Your Employee Matters

In a case that illustrates how a supervisor’s ill-advised comments can come back to haunt a company, the U.S. Court of Appeals for the Sixth Circuit recently revived a discrimination case by an older employee who had been laid off.

In Sharp v. Aker Plant Services Group, Inc., the plaintiff accused his employer of age discrimination because it terminated him while retaining a younger worker whom he had trained. His supervisor allegedly told him that the company had a succession plan “where you bring in younger people, train them, so that when the older people leave, you’ll have younger people.” The plaintiff also had a recording on which the supervisor said: “We’re all of the same age and we’re all going to retire; I had the opportunity to bring the next generation in, so that’s what we decided to do.”

A lower court held that these statements expressed only a concern for maximizing the firm’s return on investment by retaining employees who would stay with it longer. The appeals court disagreed, arguing that this concern about employees’ potential longevity with the company could be considered a smoke screen for direct evidence of age bias. What’s more, although the supervisor stated that the younger employee was a better performer, he had written a strong letter of recommendation for the plaintiff.

The moral of the story: Keep a close eye on termination decisions that involve older employees.

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

The college football world was rocked at the beginning of this season by the possibility that its shining star, Johnny Football” Manziel, last year’s freshman Heisman trophy winner, might have to sit out the season because he violated NCAA guidelines by selling his autograph. Luckily for everyone, the issue has gone away – at least for now. Although one can debate all day long whether college athletes should be able to sell their autographs, the rules currently prohibit them from doing so. I’m sure Mr. Manziel knew this, but it appears he went for it anyway. In the process, he came across as both arrogant and somehow above it all. (Because he comes from a well off family, money is not an issue).

What Mr. Manziel did not consider was the probable effect of his actions on the involved stakeholders: his team, school, the conference, television networks, fans, family, etc. Unfortunately, I’ve seen the same thing happen in the workplace all too often. Whether you call it hubris, stealth, harassment or some other name, these “bad actors” seldom consider the impact of their misconduct on the stakeholders –coworkers, managers, the company’s bottom line, and their own family members – and they can be some of your top performers, too! In today’s high-tech world, nobody can hide from scrutiny. The idea of getting away with something is rapidly fading away. One stupid statement, a thoughtless social media post, or a single questionable act can ruin a career or brand in an instant. There will always be executives and employees who try to skirt the rules. You must be clear about what you stand for and to what degree you will enforce your standards, no matter who the culprit might be.

To help deal with potential bad actors, I’d recommend that you:

• Hire for character, not just for skills.
• Find out about any questionable acts in peoples’ pasts.
• Put them through ethical scenarios and see how they respond.
• Monitor their conduct where practical.
• Don’t tempt people unnecessarily.
• Never trust blindly – keep checks and balances in place.
• Engage in swift damage control.

Here’s a newsflash: Management is responsible to employees, but not for employees. The whole notion that we’re somehow responsible for employees came out of the control and domination era of the manufacturing age. ” Just do what we tell you to do, don’t think yourself, follow our agenda until you’re 65, and we’ll take care of your health and finances until you pass away actuarially at 67.”. Here are some examples of when you know you’ve been stuck in the position of being responsible for employees rather than responsible to them:

1. You find yourself doing too much for them. When people can’t get their jobs done, do you step in and save them? Or do you let go of control and allow them to take responsibility for their results?
2. You think that you have to bribe them to perform well. Frustrated parents will try to buy their children’s behavior. It’s a mistake when managers try to do the same thing.
3. You’re overprotective. You won’t share an employee’s true shortcomings with them because to do so would put them at risk. As a result, you’ll start engaging in a codependency with this person, thus enabling continued poor performance.
4. You micromanage.. Do really want to spend your time trying to control a bunch of adults, anyway? Smart managers are clear about their objectives then empower employees to reach them.
5. Your meetings are one-way communications. You spend time lecturing employees as if they were schoolchildren, rather than empowering them to share problems, ideas, and solutions.
6. You fail to draw a line in the sand. Many managers will never draw this line because they’re playing “savior games.” You know you should fire an employee, but you’re also aware that if you do so this person might go into a financial tailspin. As a result, you keep the employee, which harms both them and the company.

When you’re responsible to employees, you put them in a position where they become capable of success. It then becomes their responsibility to succeed. You can identify your expectations, express your limits, and provide feedback and judgment without trying to fix things yourself, and encourage but not enable them.

Finally, realize that you and anyone that you manage will make some mistakes. Don’t freak out when this happens; just ask yourself what can be done so it never happens again. In this situation, explore your responsibility and allow the employee to explore theirs.

Your business needs an employee referral system that rewards and encourages employee referrals properly. The feature story for Inc. Magazine Database May 2013 issue, discusses how social media is replacing job boards as the primary outlet for sourcing candidates. . According to the Aberdeen Group, 50% of companies with high retention rates decreased their investment in job boards last year. The most popular site use by recruiters is LinkedIn. The most popular tool used by job seekers to find work is Facebook.Interestingly, JobVite stated that employee retention rates skyrocket when they’re referred by other employees. After three years, 47% of referrals were still around, compared to only 14% of job board applicants, (not sure what happened here).

