Your Employee Matters

HR folks have to deal with some unpleasant subjects, and this is certainly one of them. Body odor can present a real workplace challenge. Just ask any space shuttle astronaut or submarine officer. People can have offensive odors for a number of reasons:

• Soiled clothing or shoes
• Lack of bathing
• Bad breath
• Incontinence
• Menstruation
• Liver and other organ problems
• Diet * Bad perfume
• Too much perfume
• Smoking
• A problem with sweating
• Disability

Employers can try to prevent this problem in general by providing effective air circulation systems, odor eaters, employee uniforms, employee flexibility – and, if necessary, a human resource policy.

To deal with body odor, follow these steps:

• First, verify all complaints personally to make sure there’s no teasing, bullying, etc. Then verify the complaint personally.
• If the employee has body odor, have a direct conversation – don’t beat around the bush. Often, employees won’t realize they have a problem until you tell them. Say, “We’ve had complaints from a number of co-workers about offensive body odor and I have had those complaints verified. (If appropriate: I can understand their concern). Are you aware that you have this problem?
• At this point, an employee can deny knowing about the problem (honestly or otherwise) or, they can admit knowing about it. They can say either that they’ll try to take care of the problem or that they don’t care what other people think about it. They might also claim that they’ve tried to do all they can, but they have a physical disability that prevents them from doing any better.
• If an employee does not claim to have a medical problem and won’t do anything to improve their condition, you have the right to terminate them, or perhaps even better, give them unpaid time off to think about whether they want to come back to work a “fresher” person. If they claim there’s a medical basis, you need to have an accommodation discussion (more on that later). Either way, ask the employee to take care of the problem and ask if there’s any way you can help them. This is a matter of common decency, whether required by the ADA or not.
• Watch out for any potential discrimination or national origin claims that the employee might make based on what you say or by what managers or co-workers have said. Go back to these employees and let them know you’re taking care of the problem and that they should not tease or discuss it with the employee.
• Consider holding accommodation discussions. If the employee claims the problem arises from a disability and you’re subject to the ADA (15 or more employees) or FEHA (five or more in California), you’re required to have an accommodation dialogue. Begin by starting a paper trail and have the employee get their physician to identify the nature of their disability, the limitations, and ways to mitigate its effects. Use the forms on HR That Works. Accommodations might include working from home, allowing the employee to obtain the appropriate treatment, moving their working location, or perhaps reassigning them to another job.

Ultimately, if there’s no “reasonable” accommodation because anything you can do would cause an undue burden on the company, you do not have to accommodate that employee. For further accommodation information, check out the HR That Works ADA Training Module. Also, consider looking at the Job Accommodation Network’s Web site at www.askjan.org.

Here’s what HR professionals are told to worry about most:

• FMLA, ADA, EEOC, DOL, OSHA, NLRB, FLSA, OFCCP, GINA, HIPAA, COBRA, Title VII, etc.
• Discipline, termination, layoffs, bullies, violence, EPLI, etc.
• Protecting ourselves from all the above.

Here’s what should concern them most:

• Hiring, orientation, training, performance, teamwork, leadership, time management, systems, strategy, branding, communication, quality, customer service and marketing.
• Creating a constant improvement process in each of these areas because they help to grow the company.

Of course, you can’t ignore compliance concerns as the article below points out. However, the legalistic concerns can overwhelm and distract us to the point that they blind us to what really matters. Here’s my challenge to HR professionals – whether you’re part or full-time; young or old; experienced or inexperienced, and no matter the size of your company. Carve out time to help your company improve in these strategic growth areas. Make yourself relevant to the bottom line. HR That Works offers a variety of excellent tools to help you do exactly that.

I’m a big fan of using character assessment tools – and one of my favorites is www.zeroriskhr.com. My team and I are currently using their post-employment program to help improve our communication and make me a more effective boss. The folks at ZeroRisk reminded me that the employer’s goal is to match skills and natural abilities with job function. As the saying goes, “Put square pegs in square holes!”

