign up for the Strategic HR Course. You may click here to do so.
  4. What’s your daily accountability? While it is important to plan, it is even more important to execute. Identify what your benchmarks are and make sure to accomplish or exceed them.
  5. How will you embrace problems and celebrate your victories? As Johnson states, “We overestimate what we can do in the short-term and underestimate what we can do over the long haul.” Jim Collins referred to this in Good to Great as the flywheel effect. Do you have a long-term horizon so you have the strength to take the daily steps?

Protecting Your Data

An article in Corporate Counsel Magazine advised law firms on how they can do a better job of protectingprivacy their data, and that of their clients. The suggestions apply to any work environment:

  • Control access to those who “need to know.”
  • Control communication including use of mobile devices, personal email accounts, personal computers, or social media pages.
  • Limit delivery and exchange of documents to secure channels.
  • Properly dispose of all documents.
  • Conduct background checks on all personnel who work with proprietary information.
  • Create and implement a security breach plan, including immediate notification to your company and clients in the event of an actual or suspected breach.

5 Things You May Not Know About the ADA

According to Disability.gov, here are a few things you may not know about the ADA:

  1. A New Perspective on Disability Facts and Figures. In preparation for the anniversary of the Americans with Disabilities Act (ADA) in July, the U.S. Census Bureau released its collection of the most recent data pertaining to Americans with disabilities. The numbers are striking. Approximately 57 million Americans have a disability. Since this figure may be difficult to comprehend, let’s look at some facts for comparison: There are more people with disabilities living in America than the entire population of Canada or the Caribbean. The number of Americans with vision impairments is comparable to the entire population of Switzerland, and there are more Americans with hearing impairments than in all of Denmark, Paraguay, or Hong Kong. If you take the population of Ireland and cut it in half, that’s roughly the number of Americans living with Alzheimer’s or other neurocognitive disorders. More Americans with disabilities require the assistance of others to perform basic activities of daily living than the entire population of Greece.
  1. Breaking Down the ADA. The ADA of 1990, including its Amendments Act of 2008 (ADAAA), covers five areas:
  • Title I requires employers with 15 or more employees to treat qualified individuals with disabilities equally in all stages of employment. From the hiring process to full employment, this includes compensation, benefits, trainings, promotions and other aspects, such as offering reasonable accommodations to workers with disabilities. This section also restricts hiring managers from asking certain questions about an applicant’s disability during the hiring process or retaliating against someone for opposing discriminatory employment practices.
  • Title II prohibits public entities like state or local government agencies from discriminating against individuals with disabilities. All programs and services, such as public transportation, recreational activities, courts and town meetings, should be available to people with disabilities. State and local government buildings must be accessible, and accommodations should be available to communicate effectively with those who have vision, speech or hearing disabilities.
  • Title III requires public accommodations and commercial facilities to offer equal access and treatment, effective communication and removal of existing barriers for people with disabilities. Examples of such facilities include restaurants, retail stores, hotels, movie theaters, private schools, convention centers, doctors’ offices, homeless shelters and recreational facilities. Any altered or newly constructed buildings must follow architectural and design standards to ensure accessibility. Classes and examinations for professional, educational or trade-related purposes, licensing and certifications should be accessible to people with disabilities or alternative arrangements must be offered.
  • Under Title IV, telecommunications companies must establish telecommunications relay services for callers with hearing and speech disabilities.
  • Title V includes various provisions not necessarily covered by other titles, but have been used to clarify applying the law. This section notes that the ADA does not invalidate or override any other federal, state or local laws that provide equal or greater protections for people with disabilities. It also defines conditions not covered under the term “disability,” as defined by the ADA.
  1. Job Accommodations enable people with disabilities to perform essential job functions, be productive and accomplish work tasks with greater ease and independence. Examples include modifications such as ergonomic desk chairs, reserved parking, flexible schedules, telecommuting, alternate workstations and periodic rest, food or bathroom breaks. According to the Job Accommodation Network (JAN), a free source of expert one-on-one guidance on workplace accommodations and disability employment issues, nearly 60 percent of the accommodations needed by workers with disabilities cost absolutely nothing, and only 36 percent of employers incurred a one-time cost of roughly $500. JAN’s publication, the Employees’ Practical Guide to Requesting and Negotiating Reasonable Accommodations under the Americans with Disabilities Act (ADA)summarizes the provisions of the ADA, common accommodation issues and JAN’s practical solutions for resolving them. For additional guidance on reasonable accommodations and enforcement, visit the Equal Employment Opportunity Commission (EEOC) website.
  1. The Rights of Pregnant Workers are generally protected by three laws: the ADA Amendments Act (ADAAA), the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act preg(PDA). Although pregnancy is not considered a disability under the ADAAA, pregnancy-related impairments, such as gestational diabetes, severe nausea, sciatica or preeclampsia, may be recognized as a disability and could require an accommodation. Nursing mothers also have protections under the Fair Labor Standards Act. According to the National Partnership for Women and Families, 10 states and two cities have implemented laws requiring employers to provide reasonable accommodations for pregnancy. These include Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, New Jersey, Texas and West Virginia, in addition to New York City and Philadelphia. The Women’s Legal Defense and Education Fund’s interactive map details pregnancy discrimination laws, as well as breastfeeding and leave rights, in each state. An article from the Society for Human Resource Management (SHRM), Accommodating Pregnant Employees, highlights real-life situations and offers helpful suggestions on reasonable accommodations for pregnant workers. If you feel you have been discriminated against, visit the EEOC’s Pregnancy Discrimination page, which provides contact and other useful information about how to file a complaint.
  1. Technology and the ADA. Let’s first discuss the difference between accessible technology and assistive technology. Accessible technology can be used by people with a wide range of abilities, whether they use assistive technology or not. Assistive technology allows individuals with disabilities to perform tasks or functions they might otherwise be unable to do. For example, someone with low vision may not be able to read a book without a video camera magnifier. Under the ADA, governments and public entities must provide devices temporarily to help individuals with disabilities access their programs and services. A movie theater should loan you an assistive listening device if you have a hearing disability. The Assistive Technology, Accommodations and the Americans with Disabilities Act brochure from the ILR School at Cornell University explains more fully how assistive technology is covered under the ADA. If you are interested in learning more, the ADA Online Learning Center offers webinars on a variety of technology-related topics.

