This list I was sent from Claims Journal has some great titles.  What I conclude from them is as follows:

1. When you  go parasailing it’s called an assumption of risk.
2. Taking ecstasy is not an accident, it’s stupid…and an assumption of risk.
3. You don’t want baby seats causing skull fractures. Bumbo?
4. I learned something: “Consumers generally need only share their names, correct vehicle insurance information and the phone numbers of insurance providers. Sharing additional personal information, such as driver’s license numbers and home addresses, puts consumers, their property and their safety at risk.”
5. I learned that Work Comp insurers want: “The elimination of sleep disorder, sexual dysfunction and psychological issues as additions to primary injuries, when determining disability awards”. Not sure what witty thing to say about that.
6. If you look at the numerous comments to this article you can see just how much of an emotional issue this is. Obesity is a choice that has nothing to do with logic; otherwise people wouldn’t be obese.
7. Did anyone really think those stupid looking Skecher sneakers would help them somehow? Seriously? Because Joe Montana endorsed them? That guy is so beat up he can hardly walk anymore.
8. The guy at the beach doesn’t want to pay for your fires and the guy in the mountains doesn’t want to pay for your coastal flooding. And nobody wants to pay for their own problem! Which is a problem.
9. Remember, work comp is a no fault system. This was an accident with no fault you can assign other than perhaps  poor walking skills or footwear being present. She gets the WC.
10. Too much dust and lint is a bad thing. Clean your ducts.

Top 10 for the Past Week

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

This issue discusses:

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

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

Please click here to view the newsletter in PDF.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Doctrine of “Unclean Hands” Bars Employee from Recovery

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

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

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

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

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

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

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

Court Limits Reinstatement Obligations After 12 Weeks of FMLA Leave

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

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

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

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

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

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

Form of the Month

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

Podcast

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“The more you lose yourself in something bigger than yourself, the more energy you will have.” - Norman Vincent Peale  

This issue discusses:

• Editor’s Column: Positive Discipline
• It’s April—Have You Updated Your Posters and Employee Handbook?
• Avoid Hiring Discrimination Claims
• Presenting For Results
• Workplace Violations in Low-Wage Labor Markets
• Mixed Motives
• Executives Can Be the Greatest Risk
• Rude Boys
• Sex Stereotyping
• Keeping Complaints Confidential

We have also provided you with the Form of the Month

Editor’s Column: Positive Discipline

I recently finished the Positive Discipline for Parents course by Jane Nelsen. I would recommend this program to any parent. I’ve already raised two sons who are great young men at 29 and 31. Now I’m blessed with an eight year-old and I remain motivated to be a great parent. 

Having “been there and done that” just isn’t good enough. Odds are, by listening to the discipline course and applying it, I’ll become that much better. 

Much of the course centers on leadership and discipline. We’re instructed to be “kind, but firm,” to focus on encouragement and engagement rather than punishment or reward. Finally, we learn how to deal with poor behavior: How to react – or more importantly, how not to react – to create promises, mutual agendas, and consequences.  

Here’s a fact: There’s no substitute for continually improving yourself as a parent, executive, manager, or employee!  

I know every one of you is running 75 miles per hour. Trust me, I run pretty hard too, but I’ve learned that when I take care of myself and feed my body, mind, and spirit, I become a far more energetic, effective, and likeable person. 

In the end, the greatest discipline must be to doing my best, all the time. 

It’s April—Have You Updated Your Posters and Employee Handbook? 

At the beginning of the year, we recommended that you get your new all-in-one posters from the Compliance Store for only $19.95 (under Links in HR That Works), as well as updating your employee handbook – especially EEO, ADA, and FMLA provisions. While we’re on the subject of employee handbooks, look at the handbook we did for the San Gabriel YMCA. We ran a contest through eLance challenging top graphics people to bring the handbook to life. Summer Bonne of Washington State won the contest. To see the first 20 pages of the handbook, click here. If you’re an HR That Works member, go to the Employee Handbook page, where you can find out how much Summer will charge for bringing your handbook to life. 

Avoid Hiring Discrimination Claims

To help protect yourself against discrimination claims in the hiring process, we recommend that employers answer these questions developed by the California Case Analysis Manual: 

Discrimination 

Did the respondent fail to select the complainant because of the complainant’s protected status (race, sex, etc.)?  