Interestingly, JobVite stated that employee retention rates skyrocket when they’re referred by other employees. After three years, 47% of referrals were still around, compared to only 14% of job board applicants were. As mentioned on this previously, have an employee referral system that properly rewards and encourages employee referrals.

Wage claims keep rising. According to the Seyfarth Shaw law firm, there were 7,764 federal lawsuits alleging the failure to pay overtime and other wages in the year ended March 31, 2013 –a record high, up 10% from the previous year.

An article in Corporate Counsel magazine discussing the Seyfarth Shaw report, state that these claims usually fall into one of three categories: 1) salaried employees who believe they are owed overtime pay; 2) hourly workers who contend that they weren’t paid for all hours worked, and 3) restaurant workers who claim that they received no additional pay under the FLSA “tip credit” provision. According to Seyfarth Shaw partner Noah Finkel, DOL investigators have been focusing on hospitals and restaurants. Finkel points out that although these cases have been traditionally filed in California and Florida, states such as New York, Missouri, Georgia, and others are experiencing more and more claims. He and other attorneys suggest that you conduct an audit or assessment of your wage and hour practices.

Here are some additional recommendations:

1. If you’re uncertain whether employees are exempt or nonexempt, treat them as if they were nonexempt. They can end up getting paid the same amount at the end of the year as long as you calculate the appropriate wage rate when including overtime payments.
2. Use a tool such as the Employee Compliance Survey to find out if there are in fact any concerns about wage payment and follow-up on any “yes” answers.
3. Consider the hours worked by employees both before and after work. For example, in a recent case, a warehouse that required all its employees to go through a security search before they left had been required to pay wages for employees going through that screening.
4. Know the rest and meal period requirements in your state. Because federal law doesn’t govern this, make sure you that you know your state provisions Check out your BNA State Law Summary on HR That Works.

I remember my wife and I going to a parenting class and learning the mantra, “firm, but fair.” It’s okay to have clear rules in your household and enforce them; however, you want to do so in a fair manner. When we’re clear about the rules, we can be firm. . I’m sure you’ve shared my personal experience where parents or bosses have punished you for rules you never knew existed –until after you were punished for them!Often, the knowledge is so “commonsensical” to the parent or boss that they just assume the child or the employee know it also. Never mind that it took 20 years for that boss or parent to finally “get it” themselves. When we’re clear on the rules, there’s predictability. There’s integrity. There’s consistency. The rules don’t change overnight based on emotions. When we’re out of balance on the side of clarity we’ll see people begin to fear us, rebel against us, and leave us – not a good outcome at home or work!

When it comes to being fair, the first thing to remember is that life wasn’t designed to be fair, either at work or at home. Life was designed to be a learning lesson. However, fairness has become the filter of today’s workplace. Everyone wants to feel they’re being treated fairly. ‘A fair day’s pay for a fair day’s work.’ Of course, what might seem fair to me could seem onerous to you. We treat people fairly when we follow the Golden Rule. By asking how we can serve and help others, practicing kindness and compassion despite any differences we may encounter along the way. We understand to separate the conduct from the person.

Managers will continue to struggle with employees about work hours, compensation, communication, expectations, safety, insubordination, conflict, and more. Great managers, like great parents, strike the appropriate balance between firm and fair.

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

Answer: The ADA specifically provides that an employer may prohibit the use of alcohol in the workplace and require that employees not be under the influence of alcohol. The Act permits employers to ensure that the workplace is free from the use of alcohol and does not interfere with employers’ programs to combat the use of alcohol. The general rule is that you can fire an employee for active drug or alcohol use on the job. While current drinking is not protected activity, alcoholism is, and it sounds to me as if this worker might be an alcoholic. Most people won’t put their job at risk once warned to stop…unless they can’t. Here’s the JAN website info on this: http://askjan.org/media/alcohol.html.

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

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

Are tests for alcohol use considered medical tests under ADA?

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

If you reasonably believe that an employee is intoxicated on the job, you can and should have someone drive them to be tested. There’s really only one accommodation for alcoholism- stop drinking. Giving an alcoholic employee time to get their act together is one example of a possible accommodation. If you haven’t had this conversation yet, do so when the person is sober. If the employee has causes no harm to this point, termination for cause, might be a risky step without first considering the accommodation dialogue. Many companies have been sued for doing so. If the employee fails to sign up for and complete a detoxification program, you can then fire them. The ADA does not require that you tolerate a relapse or refusal to obtain help when given the appropriate accommodation.

Finally, if the employee has been a good worker and a good person, work with them. Maybe they’re going through a tough time – we all do now and then. However, if the employee is recalcitrant, belligerent or denies having a problem when you talk with them, then termination will be the best solution.

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

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

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

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

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

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

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

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

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