Your Employee Matters

The January 2008 Legal Report from the Society for Human Resource Management went into depth about this unique challenge.

Here are some of the highlights:

• Employees may be prohibited from using or being under the influence of alcohol at work.
• You may hold alcohol-dependent employees to the same performance and behavior standards as non-alcoholics.
• You may discipline or discharge employees for inappropriate conduct generated by alcohol abuse, as long as you’re applying the same standards to all employees.
• If an employee appears to be inebriated, you may ask them if they’re under the influence.
• The courts are divided on whether alcohol dependency is a disability under the ADA. Some courts have ruled that alcohol dependency is a “disability” only if the condition substantially limits a major life activity
• Just because an individual has an episode with alcohol does not make them alcohol-dependent and therefore covered by the ADA.
• You don’t have to put up with inappropriate behavior by someone with alcoholism; whether it’s profanity, driving under the influence, or any other behavior. Employees are also prohibited from being a threat to themselves or others, and violating rules such as attendance requirements.

Finally, the federal 9th Circuit Court of Appeals (the most employee-friendly circuit in the nation) approved these steps as “reasonable accommodation:”

1. The main goal of accommodating an alcoholic is to get them to treatment.
2. Provide the employee with a firm choice between treatment and discipline.
3. If an employee agrees to go to outpatient treatment, they may be disciplined for continued drinking or failure to participate in treatment.
4. Provide the employee with an opportunity for inpatient treatment.
5. Discharge the employee only after a second relapse.
6. Grant at least one leave of absence to participate in a treatment program.
7. Consider whether it’s reasonable for the company to pick up the cost of treatment, the elimination of an essential job function, and any related absences.

Learn more about accommodating alcoholism here.

Many employers are easily frustrated by the amount of effort it takes to respond to even the most frivolous of employee claims. For example, if a disgruntled former employee files a frivolous complaint of discrimination, the EEOC wants you to “submit information and records relevant to the subject charge of discrimination.” The allegations in these charging documents are generally no more than one or two sentences long. For example, if the claim involves discrimination and discharge, you must supply all the facts, documents, and witnesses relevant to the discharge; submit all copies of written rules, policies, and procedures relating to the issues in the charge; supply responses to questions and documents concerning “comparatives” (individuals who the claimant alleges that your organization treated differently); and more. A company can easily spend thousands of dollars responding to even the most frivolous complaints and then have little redress against the employee afterwards, even where the allegations are completely unfounded! So, what can you do?

• Examine the process you follow when you make demotion or termination decisions. Are they consistent with your rules? Are performance problems well documented? Are others treated differently under the same circumstances? If you had to respond to an EEOC charge to prove your contentions regarding productivity, attendance, and so on, could you do so with facts, documents, and witnesses?
• Did you handle the event with care? That’s right, even where an employee doesn’t perform or maintains a sour attitude, you still have to rise above this and work with them in the way you would want one of your relatives to be treated. Again, many of these complaints involve nothing more than striking back at the perception that an employer doesn’t care.
• Don’t assume that the claim will go away. If there’s a deadline to meet, then meet it. If you have Employment Practices Liability insurance, send a notice of claim to your carrier. We would always recommend that you obtain legal counsel to assist you in responding in any complaint.

As long as we have laws protecting against discrimination, disability, age, race, sex, and so on, people will be tempted to focus on their “rights,” as opposed to their responsibilities. Instead of filing frivolous claims, most claimants would be better off spending the energy going through a rigorous self-examination. How could they have made themselves more valuable? How could they have come to work with a better attitude? If the job was so bad, why weren’t they looking for another one? How did they find themselves subject to the fate of a poor employer?

