Tag: HRThatWorks

May 2013 Compliance and Culture Newsletter

“You’re off to great places, today is the day: Your mountain is waiting, so get on your way!” –Dr. Seuss

This issue discusses:

Editor’s Column: 10 Personnel Management Challenges for CEOs
Make Sure Volunteer Workers Carry Workers Comp
EEOC Credit Report Lawsuit Dismissed
2012 EEOC Claims Near 100,000 Mark
An Employee Referral System That Works

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

Please click here to view the newsletter in PDF.

Editor’s Column: 10 Personnel Management Challenges for CEOs

Over the years, I’ve had the chance to do hundreds of three-hour workshops for CEOs about personnel practices. In light of this experience, I’d like to share 10 challenges that CEOs and executives face when it comes to personnel management.

The difficulty in finding new talent. The good news is that most of these employers expect to do more hiring than firing this year. The challenge is that most of the good employees are already taken. Perhaps the biggest mistake is thinking that you find these people, as opposed to attracting them. To attract talent, you have to position yourself as an employer of choice – a great place to work. Companies such as Costco, Southwest Airlines, and my beloved In-N-Out Burger do this so well that they don’t need to go find anybody.
Problems in retaining top talent. This is the flipside of the conversation above. In the marketplace of talent swapping, some companies will win, while others lose. To what degree do you have a philosophy, strategies, and tools to make sure you are retaining top talent? Do you understand why people either come to work for you (through a post-hire survey) or why they leave you (an exit interview)? Do you tap into their opinions and concerns with surveys, focus groups, and one-on-one conversations? Remember: Turnover is contagious.
Lack of managerial leadership. When we run 75 miles an hour and promote people into management, chances are that this happens with little or no training. Fact is, half of managers in your industry are above average and half are below average. Guess who gets more training? You need to train managers in business acumen, communication, basic compliance, team building, and systems understanding. Most important, they need training in time management so that they can spend 80% of their time adding the value they can – and only 20% doing administrative tasks.
Low employee engagement. This is easy to understand when we’ve just gone through a difficult recession, which has limited raises, cut benefits, and stunted growth opportunities. On top of that, it feels that we have a federal government that fosters an us versus them mentality with the workforce. Perhaps the question for leadership is “how can we help our employees?” How can we help them become more productive so they can grow in their careers? How can we help them find greater meaning in the work they do every day? How can we help them gain more control over the direction of their career? As Shakespeare stated so eloquently, “To work we love with delight we go.” What would it take for your employees to love the work they do every day?
Failure of management to benchmark or improve performance. Performance management is one of my favorite subjects. To begin with, do you have a specific goal for improving performance? Sure, you want sales to increase by 10%, but do customer service reps, the receptionist, and the CEO have a goal to increase their specific performance by 10%? The next question is: What are you trying to improve? What aspect of performance is most important? If you have a high growth company, perhaps what matters most is quick hiring, onboarding, and training performance. If you’re a restaurant, perhaps your food is great but your wait staff is abysmal. Focus on your strategic objective.
Here’s a question I encourage everyone to ask those who report to them and, if you’re the one doing the reporting, to ask yourself: “What are the three most important things this employee does every day?” What good is a performance management approach if you can’t be on the same page as this question? When you have determined this, ask: “How would you know if you were doing your job well without having to ask me or without my having to tell you?” Once the employee can answer this question to your mutual satisfaction, you have legitimate benchmarks. The question then becomes: How can you improve? What training, resources, support, etc. do you need to supply this employee so they can perform at their best? Remember, as both Peter Drucker and Dr. Deming said: Nine out of ten employees want to do a good job every day; it’s the system they find themselves in that creates problems.
Misaligned compensation, benefits, and incentives. Here’s another of my favorite subjects. Exactly why do you have healthcare, 401(k) or other benefits? Do they help you to hire better talent? If so, how would you know? Do benefits help you retain talent and improve performance? How would you know? If these benefits don’t tie into your strategic objectives, the chances are that you’re wasting many of them – and at a hefty price tag. I’ve begun working with a genius who is turning the benefits sales process on its head. By running algorithms of employee data and healthcare expenses, he can define the optimum benefit mix for an employer, which it then takes to the marketplace – as opposed to the marketplace telling the employer what plans are available for their demographics. Finally, how benefits are managed can impact productivity. For example, sick pay can actually grow healthcare expenses and reduce productivity. Not surprisingly, San Francisco and now Portland actually require employers to offer sick pay. How about providing wellness pay or paying people for being at work? Bear in mind that any incentive you use has both negative and positive consequences.
Failure to execute strategic initiatives. We live in a rapidly shifting business environment that requires us to manage change quickly and successfully. If you haven’t done so, please watch the recorded webinar I did on Change Management and have your entire management team do the same. (If you don’t have access to HR That Works, let me know and I’ll send you a link to it). The webinar makes two major points: First, one of the traps of the hero is over-commitment. This holds true of both individuals and the company as a whole. When we over-commit, we tend not to live up to our commitments – which generates mistrust. Secondly, strategic initiatives require buy-in. Just as in sales you want to make the purchase the buyer’s idea, when it comes to change management, you want it to be the idea of your supervisors and employees. Give them some ownership of the idea and you’ll find them onboard with it. Because change will remain a constant, we’ll need to keep, coaxing, encouraging, and inspiring each other towards growth. When we stop the over-commitment and focus on execution, we’ll keep growing the bottom line.
Finding time for management. Too many executives and managers mismanage their use of time so badly that they’re on overload and unable to take on any growth objectives. Most top CEOs I know take at least a few days a month away from the job so that they can work on the business instead of just working in the business. Google is smart enough to allow its employees to do this one day a week. As Stephen Covey reminded us in the Seven Habits of Successful People, you need to keep sharpening the sword. Everyone in your company needs to understand and execute time management techniques. I’ve produced an HR That Works Time Management Training Module that can help you and your managers with this.
Lack of commitment to or interest in human resources. I realize that many business owners and executives feel that HR is boring, or worse. They didn’t have to know anything about it to start a business. Even though they often have little or no idea on how to run an HR department or function, in one-on-one meetings with their peers in Vistage, executives usually describe personnel issues as the major challenge facing them. The fact that employee relations just isn’t their thing provides an incredible opportunity for HR professionals to offer the expertise needed.
Failure to understand the bottom line potential of HR. Business owners are revenue animals who often don’t see personnel practice as generating revenue. This has been a long-standing uphill battle for HR. There’s a reason why Fast Company magazine years ago published an article, “Why I Hate HR.” In reality, many companies have great HR practices which form the foundation of their bottom line success. For example Jack Welch stressed the importance of HR practices as an economic driver in his years at GE. In fact, he’s still talking about it.

If you own, run, manage, or advise a company, addressing these HR challenges provides a unique competitive advantage!

Make Sure Volunteer Workers Carry Workers Comp

The California case of Diane Minish v. Hanuman Fellowship carries a valuable lesson for anyone involved with nonprofit organizations.

After Diane Minish, a volunteer worker with the nonprofit Hanuman Fellowship was accidentally thrown from a forklift, she sued the organization for negligence. Hanuman argued the exclusivity of Workers Compensation as a remedy, claiming that its Comp policy covered the plaintiff. Although Minish did receive comp benefits, she felt they were too low – and so she sued for more. As in many states, under California law, “private, nonprofit organizations are not required to provide [Workers Compensation] coverage for volunteers (see §§ 3700 [requiring coverage for employees]; 3352, subd. (i) [volunteers are not employees]), section 3363.6 allows them to do so if they choose.” Although the statute is awkward and disjointed, it provides, in essence, that a volunteer becomes a covered employee if the board [of the nonprofit] so declares in writing before any work-related injury.

