Your Employee Matters

By now everyone should know that sexual harassment is against the law, causes lawsuits, and ruins careers. Nonetheless, managers, employers, and employees continue to engage in it all too often. Roughly $50 million was paid in sexual harassment cases according to the EEOC in 2007 – and that doesn’t include hundreds of state court verdicts. As a reminder, here are the basics of sexual harassment prevention:

• A publicly articulated policy that’s acknowledged by the entire workforce.
• A message from the top that sexual harassment will not be tolerated.
• Training for managers and employees on sexual harassment — what it is and how to prevent it. HR That Works users have these Training Modules available to them 24/7.
• Don’t assume who can be considered a harasser or a victim. For example, 16% of sexual harassment claims were filed by men last year. Sexual harassment law also includes conduct engaged in by independent contractors, customers, and clients.
• The definition of sexual harassment continues to broaden. If it has anything to do with sex, you can consider it to be sexual. And since our culture is obsessed with sex, you can rest assured that stupid and misguided conduct in this area will continue.
• Once you’re notified of sexual harassment, engage in a prompt and thorough investigation. As always, if you have any doubts about how to handle the matter, contact an experienced employment law attorney immediately.
• Finally, guard against possible retaliation claims. Claimants will be highly sensitive to any criticism and instances of poor performance must be specifically documented. Any termination within three months of a complaint is almost always regarded as retaliatory.

HR That Works members should take advantage of the sexual harassment training videos and other tools to prevent these destructive claims.

Employers send employees to take fitness for duty exams for a number of reasons, including:

1. A return to light duty or full duty after being out on a Workers Compensation claim.
2. As a pre-hire medical examination to learn if they’re able to do the job with or without limitations.
3. To see if they’re fit for duty after returning from family medical leave for a serious medical condition.
4. To help manage a disability accommodation issue.
5. If the employer suspects that the employee is unable to perform their job safely or productively, either because they’re under the influence or for some other medical reason.

The employer should pay for this exam, as well as for the employee’s time in taking it. When requesting fitness for duty exams, always provide the physician with a copy of either the employee’s job description or their essential job functions. In general, fitness for duty exams should be limited solely to the medical information necessary to see if the employee is fit for duty. For example, if they’ve had a shoulder injury, no medical information should be forwarded about a family history of diabetes.

Perhaps the most difficult area to define is when you suspect that there’s “something wrong” with an employee and then take the risk of asking them to have a medical examination. As long as the employer is “reasonable” in their concerns or suspicions, the employee would be insubordinate for not taking the exam and be subject to discipline or termination. Courts have ruled that it’s reasonable for employers to request fitness for duty exams when employees engage in outbursts and other erratic behavior, threats of violence, continued insubordination, a history of stress-related absences, appearing hung over, intoxicated, or high on the job, falling asleep at work, complaining of dizziness, and other activities.

To read the DOL’s position on Pre-Hire Exams go to http://www.eeoc.gov/policy/docs/preemp.html

As always, employers should involve legal and medical experts when making these difficult decisions. If HR That Works members have a question about the legitimacy of a fitness for duty exam, don’t hesitate to contact the free attorney Hotline.

Malcolm Gladwell’s third book, Outliers, focuses on the origins of success. Gladwell brings home lessons that should be remembered. Think about how these factors might apply to you or your company:

