Your Employee Matters

In the April 2013 issue of Corporate Counsel an article entitled It’s a Systemic World Out There discusses the EEOC’s pursuing large “systemic” cases. For example, in fiscal year 2011 they conducted 580 systemic investigations, filed 84 systemic lawsuits, and settled 35 systemic cases for total $9.6 million. Although your company might not be large enough to be on the EEOC’s radar screen, I can tell you that attorneys are also suing small to midsized companies on a class basis. An employee walks into a lawyer’s office because they didn’t receive their final paycheck, and before you know it they’re filing a class-action lawsuit against your company for missed overtime and meal periods. The article provided a few golden nuggets of advice:

1. When responding to an EEOC inquiry, don’t use the phrase “pursuant to our consistently applied policy.” This only invites a broader request for information.
2. Do not submit more information than is necessary.
3. Conduct your own statistical analysis before submitting data.
4. Do preventative analysis looking for adverse impacts in the hiring, promotion, or termination practices.
5. Validate pre-employment tests.
6. Conduct preventative compensation analysis periodically.
7. Cover all internal analysis with attorney-client privilege. This might be impossible in smaller organizations, but you can certainly retain outside counsel to instruct you on how to conduct such analysis and report back to them.
8. Listen to your employees. As I have always recommended, you should survey your employees, including use of the Employee Compliance Survey that can be found in HR That Works.
9. Invigorate that underutilized internal complaint system. Again, go one step further and ask if there’s a problem –don’t wait for them to tell you there is one.
10. Stay current with legal trends. This is one reason why HR That Works membership is so valuable.
11. Walk the talk. Are you sensitive to the potential for your practices to cause adverse impacts? Frankly in my experience I can tell you that some business owners could care less about whether a practice causes an adverse impact. All they care about is getting the best employees they can, damn the EEOC. Of course, few companies appreciate a risk until they’re hit with it.

Finally, the article points out how large corporations can gather the data requested by the EEOC easily because they have such large HRIS systems. However, most companies with less than 500 employees don’t have this data readily available, and t collecting it can be an over-burdensome process. This is one reason to make sure that you hire an attorney any time you receive a communication from the EEOC or another regulatory agency.

According to the Human Rights Campaign (HRC), 17 states and D.C. prohibit discrimination based on sexual orientation and gender identity. Those states are CA, CO, CT, DE, HI, IA, IL, MA, ME, MN, NJ, NM, NV, OR, RI, VT, and WA. As of December 2012, 57% of the Fortune 500 companies prohibit discrimination based on gender identity. The EEOC has also argued that gender identity discrimination is covered under Title VII.

HRC states that employees who have gone through gender transition have found disclosing their new identity to be a fearful process. What they look for more than anything else is respect and acceptance of their new identity. These employees also want to be able to use the restroom appropriate to their transgendered identity. Creating a separate restroom for them singles out their difference.

Although the number of transgendered employees is small, their transition can cause a great deal of attention, fear, ridicule, and prejudice. Some workers and managers won’t find it easy to accept the transgendered for religious, moral, and other grounds. However, the law requires employers to tolerate these differences, without harming their transgendered employees. As good people, we can accept these differences and move on with life.

For more information, go to the Human Rights Campaign website at www.HRC.org.

In managing today’s disability laws attorneys advise you to not fight whether something is in fact a disability, but simply to worry about whether you can reasonably accommodate limitations to meet productivity standards. A variety of accommodations might be available, depending on the circumstances. Here’s a list of possibilities. To learn more we encourage you to visit the Job Accommodation Network www.askjan.org

1. 1. Make existing facilities accessible. This might include access to break rooms, restrooms, training rooms, parking, furniture, equipment, etc.
2. Allow applicants or employees to bring assistive animals to work (of course under limited circumstances.)
3. Transfer employees to a more accessible worksite.
4. Transfer employees to a different job that they can, in fact, do. Note that you are not required to create a new job as an accommodation.
5. Provide assistive aids and services such as qualified readers or interpreters to an applicant or employee.
6. Restructure the job by the reallocating or redistributing nonessential job functions in a job with multiple responsibilities.
7. Provide a part-time or modified work schedule (not as a permanent solution, but only as an accommodation.)
8. Permit an alteration of when or how an essential function is performed (i.e. instead of being required to come to work at 9 they can come to work at 10).
9. Provide an adjustment to modifications of exams training materials or policies.
10. Allow an employee to work for from home (yes disabled employees may have a greater right to do so than your nondisabled ones).
11. Provide a paid or unpaid leave (no law requires you to offer an indefinite leave.)