Question of the Month

hiring-questionsQ: Should we get a HIPAA release from the employee to review the medical information for a work-related injury?

A: HIPAA authorization is not required for Workers’ Comp information used to determine benefits to an injured worker. According to the Department of Health & Human Services, the HIPAA Privacy Rule does not apply to entities that are workers’ compensation insurers, workers’ compensation administrative agencies, or employers, except to the extent they may otherwise be covered entities. However, these entities need access to the health information of individuals injured on the job or who have a work-related illness to process or adjudicate claims, or to coordinate care under workers’ compensation systems. The Privacy Rule recognizes the legitimate need of insurers and other entities involved in the workers’ compensation systems to have access to individuals’ health information as authorized by State or other law. Due to the significant variability among such laws, the Privacy Rule permits disclosures of health information for workers’ compensation in several ways.

  1. Disclosures without Individual Authorization. The Privacy Rule permits covered entities to disclose protected health information to workers’ compensation insurers, State administrators, employers, and other persons or entities involved in workers’ compensation systems, without the individual’s authorization as authorized by and to the extent necessary to comply with laws relating to workers’ compensation or similar programs established by law that provide benefits for work-related injuries or illness without regard to fault.
  2. Disclosures with Individual Authorization. Covered entities may disclose protected health information to workers’ compensation insurers and others involved in workers’ compensation systems where the individual has provided his or her authorization for the release of the information to the entity.
  3. Minimum Necessary. Covered entities are required reasonably to limit the protected health information disclosed to the minimum necessary to accomplish the workers’ compensation purpose. Under this requirement, protected health information may be shared for such purposes to the full extent authorized by State or other law. Covered entities are required reasonably to limit the protected health information disclosed for payment to the minimum necessary. Covered entities may disclose the amount and types of protected health information necessary to obtain payment for health care provided to an injured or ill worker.