Minish argued that she had not agreed to this arrangement:

“Plaintiff contends that under section 3363.6, a declaration rendering volunteers covered employees does not become effective unless and until an affected volunteer has notice of the declaration and voluntarily accepts Workers Compensation coverage before any injury. Thus, because the undisputed evidence establishes that she did not receive such notice and did not voluntarily accept Workers Compensation coverage before the accident, the Act was inapplicable. “

The court disagreed, ruling that

“Here, of course, without the slightest advance warning, Hanuman plunged Minish into the toils of the Workers Compensation system not only without her knowledge, but – as soon as she learned of it – very much against her will. Section 3363.6 does not explicitly require notice to volunteers that they have been deemed volunteer/employees. Nor does the statute provide that such status must be accepted by each volunteer individually…. In short, we reject the plaintiff’s claim that section 3363.6 imposes a notice and acceptance requirement.”

However, the court dismissed the argument that Minish was “estopped” from denying the exclusivity because of the fact that she used the Workers Comp system. So, although the suit will go back to court, chances are that she will lose in her attempt to claim negligence.

The bottom line: Whether you sit on a non-profit board, run a non-profit, or advise one, make sure you do what’s required under state law to make sure that your volunteers: a) sign liability waivers and b) get Workers Comp coverage. Doing so will help avoid an ultra-expensive negligence claim. Also, make sure that your insurance coverage addresses such claims where the doctrine of workers comp exclusivity does not apply.

EEOC Credit Report Lawsuit Dismissed

The EEOC received plenty of publicity from its 2010 lawsuit against Kaplan Higher Education (EEOC v. Kaplan Higher Educ. Corp., N.D. Ohio), alleging that the company’s use of credit reports as a factor in hiring decisions for financial aid positions had a discriminatory impact based on race and, thus violated Title VII of the 1964 Civil Rights Act. A federal district court dismissed the EEOC suit on January 28, 2013.

Kaplan did not track the race of its applicants, and was not required to do so. To show a discriminatory impact based on race, the EEOC hired expert “raters” to determine the race of applicants by pictures and other information, and thus evaluate whether Kaplan’s practice had a discriminatory impact. In dismissing the case, the court held that the commission failed “to present sufficient evidence that use of ‘race raters’ is reliable.” The court also chastised the EEOC saying that, “It is clear that EEOC itself frowns on the very practice it seeks to rely on in this case and offers no evidence that visual means is accepted by the scientific community as a means of determining race.” The court concluded that because EEOC’s expert “relied on data obtained by unreliable means … whether the jury could ultimately ‘correct’ the process employed by the ‘race raters’ is irrelevant.”

The court ultimately dismissed the case because the EEOC did not provide sufficient evidence to make its case.

Don’t be surprised if the commission keeps pursuing claims that the use of tests, credit reports, and other background checks has a discriminatory impact on blacks, Hispanics, women, and others. The EEOC will simply look for another case and try to correct the evidentiary issue that resulted in the dismissal of its claims against Kaplan.

2012 EEOC Claims Near 100,000 Mark

The Equal Employment Opportunity Commission handled nearly 100,000 claims in 2012. According to the commission’s press release, “The U.S. Equal Employment Opportunity Commission (EEOC) …received 99,412 private sector workplace discrimination charges during fiscal year 2012, down slightly from the previous year. The year-end data also show that retaliation (37,836), race (33,512) and sex discrimination (30,356), which includes allegations of sexual harassment and pregnancy were, respectively, the most frequently filed charges. The fiscal year 2012 enforcement and litigation statistics, which include trend data, are available on the EEOC’s website.

The press release added that:

“In fiscal year 2012, the EEOC filed 122 lawsuits, including 86 individual suits, 26 multiple-victim suits (with fewer than 20 victims) and 10 systemic suits. The EEOC’s legal staff resolved 254 lawsuits for a total monetary recovery of $44.2 million. EEOC also continued its emphasis on eliminating systemic patterns of discrimination in the workplace. In fiscal year 2012, EEOC completed 240 systemic investigations which in part resulted in 46 settlements or conciliation agreements. These settlements, achieved without litigation, secured $36.2 million for the victims of unlawful discrimination”

What the EEOC didn’t mention is that it’s backing off a bit on its aggressive litigation stance due to a combination of tight budgets and mixed courtroom results. For example, as mentioned in the previous article, a federal district court recently dismissed the commission’s well-publicized credit background lawsuit.

I for one, hope the EEOC focuses more on education and conciliation, rather than litigation.

An Employee Referral System That Works

Although referral programs can provide a valuable source of new workers, many employees are reluctant to provide referrals because they’re afraid that they’ll take the blame if the new hire doesn’t work out.

Here are a few ways to reduce this fear:

Provide a worthwhile financial incentive for referrals. Money can do wonders to overcome the fear of embarrassment.
Consider a mix of contests, raffles, etc. in addition to cash making referrals more fun and competitive.
Think in terms of the new employee’s lifetime value. If a worker can earn the company $50,000 per year for an average of three years, how much would you be willing to invest to get this return? If you pay recruiters 10% to 30% of the new hire’s annual salary, does it make sense to pay an employee only 1 or 2% for a referral?
Space out the referral bonus in quarterly payments, based on specific benchmarks. For example, you can give an initial payment for the referral, a second if the employee is hired, another one at six months, and the final one on the new hire’s anniversary date.
Train employees on how to approach prospects and make it easy for them to tell the prospect your company story. Give them a pamphlet, some type of document, or a web page link that defines the business and the opportunity the position offers the prospect.
Finally, measure the program’s results on a regular basis so that you can keep improving it.

Form of the Month

Workplace Violence Assessment Survey (PDF) – There’s no doubt that violence has raised its ugly head in the workplace. Here’s a form to help you assess the exposures at your company.

Podcast

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

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April 2013 Compliance and Culture Newsletter

“When people think that their blessings in life come from the government, they will always end up in slavery.” –R. Nelson Nash

This issue discusses:

Editor’s Column: Using Occupational Medicine Expertise
California Court Permits Novel Sexual Harassment Claim
Anger Management and the ADA
Shift Work Poses Health Challenges
Federal Appeals Court Affirms Summary Judgment in Disability Discrimination Case
Have a Laugh
The Department of Labor Celebrates Its 100th Anniversary
Free Wellness Tools

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

Please click here to view the newsletter in PDF.

Editor’s Column: Using Occupational Medicine Expertise

For years, I’ve encouraged employers, brokers, and risk managers to develop a relationship with a good occupational medicine physician for pre-hire physicals, wellness promotion, disability, FMLA, and workers compensation claims. At the end of April, I’ll be speaking to the annual conference of ACOEM at their on the intersection of the ADA, FMLA, and Workers Comp (see below). I also culled from the program additional classes these physicians will be attending, to help you understand why their expertise is so much more valuable to employers than that of their non-specialized peers. To find an occupational medicine physician in your area, go to the ACOEM website at www.acoem.org and click on the upper right hand corner. You’ll be glad you did!

If you click here, you can get a copy of my PPT presentation. Click here to get a copy of my handout. HR That Works offers a variety of training, forms, and support to help your clients with these concerns.

California Court Permits Novel Sexual Harassment Claim

In Ventura v. ABM Industries, the employer was a janitorial service company that, according to the lawsuit, had a group of managers who drank on the job, touching and sexually harassing their female subordinates. Finding that that the defendants had engaged in threats of violence, the jury awarded the plaintiffs compensatory damages, plus a $25,000 civil penalty and $550,000 in legal fees.

What’s unusual about this case is that, instead of pursuing a sexual harassment claim, the plaintiff sued under a California statute prohibiting hate crimes against protected categories such as sex. My guess is that the statute of limitations had passed for a traditional sexual harassment claim. The court rejected the defense argument that this statute does not apply in the workplace. The decision included a statement about the ratification of employee conduct that has significance for every employer:

“An employer may be liable for an employee’s act where the employer either authorized the tortuous act or subsequently ratified an originally unauthorized tort. The failure to discharge an employee who has committed misconduct may be evidence of ratification. The theory of ratification is generally applied where an employer fails to investigate or respond to charges that an employee committed an intentional tort such as assault or battery. Whether an employer has ratified an employee’s conduct is generally a factual question.”