Of course, by now you’ve been drilled to understand that what’s a reasonable accommodation versus an undue burden varies on a case-by-case basis. You’ll need to consider the cost and nature of the accommodation, and the overall financial resources of the company, the type of operations, geographic location and other factors. Take a look at the ADA forms and the checklists in HR That Works.

Do any of these sentences pop up into your head when you’re arriving at the workplace?

• I really dread coming in here today
• I’m afraid of that __________ today
• I feel tired just walking into this place
• This place is a disaster waiting to happen
• I wish it was Friday
• I wish I was anywhere but here
• I’m ready for the fight because I know I’m right
• I don’t care if they fire me today, they’re going to learn how I feel about it
• I have to get so much done and I don’t know when I’m going to be able to do it.

Guess what? These thoughts pop up in the heads of your employees. too. My question is what will you do to turn it around?

Many folks will wallow in a horrible complacency. Others will realize that if it’s going to change, they have to create this change. It’s both an inside and outside job.

Look at your situation like a new employee excited about the opportunity!

Also/ take a look at the checklist How to Create a Fun Workplace.

I listened to an outstanding NYC Radiolab podcast on the subject of speed. To begin with, Radiolab is one of my favorite podcasts. The subjects are always interesting, but this was one of those episodes that causes you to really do some deep thinking. Many years ago. the great thinker Buckminister Fuller coined the phrase “accelerated acceleration.” In a sense, things happen faster at an ever faster rate: Speed feeding on itself.

The podcast discussed relative aspects of speed; for example, how it affects stock trading. No longer are stocks traded on the floor, but through ten thousand servers, all connected to a motherboard on Wall Street. Trades are made in microseconds. This technology-driven speed has ended the career of many old school traders. While we might bemoan the good old days, this change has lowered the cost of trading for you and me.

The whole concept of speed is reengineering the workforce dramatically. Pretty soon, there will be an algorithm or program that solves just about every puzzle — the Watson computer being an excellent example. Our best and brightest will continue to create those tools and figure out how to put them to good use. Technology has driven the middleman out of stock trading, just as in many aspects of business and much of the retail sector

How is this affecting your company?
Where will the speed of transactions have an impact on your career?
Who will get squeezed out next?
What new jobs will be created?

Speed is directly related to time. All of us feel the stress of this speed on how we manage our time. I describe it as running 75 mph. Many think they can outdo the other guy if they run 80 mph. Years ago this was termed the rat race – and as Lilly Tomlin reminded us, “even if you win the rat race, you’re still a rat.” Nothing less than a fundamental reexamination of how we do our work will be required to survive the speed of change.

I highly encourage you to listen to this podcast: http://www.radiolab.org/2013/feb/05/. The last part of it is amazing and will blow your mind. It certainly made me want to learn more about the latest discovery that is shared. I won’t spoil it by telling you what it’s about. I had to listen to it three times for it to fully sink in. I’d be curious to know what you think after listening to this podcast.

PS…If you haven’t yet done so, get thee to the Time Management Training Module on HR That Works. In order to manage the rate of speed better we have to better manage our time.

I recently did a CEO workshop where the members applauded the fact that one of them had finally hired an executive assistant. When he asked if any of them had guidelines, he was pleased to learn that HR That Work offers such a template.

After doing research, I can tell you that the NRA has the most extensive summary of the laws at http://www.nraila.org/news-issues/issues/workers-protection-private-property.aspx. You’ll find the opposite side of the coin at http://www.csgv.org/issues-and-campaigns/guns-democracy-and-freedom/guns-in-the-workplace.

For a comprehensive media report on this issue, go to http://www.bloomberg.com/news/2012-12-12/guns-to-work-laws-spread-in-u-s-as-business-fights-group.html. You’ll find a great overall report from PLI at http://www.bakerdonelson.com/files/Uploads/Documents/Guns_at_the_Workplace_5-520-4933.pdf.