1. There’s no substitute for hard work. Although much of the book teaches how circumstance and nurturing have a big impact on success, the one common denominator is willingness to put in the hard work. No athlete, businessperson, musician, or anyone else succeeds without hard work. One of my favorite sayings in the book is an ancient Chinese one, “No man who rises before dawn 365 days a year fails to make his family rich.” (I can honestly say that I do this at least 300 days per year, so I’m getting close!).
2. The 10,000 Hour Rule. If you want to be great at something, or at least be known as an expert, you need to study this subject for at least 10,000 hours. This holds true whether in business, law, medicine, technology, sports, music, etc. One of the downsides associated with letting more experienced employees go is losing their store of wisdom and expertise. If you’re in a “no choice” situation, at least try to have the departing employees provide you as much of their stored wisdom in writing as possible.
3. The importance of cultural norms. For example, many Asians are accomplished in math not because of their IQ – but due to their work ethic: how their numbering system works, the precision required to grow rice, and of course, willingness to attend school an extra 50 days a year. What is the work norm at your company? Punching the clock or making sure things get done?
4. The need for opportunity and encouragement. Many successful people have been in the right place at the right time. Perhaps they were just born at the right time. Perhaps others saw their innate talents and helped to nurture them. The bottom line: no one succeeds alone. We all need encouragement and nurturing. This becomes a real challenge when companies are shutting down on communications and training.
5. Once you’re smart enough — you’re smart enough. As Daniel Goleman wrote in his book about emotional intelligence, “It’s just not IQ that matters.” An individual’s ability to deal with emotions and have practical insight is just as, if not more, important than IQ. After a certain point (roughly 130 IQ), the additional IQ points don’t make folks any more successful. Same would hold true for skill testing. If they are a top 20% user, chances are that’s good enough to make a difference. The rest depends on personal drive, emotional skills, etc.
6. Pedigree matters — to a degree. As with IQ, going to good schools matters. Going to top ten schools doesn’t matter nearly as much. Just as opportunity, encouragement, support, and other “external” factors impact on the propensity for success, we should not overlook these factors when assessing someone’s potential. Perhaps there is great potential right under your nose; they just haven’t had the right circumstances to show their true mettle. This is one reason that I stress the importance of character assessment, skill testing, and other tools to get past your initial “impressions” about someone’s potential.
7. The importance of expressing yourself. This discussion first came up in a risk management context in which Korean airline pilots were causing crashes because subordinates were intimidated about contradicting their superiors – even in the face of a disaster. Based on my litigation experience, CEOs are the last ones to know the truth until they’re in the middle of a trial. Here’s the point: we must “invite” subordinates to bring us their ideas, to break past the Culture of Silence. At the same time, subordinates must have the courage to speak up when appropriate.
8. Meaningful work. One of my favorite quotes from the Gladwell book is, “Hard work is a prison sentence only if it doesn’t have meaning.” I work hard, but I love the work that I do. It provides me the three factors that Gladwell says are to essential to our work: autonomy, complexity, and meaning.
   • Autonomy gives us a sense of responsibility for the work that we do.
   • Complexity allows us to grow and learn; and
   • Meaning lets us realize the impact of our work.

The lack of opportunity for autonomy, complexity, and meaning will continue to deprive employers of excellent workers who find it more meaningful to work for themselves. To what degree are you allowing your employees autonomy, complexity, and meaning in their day-to-day activities? How can they get that from you greater than by working on their own or for someone else?

In conclusion, there’s no substitute for discovering the formula for success at your company!

It’s not just employers who are feeling financial stress today. It’s every one of your employees, too. According to a January 2009 poll reported by SHRM, more employees are finding wages garnished, asking for advances on 401(k) and wages, and reporting losing their homes than any time since the early 70s. The fear of survival is real today, but we often find ourselves dealing with it alone. Smart companies will take the bull by the horns by taking these steps:

1. Open up your books. Read Jack Stack’s Great Game of Business. We recommend that HR That Works users see the Webinar on Open-Book Management.
2. Teach employees about the numbers. Most employees have a horrible understanding about accounting. Watch next month’s webinar: The Accounting Game.
3. Finally, make sure employees get their personal financial act together by offering lunch-and-learn education. Have your benefit broker discuss all the ins and outs of 401(k) and health plans. Bring in a financial planner to help employees understand basic financial management. Have your managers watch the Dave Ramsey Organization Webinar on Financial Peace in the Workplace.

The only way we’re going to get out of this mess is by working smarter — and that means every employee needs to understand how they contribute to the company’s financial success and in turn their job security.

The Bush years were some of the least employer-friendly in many decades. All of that is about to come to a screeching halt. There’s no doubt that the Obama years will be employee friendly. Earlier this month, as part of an omnibus funding bill, the House Appropriations Committee proposed nearly $344 million for the U.S. Equal Employment Opportunity Commission, as well as almost $262.6 million for the National Labor Relations Board (both an increase over previous years). Congress has already overturned the Ledbetter decision, thus extending the filing period for back pay litigation based on unequal pay claims. Obama has come out with three pro-union executive orders, appointed a pro-union Labor Secretary and is looking to overturn many pro-employer decisions by the NLRB. COBRA protections were just expanded under the economic recovery legislation. The Employee Free Choice Act sits in Congress waiting its turn.