Form of the Month

Great vs. Average HR (PDF) – A poster showing the difference between average and great HR.


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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July 2014 Compliance and Culture Newsletter

“The problem with business is that it is afraid of dealing with the business of people.” – Dr. W. Edwards Deming

This issue discusses:

  • Editor’s Column: HR Subjects
  • Creating Your Own Training Videos
  • Warning Signs of Drug Abuse
  • Star Wars Wisdom
  • Fighting Work Comp Fraud
  • Where Great Ideas Come From
  • HR Success
  • Mandatory Tip Charges Will Be Disappearing in 2014
  • Health Tests
  • 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: HR Subjects

Here’s a quick look at 26 subjects (there were more) discussed in the dozens of HR magazines, blogs, and newsletters reviewed over the last few months. This should help wake up anyone who doubts the complexity and value of the HR function.

  1. Measuring telework productivity
  2. Problems caused by pay disparities
  3. Hiring the over-qualified
  4. Which recruiting tool should I use?
  5. One-third of HR execs seek greener pasture
  6. Gender disparities causing resentment and claims
  7. Mobile recruiting
  8. Talent and succession management
  9. Dumping spousal coverage pros and cons
  10. Breaking past employee disengagement
  11. EEOC and legality of background checks
  12. Bringing mindfulness to work
  13. High stress
  14. Benefits management and DOMA
  15. ACA, ACA, ACA
  16. Hiring, hiring, hiring
  17. Weed at work – what to do?
  18. EEOC collects a record $372 million in 2013
  19. Measuring meaningful HR outcomes
  20. Using big data
  21. Gen X, Millennials, and Gen Z
  22. Workers working longer, foregoing retirement
  23. Banishing the bullies
  24. Work/life balance and career success
  25. Building cultural muscle
  26. Employer branding initiatives

Creating Your Own Training Videos

There are multiple uses for online video at your company. HR can take the lead in generating videos that help brand the employee experience for:

  • videosProspective employees
  • Orientation
  • Safety
  • Financial understanding
  • Ethics
  • Awards and recognition
  • Company events
  • Company history
  • Video about different employees (everyone from the president to the receptionist)
  • Instructional how-to videos
  • Product or service training
  • Leadership messages

With a bit of thought I am sure there are an extra dozen videos that can be rattled off. Know this: You don’t have to be an expert to create these videos. Ask a 20 year old at your company to do it for you. All they need is their iPhone and your company YouTube account (you do have a YouTube account, right?). Also encourage employees and management to come up with ideas for videos. What frequently asked questions besiege everyone from HR to Finance to Operations to Facilities, etc.?

Warning Signs of Drug Abuse

How can you tell if an employee is addicted to drugs? The following are some of the behavioral characteristics that may occur with drug addiction. Note that these behavioral characteristics do not always indicate drug addiction, but may warrant further investigation.

  • drugsAbsenteeism; absences without notification and an excessive use of sick days
  • Frequent disappearances from the work site; long, unexplained absences; improbable excuses
  • Unreliability in keeping appointments and meeting deadlines
  • Work performance that alternates between periods of high and low productivity
  • Mistakes made due to inattention, poor judgment, and bad decisions
  • Confusion, memory loss, and difficulty concentrating or recalling details and instructions
  • Ordinary tasks require greater effort and consume more time
  • Interpersonal relations with coworkers suffer
  • Rarely admits errors or accepts blame for errors or oversights
  • Progressive deterioration in personal appearance and hygiene
  • Wearing long sleeves when inappropriate
  • Personality change; mood swings, anxiety, depression, lack of impulse control, suicidal thoughts or gestures
  • Increasing personal and professional isolation

(U.S. Department of Justice, Drug Enforcement Administration, n.d.)

Here is a great resource to help determine employer obligations and possible accommodation. Also take a look at www.drugabuse.gov.

Star Wars Wisdom

There was great wisdom shared in the Star Wars movies. I recently came across the following quotes from the Star Wars Series in an issue of Mindful Magazine. Yes, they sound very New Age but can you find fault in a single one of them? It may be a fun exercise to take some of these quotes, blow them up, add a few Star Wars characters, and allow your employees to be inspired by them on a daily basis.