The bottom line: An employer who faces evidence of wrongful employee conduct must do everything possible to discipline the wrongdoer (including termination, if warranted) or risk being accused of “ratifying” the misconduct. If the Ventura case had been brought as a traditional sexual harassment claim, the company would have automatically been deemed to have ratified the misbehavior because the perpetrators involved were managers.

Anger Management and the ADA

I recently answered this hotline question:

Question: Can an employer request/require an employee to seek counseling/therapy for anger management issues that affect their ability to perform their job?

Answer: Absolutely! In general, the ADA does not cover personality traits such as irritability, poor anger management, impulsivity, and poor judgment. What’s more, short-term conditions, such as the anger that many people experience from the actions of a co-worker, are not qualifying disabilities. As you might guess, employees have argued that their anger is related to a disability. The question then becomes can you, or should you, have to accommodate it! If, in fact, anger is related to a disability such as PTSD (http://askjan.org/corner/vol03iss02.htm), an amputation or other severe injury, or a symptom of many other disabilities (http://askjan.org/media/atoz.htm), the question still remains of whether you can accommodate it.

The science is not always clear on whether anger is a covered disability (http://www.ncbi.nlm.nih.gov/pubmed/1468908). The answer varies on a case by case basis (everyone loves that answer). I would begin with a referral to your EAP provider, if you have one. You might also consider counseling and coaching.

Also, remember that an employer has an obligation to create a safe workplace and can use a “direct threat” defense under the ADA. As one court stated: “Such a requirement would place the employer on a razor’s edge – in jeopardy of violating the Act if it fired such an employee, yet in jeopardy of being deemed negligent if it retained him and he hurt someone.”

According to the ADA when considering the risk of harm:

“People with mental disabilities cannot be excluded based on general, stereotypical assumptions about dangerousness. Any threat must be based on sound medical judgment and objective evidence of factors, such as the duration of the risk, the nature and severity of the potential harm, the likelihood that harm will occur, and the imminence of the harm. Of course a person with a disability must be able to perform the essential job functions with or without reasonable accommodations in order to be covered by the ADA.”

To learn more about accommodating anger issues, go to JAN. Also watch our recent Webinar on Accommodating Mental Disabilities.

As a final note, be sure to take mental disabilities seriously. A California jury recently granted a $21 million dollar verdict because an employer fired an employee who claimed that she had anxiety attacks, without making any effort to accommodate her. Don’t be that employer!

Shift Work Poses Health Challenges

I ran across a study by the BMJ Group that analyzed the health impacts of shift work (non-daytime schedules) on cardiovascular events. Shift work was found to increase the risk of a heart attack by 23% and to account 7% of all heart attacks. The conclusions of the study bear repeating

What’s already known

Shift work is associated with an increased risk of hypertension, metabolic syndrome, dyslipidaemia, and diabetes mellitus.
Disruption of circadian rhythm might predispose shift workers to vascular events; however, there’s no organized systematic synthesis of all types of vascular events.

What this study adds

Shift work is associated with myocardial infarction, coronary events, and ischemic stroke; although the relative risks are modest, risks attributable to population are high.
These findings seem to be robust and insensitive to publication bias, quality of study, and socioeconomic status.
Conversely, shift work is not associated with increased rates of mortality (whether from vascular causes or overall).

The study carries these lessons for employers:

Make sure that employees are aware of the health dangers posed by shift work and take steps to efforts to mitigate their effects. Preventive activities – such as proper diet and exercise, curbs on smoking, and minimizing other stressors – while important for all your employees, take on even greater significance for shift workers.
Review your obligations under workers comp, ADA, FMLA and regulations if an employee suffers any of these ill effects

Federal Appeals Court Affirms Summary Judgment in Disability Discrimination Case

In Lawler v. Montblanc, the Ninth Circuit Court of Appeals affirmed the trial court’s order granting summary judgment in favor of an employer where the evidence was insufficient, as a matter of law, to substantiate claims for disability discrimination, retaliation, and harassment. Montblanc North America, LLC (“Montblanc”) makes jewelry, timepieces, and other luxury products that it sells wholesale and in boutique stores. Montblanc employed plaintiff Cynthia Lawler as a manager at a store with a staff of six employees. Her duties included hiring, training, and supervising sales staff; administering stocking and inventory; cleaning; creating store displays; and preparing sales reports, all of which could only be performed in the store. The store earned one-third of its annual revenue between the Friday after Thanksgiving and January 2nd. Lawler worked between 60 and 70 hours per week during the holiday season.

On June 30, 2009, she was diagnosed with arthritis, for which her doctor recommended that she limit her work to twenty hours per week. On July 23, 2009, she requested a twenty-hour work week. On July 29, 2009, Montblanc requested that Lawler provide information regarding the nature, severity, and duration of her impairment, and what accommodations could be provided for her to perform the essential functions of her job.

A few days later, she fractured her foot in connection with her arthritis. Her doctor recommended that she not return to work until September 2, 2009. When Lawler returned to the store to fax the necessary paperwork to Montblanc’s Disability insurance company, the company’s President, Jan-Patrick Schmitz, arrived for a routine inspection, during which he criticized her non-work attire, disapproved of the merchandise displays, became angry when she tried to explain the displays, and made her walk around the store (during which time another employee stepped on her injured foot). Schmitz then requested a detailed report: when Lawler explained that she could not meet his request because she was on leave, he responded “you will do it or else.”

On August 11, 2009, Lawler sent a letter to Montblanc’s human resources representative expressing her concerns about Schmitz’s “abrupt,” “gruff” and “intimidating” behavior toward her during his store visit. The human resources representative did not investigate the allegations.

On September 2, 2009, Lawler’s doctor recommended an extended leave of absence until January 5, 2010. Montblanc requested a reasonable accommodation from the doctor that would permit her to resume her regular duties, and for a date on which she could return. The doctor replied that Lawler’s status had not changed, and that she had to remain on leave until January.

On October 31, 2009, Montblanc terminated her employment, explaining that it was essential for a manager to be in regular attendance at the store, and that because she would be unable to return to work until January, she needed to be replaced.

Lawler sued for disability discrimination, retaliation, harassment, and intentional infliction of emotional distress. The trial court granted summary judgment for Montblanc, and the Ninth Circuit affirmed.

In affirming the discrimination claim, the court held that Lawler was not able to do her job “with or without reasonable accommodation,” because she admitted that her disability made it impossible for her to fulfill the duties of a store manager, regardless of an accommodation. As such, she could not meet her burden to prove that she was “qualified for the position,” an essential element of her claim.

The court also affirmed the retaliation claim, holding that Montblanc had a legitimate reason for terminating Lawler’s employment: she could no longer perform her duties as a store manager during the most critical time of the year. The court similarly affirmed summary judgment on her harassment claim, concluding that Schmitz’s conduct (criticizing Lawler’s work attire and the displays, and requesting the report) did not constitute “harassment” as a matter of law because his actions related exclusively to store operations and personnel management.

Finally, the court affirmed summary judgment on Lawler’s claim for intentional infliction of emotional distress, holding that Schmitz’s alleged “gruff,” “abrupt,” and “intimidating” conduct did not exceed the bounds tolerated in a civilized community, and simply related to business operations and her performance as a manager.

Article courtesy of Thomas Ingrassia of Petit Kohn (www.pettitkohn.com)

Have a Laugh

Nothing brings us closer to the present than a good laugh or cry. Although we’ve had plenty to mourn about lately, there hasn’t been enough laughing. What can you do that’s fun at work? See the checklist: Creating a Fun Workplace.