Last year a Florida mother of two was fatally rear-ended during a busy commute by someone distracted on their cell phone. The jury awarded a $2 million verdict against the employer, ruling that since she was on a work call the accident occurred within the scope of employment. According to the National Highway Traffic Safety Administration, almost 80% of crashes and 65% of near crashes happen within three seconds of some form of distraction (talking on a cell phone, eating, reading, etc.). Here are the findings of a poll of more than three hundred visitors to www.bestlifeonline.com:

• 75% of drivers drink water or coffee
• 73% talk on a cell phone
• 54% eat
• 37% send text messages
• 21% read
• 11% write
• 8% e-mail
• 5% groom

Interestingly, the readers viewed talking on a cell phone as a relatively safe activity (only 6% identified it as dangerous and 40% as somewhat risky). Other than drinking, all the other activities were viewed as dangerous.

Lesson learned: If you’re concerned about the risk associated with multitasking while your employees are driving, then prohibit them from e-mailing, eating, reading, texting, and writing in the car on company time. Get them hands-free headsets even where not required by law.

One of my favorite magazines is Men’s Health. If I were a business owner, I’d buy a subscription to Men’s Health or Women’s Health for every one of my employees.

In a recent issue, 24-year-old center-fielder for the Boston Red Sox, Jacoby Ellsbury, was interviewed about breaking into the big leagues in a big way. Jacoby’s insight into what makes for success is very mature given his age, but not surprising given his accomplishments. After just being brought up from the minors, he batted .438 in the World Series last year. Here’s Ellsbury’s formula:

• Upgrade your work ethic. “You have to be painfully honest with yourself. Did you work as hard as you could have today?” This appears to cut against today’s mantra of work smarter, not harder. I’ve found from my experience that there’s no substitute for hard work. Hard work doesn’t mean spending 10 hours doing work you should have done in eight. Hard work means a concentrated effort — giving 100% every moment. We’ve all had the personal experience of getting more done in a half of a day than in a full day. When properly motivated, there’s no greater pleasure than putting in a hard day’s work.
• Make yourself irreplaceable. Whatever’s asked of you, do it well. You never know when the big opportunity is going to show up. By constantly showing your work ethic with low-level activities, you’ll build the trust necessary to take on the bigger ones. Says Ellsbury, “Show up every day and bust your butt and people will not only respect you, but start to rely on you too.”
• Turn your weakness into your strength. Ellsbury wanted to improve his strength. Fact is, we can’t rely on the company to do our training for us. We know where we can improve ourselves and we have to make a commitment to doing so. Perhaps your weakness is time management or understanding what other departments do in your company. Whatever it is, devote an hour a week to improving it — and watch your total worth soar.
• Shatter records. Create a personal benchmark: Prospecting calls this week, customer satisfaction rating, or one of many others. If you’re an HR That Works subscriber, look at the Benchmarking Worksheet in the Personnel Forms and you’ll get plenty of ideas. As the saying goes, “You get what you focus on.” Focus on creating new standards for yourself and you’ll become ever more successful.

All the above is plain common sense, but we need to continually revisit it. Winners don’t just talk the talk, they walk the walk. So do the most successful executives I’ve met. You can do it, too!

Performance management is never easy. Following the checklist approach will greatly minimize the potential for conflict, while improving your odds of generating improved performance.

The recent United States Supreme Court case of Preston v. Ferrer 552 U.S. ___, 128 S. Ct. 978 (decided February 20th, 2008) reaffirmed that challenges to the validity of a contract calling for arbitration ordinarily “should … be considered by an arbitrator, not a court.”

In addition, the high court ruled that “When parties agree to arbitrate all questions arising under a contract, the FAA supersedes state laws lodging primary jurisdiction in another forum, whether judicial or administrative.”

A series of California cases held that an arbitration provision can’t limit an FEHA claim by an employee failing to exhaust the internal remedy process established by the employer; and an arbitrator’s disclosure obligations are not triggered until he or she is notified of selection to serve as arbitrator (it would be nice to know this up front in the arbitration process). Finally, if arbitration terms are incorporated by reference to another document, this document must clearly state a term for the court to compel arbitration.

Bottom line: If you believe that arbitration will end up saving you dollars, make sure to include the court costs associated with getting to decide whether you arbitrate in the first place! Click here for more information.