  • “Do, or do not. There is no try. –Yoda, The Empire Strikes Back
  • “Fear is the path to the Dark Side. Fear leads to anger. Anger leads to hate. Hate leads to suffering.” –Yoda, The Empire Strikes Back
  • “Always remember… your focus determines your reality.” –Qui-Gon Jinn, The Phantom Menace
  • “Trust your feelings, Luke.” – Obi-Wan Kenobi
  • “Don’t center on your anxiety, Obi-Wan. Keep your concentration here and now where it belongs.” –Qui-Gon Jinn, The Phantom Menace
  • “This one a long time have I watched,” Yoda says of Luke Skywalker. “All of his life he has looked away to the future, to the horizon. Never his mind on where he was.” The Empire Strikes Back
  • “Stretch out with your feelings.” –Obo-Wan Kenobi, Star Wars

Fighting Work Comp Fraud

work-comWhat do these people have in common? Answer: they are work comp frauds. Want to see a few more mug shots? Click here.

There’s no doubt that where there’s money to be had, there will be fraud. Employers nationwide have been subject to a growing abuse of those learning to “work the system.” While it is an easy story to paint the boss as a bad guy, there are plenty of stories where it is the employee who is playing the villain role. California has been stepping up its fraud prevention efforts. It has made over 500 arrests in the past three years.

If you suspect fraud, speak up about it. Contact your broker and, if necessary, your department of insurance fraud division. Fact is, most injured workers are not frauds. They want to resolve their injuries and get back to work. Most employers genuinely care about their employees. It’s the bad apples—be it the employer or employee—who ruin it for the rest of us.

Where Great Ideas Come From

ideaIn the 2013 Inc. 500 CEO survey, 38% of CEOs said their best ideas for new products or services come from their customers. Not surprisingly however, only 37% of company’s surveys had a formal method for collecting customer ideas. Our guess is that if you asked the same question of HR executives, many of their best ideas came from their customers too—namely the management and employees of the company. Which begs the same question: How many HR executives have a formal method of collecting suggestions and ideas from management or employees?

HR Success

We love Success Magazine. If you don’t subscribe to it, you should. It comes with a great monthly magazine focused on a basic theme per month along with a great audio CD you can listen to in your car. The December issue had an article titled “Taking Care: Panda Express Nurtures Employees So They in Turn Treat Customers Well.” This is not rocket science. I remember a Southwest executive telling me once that if we take care of our people they will take care of our customers and that will take care of our profits. Since their inception this has held to be true. The Success article was an interview with the CEO of the $1.8 billion company, Andrew Cherng. Here are some pointers that he made to help nurture your workforce:success

  1. “The environment here is about personal growth, personal well-being. When you are healthy mentally, physically, emotionally, spiritually—when you’re doing well, you’re likely to do good things in your life and that’s what we advocate.”

Tell me you wouldn’t want to work for a boss like this!

  1. “The environment is a way you see the future. One person at a time.”

Cherng realizes your environment and culture is a choice. As he stated, you can only build a culture through individuals; one person at a time.

  1. “People who are successful tend to take care of those little things very well. And then they accumulate credit, resources, and do whatever it is that you need in life—that’s the preparation for success.”

Do you take care of the little things very well? Have you accumulated credit, resources, and do whatever it takes to prepare for success? As the saying goes, when you take care of the little things the big things tend to take care of themselves.

  1. “We can all do a better job. And when we do we all get rewarded. The reward may come in just being happy or in other people being happy. When you do your job well, your customer feels that and your business blossoms”

How motivated are you and your fellow employees to not do just an average job or a comfortable one but an extraordinary, awesome one? Are they doing tasks in a way that make them feel happy?

  1. Cherng suggests that management should ask employees: “Are you being mindful? Are you putting your heart into the work? Are you passionate about your work? Are you loving your environment? Our job is to raise everyone’s levels of understanding and caring. When you raise the level of caring, you see a good result.”