To help reach this goal, consider how employee personalities can differ:

People Orientation

• Reads people – can sense how to be effective with different individuals
• Needs others to feel good
• Enjoys individual interaction
• Enjoys people in group settings
• Prefers to not deal with the feelings and individual needs of others
• Likes to help others

Results Orientation

• Has good practical judgment
• Likes to get things done using their hands
• Enjoys solve thinking problems
• Likes to apply theories to real-life problems
• Prefers to think about things, rather than applying them to business issues
• Likes to put things where they belong – creating or preserving order

Environment Needs

Is comfortable with a routine * Likes order, structure, and certainty * Enjoys planning and organizing * Needs variety in using creative thinking * Needs to work in a top-level, winning company

Behavioral Characteristics

• Thinks out of the box
• Obeys the rules, no matter what
• Able to do things exactly as instructed
• Able to do repetitive tasks consistently
• Thinks in terms of the team and belonging to the team * Will be protective of company policies, standards, and mission

Individual Characteristics

• Is an individual and needs to express their individuality
• Able to handle rejection –has a thick skin
• Has a lot of courage
• Is passionate about their work
• Able to keep secrets
• Likes to be in the middle of things
• Flexible in midst of change and surprises
• Likes to be the center of attention
• Team player – little self-glory
• Accurate at knowing what they’re best suited to do
• Capable in a highly competitive environment
• Accurate ideas about their own strengths and weaknesses

Ambition Characteristics

• Committed to personal growth
• Likes to win
• Needs rewards to be directly tied to their work
• Driven to excel and improve
• Strong sense of accountability
• High achievement drive
• High degree of initiative

The point is: Match the personality to the job!

It takes the EEOC 56 pages to define a “mental disability.” 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 17 individuals lives with a serious mental health impairment, such as schizophrenia, major depression, or bipolar disorder (National Institute of Mental Health, 2008).

Common mental impairments include:

• Bipolar disorder, sometimes referred to as manic depression, “is a medical illness that causes extreme shifts in mood, energy, and functioning. Bipolar disorder is a chronic and generally life-long condition with recurring episodes of mania and depression that can last from days to months that often begin in adolescence or early adulthood, and occasionally even in children.” An estimated 10 million American adults have bipolar disorder.
• Borderline personality disorder (BPD) is “an often misunderstood, serious mental illness characterized by pervasive instability in moods, interpersonal relationships, self image, and behavior. It is a disorder of emotional dysregulation. This instability often disrupts family and work, long-term planning, and the individual’s sense of self-identity.” It’s estimated that 1% to 2% suffer from BPD.
• Major depression is “persistent and can significantly interfere with an individual’s thoughts, behavior, mood, activity, and physical health. Among all medical illnesses, major depression is the leading cause of disability in the United States and many other developed countries.” There are approximately 15 million American adults with major depression.
• Obsessive compulsive disorder (OCD) “occurs when an individual experiences obsessions and compulsions for more than an hour each day, in a way that interferes with his or her life.” Estimates indicate that 2% of American adults have OCD.
• Panic disorder occurs when a person “experiences recurrent panic attacks, at least one of which leads to at least a month of increased anxiety or avoidant behavior. Panic disorder may also be indicated if a person experiences fewer than four panic episodes but has recurrent or constant fears of having another panic attack.” Approximately 2% to 5% of American adults suffer from panic disorder.
• Post-traumatic stress disorder (PTSD) is “an anxiety disorder that can occur after someone experiences a traumatic event that caused intense fear, helplessness, or horror. While it is common to experience a brief state of anxiety or depression after such occurrences, people with PTSD continually re-experience the traumatic event; avoid individuals, thoughts, or situations associated with the event; and have symptoms of excessive emotions. People with this disorder have these symptoms for longer than one month and cannot function as well as they did before the traumatic event. PTSD symptoms usually appear within three months of the traumatic experience; however, they sometimes occur months or even years later.” It’s estimated that 2% to 9% of adult Americans (including 15% to 30% of veterans) have PTSD.
• Schizophrenia “often interferes with a person’s ability to think clearly; to distinguish reality from fantasy; and to manage emotions, make decisions, and relate to others. Some 2 million American adults are schizophrenic.
• Seasonal affective disorder (SAD) is “characterized by recurrent episodes of depression – usually in late fall and winter – alternating with periods of normal or high mood the rest of the year.” Note: SAD is not regarded as a separate disorder by the DSM-IV (APA, 1994), but is an added descriptor for the pattern of depressive episodes in patients with major depression or bipolar disorder.