The Department of Labor Celebrates Its 100th Anniversary

For a great historical perspective on the workplace go to http://www.dol.gov/100/

Free Wellness Tools

The National Institute of Health has created an excellent series of wellness videos. To learn more, go to http://www.nlm.nih.gov/medlineplus/tutorial.html

Form of the Month

Checklist for Investigating Complaints of Harassment or Discrimination (PDF)

It makes sense to have an independent investigator or your attorney look into these types of complaints. If you dare to go it alone, this checklist provides a road map that will help protect you against some of today’s most common employee lawsuits.

Podcast

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

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

Podcast: Play in new window | Download

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DOL Issues New Contractor Guidelines

As stated by the DOL “OFCCP is issuing this Directive in support of its ongoing policy commitment to address pay discrimination by federal contractors and subcontractors. This Directive specifies the procedures OFCCP field investigators use for reviewing contractor compensation systems and practices. It clarifies and improves OFCCP procedures in further support of the agency’s efforts to align pay discrimination enforcement with longstanding principles under Title VII of the Civil Rights Actof 1964 (Title VII).”

If you do government contracting you would be wise to follow these guidelines. Even if you are not a government contractor they point to the data they will be examining to address disparate compensation practices.

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New I-9 Form Available

The USCIS has finally issued the revised I-9 form you get by clicking here. HR That Works Members: If you haven’t done so please consider watching the webinar we did recently about the E-Verify Program Overview.

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March 2013 Compliance and Culture Newsletter

“There is no labor from which most people shrink as they do from that of sustained and consecutive thought; it is the hardest work in the world.” –Wallace Wattles

This issue discusses:

Editor’s Column: Do We Work to Live or Live to Work?
Accommodating Pregnancy in the Workplace
In-N-Out Burger Sued for Discrimination
Attracting and Maintaining Top Talent
What Would You Do? (A Great Interview Question)

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

Please click here to view the newsletter in PDF.

Editor’s Column: Do We Work to Live or Live to Work?

“Wish for a hundred years of doing your duty.” The Upanishads (Ancient Hindu text)

We’ve all heard the question “Do we eat to live or do we live to eat?” My uncle told me that his goal was the latter; not surprisingly, he died of obesity and heart disease. Yet if we simply eat to live we can deprive ourselves of the glorious experience of sharing God’s gift of food with one another. Who doesn’t feel better about life after a great cup of coffee, a great meal or a slice of apple pie? Of course, the answer lies in the balance. Out of balance in either direction and we deprive ourselves of the fullness of life.

Now let’s think about work in these terms. Of course, we must work to live. It’s called survival and security. No surprise, the people who tend to survive and obtain security also tend to work the hardest. Like worker bees, we’re programmed to get it done.

Of course, that’s only half of the equation. We must live to work. As Victor Frankel reminded us, man searches for meaning. Meaning comes through our relationships with our friends and loved ones, with God, and with the work we do. As Shakespeare so eloquently stated, “To work we love, with delight we go.” Abraham Maslow defined this state as “self-actualization” – the highest level of being.

It feels as if so many of us are out of balance on the working-to-live side of the equation. Although a few are really going for it, living their work to its fullest; far too many people are stuck in the steady, depressing rhythm of stressful ho-hum work. As Joseph Campbell reminded us, “Work can be a life-draining affair.” How many of us leave the workplace telling ourselves “Whoa…that was an awesome day. I’d like to do that again tomorrow!”

I find that to get life out of our work, it helps to inspire ourselves. Inspire comes from ancient Latin and means to “breathe life into.” The best way to inspire ourselves is with a better story – a story where we can make a greater difference – where we bring more spirit to the work we do every day. I encourage you to watch the Spirit at Work Webinar I did for HR That Works members.

When it comes to both sides of the equation, we must ask ourselves how to work smarter, not harder. How can we manage our time in a way that generates additional value? I recommend that you study the Time Management Training Module on HR That Works. If you’d like information, just email me at don@hrthatworks.com.

As Depeche Mode sang, “Get the balance right!” When you do, you’ll have no doubt about your willingness to work hard, but you’ll also become far more excited about the difference you make every day. This holds true whether you’re in your 20s and entering the workforce, or in your 60s and contemplating retirement. The last thing you want to do is live a life of regret because you simply put X’s across your work calendar. Work to live – and you’ll enjoy a work experience without regrets.

Accommodating Pregnancy in the Workplace

Although many women work through their pregnancies without difficulty, some of them with physically demanding jobs or complicated pregnancies might seek accommodation at some point. However, the Americans with Disabilities Act (ADA) does not define pregnancy as a disability or disorder, but as a natural process related to reproduction.

If pregnancy is not a disability, are pregnant women entitled to accommodation? What about women with pregnancy-related impairments? Are they covered by the ADA Does the Pregnancy Discrimination Act (PDA) entitle pregnant women to the accommodations they need to continue working during pregnancy? Are there state laws that entitle pregnant women to accommodation? These are the types of questions are being examined by the National Women’s Law Center (NWLC) and other women’s legal organizations. According to NWLC, both the ADA and the PDA often require reasonable accommodation for pregnancy.

Let’s start with the ADA. The regulations interpreting the ADA Amendments Act (ADAAA) state that pregnancy-related impairments can meet the definition of disability if they substantially limit a major life activity. Pregnant employees with impairments that meet the definition of disability will be entitled to an accommodation under the ADA. Because the ADAAA has broadened the definition of disability to include many temporary and less severe impairments, more workers with pregnancy-related impairments will now qualify for direct coverage.

In addition, the interaction between the PDA and the ADA will often result in a heightened duty to accommodate even pregnant employees who do not meet the ADA’s definition of disability. NWLC argues that the PDA requires employers to treat pregnant women at least as well as other employees with similar limitations in their ability to work. Because the ADA requires employers to accommodate a wider variety of medical conditions, pregnant women will often have similar limitations to people who are entitled to accommodations under the act – which means that they’ll be entitled to accommodations as well. For example, the Equal Employment Opportunity Commission (EEOC) has made it clear that the ADA requires reasonable accommodation of a temporary back injury that leaves an employee unable to lift 20 pounds for a few months. Because pregnant workers must be treated as well as employees with similar work limitations, a worker who has been instructed not to lift weights of more than 20 pounds because of her pregnancy must also be accommodated, according to NWLC.

To ensure that employers’ legal obligations to provide accommodations are unmistakable, the NWLC and a broad coalition of groups from the health, disability, and women’s rights communities are urging Congress to pass the Pregnant Workers Fairness Act (PWFA) – draft legislation which states that pregnant women are entitled to reasonable accommodations that can be provided without undue hardship to an employer. These are the same types of accommodations that are available to people with disabilities under the ADA. In addition, some state laws already give pregnant workers’ rights to workplace accommodations, as described in a recent report by Equal Rights Advocates.

Accommodating pregnant employees is also in the financial interest of employers. The NWLC provides several sound business reasons why employers should accommodate their pregnant employees in the same way that they do for workers with disabilities. Data show that the costs of these accommodations are likely to be minimal, and that providing them will have bottom- line benefits to the employer: including reduced workforce turnover, increased employee satisfaction and productivity, and lower Workers Compensation and other insurance costs.

Despite the legal and financial arguments, some employers are still not accommodating pregnant employees. This is why the EEOC recently identified “accommodating pregnancy-related limitations under the ADAAA and the PDA” as a priority area for its enforcement efforts through 2016.

If you are an employee who was not accommodated during your pregnancy or you believe you were discriminated against on the basis of pregnancy, the NWLC would like you to share your story. Employers interested in sharing their experiences accommodating pregnant employees or in consulting about best practices are also invited to contact NWLC, at pregnancyandwork@nwlc.org.

Keep in mind that when it comes to providing accommodation ideas, Job Accommodation Network (JAN) consultants will brainstorm accommodation ideas for anyone with any type of limitation, including limitations related to pregnancy, whether or not the ADA covers the condition. So, if you’re an employer trying to accommodate pregnant employees, or a pregnant employee looking for accommodation ideas to offer your employer, feel free to contact JAN for assistance!