While we think of ourselves as good people and have good intentions we often times don’t manifest that. An excellent book was written about it “Leadership and Self Deception.” The essential theme being that we deceive ourselves; that we in fact manifest caring. What have you done lately to show employees that you care?

Lastly, we love the Panda Mission Statement. “Deliver exceptional Asian dining experiences by building an organization where people are inspired to better their lives” What can really be more important than this statement? We live in an experience economy and the whole purpose of any business is to increase human well-being. What a wonderful opportunity for every one of us!

Mandatory Tip Charges Will Be Disappearing in 2014

We have all had the experience of going to a restaurant with a large party and finding that 18% tip charge on our bill. We can also find them on meals delivered to our hotel rooms. Any company that opposes those charges must be on notice that beginning in 2014 automatic gratuities are classified as service charges rather than tips. This means that while the employee will be taxed the same, the employer will lose a special tax credit available for paying its share of payroll taxes on the gratuities. For the rest of us the impact means there will be no more automatic gratuities created but rather suggestions to pay a gratuity.

To see the IRS ruling click here.

Health Tests

health-testI had an assistant do a research project into the availability of health tests. Click here for a copy of our results. No providers are indicated for a reason—we can’t vouch for any of them. Fact is, the science of testing, like the science of everything else, is rapidly evolving. I’ve personally taken some genetic tests, blood tests, and food allergy tests. As a result, I am more aware of my susceptibility to certain diseases as well as foods that I should avoid. Many health care plans and wellness initiatives rely on testing as well. We all know plenty of healthy, vigorous senior citizens who have never taken a test. We also know hypochondriacs who can’t seem to take enough tests. The wisdom is in striking a proper balance.

Question of the Month

hiring-questionsQ: We have an employee out on Workers’ Compensation leave (not FMLA leave as we have less than 50 employees). There is a holiday coming up and the employee is not expected to be back before then. Do we have to pay him for the holiday?

A: Workers’ compensation provides benefits to workers injured on the job or have a work-related illness, including cash payments that partially replace lost wages and medical treatment. Temporary disability benefits are paid while the worker recuperates away from work according to your state’s benefits requirements. If the employee is still temporarily disabled because of the work-related injury/illness, then he is being compensated for the time off. If you have a company policy or practice that provides for additional holiday pay for employees out on other types of leaves, then treat this employee in the same fashion. Otherwise, there is no requirement to pay holiday pay besides the temporary disability benefits he is receiving.

Form of the Month

Employee Suggestion Form (PDF) – Never underestimate where knowledge comes from – or the form that it can take. Make sure to acknowledge all efforts at contributing to your company, whether they are eventually used or not.


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.

11 Cool Things HR Can Do During the Slow Summer Months

How many times have you heard yourself say “If I only had time I would ________”? For most of us, the summer is the slowest time of the year, which means now is the time to do many of those long awaited projects. Here are some tasks to consider:

  1. go signFinally update that employee handbook.
  2. Revamp your training programs and employee development plans.
  3. Get some branding done internally by communicating in a fun way to the company about the company’s people programs and services that HR manages.
  4. Go to lunch with the executive team and your team.
  5. Revise/build your workforce planning/succession models and schedule time with each department manager to review.
  6. Review your hiring pipeline, applicant flow, and recruiting tools to prepare for staffing demands.
  7. Fix up your personal branding (Facebook page, LinkedIn, company directory, membership suites, etc.)
  8. Upgrade the company’s reward and recognition programs and develop a casual and fun summer recognition event.
  9. Repaint the office and add some plants.
  10. Conduct an HR compliance audit and work on areas that need attention, including reviewing software and other vendor solutions to enhance your HR activities.
  11. Conduct an employee attitude survey and begin action planning on the areas the company could improve.

June 2014 Compliance and Culture Newsletter

“Why fit in when you were born to stand out?” – Dr. Seuss

This issue discusses:

  • Editor’s Column: So Who Will Get the Raise?
  • The Art of Networking
  • EEOC Releases White Paper on Retaliation Law
  • General Safety Obligations for Employers
  • Fundamentals of ADA Accommodation
  • Growing Concerns about Employee Retention
  • Employee Challenges with Online Privacy
  • Attorney Gets Caught in a Conflict of Interest
  • 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: So Who Will Get the Raise?