Relevant Questions: 

• Did the adverse action (failure to select) actually happen?
• Is the respondent’s claim that the complainant is less qualified than the person selected accurate?
• Is any other rebuttal asserted by the respondent valid?
• o Is the respondent’s reason for not selecting the complainant factually accurate?
• o How did the respondent treat others in a similar situation as the complainant?
• Does the respondent’s application of its pre-selection procedures to similarly situated persons indicate that the failure to select occurred because of the complainant’s protected status?
• Does the relevant statistical pattern indicate that the failure to select occurred because of the complainant’s protected status?
• Is there any direct evidence to link the failure to select to the complainant’s protected status?
• Is there any anecdotal evidence to link the failure to select to the complainant’s protected status?

Presenting For Results

Effective human resource or other executives must be able to communicate to an executive group, a prospective employee, or business partner. To make sure that you’re communicating effectively, follow these guidelines: 

• Tell a story. People love stories. Stories have a beginning, middle, and end.
• Don’t engage in death by PowerPoint. Too many presenters overwhelm their audience with far too much information in their PowerPoint. It’s called PowerPoint, not PowerParagraph. Don’t have more than three bullet points on any slide. Don’t use entire sentences, just a snapshot of the point to be made. Even better, see how just one picture can express many words. An excellent book to consider is Presentation Zen by Garr Reynolds.
• Begin logically and end emotionally. Move from the left side of the brain to the right side. Give people powerful information and the emotional “why” for applying it.
• Less is more. Sometimes it’s better to communicate from a single page of bullet points than from an extensive handout. You can always make more information available later on.
• Ask powerful questions. What can you ask that would be thought provoking? What questions keep your audience up at night? What questions will develop a rapport with your audience immediately?
• Get feedback regularly. Be sure that your audience understands your point. Do they agree with you? For example, after making a point, superstar presenter Tony Robbins will ask the audience to say “Ay” in unison to help reinforce the point just made.
• Wrap it up with action items. Identify the actions that you and your audience should take next. Give them a form or checklist to apply the information shared in your presentation.

Follow these presentation essentials and you too will do a great job of communication. 

To learn more about presentations, see our Form of the Month: Powerful Presentation Techniques.  

Workplace Violations in Low-Wage Labor Markets

An extensive survey of more than 4,000 low-wage workers in Los Angeles, Chicago, and New York City by the National Employment Law Project (NELP) reached these conclusions: 

• More than one in four workers surveyed (26%) were paid less than minimum wage.
• Among these workers, 16% were underpaid by more than one dollar per hour.
• More than three in four (76%) workers who worked overtime were not paid for their time. The average worker had put in 11 hours that were either underpaid or not paid at all.
• Women and foreign-born workers were victimized more than anyone else.
• The average wage theft was 15% of earnings.

Additional violation categories included: 

• Off-the-clock
• Meal breaks
• Pay stubs
• Illegal deductions
• Tips
• Illegal employer retaliation
• Workers Compensation violations 

It is hard to balance this economic suffering with the fact some executives are making tens of millions of dollars during a failing economy. You don’t have to be of any political persuasion to realize that something’s out of whack. Not only do these employers deprive good people of a fair day’s pay, they’re also at war with companies who strive to grow their business the right way; perhaps even going above the call and actually empowering their workers rather than oppressing them. If we can fight overseas to assure basic human rights, we should be able to do the same here. 

For more information on the survey, click here.

Mixed Motives

In an appeal from a Los Angeles County case, Wynona Harris alleged that the city of Santa Monica terminated her job as a bus driver because she was pregnant. The city submitted a wealth of evidence regarding the plaintiff’s poor performance on the job, including excessive absenteeism and tardiness. The legal issue involved is the “mixed motive” defense. The trial court refused to give an instruction that would have allowed the city to argue that it couldn’t be held liable because even if there were discrimination, Harris would have been fired anyway. In reviewing the jury instruction, the appellate court reversed the trial court and stated that the following instructions should apply: 

“If you find that the employer’s action, which is the subject of the plaintiff’s claim, was motivated by discriminatory and non-discriminatory reasons, the employer is not liable if the employer can establish by a preponderance of the evidence that its legitimate reason, standing alone, would induce it to make the same decision.” 

The court sent the case back to trial using the revised jury instruction; it’s up to the jury to determine whether the alleged reason for the plaintiff’s termination was legitimate or, in fact, a pretext for actual discrimination. 