Finally, check your state law summary on HR That Works.

Here’s a fact: Half of all employees test better than the other half! My question is, which half do you have?

Testing job applicants and employees is one of the favorite topics in my CEO and HR workshops. Because most companies don’t do appropriate testing, those that do enjoy a significant advantage. I like to begin the subject with a story. Years ago, as I was quitting my litigation practice, a legal secretary (we’ll call Sue) came into my office and wanted to sue the firm she had been working for. The fact that a law firm could be sued by one of its employees came as no surprise. Lawyers get sued by their employees more than just about anyone else – and we rely on lawyers’ advice so we don’t get sued! A little Catch-22 in the system, you might say.

To keep the story short, it turns out this legal secretary had a steady job at neighboring law firm, working for a partner for 15 years. At the same time, a litigation partner at another firm lost his legal secretary with only last-minute notice. He put the word out on the grapevine that he was looking for a replacement, and that’s where Sue met up with him. After meeting for a pleasant lunch, the attorney figured that she had 15 years of experience doing the very job he was hiring for, she seemed pleasant enough – and so he hired her on the spot. To Sue’s surprise, almost immediately after coming to work, he started expressing his disappointment with her productivity. This went on for three months until he fired her without any offer of severance. Sue was a single mom with two kids to raise on her own and no job; that’s what prompted her to walk into my office.

I asked her if she and the attorney discussed any performance benchmarks or requirements at their one meeting. They had not. Understand this: a legal secretary types about half of the day; and half of them type above average and half below average (this holds true for programmers and retail sales clerks as well). Personally, I’ve never hired a legal secretary who typed less than 100 words per minute. When I asked Sue how fast she typed, she told me approximately 80 words per minute. She found out by testing herself years ago. None of her employers had ever tested her. I then tracked down the previous legal secretary; according to a test she took, she typed approximately 100 words per minute. Therein lies the moral to this story – the woman in my office was a failure on the first day of her employment and nobody knew about that fact!

This begs the question, “how many people walk into your company a failure on the first day and no one knows about it?” It makes no difference who you’re hiring , including rocket scientists, What’s the range of skill sets at your company? Without testing, you’re only guessing.

Let’s take this idea one step further. According to both Dr. Edwards Deming and Peter Drucker (perhaps the two greatest management gurus of all time), nine out of ten people want to do a good job every day – and their inability to do so is generally due to a system failure rather than a lack of motivation. Let me give you an example of how this plays out: at about the same time Sue walked into my office, I was consulting with a law firm that was having turnover problems. With the economy growing at the time, the larger firms were simply throwing more money at these employees. Although this was unrelated to my assignment, it dawned on me to ask them a basic question: “Have you tested all of your legal secretaries?” Turns out they had not – so that’s exactly what we did. We tested them not only on their typing, but also on the substantive and procedural knowledge that their job required.

Here’s what we learned: In most law firms, the attorneys get no management training and generally there are two attorneys to each secretary. Let’s assume that two of those attorneys manage intuitively above average and another two happen to manage below average. Now let’s say there’s a legal secretary who types 80 wpm for an above-average manager. The other secretary types 100 wpm for a below-average manager. Who do you think is viewed as the better secretary at the end of the day? When I ask this at workshops, most people respond “the one who types 80 wpm for a good manager.” This secretary gets the better performance evaluation and the raise – which makes absolutely no sense.

You can, and should, test for every essential skillset. For example, a few years ago I helped a real estate investment firm hire a CFO. Because they were Good to Great fans and wanted to have a great company, they decided to have a great CFO. When it came to testing, we decided to address the three essential skillset categories: substantive knowledge of accounting (GAAP), QuickBooks, and finally, Excel (because they used it for their real estate deals). So I contacted SHL (who I’ll talk about in a bit) and we set up tests for qualified job applicants. These tests cost us between $17 and $30 each. Because we wanted a CFO in the top 10% of skillsets, we decided that they would have to test in the top 20% of all three categories. It took us months to find that CFO, and in the meantime we used Account Temps. That’s the type of testing discipline you must go through if you want to have great employees.