Last year the consumer price index increase was 1.6%. It is scheduled to be closer to 2% in 2014. Therefore, if an employee wants to get ahead in life they need to get a raise of at least 2%

According to a survey by Towers Watson Data Services employers are planning to increase wages an average of 2.9% in 2014. These increases won’t be distributed evenly. Those employees considered to be top performers or in top demand will receive the lion’s share.

Employers can make a big mistake by looking at their historical compensation patterns. Perhaps the most important question to ask is “what would you have to pay to hire that employee today?” It is the marketplace, not your compensation scheme, which defines a fair day’s pay.

Before anyone gets a raise they should be asked to explain how they’ve added more value to the company. One reason we designed the form Why I Deserve a Raise. When you think about it, a raise should be given any time an employee has added new value and you’ve got the cash flow to afford it. Waiting around for an annual comp discussion is yesterday’s thinking.

The Art of Networking

An excellent article in the December issue of Success Magazine talked about the “Monchu Method” of networking. This methodology requires only 20 minutes a day. The essential steps are:

  1. Map your Monchu – These are people you:
  • Want to help succeed
  • Feel you can help succeed
  • Care about who can use the help of people you know
  1. You serve your Monchu 20 minutes per day by:
  • Spending 10 minutes reaching out to people you think you can help by providing any assistance, advice, or resources you can offer.
  • Spending 5 minutes asking people whose feedback you value some questions that would help you better understand your next step in business.
  • Spending 5 minutes introducing people you know among your circles.
  1. Begin a communication flow – very simply, you go first.
  2. Give first – This is the ancient wisdom of “give and you shall receive.” In Robert Cialdini’s book Influence he talks about the emotional power of receiving a gift and the desire to reciprocate. Tap into this need.
  3. Build a daily habit – That means you put 20 minutes on the calendar and make no excuses for not doing it. Daniel Goleman say, “For leaders to get results they need three kinds of focus: Inner focus, which attunes us to our intuition and guiding values. Other focus, which enhances our connection with people in our lives. And outer focus, which lets us navigate the larger world. A leader tuned out of his internal world will be rudderless; one blind to the world of others will be clueless; those indifferent to the larger systems in which they operate will be blind-sided.”

EEOC Releases White Paper on Retaliation Law

Since 2007 retaliation has been the fastest growing of all EEO claims. Roughly 42% of all new claims filed allege some form of retaliation. The EEOC released a white paper on retaliation law written this past summer. It is clear they are not in favor of the “but for” standard set forth in the US Supreme Court case of University of Texas Southwestern Medical Center v. Nassar.

It is instructive to understand some of the factors considered when deciding if an action is retaliatory:

  1. An action is considered retaliatory if there is adverse treatment, which they define as an action “reasonably likely to deter protected activity by the individual or other employees.” (A broad standard.)
  2. Direct evidence of a retaliatory motive may be any policy or statement made by the employer that facially shows a bias against a protected group and is linked to the adverse action.
  3. Evidence of temporal proximity of the adverse action to the protected activity (usually interpreted as one to three months afterwards).

Employers will continue to be pressured by employees who fail to perform but when pushed to do so claim unequal treatment based on some form of discrimination. Every action after that will be viewed under a microscope.

General Safety Obligations for Employers

OSHA laws apply to every workplace. Here are the primary employer responsibilities according to OSHA:

Employers must provide their employees with a workplace that does not have serious hazards and follow all OSHA safety and health standards. Employers must find and correct safety and health problems. OSHA further requires employers to eliminate or reduce hazards first by changing working conditions rather than just relying on masks, gloves, ear plugs or other types of personal protective equipment (PPE). Switching to safer chemicals, enclosing processes to trap harmful fumes, or using ventilation systems to clean the air are examples of effective ways to get rid of or minimize risks.