Here’s a quick overview of some job accommodations that might be useful for people with mental health impairments. Maintaining Stamina During the Workday:

• Provide flexible scheduling
• Allow longer or more frequent work breaks
• Allow employee to work from home during part of the day, or week
• Provide part-time work schedules

Maintaining Concentration:

• Reduce distractions in the work area
• Provide space enclosures or a private office
• Allow for use of white noise or environmental sound machines
• Allow the employee to play soothing music using a portable player and headset
• Increase natural lighting or provide full spectrum lighting
• Plan for uninterrupted work time
• Allow for frequent breaks
• Divide large assignments into smaller tasks and goals
• Restructure job to include only essential functions

Staying Organized and Meeting Deadlines:

• Make daily TO-DO lists and check items off as they are completed
• Use several calendars to mark meetings and deadlines
• Remind employee of important deadlines
• Use electronic organizers
• Divide large assignments into smaller tasks and goals

Dealing with Memory Deficits:

• Allow the employee to tape record meetings
• Provide type written minutes of each meeting
• Provide written instructions
• Allow additional training time
• Provide written checklists

Working Effectively with Supervisors:

• Provide positive praise and reinforcement
• Provide written job instructions
• Develop written work agreements that include the agreed upon accommodations, clear expectations of responsibilities, and the consequences of not meeting performance standards
• Allow for open communication to managers and supervisors
• Establish written long term and short-term goals
• Develop strategies to deal with problems before they arise
• Develop a procedure to evaluate the effectiveness of the accommodation

Interacting with Coworkers:

• Educate all employees on their right to accommodations
• Provide sensitivity training to coworkers and supervisors
• Do not require employees to attend work-related social functions
• Encourage employees to move non work-related conversations out of work areas

Handling Stress and Emotions:

• Provide praise and positive reinforcement
• Refer to counseling and employee assistance programs
• Allow telephone calls during work hours to doctors and others for needed support
• Allow the presence of a support animal
• Allow the employee to take breaks as needed

Maintaining Attendance:

• Provide flexible leave for health problems
• Provide a self-paced work load and flexible hours
• Allow employee to work from home
• Provide part-time work schedule
• Allow employee to make up time

Dealing with Change:

• Recognize that a change in the office environment or of supervisors may be difficult for a person with a mental health impairment
• Maintain open channels of communication between the employee and the new and old supervisor in order to ensure an effective transition
• Provide weekly or monthly meetings with the employee to discuss workplace issues and productions levels

To learn more, visit the Job Accommodation Network’s Accommodations’ Ideas for Mental Health Impairments.

This recent news story carries a lesson for every employer.

Levi Strauss Agrees to Pay More Than $1 Million in Overtime Back Wages to Nearly 600 Employees Following U.S. Labor Department Investigation

Overtime violations found at retail stores nationwide

SAN FRANCISCO — Levi Strauss & Co. has agreed to pay $1,011,413 in overtime back wages to 596 employees nationwide after the U.S. Department of Labor found that the company violated overtime and recordkeeping provisions of the federal Fair Labor Standards Act.

An investigation conducted by the San Francisco District Office of the Labor Department’s Wage and Hour Division determined that the San Francisco-based company misclassified several groups of workers, including assistant store managers of newly acquired stores, as exempt from overtime. Although their counterparts at previously existing stores were exempt from overtime compensation, the newly hired employees were not.