For the past ten years, I’ve recommended only one company to do skill testing because I believe that it’s the best. When I first met them they were known as BrainBench. They were then acquired by PreVisor, and finally by the largest testing company in the world, SHL. Our contact is Jason Finney (jason.finney@shl.com). He is awesome and is surrounded by a great team. You can contact Jason to set up tests for your job applicants and existing employees. Not only will this help you to hire better, it will also help explain a lot of what’s going on with performance and what training you need to improve it.

Here’s what SHL users have said about testing: http://www.shl.com/us/results/client-results/. If you think this sounds like an endorsement of SHL, you’re right. So use them!

If you’d like a certificate for a free test from SHL, contact Jason directly and he’ll get it to you. If you’re an HR That Works Member, watch the one-hour webinar I did with Ken Lahti, one of the testing experts at SHL.

I also think it’s important to use skill tests when you hire consultants. How do you really know if they’re any good without testing them? For example, when we built HR That Works on a SharePoint platform, how did I know if our project manager was an expert or not? Yes, we were using a Microsoft Certified Partner, but that didn’t mean that the individual project manager was at the top of his game. Fortunately, he took a SharePoint test and scored very high, thus justifying my faith in his skills. Don’t trust the skillsets of employees, applicants, or third parties blindly – test for them!

As a final note, the skill testing I’m talking about is separate from character assessment. Fact is, you can’t fail your personality, so they don’t call them personality tests. However, it’s true that people can have failing personalities– and these are the people to make sure you don’t hire!

In 2012, voters in Colorado and Washington legalized recreational marijuana use for those 21 and older. Voters in Oregon, a state which allows medical marijuana use, rejected recreational use in 2012.

States that currently allow medical marijuana use include Arizona, California, Colorado, Massachusetts, Montana, and Washington. Rest assured, more are on the way.

The question is how do these statutes affect employers? The Colorado law states that “nothing in this section is intended to require an employer to permit or accommodate the use, consumption, possession, transfer, display, transportation, sale or growing of marijuana in the work place or to affect the ability of employers have policies restricting the use of marijuana by employees,” The Washington statute does not mention using marijuana in the employment setting.

Of course, federal law prohibits marijuana use, whether medicinal or recreational. Additionally, the Department of Transportation does not accept medical marijuana as an alternative medical explanation. Every decision on this issue agrees that private-sector employers can discipline, terminate, or not hire employees who test positive for marijuana even if properly used under state law. However, Connecticut’s law specifically bans employers from acting against workers who use medical marijuana off-duty. It will be interesting to see how this law is interpreted. For example, if somebody smoked a ton of weed one evening, and they come to work fuzzyheaded, would an employer have the right to test them? Or suppose they smoked on the way to work or during a break?

HR That Works members should check their state laws in the BNA State Law Summaries.

The recent Westendorf v. West Coast decision by the Ninth Federal Circuit Court of Appeals offers yet another example of management’s failure to understand that sexually hostile behavior is not permitted in the workplace. In this case, the boss and coworkers said the plaintiff was doing “girly work,” talked about the large breasts of another woman with her, made tampon jokes, joked about orgasms, and eventually started cursing at her. As mentioned in previous articles, whether she eventually ends up winning or losing isn’t the point. Either way, the employer now finds itself as a named defendant in a nationally publicized lawsuit that will cost it tens, if not hundreds, of thousands of dollars to defend what amounts to stupid and boorish conduct.

In this case, the plaintiff never reported the alleged harassment to a human resources officer. Perhaps if she had an alternative channel of complaint other than through the ranks, she would’ve received appropriate attention. Apparently the boss did admonish a manager and coworkers to quit the harassment, but when they continued it, the plaintiff just couldn’t take it anymore.

The court ruled that although the sexually hostile conduct was not severe or pervasive enough to alter the terms of her employment and support a sexual harassment claim, she might have faced retaliation for bringing the claims in the first place. It’s important to note even though this case was decided on April 1, 2013 dealing with conduct that ended in July 2008, it has yet to go to trial! I can only imagine what it could have, and should have, been settled for soon after filing, rather than slogging through the courts for the past five years. This doesn’t benefit either the plaintiff or the defendant – but it certainly helps fill counsel’s billable hour requirements.