Employers must also:

  • Inform employees about hazards through training, labels, alarms, color-coded systems, chemical information sheets and other methods.
  • Keep accurate records of work-related injuries and illnesses.
  • Perform tests in the workplace, such as air sampling required by some OSHA standards.
  • Provide hearing exams or other medical tests required by OSHA standards.
  • Post OSHA citations, injury and illness data, and the OSHA poster in the workplace where workers will see them.
  • Notify OSHA within 8 hours of a workplace incident in which there is a death or when three or more workers go to a hospital.
  • Not discriminate or retaliate against a worker for using their rights.

Note that if you are in the states listed below you must also comply with state laws and regulations. To get more info go to OSHA, your state OSHA site, or the BNA State Law Summaries on HR That Works.


Fundamentals of ADA Accommodation

wheelchairGiven the ever-expanded concept of what constitutes a disability, employers will continue to face an ever-growing compliance challenge. Here are some basics to be remembered:

  1. Knowledge of the need to accommodate an employee can come from numerous sources including a work comp claims manager, a company supervisor or manager, HR, the employee themselves, a union rep, a doctor, poor performance, simple observation, or some kind of hotline call.
  2. To have a good process, it must be laid out step-by-step with supporting documentation.
  3. Be interactive. Remember the rule that the first to give up on the dialogue process generally loses.
  4. Have appropriate education and training. For example, HR could create a simple video to help employees with the accommodation process.
  5. Allow managers to engage in simple, easy, and quick accommodations.
  6. Proper documentation of all steps in the process.
  7. Ongoing communication, monitoring, feedback, and improvement.

The accommodation process begins with a needs assessment. This means a thorough review of the job description and duties and a clear understanding of the employee’s limitations, including potential absences, etc. Remember you can accommodate an employee by the following means:

  • Changing facilities or equipment
  • Job restrictions
  • Modifying schedules
  • Modifying a test, training, or policies
  • Offering vacant positions within their skill range
  • Offering temporary positions (the ADA does not require you to create a new position for an employee)
  • Support including readers, interpreters, or even dogs
  • A leave of absence
  • Any other idea that would generate a reasonable accommodation

Proper documentation of any undue burden

One of the biggest mistakes an employer makes is to assume in advance that an accommodation would create an undue burden. If the request is reasonable, the best approach is to let the employee try it and to be clear about performance standards. Document any shortcomings the accommodations may be causing and continue to communicate about ways to elevate them.

There is extensive material on the ADA on HR That Works including flow charts, checklists, forms, and policies to use. There is also training you can provide your managers (a good idea). Also, if you have more than 50 employees the FMLA may allow an employee who has serious medical condition up to 12 weeks of leave which they may use instead of accepting an accommodation.

Growing Concerns about Employee Retention

Over the years we have surveyed the thousands of companies that use HR That Works. Hiring somebody they can trust has been the number one concern of most companies. The second and third concerns have everything to do with the economy. Prior to the 2009 recession, employee retention was the second greatest concern with employee productivity being the third. Once the recession hit and everybody began hanging on for their dear lives, retention slipped into third place with productivity being the second greatest concern in the squeeze economy.

retentionIn last year’s survey retention climbed back into second place, once again indicating its bellwether position. Not only are employers concerned about retention, it’s hiding behind the fact they are having difficulty finding quality employees despite continued high unemployment levels.

More than ever, employers must do a good job of employee retention. The greatest factors in retaining your experienced employees are the opportunity for advancement and the relationship they have with their immediate boss. What it takes to advance an employee’s career should not be a mystery at your company. I encourage our members to go to O*NET and consider looking at their career ladder tools and modifying them for your organization. Don’t force employees to either guess about what the career ladder is or have to ask you to find out. Tell them. Let them know what the opportunities are and what skills and experience will be required for them to reach the next level. If you are at a smaller company, don’t let the lack of advanced job titles hinder career growth. Perhaps making up a new job title is better than telling an employee there is no room for advancement. There should always be room for advancement for excellent employees.

When it comes to the relationship with the boss, the question is simple: Does the boss spend any time showing the employee he or she cares about them? Most bosses are running for their lives and spend more time dealing with the dramas created by the 20% non-producers than nurturing their top talent. There can be no greater mistake. All of your managers should have a plan for how they will help increase the quality of relationship between them and their top performers. That plan should include discussing job performance, career advancement, and compensation opportunities.