To read the case, click here.

Executives Can Be the Greatest Risk

Having the wrong executive in the wrong spot might create a legal problem, as well as a business headache. In the California appellate case Align Technology v. Bao Tran, Align sued a former employee, attorney Bao Tran, for stealing their patents and starting a competing law firm. The suit alleged that Tran used confidential information to assist a startup competitor and fund an unauthorized law practice on the side. According to the allegations, Tran used company funds to apply for patents in his own name and for his clients, ran his side business using the company’s phones and computer systems, and misappropriated company property by applying for patents in his own name. Align allegedly learned of Tran’s side business as the result of at least 13 phone calls from his clients, including one call in June 2005 from an individual who indicated that Tran had been his company’s intellectual and patent attorney for three years. Tran denied these allegations and accused Align of defaming him and attempting to undermine his new business. 

Bottom line: Don’t assume that your executives aren’t a problem. Many companies focus on rank-and-file employees, even though executives can cause 10 times the damage. 

To read the case, click here.

Rude Boys

The Alabama Federal District Court case, Reeves v. CH Robinson Worldwide, offers a significant guide to sexual harassment workplace issues. Plaintiff Ingrid Reeves began working as a transportation sales rep in the company’s office. She was the only woman. Reeves alleged that sexually offensive language permeated her work environment every day (To read a complete collection of crude language, review the facts of the case). This rude behavior continued despite complaints to co-workers and management. What’s more, an offensive radio program played in the workplace every day. 

Reeves resigned and filed a complaint alleging that the sexually offensive language and radio show created a hostile work environment that violated Title VII. The trial court entered a summary judgment for the company on the grounds that because men and women were subject to the same language, the harassment was not “based on” Reeves’ sex.  

She appealed, claiming that simply because she was not the target of the harassing language did not determine whether there was a hostile work environment. The appellate court agreed, ruling that “sex-specific profanity” is more degrading to women than men, and that a workplace permeated with discriminatory intimidation, ridicule, and insult satisfied the “based-on” element required to support a sexual harassment hostile environment case. The court based this conclusion in part on parallels with race discrimination cases. 

After analyzing the frequency and severity of the problem, the court held that the evidence provided could lead a reasonable jury to believe that the harassing conduct need not tangibly affect an employee’s job performance to be actionable. The court added that, “Ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing does not satisfy the severe or pervasive element required for a claim.” 

Lesson learned: Beware of employees entering a traditionally male or female role at your company. Once this happens, the rules do in fact change! 

To read the case, click here.

Sex Stereotyping   

Brenna Louis v. Harlan Inns, a Federal District court case in Iowa, involved a unique set of facts. To make a long story short: An admittedly “masculine looking,” yet productive woman was not considered “front desk material” for the Harlan Inn, according to one (female) manager who insisted on front desk clerks coming as close to the perfect “Midwest girl” image as humanly possible.  

The court, relying heavily on the U.S. Supreme Court case Oncale v. Sundowner (1988) stated that the plaintiff’s dismissal and harassment “was because of her sex.” According to the court, “The question is whether [the managers’] requirements that Louis be ‘pretty’ and have the ‘Midwestern girl’ look is because she is a woman.”  

Interestingly, the chief judge dissented. He likened the hotel’s actions to declining to hire a female cheerleader because she isn’t pretty enough or a male fashion model because he isn’t handsome enough. The other justices disagreed, arguing that the employer is responsible for proving the affirmative defense that physical appearance is a bona fide occupational qualification (which they could not).  

Editor’s comment: One can easily see the arguments on both sides. If I don’t like the way someone looks, I don’t have to work with them, whether I have one employee or 5,000. On the other hand, there’s the argument that we’ve progressed past the place of permitting discrimination of any kind without a real business justification. Enforcing this level of tolerance or acceptance is always difficult at best. Of course, there’s a proper balancing point — someplace. Here’s the case link.  

The bottom line: If you’re aiming for a specific “look in employees,” you might face a lawsuit. A well-known California case involved a manager saying that one of the L’Oreal cosmetic girls wasn’t pretty enough. The fact that she complained about this as a discriminatory remark eventually resulted in her filing a wrongful termination retaliation-based claim.