“Misclassification of employees has serious and adverse consequences for employees, as well as for corporations,” said Secretary of Labor Hilda L. Solis. “When violations of federal labor laws are discovered, this department will take appropriate action to ensure that workers receive the wages they deserve.”

The company failed to record all hours employees worked in its payroll system. Instead, the misclassified assistant store managers were required to work off the clock during late night closings, early morning openings, and staffing shortages. Various administrative employees working at the company’s headquarters also were misclassified as exempt from FLSA coverage and found to be owed overtime back wages.

This investigation covered back wages for time worked over a two-year period. Levi Strauss has agreed to pay the back wages and committed to upgrade its time and attendance system, as well as maintain future compliance with the law. The applicable employees are now treated as non-exempt under the FLSA.

Founded in San Francisco in 1853, Levi Strauss was the first company to manufacture blue jeans. Today, the company operates 164 retail stores and employs more than 4,000 workers in the U.S., and its global operations span more than 100 countries.

The FLSA requires that covered employees be paid at least the federal minimum wage of $7.25 for all hours worked, plus time and one-half their regular rates of pay, including commissions, bonuses and incentive pay, for hours worked beyond 40 per week. Employers are required to keep accurate records of all hours worked by covered employees. The FLSA provides an exemption from both minimum wage and overtime pay for workers employed as bona fide executive, administrative, professional and outside sales employees. It also exempts certain computer employees. To qualify, employees generally must meet certain tests described in the act regarding their job duties.”

Lesson Learned: Unless you have a legitimate business need for classifying employees as exempt, you’re far safer classifying them as non-exempt and adjusting their hourly pay so their take-home, including overtime, matches their exempt salary. We’d recommend that HR That Works use the Overtime Authorization form to reduce unauthorized or unnecessary OT usage.

Social media and networking sites have become commonplace in today’s workplace. The most popular sites (such as Facebook, Twitter, LinkedIn, and YouTube) connect people by enabling them to search for former classmates, colleagues, and friends. Users can leave public messages for their “friends,” and/or create interest groups or “networks.” The problem for employers is that employees might be posting negative, misleading or defamatory information about their company, its employees or its products on social media sites. More and more businesses have instituted policies to help protect against posting such negative information on social media sites. A recent case settled by an employer in response to an unfair labor practices charge brought by the NLRB illustrates one of the pitfalls concerning such policies. The company, American Medical Response, had fired an employee for bad-mouthing her boss on Facebook. The NLRB held that the employer’s policy, which prohibited employees from “making disparaging, discriminatory or defamatory comments when discussing the Company or the employee’s superiors, co-workers and/or competitors,” was overly broad; because it violated Section 7 of the National Labor Relations Act, which permits employees to engage in “concerted activities for the purpose of … mutual aid and protection.” In settling, the company agreed to revise its social media policy to ensure the protection of employees’ rights to discuss working conditions.

Bear in mind that, even in a non-union workplace, employees have the right under the NLRA to share information regarding working conditions. Before taking disciplinary action against employees for their social media activities, consider whether the employee’s conduct could arguably constitute protected concerted activity.

To ensure that your social media polity does not violate employee Section 7 rights, we’d recommend following these guidelines:

• Employees may not use company equipment or systems to “twitter” or log onto social networking sites.
• Twittering on personal cell phones, Personal Data Assistants (PDAs), etc. may not interfere with working time.
• Employees should not tweet or post information on any social networking site on behalf of the employer, without approval by management.
• Employees may not use company logos or trademarks in tweets or twitpics (a service that enables users to post pictures to Twitter) or any other social networking site without company authorization.
• Employees may not promote the company’s products or services on any social networking site or online message board without prior management authorization and disclosure of their employment relationship.
• Employees may not post information on any social networking site that disparages the company’s products or services, contains false statements, or breaches the employer’s confidentiality policies.
• Employees who have any information on their social networking site about the company should provide a disclaimer on their profile page that the opinions are their own, and not those of the company.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.

