Your Employee Matters

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

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

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

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

Proper documentation of any undue burden

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

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

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

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

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

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

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

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

Employers must also:

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

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

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

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

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

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

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

Approximately 58 million Americans — one in four adults – experience a mental health impairment in a given year (National Alliance on Mental Illness, 2007). One in seventeen individuals lives with serious mental health impairment (National Institute of Mental Health, 2008). So the chances are that at some point you’ll be interviewing or hiring someone with a mental impairment. How should you handle it?

It takes the EEOC 56 pages to define a mental disability; and the list of potential disabilities is long: bipolar disorder, borderline personality disorder, depression, obsessive compulsive disorder, panic disorder, PSTD, schizophrenia, and dozens of others. The bottom line: Every one of the maladies has a limitation associated with it, such as an inability to concentrate, interact with others, remember things or handle stress.

Before making a job offer, an employer can ask if an applicant has the ability to meet the essential job functions of the position- with or without accommodation. If their disability is immediately noticeable, you may ask if you need to adjust any interview or testing formats to accommodate them.

Once an offer is made, you can dig deeper into any limitations to determine if the person is mentally “fit for duty.” Your best bet is to work with a certified occupational medicine physician when conducting this analysis. Also consider JAN for mental accommodation ideas.

Companies usually use some type of employee performance evaluation to assess successes and gaps in performance and convey these assessments to employees. Although this might be helpful, it’s not enough. If you want your employees to be more engaged and productive, you need to understand their intrinsic motivations.

To do this, consider adding these questions to the employee performance review conversation. (Notice that we use the word “feel” a lot because it’s the employee’s emotions that should concern you.):

• How do you feel about your job?
• How do you feel about the direction of the company?
• Do you feel that you have improved your skills over the last year?
• To what extent do you feel that you have grown as a person while working for us during the past year?
• What do you feel is the most valuable thing you do at work?
• Where do feel you can add more value to the company?
• Out of curiosity, have you looked at other job opportunities or are you completely satisfied here? If not, what would it take to satisfy you?
• Do you feel you’re being paid fairly? If not, what do you feel you should get paid and what do you base that on?
• Do you feel we have exhibited a management style that’s caring and supportive? If not, how can we do a better job of this?
• Is there anything that we haven’t spoken about that feels unfair to you and might get in the way of our working relationship or your success at this company?
• Is there anything else you would like to share that we haven’t talked about?

These are brave questions to ask because most managers really don’t want to dive into the emotional landscape – which is a big mistake. As Daniel Goldman reminds us in Emotional Intelligence, it’s your E.Q., not your I.Q., that’s most important to becoming a great leader or manager.

Consider having this conversation outside of your office where it might feel safer for the employee. For example, “Now that we’ve discussed your performance I like to have a little deeper conversation about your work here and I don’t want to do it in the office. Where would you like to go talk about this? ”

You don’t have to buy this idea wholesale. Test it out. Play social scientist and begin with just one employee. Let him or her know that you’re opening up to a more meaningful conversation; and that because you’ve never tried this before it will be a learning experience for both of you!

I recently came across a question which exposed a recurring problem in many organizations – management protecting top producers who bully other employees or push them around. The belief is maybe that’s what it takes to succeed in this competitive business world.

This approach is asking for disaster. Companies that are aware of such a situation and ignore, bury, or deny it, are exposing themselves to significant risks down the road. Hopefully they saved some of the dollars that their “breadwinner” generated to buy an EPLI policy for the inevitable lawsuit.

Consider this letter:

“I work in retail sales. My coworkers and I feel harassed every day by the senior salesperson, who is the top salesperson and feels she is untouchable. In fact, she almost is, because our manager won’t correct her even though we have complained about her misbehavior several times. This salesperson threatens and, harasses us, and jeopardizes and poaches our sales, leaving us miserable and stressed. She wants all the sales to herself and will retaliate when she can’t have her way. She has made the workplace hostile. Although we have complained about her in our annual self-assessments/reviews, we haven’t had a response from corporate. Now we all are planning to send a letter straight to corporate HR. Is this the right thing to do, or is there a better option? Of course, we’re a bit nervous that we could jeopardize our employment, because corporate might side with her as the top seller. Any advice would be greatly appreciated.”