Keeping Complaints Confidential   

In a Second Circuit case, Karen Duch sued the State of New York for sexual harassment. Duch, a court officer at the Manhattan Midtown Community Court, spoke with a manager who was also an EEO liaison about ongoing harassment. Duch told the manager, “I’m telling you as a friend;” when asked if she wanted the harassment reported, she responded “Absolutely not.” Because of this request and despite her EEO responsibilities, the manager did not report the harassment to anyone. In ruling against Duch, the court stated several conclusions that employers should consider:  

• When harassment comes from a co-worker, rather than a supervisor, the employer is held liable only if it fails to provide a reasonable avenue for complaint or to take appropriate remedial action about a problem they know of.
• In this case, Duch had reasonable avenues of complaint, despite the fact the EEO liaison was poorly trained and failed to report her complaints to anyone. Duch acknowledged she could seek assistance from at least five different sources, in addition to the manager.
• Also at issue was the question of whether her manager’s failure to react could be imputed to the company. The court reminded us this would be the case when: (a) the official is at a high enough level of management to qualify as a proxy for the company; (b) the official has a duty to act on the knowledge and stop the harassment; or (c) the official has a duty to inform the company of the harassment. The court held that in this case, the manager did not breach her duty to remedy the harassment because she honored an employee’s request to keep her complaint confidential. The court also ruled that the conduct had not reached the point that a manager simply cannot stand by, even if requested to do so by the employee.
• Unfortunately for the employer, there was another higher-level executive, whose knowledge of the complaints was imputed to the employer. The court stated that when an employee’s complaint raises the specter of harassment, a supervisor’s purposeful ignorance of the nature of the problem would not shield an employer from liability under Title VII. This holds true even where the executive never learned about, and did not witness, the alleged harassment.
• In light of their ruling that a jury could find that there was knowledge of the harassment when Duch requested a schedule change from another manager, a jury could also find that their response was unreasonable. A formal investigation of the complaint did not begin until three months later.

Lesson learned: Be very clear about what you want your managers to do when they suspect or know about wrongful conduct:  

• What should they do if they know about it but nobody complains?
• What should they do if somebody complains to them, but asks them not to say anything?
• What should they do when things gets so bad that they should say something despite the employee’s request?
• How should they approach someone about what they might suspect is harassing conduct? Should they say something like, “Is Bob harassing you? Should I speak to the EEO about this? If you want me to keep it confidential I’m going to write this down to protect the company and myself. If you feel you need help, bear in mind that I’ll always report it to a proper superior or you can go directly to that person without involving me if you want to.”

As always, we recommend that all HR That Works members use the Employee Compliance Survey every six months. If the company had done so in this case, it could have avoided the second-guessing and engaged in appropriate conduct. To read the case, click here. 

Form of the Month

Powerful Presentation Techniques (PDF)  

 Use these guidelines to get your message across to managers, employees, clients, and the public.  

(HR That Works Users can access this form in Word format by logging on to the site).  

Podcast

Please click here to listen to the April 2010 Compliance and Culture Podcast.

Podcast: Play in new window | Download

 “Objectives are not fate; they are direction. They are not commands; they are commitments. They do not determine the future; they are means to mobilize the resources and energies of the business for the making of the future.”

- Peter Drucker

This issue discusses:

• Editor’s Column: Asking the Right Questions
• Labor History Quiz
• Diploma Mill Scams
• Beware of Punishing Employees Who Complain About Wages Owed
• Create a Fun Workplace
• Moving Down Maslow’s Hierarchy of Needs
• A Review of the 2008-2009 Supreme Court Term

We have also provided you with the Form of the Month

Editor’s Column: Asking the Right Questions

My years as a litigation attorney provided me with excellent insight into failed business and employment relationships. Here are a few critical questions business owners, managers, and employees can ask themselves to make sure that their thinking is on the right path:

•  Is it in the best interest of the team? There’s no substitute for playing with a win/win attitude. As they say, “A rising tide floats all boats.” Putting the team first does not mean that you have to settle for mediocrity – or that you decide simply on a consensus basis. Putting the team first means that you ask the critical question: “Is this in the best interest of the team (or company, nation, family, etc.)?”
• Will this increase or decrease the level of trust in the environment? I’ve never seen a failed relationship where the parties trusted each other. Trusting partners even dissolve their relationships in an amicable manner. To make a trustworthy decision means that you have the skills or critical thinking necessary to make this decision and that you do so with good intent. That’s what makes anybody trustworthy to me. They have the skills and desires I can trust.
• Is it in alignment with our vision, mission, and goals? Sometimes there can be a true conflict among these outcomes. For example, NASA wanted to launch its shuttles in both a timely and safe manner. When the goal of timeliness overwhelmed the goal of safety, it resulted in an ethical violation – and lost lives. Because it’s very hard to know if you’re in alignment if you haven’t clearly identified your vision, mission, or goals, you might want to throw in values, commitments, and anything else on which you intend to focus.
• How does the approach feel? Often we make poor decisions because we’re running so fast that we can’t feel what’s going on. This is one reason why I often sleep on major decisions, perhaps even for a few days, before making a major decision. If after three or four days it still feels right, I’ll go for it. Unfortunately, when I forget this lesson, I end up paying the price.
• Is it legal? Are you sure or just guessing about it? What further research should you conduct?
• Should I get outside advice? There’s no substitute for professional help when making decisions. People rely on the Worklaw® Network and I try to answer their Hotline calls as part of the HR That Works program. Knock on wood, but from what I can tell, not a single one of these calls has turned out poorly for a client who followed the advice. It’s important to be able to get outside your own head when making critical decisions. 

Conclusion: Follow these steps and you’ll avoid a variety of risk management problems.

Labor History Quiz 

Enjoy this fun and informative quiz on labor history, created by the Alabama Department of Labor.

Diploma Mill Scams

The FTC has issued helpful guidelines to help employers avoid the pitfalls of false degrees.

Click here for more information.

Beware of Punishing Employees Who Complain About Wages Owed

IMPCO Technologies found itself in a no-win situation. Just after having moved over to a new time-clock program, two employees approached their manager, Manuel Barbosa, claiming that they were not paid overtime for a couple of hours. Since their manager was also paid on an hourly rate, he realized that if they hadn’t been paid, neither had he — so he submitted a claim for overtime to human resources. An investigation determined that the employees did not work overtime. When confronted with this finding, the manager maintained his good faith belief that he was entitled to overtime. The company, which, in fact, had paid the overtime, dismissed the manager for intending to defraud the company. He promptly sued for wrongful termination.

When the case made its way to trial, the court ruled that the company had terminated the employee for his dishonesty, not for making a claim for overtime. On appeal, the court ruled that if an employee brings forth a wage and hour complaint in “good faith,” they are thereafter protected from termination even if, in fact, they prove to be wrong. The case was reinstated, with instructions to determine if the manager had acted in good faith.

Lesson to employers: Think twice about firing any employee who complains about anything. If such a situation arises, contact the HR That Works hotline or your attorney before making a decision. Remember that, in general, if the matter complained about affects public policy (health, safety, labor laws, tax laws, etc.) the employee is generally protected from a retaliatory discharge.

To read the case (Barbosa v. IMPCO Technologies), click here.

Create a Fun Workplace

Life is short. There’s absolutely no reason why we can’t have fun while making money every day. What follows are 13 suggestions that you might want to employ at your company.

1. Set up a fun committee. Put some of the “funniest” people at your organization in charge. Give them a budget — maybe $10 per employee per week and see what they can do with it for a couple of months.
2. Have a community service day. Giving back to the community is fun. Whether you coordinate an event for the Boys and Girls Club, a homeless shelter, senior citizen home, a group cleanup project, etc, giving back on a group basis is even more fun.
3. Set a red noses day. Whether you wear red noses, Groucho glasses, or silly hats, it’s fun to have a day like that. You simply can’t take each other seriously when you do (I can hear the chorus now, “But I want to be taken seriously!”).
4. Ask for kids’ pictures. A number of companies have encouraged their employees’ children to produce pictures that they can hang up in a hallway. One company specifically created slot-like frames for 8.5” x 11” paper, which made it very easy for the parents and kids. You can’t stay in a funk very long walking past a bunch of pictures drawn by kids.
5. Bring in a magician. Let them walk around and do some magic tricks for your employees. Sure, they might be distracted for all of five minutes, but they’ll have fun doing it — which is exactly the point!
6. Hold theme days. Whether it’s Country/Western, 60s, 70s, or otherwise, it’s fun to not only dress up employees, but the environment as well. This goes great for St. Patrick’s Day, Fourth of July, Veterans Day, and of course, Halloween.
7. Require people to provide a joke with their résumé. When one CEO told us about this, we thought it was a brilliant idea. He said reading résumés is one of the most boring things you can do. Requiring a joke certainly makes it more fun. Second, if people can’t follow instruction he won’t hire them. And third, you get an idea of what type of sense of humor they have.
8. Run a cartoon caption contest. Get a cartoon, blank out the caption, and then have a contest for your employees to fill in.
9. Hold food events. Eating with your friends and colleagues can be fun. Many companies will have food events around a holiday theme. Encourage people to bring a dish native to their heritage. We’ve tasted some of the best — and most unusual — food at these events.
10. Stage a murder mystery. A body was just found by the water cooler. Who did it? You can easily hire actors who perform these skits in the evening to come into your company and spend an hour or two some afternoon.
11. Throw a sundae party. Bring in a boatload of ice cream, nuts, and cherries and engage in some sugar overload. What could be more fun than that?
12. Have story day. Have folks share a humorous workplace story either at your company or a previous employer. Issue some basic guidelines, such as no obscenities and no ridiculing any current employees, to avoid offending them. Keep a time limit of, say, five minutes.
13. Get out and do something physical together. Whether it’s a ropes course, bowling, or miniature golf, it’s fun to engage in physical activity. Many companies also have softball, soccer, basketball teams, and the like as well.