-Linda Carter Batiste, J.D., Principal Consultant with comments from the National Women’s Law Center

P.S. Speaking of job accommodations, HR That Works members can join us for a joint webinar with JAN on Providing Accommodations for Employees with Mental Health Impairments, to be held March 20th at 1PM EST by going to https://www1.gotomeeting.com/ register/324256449.

In-N-Out Burger Sued for Discrimination

I have a confession to make: I love In-N-Out Burger. As with any type of fast food, you can’t eat it frequently, but it’s amazingly good when you do. Both of my sons worked for In-N-Out; and the company has some of the best employees and managers in the fast food industry. They pride themselves in being a well-meaning Christian company. They pay more than anyone else in the industry and treat their employees with respect. Unfortunately, two plaintiffs, both of whom are black and older than 40, were rejected for employment and, after seeing an attorney, filed a class action lawsuit.

Companies such as In-N-Out can face discrimination and disparate impact type claims because their statistics for hiring don’t match the general applicant pool. If this proves out to be the case is there in fact a bias? I don’t see it and doubt if the company practices any systemic discrimination. The only bias I can see is that In-N-Out demands a high level of performance from its employees. Very simply, if you’re too old to move quickly, you’re going to get run over by a quicker and probably younger employee. I would like to think that regardless of your age, race, or sex, if you can play team the In-N-Out Burger way and produce as efficiently as the other workers, you certainly deserve a job.

My favorite comment among all the comments posted about this case (with more than 90% pro In-N-Out) was:

“Actually, In-n-Out does discriminate…
…against lazy, shiftless, self-entitled whiners, which is why you see a lot of ambitious, courteous, and diligent Latinos, Asians, whites, and Samoans working there,

and which is why its service is so fantastic.”

Attracting and Maintaining Top Talent

I recently responded to the LinkedIn question “How can a company attract and maintain top talent?” in this way:

“Although you’ll get many responses about technique and strategy, in my experience that’s just the beginning of the answer. There’s a significant emotional aspect to the question. In the words of the Buddha, “What comes to you comes from you.” So that’s what I’ll focus on in this answer; the emotional blockages that stop things from coming to you. Ask yourself these questions:

Are you really willing to do what it takes to attract and keep great talent?
Are you willing to hire somebody better than you? Or even better than their manager?
Does driving towards excellence scare you? Are you prepared to hire the top 10%?
Would you fit in this category?
Is there such a thing as an “overqualified” applicant?
Are you open to hiring and managing different types of people? Can you hire without baggage?
Do you make a conscious effort to show people you care – or is this just your self-talk?
Do you allow employees to make a difference? To stretch? To find the good in their work?
Do you let go of poor performers, thus making room for more good ones?
Does leadership give a hoot about people, or simply growing their bottom-line?
Is this a fun place to work or is the attitude that fun and work don’t mix?

Most importantly, think about your own experience. Why would you work somewhere or stay there?

What Would You Do? (A Great Interview Question)

Let’s say that you’re working for a company at a retail counter with a great deal of public interaction every day. Suppose that your storefront is in the middle of an affluent neighborhood, right next to a Ruth’s Chris Steakhouse and Sun Trust Bank. Now let’s say that because you have a poor landlord the flowers and front entrance haven’t been maintained for some time and are overgrown with weeds and unattractive. Efforts to get the landlord to clean things up have failed.

What would you do?

This can be a great interview question, providing valuable insight into the character of job candidates. Some people might suggest that you sue the landlord. Others would rather first hire a landscaper to fix things up, and then sue the landlord. Some would simply look the other way. Still others would prefer to stop by on a Saturday with a few plastic bags, a small shovel, a small rake, and a few crates of flowers – and just deal with the problem.

This is a true story. The retail operation in question was a North Palm Beach post office. I don’t know if it’s still in that condition but it amazes me that the employees of the branch would allow themselves to walk by this mess every single day and do nothing about it – for their own sake, never mind anyone else’s! When I asked them about it they were quick to complain but reluctant to simply fix the problem.

Any time that I’ve rented an apartment, home, or office, I’ve made an effort to spruce it up–because that’s who I am. I couldn’t stand to look at those weeds every day; it would drive me nuts. But of course, most people would rather point a finger and, if necessary, file a lawsuit than just step in and get something done.

What type of employees and managers are you looking for? Do you want people who will wait for somebody else to pick up their responsibilities and go first – or those who will just spend a few hours and get that nagging thing finally done? Try this as an interview question and you’ll find out which kind of employee will come to work for you!

Form of the Month

How to Be an Excellent Employee (PDF) – Only the rare and excellent company sets forth a list of desired behavior. It’s essential to remain positive with your employees. Remember – you get what you focus on.

Podcast

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

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Wage Deductions in California

We were recently asked about the propriety in California of deducting wages from an employee’s paycheck for damage they were caught on video causing. The bill was over $1,500! Here was my response:

First of all please remember to look at the BNA state law summaries on HR That Works.

Here’s what it says:

Employers cannot deduct from employee wages for any cash shortages, breakages, or loss of equipment, unless the shortages, breakages, or losses are caused by employees’ dishonest or willful acts or gross negligence.

[Note: In enforcing this prohibition, the Department of Labor Standards Enforcement takes so narrow a view of the definition of “gross negligence” that an act must be criminal to qualify. Employers are advised to get a ruling from the DLSE before making deductions from wages on the basis of employee negligence, because a misjudgment can result in an employee's recovery of wages due and penalties. (Dept. of Labor Standards Enforcement Letter No. 2003.02.24 (2003)]

So I dug even further. The DIR website says the same thing but in more detail and throws in a big time caution:

Q. If I break or damage company property or lose company money while performing my job, can my employer deduct the cost/loss from my wages?

A. No, your employer cannot legally make such a deduction from your wages if, by reason of mistake or accident a cash shortage, breakage, or loss of company property/equipment occurs. The California courts have held that losses occurring without any fault on the part of the employee or that are merely the result of simple negligence are inevitable in almost any business operation and thus, the employer must bear such losses as a cost of doing business. For example, if you accidentally drop a tray of dishes, take a bad check, or have a customer walkout without paying a check, your employer cannot deduct the loss from your paycheck.

There is an exception to the foregoing contained in the Industrial Welfare Commission Wage Orders that purports to provide the employer the right to deduct from an employee’s wages for any cash shortage, breakage or loss of equipment if the employer can show that the shortage, breakage or loss is caused by a dishonest or willful act, or by the employee’s gross negligence. What this means is that a deduction may be legal if the employer proves that the loss resulted from the employee’s dishonesty, willfulness, or grossly negligent act. Under this regulation, a simple accusation does not give the employer the right to make the deduction. The DLSE has cautioned that use of this deduction contained in the IWC regulations may, in fact, not comply with the provisions of the California Labor Code and various California Court decisions. Furthermore, DLSE does not automatically assume that an employee was dishonest, acted willfully or was grossly negligent when an employer asserts such as a justification for making a deduction from an employee’s wages to cover a shortage, breakage, or loss to property or equipment.

Labor Code Section 224 clearly prohibits any deduction from an employee’s wages which is not either authorized by the employee in writing or permitted by law, and any employer who resorts to self-help does so at its own risk as an objective test is applied to determine whether the loss was due to dishonesty, willfulness, or a grossly negligent act. If your employer makes such a deduction and it is later determined that you were not guilty of a dishonest or willful act, or grossly negligent, you would be entitled to recover the amount of the wages withheld. Additionally, if you no longer work for the employer who made the deduction and it’s decided that the deduction was wrongful, you may also be able to recover the waiting time penalty pursuant to Labor Code Section 203.

Bottom line: I’m not sure you want to invite the DIR to your company to make sure your deduction is proper. But since it was recorded it would be hard to say it is not willful. Problem is even the DIR says the regulations may not comply with the law! So while you may be able to make the deduction without permission, the safest thing to do is to ask them to voluntarily agree to a paycheck deduction, get a ruling from the DLSE first, or sue them in small claims!