In the recently published case of Villanueva v. City of Colton a California Superior Court judge awarded summary judgment against the plaintiff’s discrimination claims, which was then upheld on appeal. The court also required Villanueva to pay the $40,000 in attorneys’ fees and costs incurred by the City. In requesting the payment of fees and costs, the City asked the court to find that the Villanueva suit was “not brought and maintained with objectionable reasonable cause,” and that it was “unreasonable, frivolous, merit-less, groundless, and vexatious.” Of course Villanueva argued that his lawsuit was brought in good faith and that he would not be able to pay the fees.

Lesson learned: At times it makes sense to vigorously oppose a frivolous claim — especially where there’s the possibility of obtaining attorneys’ fees against the claimant.

One of the trickier parts of wage and hour law involves figuring out when you have to pay employees for certain activities. A listing of the issues should help you to realize your potential exposures:

• Changing uniforms or clothes
• De minimis time
• Different rates of pay
• Independent training
• Meal periods
• Meetings
• On-call time
• Standby time
• Travel time
• Reporting time pay
• Portal-to-portal

To learn more about these potential exposures, take a look at the Wage and Hour Training Module on HR That Works or visit the DOL Website. California employers should bookmark www.dir.ca.gov, especially relevant opinion letters issued by the Division of Labor Standards Enforcement (www.dir.ca.gov/dlse/dlse.html).

A California case, Combs v. SkyRiver Communications, denied a director of network operations his overtime claim. Under both California and Federal law, a person is employed in an administrative capacity when their primary duties are: 1) The performance of office or non-manual work directly related to the management policies with general business operations of the company’s customers; 2) where they customarily and regularly exercise discretionary or independent judgment with respect to matters of significance; and 3) where they perform under only general supervision and do work along specialized or technical lines that require special training, experience, or knowledge.

The phrase “directly related to management policies or general business operations” is interpreted to require that an employee perform work directly related to assisting with the running or servicing of the business, as distinguished from work on a manufacturing product line or selling a product in a retail or service establishment. In a sense, the employee is working “on” the business as opposed to “in” the business. 29 CFR Section 541.201 states that the phrase “directly related to the management or general business operations”:

“Includes, but is not limited to, work in functional areas such as tax; finance; accounting; budgeting; auditing; insurance; quality control; purchasing; procurement; advertising; marketing; research; safety and health; personnel management; human resources; employee benefits; labor relations; public relations; government relations; computer network, internet and database administration; legal and regulatory compliance; and similar activities.”

Interpretive guidance regarding the phrase “exercise of discretion and independent judgment with respect to matters of significance” has been interpreted to mean:

“In general, the exercise of discretion and independent judgment involves the comparison and the evaluation of possible courses of conduct, and acting or making a decision after the various possibilities have been considered. The term ‘matters of significance’ refers to the level of importance or consequence of the work performed.”

“The phrase ‘discretion and independent judgment’ must be applied in the light of all the facts involved in the particular employment situation in which the question arises. Factors to consider when determining whether an employee exercises discretion and independent judgment with respect to matters of significance include, but are not limited to: whether the employee has authority to formulate, affect, interpret, or implement management policies or operating practices; whether the employee carries out major assignments in conducting the operations of the business; whether the employee performs work that affects the business operations to a substantial degree, even if the employee’s assignments are related to operation of a particular segment of the business; whether the employee has authority to commit the employer in matters that have significant financial impact; whether the employee has authority to waive or deviate from established policies and procedures without prior approval; whether the employee has authority to negotiate and bind the company on significant matters; whether the employee provides consultation or expert advice to management; whether the employee is involved in planning long- or short-term business objectives; whether the employee investigates and resolves matters of significance on behalf of management; and whether the employee represents the company in handling complaints, arbitrating disputes or resolving grievances.”

Note that in California the term “primarily engaged in duties” means “more than one-half the employee’s work time.” The Federal standard uses more of a qualitative than a quantitative approach. Read the case here.

According to the DOL’s Fact Sheet on Hours Worked, orientation and meetings for new hires must be paid if they’re held within normal work hours, are mandatory, related to their employment, and generate some work product. Click here for more information.