What would you advise this person to do?

I listened to an interesting Freakonomics podcast about gossip (http://www.wnyc.org/story/everybody-gossips-thats-good-thing/ )’ According to the podcast, often one person’s gossip is another person’s information. Much of this, of course, depends on one’s point of view. Companies don’t want gossip that’s distracting to productivity, but at the same time they need to identify blockages to productivity, and maybe even wrongdoing. As the saying goes, “Where there’s smoke, there’s fire.”

Speaking of sayings, one of my favorites is “light is the best disinfectant.” Another metaphor I refer to is “problems are better solved when they’re on top of the table than when they remain underneath.” So, how can we put gossip that’s informational on the top of the table, where it’s in the light, and ignore gossip that’s nonproductive?

There are three basic ways to get at informational gossip:

1. Be a good listener. If you show you care, then your employees will be more likely to share.
2. Have one-on-one conversations that give employees the emotional space to express themselves. One of my favorite questions is “does anything feel unfair to you about your work experience?” Group conversations (focus groups) work, too. Just make sure to have them in an environment that feels safe.
3. Survey employees. I recommend the Employee Compliance Survey that HRThatWorks created because it lets you know if there’s any smoke or fire in the environment. When it comes to surveys in general, those that are anonymous or that have “1 to 5” responses don’t provide much useful information. Instead, ask what’s going well and what could go better. (PS: If you want this form, email me dphin@thinkhr.com)

Here are three ways to prevent nonproductive gossip:

1. Let the workforce know that this stuff wastes time. Whether the gossip is online or face-to-face, limit it to rest and meal periods
2. Keep people busy. When employees have a sense of urgency, there’s little time for gossip
3. Give them something positive to focus on: Positive gossip. Positive drama.

Gossip will never go away – but the energy behind it can and should be channeled into more productive pursuits.

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

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

Lessons Learned:

1. Make sure somebody can clearly communicate the legal obligations surrounding any leave request to the employee. Without proper training it is hard for a supervisor or manager to be that person. Language barriers can also get in the way.
2. Make FMLA and other leaves a process and not an event. Taking a checklist approach is a must (which is why we have an FMLA Checklist on HR That Works).
3. They could have been compassionate and not fired somebody already stressed about a relative’s health. The FMLA and your policies are only the ground floor of obligation to another human being. Instead of proactively assisting the employee and asking how they can be of help, they fire her prompting a lawsuit; the cost of which I am sure has already exceeded her annual income in expense. If the employer calls that “winning” I disagree with their definition of it.

What happens to commissions due a salesperson if they are terminated or quit? That was the question that Mark Dietrich and his former employer Bell, Inc. have been fighting over in Michigan Federal Courts since he was terminated in May of 2011. In the case the court ruled the contract entitled Mr. Dietrich to commissions on accounts he procured for two years from each customer’s contract start date. The case of Dietrich v. Bell identifies many of the issues involved in sales compensation agreements and gives yet one more reason why you should have these agreements reviewed by an attorney.

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

1. Know what laws apply to sales compensation agreements in your state. For example, in this case Michigan’s Sales Representative Commission Act was at issue. Your BNA state law summary can help.
2. There is a difference between lead generation, customer procurement and a sale. If the salesperson generates a lead are they entitled to all the sales anyone makes from them? Or are they only entitled to a commission on direct sales they have made?
3. What does it mean to make a sale? Did they do all they needed to do on their part? Is the commission conditioned on actual payment? What about returns or other offsets?
4. How long are they entitled to commissions? For all subsequent sales or renewals?
5. How involved are they after the sale? If there is an ongoing service obligation that matters in terms of post-termination compensation.
6. Make sure you have all the above in a signed agreement. As mentioned by the court “the contract says nothing regarding termination; it provides no express answer to how the parties intended to terminate their relationship.”

Note this was a difficult decision for the court as one of them dissented, agreeing with the underlying decision of the District Court that no wages were due.