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February 2013 Compliance and Culture Newsletter

“Co-creation fundamentally challenges the basic tenet of traditional economic theory: that the ﬁrm and the consumers are separate, with distinct, predetermined roles, and, consequently, that supply and demand are [separate] processes.”

–C.K. Prahalad, Co-author, Core Competence of the Corporation

This issue discusses:

Editor’s Column: Twelve Questions for Growing Companies—and HR Careers
We Can All Use a Little Hope
Big Surprise: Effective HR Practices Drive Profits
Side Job Doesn’t Prevent FMLA Claim
Federal Court to Starbucks: ‘The Law Says What It Means and Means What It Says’
Agile Working: How One Company Does It
Notes About Change Management
The Nationwide Abuse of Unemployment Benefits

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

Please click here to view the newsletter in PDF.

Editor’s Column: Twelve Questions for Growing Companies—and HR Careers

Good to Great author Jim Collins identifies 12 questions leaders must grapple with if they want to excel. These questions apply to anyone in HR management, as well. Here’s my spin on them:

Do you want to build a great company (or HR function) and are you willing to do what it takes?
Do you have the right people on the bus and in the key seats? HR must be 100% responsible for making sure that this happens.
What are the brutal facts? Where is HR supporting you and where is HR hurting you? For example, has HR allowed you to keep poor players on the bus?
What’s your “hedgehog”? The hedgehog is something that you can do best, make a buck, and be passionate about! How does HR support this?
What’s the one thing you do that you’re great at? Are you known for hiring the best employees in your industry? For getting them to perform beyond their peers? For having the highest retention rates? For fostering creativity? Where does HR help you to do things better than your competition?
What’s your 20-mile mark and are you hitting it? The point is to be goals oriented. Unfortunately, too many people in HR don’t have a plan — and thus, don’t have goals.
Where should you place your big bets based on empirical validation? As Jim Collins and any good marketer would tell you, test, test, test — and when you find out what works, blow it up big time. To what degree do you test one way of hiring, hiring tool, or managing performance, etc. to find out what works best?
What is your 15 to 20 year Big, Hairy, Audacious Goal? Of course, this means that you might not be there when the goal is met. The real question is, what type of legacy do you plan on leaving?
What could kill you, and how can you protect your flanks? For example, could a new, well-funded competitor swipe away your top talent? What is HR doing to prevent this? As stated in recent blog posts, swiping confidential, trade secret, and other proprietary information can harm a company overnight.
What should you stop doing to increase your discipline and focus? This is a theme that I preach in time management. Before you can pretend that you’ll do anything new, you must first stop doing something. Otherwise, the result will be burnout, and non-productivity.
How can you increase your return on luck? By asking question! Where have you been lucky? Where have you made great hires? Where have you had superstar performers? What can you learn about these people that will help hire more like them?
Last, but not least, are you becoming a Level 5 leader building a Level 5 culture? To a large degree, this is about humility. It means playing 40/40, as I discuss in the HR That Works Victims, Villains, and Heroes program. Being humble does not mean that you are weak; it’s an inner strength that empowers others to find their inner strength.

I’ve greatly enjoyed reading Jim Collins’ books over the years. To see my five-minute video summarizing his insights, click here. Collins recommends that we tackle each of these 12 questions every month. Likewise, I suggest that you focus on a single proactive objective in HR every month. See the Form of the Month, a 2013 HR Game Plan.

We Can All Use a Little Hope

Norman Vincent Peale often talked about the important role hope plays as part of his positive thinking process. Peale taught us that it’s far easier to be hopeful when you embody these characteristics: hope

Determination
Expectation
Renewal
Belief
Enthusiasm
Persistence
Vision
Faith

How would you apply each of those ideas to the hope you have for your career or company? Simply allowing yourself to consider each one of them provides confidence and hope by its very nature!

Big Surprise: Effective HR Practices Drive Profits

The report From Capability to Profitability: Realizing the Value of People Management by the Boston Consulting Group and World Federation of People Management Association found that the highest correlations between economic performance and HR practices were related to:

Employee retention
Employer branding
Leadership development
Onboarding
Performance management
Recruiting

For the life of me, I’m not sure why these companies spent so much money to convince themselves of the blindingly obvious: If you want to grow your business, hire trustworthy employees, get them to perform, and keep them on the bus when they do! HR That Works members are fortunate to have a great number of tools that help support these profit drivers.

Side Job Doesn’t Prevent FMLA Claim

In the California case, Richie v. AutoNation, an employee out on CFRA (FMLA) was fired by his employer when he was found to have been working at a restaurant he owned during his leave period. The company’s leave policy prohibited outside employment during leave. The court ruled in favor of the plaintiff, stating that FMLA/CFRA (the California equivalent) has a process to follow in shortening FMLA leave if you believe that an employee no longer qualifies for it. You cannot create your own rule or process and, in a sense, do an end run around FMLA protections. The court ruled that because job reinstatement is mandatory, the only way to stop leave properly is by following the CFRA process and questioning the medical opinion of the employee’s doctor.

This decision reminds us that ignorance of legal requirements is no excuse. In this case, the company argued that it had a good faith defense because it was not aware of this limitation on managing leave. The court essentially said “So what? It’s a mandatory statutory obligation, which you can’t avoid.” As a different court stated, “A showing that an employee is unable to work in the employee’s current job due to a serious health condition is enough to demonstrate incapacity. The fact that an employee is working for a second employer does not mean that he or she is not incapacitated from working in his or her current job.”

Some additional notes:

The decision reminds us that an employer’s policy on secondary employment during FMLA leave must be the same as that for employees who are not on FMLA leave. Otherwise, the policy itself violates the law.
Second, the court overturned an arbitration decision in this case which allowed the court’s good faith defense. Although review of arbitration is very limited, the court will step in if the arbitrator misapplied the law.
Finally, whether it’s FMLA leave, ADA accommodation leave, use of PTO or sick pay, etc., if you doubt the veracity of any employee’s story (i.e. they were playing soccer or lifting pianos this weekend), you must follow the proper procedures so that you don’t find yourself trapped like AutoNation did in this case.

Federal Court to Starbucks: ‘The Law Says What It Means and Means What It Says’

Here’s a second case about an employer who skirted the law. One of the major questions involving tips is the degree to which management gets a piece of the action. A recent federal District Court decision in Massachusetts (Hernan Matamoras v. Starbucks) has followed the trend of the US Department of Labor and many other states by prohibiting an employer from pooling tips with management-level employees. The giant coffee shop chain ended up having to pay to its baristas a bonus because it had allowed shift supervisors, who acted as baristas roughly 90% of the time, to share in the tip pooling. The court stated, “Stripped of rhetorical flourishes, Starbucks’ position invites us to repudiate both the precise language and the clear intent of the 2004 amendments and to resurrect the primary duty test. We decline the invitation.” Even if the supervisors spent only 10% of their time managing, the fact that they were managers barred them completely from sharing any tips.

For more information on tipping, see the FLSA memo and position paper, as well as guidelines from the California Department of Industrial Relations

Please refer to the BNA state law summary for your state on HR in the compensation area of HR That Works.

Agile Working: How One Company Does It

Technology keeps reducing the need for employees to come into the workplace. An interesting article in Human Resource Executive magazine spotlights Unilever’s program for co-mingling home and work activities. Unilever has taken a number of steps that you might consider as part of your telecommuting program:

Create “plug and play workstations” so that telecommuters can come in and work on a project with their team or find some quiet time to themselves. These work areas have a clean desk policy — employees are expected to clean them up when they leave.
Understand the difficulty of monitoring time and attendance. Although this is not an issue with exempt employees, non-exempt employees can find themselves working all hours of the day. We did a Results Only Work Environment (ROWE) webinar which focused on results produced, rather than hours worked. However, this approach can create wage and hour headaches.
Consider security issues. Remember that the telecommuter’s home office has become an extension of your company. You’ll need to make sure that data is secure, workplace safety and company ergonomic standards are in place, and that you have the proper insurance coverages.
Provide employees with access to an environment that’s conducive to work.