In addition to the shift in administration policy, tough economic times will trigger an increase in employee claims. Just ask any lawyer. According to Jury Verdict research, the average employee verdict jumped to roughly $270,000 in 2007 — the highest average verdict ever! We expect 2008 numbers to show similar results.

The bottom line: If you haven’t already, now is definitely the time to get your discrimination, harassment, wage and hour, ADA, and FMLA acts together! While you’re at it, make sure to stay abreast of the Employee Free Choice Act legislation and be prepared to address unionization without catching the ire of the NLRB.

Improving employee performance doesn’t have to be difficult. Taking these basic steps will guarantee improved employee performance:

1. Ditch traditional performance evaluations. They simply don’t work. Too much fear and a lack of information results in an uneasy process for both manager and employee.
2. Separate performance discussions from compensation issues. It clouds the conversation. In many cases, the employee couldn’t care less about the evaluation; they just want to know if they’re getting the raise.
3. Establish benchmarks. How would employees answer these two questions: 1) What’s the most important thing you do every day?; and 2) How would you know you were doing well without having to be told or without having to ask? Until you can have this conversation, any rating system is a waste of time.
4. Have a performance discussion at least every 90 days. Make sure the employee has a game plan for the next 90-day period. See the Form of the Month, 90-Day Game Plan Worksheet.
5. Ask people what they’ve gotten done — not what they’re doing. Performance is about results. In the end, that’s all that matters. Then constantly find out how they can get those results more efficiently and with greater quality.
6. Finally, the time to deal with poor performance is now. Don’t waste time on your bottom 10% of employees. Chances are that they should have been terminated already. Focus on making your best employees even better and then share their best practices with everyone else.

In conclusion, most small and mid-sized companies do a poor job of analyzing, benchmarking, evaluating, and reporting performance. Any effort you make toward this end will be guaranteed to improve your bottom line. HR That Works users should see the Training Modules on Performance Management Improvement and Discipline and Termination.

According to a 2008 study by SHRM, compensation as a percentage of operating expenses in 2007 of privately owned, for-profit organizations came to 60%. Use the HR That Works Cost Calculator to run the numbers for your company and you’ll find that there’s at least a 10% variance related to these dollars. In other words, if your payroll is $1 million, the variance will be at least $100,000. This variance, or cost, consists of poor hires, loss of good employees, non-productivity left on the table every day, lack of team play, Workers Comp claims, EPL claims, and other nonsense.

Chances are that a company with $1 million in payroll overhead devotes less than $30,000 per year assigning a part-time person to be in charge of the HR function. This person usually wears two or three hats, one of which is HR. As a result, that company with its million-dollar payroll is doing very little to proactively work on the HR function, and it pays the price in the process. Here’s the point: Do one proactive thing a month. Have a 90-day game plan and do those things within the 90 days. See the Sample 90-Day Game Plan for an HR executive below. At the end of the year you will have made at least a dozen improvements to the HR function that reduce your cost variable substantially. For example, just making sure you that don’t make a bad hire will add $50,000 to your bottom line. In today’s economy, with revenues constricting, employers have to be ever-more vigilant to make sure they don’t have costs diminishing their bottom line. Survival will require companies to step up their HR acumen.

In the case of Crawford v. Nashville Metro School District the Court held that an employee who speaks out about discrimination not on her own initiative, but in answering questions during an employer internal investigation, is protected from retaliation. Remember, any employee communication regarding employment discrimination virtually always constitutes an “opposition to the activity,” and is thus protected from adverse consequences. According to the unanimous decision, to rule otherwise would have a chilling effect on complainers.

For Facts of the Case, The Court’s Ruling and Lessons Learned, see this article by Worklaw Network attorneys Shawe Rosenthal, LLP.