I’ve handled more than 3,000 “hotline” calls from managers trying to deal with their employees. I find that very often they don’t let employees know about something- when they should do so. These include: Poor performance, body odor, bringing personal problems to work, wasting time on gossip, using social media, shopping online, coming and going late, 20-minute breaks, smelling like a chimney when they return from the break, their dress, their communication skills, the time they waste on the basketball pool, being on the layoff list – the list goes on. The real question is: Why don’t managers speak up? In my experience, there are many reasons: The employee intimidates them, they’re new to the management role, they get no support if they want to act, they prefer to avoid conflict, they don’t want to be become “villains,” they fear having their shortcomings pointed back at them, they don’t want to cause a lawsuit – you name it!

What are you doing to help your managers move past this fear-based limitation in a way that can make them proud? How can they face these concerns and build a relationship with employees in the process? By the way, what are you holding back on with anyone you manage?

I recently saw a job posted for an HRIS expert at an auto dealership. Curious, I scrolled through it, where it stated at the end in bright red print:

“Important Notes: Environment and Physical Activity

“The environment for this position is an open office that’s mostly clean and comfortable. The job involves driving a personally owned vehicle approximately 20% of the time, which includes exposure to outside weather elements and moving mechanical parts. It might include some minor annoyances such as noise, odors, drafts, etc. The incumbent is in a non-confined office-type setting, in which he or she is free to move about at will. The incumbent spends time writing, typing, speaking, listening, lifting (up to 25 pounds), carrying, seeing (such as close, color and peripheral vision, depth perception and adjusted focus), sitting, pulling, walking, standing, squatting, kneeling and reaching.

“The incumbent might operate any or all of these devices: Copy and fax machines, adding machine (calculator), typewriter, personal computer and related printers.

“The work environment characteristics described here are representative of those an employee encounters while performing the essential functions of this job.

“The physical demands are representative of those that an employee must meet to perform the essential functions of the job.

“Reasonable accommodations may be made to enable individuals with disabilities to perform the essential functions.”

Have we regressed to this, for a job that involves someone sitting at a computer all day? Really?

You don’t need to be a financial institution to develop these best practices.

The Seventh Circuit Court of Appeals recently upheld the termination of an employee who sued, alleging FMLA interference and retaliation after termination for failure to contact his employer during a nine-day leave of absence to address a medical emergency involving his mother. In Righi v. SMC Corp. of America, a sales representative, while attending a mandatory training seminar, received word that his mother was experiencing a medical emergency. The employee left the training session and, despite informing a co-worker that he was leaving due to a family emergency, made no attempt to contact his supervisor. The next day, the employee sent his supervisor an e-mail stating that his mother, who was a diabetic, had slipped into a coma. After stating that he would need the next few days off to make arrangements for his mother’s care, he wrote: “I do have the vacation time, or I could apply for the Family Care Act, which I do not want to do at this time.” Upon receiving the e-mail, the supervisor repeatedly attempted without success to contact the employee by phone to inquire further about his need for leave.

Finally, after nine days of silence, the employee called his supervisor and was terminated the next day for violation of the employer’s leave policy, which provided that an unapproved absence of two or more consecutive days was grounds for termination. After the district court granted summary judgment on the employee’s claims of FMLA interference and retaliation, the employee appealed. The Seventh Circuit Court of Appeals held that the employee’s e-mail, in which he mentioned that his mother was in a diabetic coma, was sufficient to alert the employer that the employee might qualify for FMLA leave, and that the employer was obligated at that point to make further inquiry regarding the employee’s need for FMLA leave. The Court also found that the employer properly attempted to fulfill its obligation by making numerous calls to the employee and that the employee’s failure to respond to his employer’s calls caused his FMLA claims to fail. The employee was required under both the FMLA and his employer’s written policy, to contact his employer to let the employer know of the likely duration of his requested leave, which he failed to do.

Article courtesy of Worklaw® Network firm Shawe Rosenthal.