The Unilever story has been a success, with about 95% support from workers. As one employee stated, “We work at home and the real reason we come to work is collaboration.”

For more information, HR That Works members should take a look at our Telecommuting report, checklist, and policy.

Notes About Change Management

A survey of 650 change management team leaders by Prosci, Inc. found these obstacles to the process:

Ineffective sponsorship from senior leaders
Insufficient resources
Employee resistance
Middle manager resistance
Poor communication

Due to these factors, only 43% of 604 organizations surveyed by Tower Watson in 2011 achieved their change goals. I can tell you that the No. 1 response to change is frustration — largely due to the obstacles cited above. The Towers Watson Web site has many excellent articles on Change Management (www.change-management.com/tutorials.htm).

To join me in my upcoming Webinar on Managing Change at Your Company, click here.

The Nationwide Abuse of Unemployment Benefits

Fraudulent payment of unemployment insurance benefits is a nationwide problem, accounting for as much as 14% of total payments in some states. The chart shows that most states are paying anywhere from 8%-12% extra in claims. When you consider that the payment period for many claims has been extended during the Obama Administration, that’s a lot of wasted dollars!

http://www.dol.gov/dol/maps/map-ipia.htm#.ULqTLobNnsk

Most employers give up on fighting unemployment claims because they find it very difficult to win them. Lawyers are too expensive to hire, and employers have too little expertise — that’s why unemployment benefits consultants have set up a niche practice of defending employers.

In general, unemployment insurance is available to employees who lose their jobs “through no fault of their own,” as determined by state law. Although federal law sets some guidelines, each state administers its own unemployment insurance program. All but three states fund their programs from a tax imposed solely on employers. Employees generally receive payments for maximum of 26 weeks in most states, unless the period is extended in times of high unemployment. Employees are required to look for other work and prohibited from receiving benefits once they obtain it (this is where much of the fraud comes in).

In most states, an employee fired for misconduct can be denied unemployment benefits. The question is, how do you define “misconduct”? Essentially, it has to be a willful act, such as insubordination, excessive absenteeism, insubordination, dishonesty, or drug or alcohol use that damages the company in some way. However, fired employees who simply don’t do their job properly or in a timely fashion will be eligible for unemployment benefits.
For example, the California Unemployment Code § 1256 states:

“An individual is disqualified from unemployment compensation benefits if … he or she has been discharged for misconduct connected with his or her most recent work.” Misconduct is limited to conduct evidencing such willful or wanton disregard of an employer’s interests as is found in deliberate violations or disregard of standards of behavior, which the employer has the right to expect of his employee, or in carelessness or negligence of such degree or recurrence as to manifest equal culpability wrongful intention or evil design, or to show an intentional and substantial disregard of the employer’s interest or the employee’s duties and obligations to his employer. On the other hand, mere inefficiency or unsatisfactory conduct, failure in good performance as the result of inability or incapacity, inadvertencies or ordinary negligence in isolated instances, or good faith errors in judgment or discretion are not deemed “misconduct” within the meaning of the statute.”

If you intend to contest an unemployment claim, make sure that you have documentary support (such as a statement under oath signed by the claimant’s manager or fellow employees, a photo, or a warning notice). Of course, fighting a claim will up the ante with the employee, who might respond by contacting an attorney and filing additional claims. Always something to consider!

Finally, many companies suffer from high unemployment claims because they have unnecessarily high turnover rates. If this is the case, ask what you can do to prevent unwanted turnover. You should also question why you hired the terminated employees in the first place.

Form of the Month

2013 HR Game Plan (PDF) – In case you missed our Webinar, here’s a sample HR Game Plan for 2013, which you can tailor to the needs of your business.

Podcast

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

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

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January 2013 Compliance and Culture Newsletter

“Doubt is a virus that attacks our self-esteem, productivity and confidence. Faith that you and your life are perfectly unfolding is the strongest vaccine.” –Sean Stephenson

This issue discusses:

Editor’s Column: Get Your ‘But’ Out of the Way
A Snapshot of HR Executives in Small to Mid-Sized Companies
Non-Compete Agreements: Can’t Stop Me Now! —At Least in California
What is the Mission of Human Resources?
Five Great Survey Questions
Wisdom About People Management

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

Please click here to view the newsletter in PDF.

Editor’s Column: Get Your ‘But’ Out of the Way

I recently listened to a great interview with Dan Hardy and Sean Stephenson, author of Get Off Your But. This guy has an amazing story. He’s all of 3 feet tall, wheelchair bound – and has become a YouTube sensation as a motivational speaker.

Sean says that his life’s mission is to rid the world of insecurity. I love it!

His interview got me thinking about where I might have insecurities and need to get off my “but!” Where do you feel insecure? Where haven’t you taken your career to where you had hoped it would go? What is the “but” that’s stopping you?

The logical response often has to do with a lack of time. Most people I’ve coached do a poor job of managing their time. In The Effective Executive, management guru Peter Drucker says that time management was the first item he discussed with executives throughout his illustrious career. Is one of your career goals to master the concept of time management? If not, why not? HR That Works Members should take advantage of the Time Management training module.

Often, our greatest “buts” have nothing to do with logic – or we would be accomplishing our goals. Most of our “buts” are emotionally driven nonsense. One of the greatest insights in this area is this: if it doesn’t make sense, don’t try to make sense out of it! For example, if you want to become a more strategic executive, why haven’t you? If time is an issue, why haven’t you mastered time management? Why haven’t you improved your ability to communicate your desires to upper management or your clients? As Sean mentioned in his interview, the worst that could happen is to fail. He said that he’d much rather see his clients fail than sit on the couch. I can tell you that my greatest successes grew out of my greatest failures – resulting either from stupidity or from going for it. This might well be the case for you, as well.

We can tackle these emotional challenges by using three magic words: coax, encourage, and inspire.

When you coax yourself, you take the first safest step. It’s our most natural way of moving forward. Success can only come one step at a time, anyway. If you want to improve your heath, you can put together a six-month total exercise and nutrition plan – but you’ll still have to implement it one step at a time. So, although it might be wonderful to see the end in mind, we have to start at the beginning. For example, I might propose to my clients that we do a drive-by. Let’s put on our sneakers and drive by the gym! Try that and see how it feels. I’m trying to get past any emotional blockages, and, if it doesn’t feel good, it gives you an emotional out. One of my favorite coaxing mechanisms is education. It usually feels pretty safe to learn something. After going through a financial debacle many years ago, I bought every book I could find with the word millionaire in the title. This was a safe first step that gave me the confidence to take action.

The second step is to encourage yourself. We do this by feeling good about ourselves and moving that energy to where we need it. This means you have to spend the time finding the good in you. For example, after I was bummed out about hitting the financial floor, my good friend, Loy Young, helped me find the good in myself and move it to where I needed it. She asked me what it took to be the good trial lawyer that I was. I told her it took me three years of study, followed by three years of practice, to get really good. She said it would likely take me three years of study and three years of practice to get really good about managing my money too. She was right!

Where have you done good things in which you can take pride? Maybe it’s how you raised your kids or coached their team, or ran a project, or helped a client. Why were you able to do this? How did it make you feel? What actions did you take? If you take the same energy and bring it over to where you need it, you will become a master of self-encouragement.

Encouragement involves continually finding things for which you’re grateful. Experience tells me that you can never run out of these things.

Finally, we want to inspire a new story. Our stories have been gifts to us from the outside; be it from our parents, siblings, teachers, friends, social networks, TV, or other sources. If we want different results, we have to give ourselves a different story. I had to get myself a different story about money that finally gave me the ability to keep any of it! If you want different results about your money, career, health, relationships, or spirituality, you’ll need a different story about these things.