For many years, I’ve been a member of the Institute of Noetic Sciences (IONS), a “New Age” organization that studies consciousness. I’ve met many amazing people in IONS, including physicists, physicians, psychiatrists, business leaders, and other seekers. Since the work in which they engage is as “cutting edge” or New Age as it gets, I thought I’d share with you some of the language gleaned from their invitation to the Thirteenth International Conference.

• Fields of Consciousness
• Episodes of Spontaneous Resonance
• Non-Ordinary States
• Collective Consciousness
• Inspiring Vision
• Journey of Initiation
• Mind-Body Connection
• Responsible Co-Creators
• Collaborative Inquiry
• Collective Learning
• Group Coherence
• Personal Transformation
• Creative Altruism
• Sustainable Future
• Inner Engineering
• Inner Wellbeing
• Indigenous Wisdom
• Carbon Offsetting
• Conversation Cafes
• Living Deeply
• Living Simply
• Quantum Entanglement
• Transcending Duality

I share these terms to stretch your thinking about what they might mean for you and your organization. The very language itself is important — collectedness, transformation, well-being, and so on. Chances are that most if not all of it “feels right” to you and yes, it is very New Age. To understand how important these concepts are, think of their opposites: Disconnection, individualism, living shallowly, working alone, disharmony, non-sustainability. When you think about it like that, you realize we don’t really have much of a choice in which direction to go.

The reason for our recent recession lays within the collective “us.” It’s “we” who are the government, businesses, and consumers. It’s simply not sustainable. As Einstein stated, “The thinking that got us to this insanity won’t be the thinking that gets us out of it.” That’s why IONS continues to excite me. It’s about what can be. It’s about creating a future — not just reacting to the past.

If you’re in HR, even part time, what could be more important work for you to do than this? Payroll? Benefits administration? Sure those are tasks, but they’re void of any real meaning. Since we all search for meaning in our work, the opportunity for us is to be a seed in the transformation of our workplace. I have seen entire organizations transformed by the suggestion of a single employee. If you have a story about how you’re engaging in transformational work at your company, please let me know. I’d love to discuss it with you and perhaps share it with our other readers.

Keep stretching!

The General Counsel of the National Labor Relations Board (NLRB) has issued an updated guideline memorandum addressing when an employer may legally withdraw recognition from an incumbent union.

Background: In 2001, the NLRB issued its opinion in Levitz Furniture Co. of the Pacific, holding that an employer may withdraw recognition from a union where it can prove that the union has lost majority support from the employees in the bargaining unit. The NLRB General Counsel then issued a guidance memorandum on the processing of unfair labor practice (ULP) charges, alleging that the employer withdrew recognition unlawfully. After Levitz and the original General Counsel memorandum, other cases have explored the standard of proof that employers must meet in order to establish a loss of majority support. The newly issued General Counsel’s memorandum standardizes the approach set forth in these cases.

The General Counsel’s Guidelines: The General Counsel first confirmed its longstanding policy that ULP charges will be dismissed “when the General Counsel has sufficient objective evidence that the Union has lost majority support.” It went on to state that “objective evidence sufficient to demonstrate actual loss must be specific enough to show that a numerical majority of the unit no longer supports the union.” Examples of such objective evidence include a petition, a poll, or individual statements from unit employees; however, the General Counsel cautions that what constitutes sufficient evidence depends on the circumstances of the particular case. The General Counsel acknowledged that under certain circumstances, hearsay (i.e. not firsthand) evidence regarding the loss of support may be sufficient. Regional Offices are also directed to consider any allegations that the loss of support is tainted by improper employer conduct or whether there is countervailing evidence showing a continuation of majority support for the union.

The General Counsel noted that the wording of employee petitions is important. An employee petition entitled “showing of interest for decertification” was insufficient to establish actual loss of majority status, where evidence showed that many employees signed the petition in order to secure an election. On the other hand, a petition entitled “we, the undersigned, no longer wish to be represented by the union” was sufficient to establish loss of majority support.

Lessons Learned. To ensure that withdrawal of union recognition is deemed valid, employers should rely only on specific, numerically based evidence, such as petitions, polls, or individual written statements from employees. The employer should also confirm that the language contained or involved in such documents clearly sets forth the lack of support for the union.

Courtesy Worklaw® attorneys Shawe and Rosenthal