There are dozens of other ways to have fun, limited only by your imagination!

Moving Down Maslow’s Hierarchy of Needs

The recent Internet Labor Outlook Survey by the Society for Human Resource Management (SHRM) included a question about the most important aspects of employee job satisfaction. The results, in order, were:

• Job security (63%)
• Benefits (60%)
• Compensation/pay (57%)
• Opportunities to use skills and abilities (55%)
• Feeling safe in the environment (54%)
• Relationship with immediate supervisor (52%)
• Management recognition of employee job performance (52%)
• Communication between employees and senior management (51%)
• The work itself (50%)
• Autonomy and performance (47%)

At the bottom of the list came items such as being in a green workplace, networking opportunities, career development, social responsibility, and so on.

These results show that when we hit tough times, our needs move down the Maslow Hierarchy.

In today’s economy, it’s very difficult to self-actualize when you’ve just been laid off from a job. Survival, security, and belonging are what employees need right now. Their egos are in check — and trying to save the world might have to wait until another day. This is one reason why I continue to support the notion of open-book management. It’s about having an authentic and honest conversation about money (an item in great demand today). Show your employees the black and white of their futures and understand how they can shape it to the benefit of all.

A Review of the 2008-2009 Supreme Court Term

Worklaw Network Member Firm Franczek Radelet’s has provided us with a great summary of recent U.S. Supreme Court cases. Labor and employment-related cases figured prominently in the U.S. Supreme Court’s recently concluded 2008-2009 term. The Court’s conservative Justices continued to play a dominant role, with Justice Kennedy often casting the deciding vote. This trend will probably continue at least through the next term, despite the replacement of Justice Souter by Justice Sotomayor.

During the 2008-2009 term, the Court took these actions: 

• Considered whether an employer’s well-intentioned decision to disregard promotional test results and avoid claims of disparate impact discrimination violated Title VII.
• Held that “mixed motive” jury instructions applicable to cases arising under Title VII may not be given in discrimination cases pursued under the Age Discrimination in Employment Act (ADEA).
• Found that a pension plan qualified as a bona fide seniority system and did not violate the Pregnancy Discrimination Act by giving less credit for maternity leave taken before that law took effect than for other medical leave in calculating pension benefits.
• Determined that Title VII prohibits retaliation against employees who participate in an employer’s harassment investigation.
• Held that a collective bargaining agreement can waive employee rights under the ADEA.
• Found that a local union’s charge of litigation fees to nonmember employees was constitutional.
• Addressed the constitutionality of a state law that prohibited the use of union dues deducted from public employees’ paychecks for political purposes.
• Adhered to the “plan documents” rule under ERISA requiring that plan administrators follow the express language of plan documents in all but a very few, narrowly defined circumstances.

 Read the entire report here.

Form of the Month 

Independent Contractor Agreement  (PDF) 

If you’re sure you have a proper 1099 arrangement, use this agreement to get it in cement.

(HR That Works Users can access this form in Word format by logging on to the site).

Podcast

Please click here to listen to the February 2010 Podcast.

Podcast: Play in new window | Download