The stories we tell ourselves will come to fruition – just never when or how we expect it. Unless you have the right story, you’ll produce a life of regret. Don’t do this; tell yourself a great story!

I hear far too many “buts.” There’s a great deal of blame and justification and not enough taking responsibility. Play the responsibility game: coax, encourage and inspire yourself to get off your “but” – and live a life for which you can truly be grateful!

A Snapshot of HR Executives in Small to Mid-Sized Companies

In a recent HR webinar, I asked three highly revealing polling questions. Here they are:

What have you done to show your value?Nobody knows that you’re doing a great job unless you tell them. It’s not that they don’t care about you; it’s just that they’re running 75mph and barely have time to pay attention to anything but their own work. What effort have you made to get noticed by delivering a report or giving a workshop? Unfortunately, only 21% of respondents said that they created a strategic plan. As Mary Kay once stated, “most people spend more time planning their vacations better than their career.” Or, as I might add, their HR department.
How excited are you about the HR opportunity on a scale from 1-5 (5 being very excited)?

Half of the respondents described themselves as fairly “excited.” Unfortunately, some 43% were just “ok or worse” with HR. Most organizations find the whole idea of HR boring. My guess is that is not the case at the 7% of companies where people said they were very excited about HR! I believe that if 7% can be excited, so can the 93%. It’s simply a choice. What have you done in HR lately that goes beyond administrative or compliance requirements? What have you done to help improve the quality of the workplace (getting rid of poor employees and replacing them with great ones is a start), increasing performance management (having a performance management system that actually works), boosting retention, and giving greater love to that 20% of your workforce that produces 80% of results? What are you helping your company do to become more creative, innovative, and interesting?
What’s stopping you?

I often ask this question in workshops and in webinars. Time is always the most common response (one of those buts again), followed by the company or management. A survey of HR That Works members found that 84% of respondents said they would make better use of the service if they had more time.

Time management is a major issue!

Go to the time management training on HR That Works. Watch the two videos and then start putting them into practice. I would recommend that you start by tracking where your time is going and then eliminate five hours of the uncool, un-valuable work you do every week.

Non-Compete Agreements: Can’t Stop Me Now! — At Least in California

Since the California Supreme Court decided Edwards v. Arthur Anderson, 44 Cal 4th 937 (2008), state law has been that Labor Code Section 16600 invalidates agreements with provisions that restrain employees from engaging in competitive employment after leaving a former employer, including non-solicitation agreements.

An agreement that is void under Section 16600 might also violate California’s Unfair Practices Act in Sections 17200 et seq. of the California Business and Professions Code. As a result, an employer could have a non-solicitation case and still face a lawsuit for unfair business practices.

Amazingly, the risk posed by restrictive covenants extends beyond the employer’s California employees. In the Application Group case, the court found that Section 16600, and by extension Section 17200, applied broadly to any “employment in California.” The court interpreted this term to mean: (1) employees living in the state; (2) employees living out of state, but hired by California employers; and (3) employees living out of state, but performing services in state. As a result, the court struck down the non-compete agreement of a Maryland employer with a former employee living in Maryland who was hired by a California employer.

Going on the offense, California employees, sometimes with the support of their new employers, sue in California state court seeking a declaration that any non-solicit agreement is unenforceable and that trying to enforce it would violate the Business and Professions Code.

Companies with “choice of law” and “forum selection” clauses in your agreements, might be able to enforce such claims in their home state. Sometimes this can lead to litigation in two states which means spending a lot of money on lawyers. Although you might win a judgment in your own state, trying to enforce it in California will be another story.

In the end, good luck protecting anything but trade secret info – which means that you’ll you need to treat it as such. In your business what have you protected to that extreme?

P.S. Here’s the law defining trade secrets in California.

What is the Mission of Human Resources?

How many of you have a mission statement for your work? Not a company one, but a personal one? Stephen Covey encouraged us to do this years ago, exhorting us to find that sweet spot where our personal mission statements and corporate mission statements come together.

I believe that the most important corporate mission statement involves creating a great customer or client experience. We live in an “experience economy”, in which nothing is more important. In today’s world, products and services are fungible – it’s the experience that provides a company’s “degree of uniqueness.” This allows businesses to point to a “true North”, as Covey would say. When we’re asking ourselves which is the right strategy or if we’re doing the right thing, we can just go back to our mission statement and ask “is this helping us create a great customer experience – or is it doing something else?”

How does this dovetail with your personal mission statement. My mission is to help people benefit personally and professionally by using effective human resource practices. That might be your mission, as well. It might be to generate the most profitable, engaged workforce ever, or to improve the lives of all the people who you touch every day.

Whatever your mission, don’t shy away from it. Embrace, brand, market, and live up to it. Bring others into the fold. Remember, none of us can fulfill our personal mission statement without the help of others. HR That Works members should take a look at the Vision, Mission, Goals worksheet in the Miscellaneous section of the Personnel Forms. If you don’t have access to the program and you’d like a copy by e-mail, contact me at don@hrthatworks.com.

Five Great Survey Questions

In the excellent book, Emotionomics, the author’s company conducted a survey asking employees these five questions:

Does your manager help with work?
Do you feel that you’re part of a team?
Are you informed about new job expectations?
Are you aware of the company’s future plans?
How do work changes make you feel about your job?

How would your workforce answer these questions?

Wisdom About People Management

I recently did a workshop for a group of CEOs at which the Chair asked the participants, “What single piece of wisdom have you learned about managing people?” Here are some of their responses:

Don’t try to manage more than seven reports at a time.
Be firm, but fair.
Focus on the problem and not the person.
Never look a gift resignation in the mouth.
Be direct; people want the truth and nothing but the truth.
Tap into the company’s informal communication network.
Don’t take things personally (one of Don Miguel Ruiz’s Four Agreements).
Never take sides.
Listen (can you listen to someone for five minutes straight without any interruption, criticism, or judgment?).
Be slow to hire and fast to fire (a popular topic in the workshop!).
Bear in mind that a decision driven by emotion, is not driven by logic (or, as I like to say, if it doesn’t make sense, don’t try to make sense out of it!).

Form of the Month

Hiring Checklist (PDF) – This checklist makes sure your company takes the steps necessary to hire only the best.

Podcast

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December 2012 Compliance and Culture Newsletter

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

This issue discusses:

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

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

Please click here to view the newsletter in PDF.

Editor’s Column: Workplace Statistics Speak Volumes

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

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

Three Questions Job Applicants Should Be Asking You

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

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

Have You Ever Promoted the Wrong Person Into Management?

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

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

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

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

The Importance of Formalized Training

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

Hiring great people
How to manage the performance of great people
Keeping great people
How to motivate great people
Dealing with poor performers and the termination process
Compliance basics
Effective leadership and management skills
Emotional intelligence
Business acumen
Creativity and innovation
Managing across generations
Time management

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

Data Retention vs. Data Destruction

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

Three Keys to Effective Wellness Programs

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

Here are three major conclusions I gleaned from the paper:

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

Why Workers Don’t Use Vacation Time

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

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

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

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

Improving Performance Evaluations

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

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

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

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

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

Spotting Scoundrels

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

Leadership Challenges with Millennials

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

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

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

Most Employees Face Health Challenges

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

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

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

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

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

Considering Obamacare

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

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

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

Form of the Month

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

Podcast

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

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November 2012 Compliance and Culture Newsletter

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

This issue discusses:

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

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

Please click here to view the newsletter in PDF.

Editor’s Column: Time to Start Delegating

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

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

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

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

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

Raise the Financial Awareness of Your Employees

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

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

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

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

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

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

Accommodations Related to Commuting to and From Work

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

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

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

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

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

Automatic Transfer to Vacant Position May Be Required as Reasonable Accommodation

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

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

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

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

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

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

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

Anyone Not Stressed Out?

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

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

What is HPM?

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

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

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

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

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

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

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

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

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

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

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

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

Form of the Month

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

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