HR That Works Members should use the How to Keep Great Employees Training Module with its related forms, audits, videos, and more. Look at this month’s Form of the Month: The Employee Retention Program Possibilities Spreadsheet which will provide plenty of ideas for a retention program.

Employee Challenges with Online Privacy

According to a survey by PEW Research Center of 792 Internet users there were the following statistics:

  • 21% had email or social networking accounts compromised or taken over by others without permission.privacy
  • 12% were harassed online.
  • 11% had personal information stolen, including Social Security numbers and credit card information.
  • 6% lost money in online scams.
  • 6% suffered damages to their reputation.
  • 4% were led into physical danger because of something that happened online.

Here’s a fact not mentioned by the survey: These are the same internet users that work at your company! Your employees are having these exact challenges. And, many times they spread to the workplace. If you haven’t already done so, watch the webinar or read the report on Social Media Risks. It would be a great employee benefit and smart management move to have your head of IT educate your workforce on how to prevent these risks.

Attorney Gets Caught in a Conflict of Interest

In the California case of Yanez v. Plummer the plaintiff, Michael Yanez, sued his former employer, Union Pacific, for wrongful discharge and their in-house council for legal malpractice, breach of duty, and fraud. To make a long story short, Yanez was working with another machinist (Garcia) replacing locomotive motors. While Yanez was operating a piece of machinery Garcia was injured while retrieving a dropped tool. Yanez provided two witness statements to management. The first was a short one which stated that the injured employee had slipped and fell on a concrete floor, soaked in oil and grease. When asked to create a longer written statement he said “I saw Bobby slip and fall down on an oil slicked floor.” In a deposition involving the injured employee’s workers compensation claim, Yanez admitted he did not see Garcia fall but only saw him after he had fallen. The corporate attorney gave Yanez no opportunity to explain the discrepancy between his deposition testimony and his second statement and the company’s attorney left him out to dry. Because of this conflicting testimony Yanez was fired for dishonesty.

The court stated that in this unique circumstance Yanez should have been informed by the attorney there was a potential conflict of interest. As stated by the court, “Evidence shows that Plummer played a substantial role, during Yanez’s deposition in the Garcia case, in uncovering the deception Union Pacific charged against Yanez’s and without that depositional testimony, Yanez would not have been charged with dishonestly, the deposition triggered the charge and the charge resulted in Yanez’s termination. This evidence presents a triable issue of material fact that but for Plummer’s alleged malpractice, breach of duty, and fraud, Yanez would not have been terminated.” The court refused to create a general rule that anytime an employee’s testimony could affect their job status there is automatically a conflict of interest.

What should a company do? The company should make sure its attorney informs any witnesses their representation could cause a conflict of interest and that if the employee wants to be represented while testifying in a deposition or court hearing or another matter by their own counsel they have the right to do so. Otherwise by requesting representation they should waive any conflict of interest.

Question of the Month

hiring-questionsQ: We have an employee who is on disability leave due to a workers compensation injury, and the employee is not eligible for FMLA/CFRA. Our organization began offering medical benefits in June of 2013, and this is the first instance where an employee on leave with medical benefits has not met the eligibility requirements for FMLA/CFRA. How long is the company required to continue the employee’s group medical benefits before offering COBRA?

A: The general rule is if the injured employee is not eligible for FMLA, a reduction in hours due to a job-related injury is considered a “qualifying event” for COBRA. Collective bargaining agreements and other employment policies may affect this right. It’s also a policy issue. For example, does your health plan/policy provide that only active employees are covered? You should review your health insurance contract regarding who is eligible for health insurance under the plan. If your plan and policies state that employees on a leave of absence will continue to have employer contributions made toward their health coverage, then you must comply with those provisions. Also, how you have treated other inactive workers in the past may be a factor.

Form of the Month

Retention Program Possibilities (PDF) – A laundry list of possibilities with an easy method for ranking their cost benefit.


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

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.

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!


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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.


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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.