NLRB Challenges Employers’ Social Networking Policies
The National Labor Relations Board (NLRB) has recently taken aim at employer policies that restrict employees’ use of social media. In a recent case that could have far-reaching implications, the board’s Hartford Regional Office charged American Medical Response of Connecticut Inc. (AMR) with violating the National Labor Relations Act (NLRA) by terminating an employee for posting negative comments about her supervisor on her Facebook page. The NLRB investigation found that the employer’s social media policy interfered with employees’ rights under the NLRA by prohibiting employees from making disparaging remarks when discussing the company or supervisors and by prohibiting employees from depicting the company in any way over the Internet without company permission.
The NLRB’s Complaint
The NLRB’s complaint alleges that AMR, an ambulance service, illegally terminated one of its employees because she posted negative remarks about her supervisor on her personal Facebook page using her home computer. On the day in question, the supervisor allegedly asked the employee to prepare an investigative report concerning a customer complaint about her work. When the employee asked for union representation, her request was denied. After the employee posted the negative comments on Facebook, her co-workers chimed in with their own comments related to her post, which led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated as a result of the postings, as they violated AMR’s Internet policies.
Like many companies, AMR has a social media policy that prohibits employees from disparaging the company and its supervisors in social media posts, even when posting while off duty and using a personal computer. Specifically, AMR’s policy states: “Employees are prohibited from making disparaging, discriminatory or defamatory comments when discussing the company or the employee’s superiors, co-workers and/or competitors.”
The NLRB’s complaint asserts that AMR’s application of its social networking policy unlawfully interfered with the employee’s right under Section 7 of the NLRA to engage in “concerted, protected activity”—in other words, the right to communicate with co-workers about the terms and conditions of employment. Comments are protected under the NLRA only if they are related to a term or condition of work and are concerted in nature. Comments are “concerted” where they involve more than one employee, thus making the co-workers’ Facebook postings in the AMR case significant. Significantly, Section 7 applies to employees’ protected, concerted activity regardless of whether the workplace is actually unionized. Further, and perhaps most problematically, the NLRB’s complaint appears to allege that merely having in place an anti-disparagement social networking policy, like AMR’s, violates Section 7 even if the employer does not actually apply the policy to impose discipline.
Summarized for this blog.
January 3, 2011
Author: Patrick H. Hicks and Deborah L. Westbrook
The Whitford Group
704 298-2115
Sunday, January 23, 2011
I-9 Audits on the Rise in Obama Administration
This www.shrm.org article content was sent to you by: Jan Whitford SPHR
I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011
Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.
“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”
Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.
“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.
“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.
Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.
“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”
There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”
Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.
Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.
Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011
Edited for publication in this blog.
The Whitford Group
704 298-2115
I-9 Audits on the Rise in Obama Administration
By Allen Smith
1/11/2011
Immigration raids have decreased and the number of I-9 audits has risen dramatically in the first two years of the Obama administration, according to immigration attorneys.
“In the past two years, the Obama administration has significantly changed the direction of Immigration and Customs Enforcement’s worksite efforts,” Kevin Lashus, an attorney with Greenberg Traurig in Austin, Texas, told SHRM Online. “The Bush administration was interested in taking the highest numbers of unauthorized workers into custody during any time frame. The Obama administration, on the other hand, is interested in targeting the employers that hired them.”
Criminal Prosecutions
While Immigration and Customs Enforcement (ICE) in the Bush administration locked down buildings and herded workers into interrogations and ultimately onto planes for removal, the Obama ICE has increased administrative fines and paper audits—after which employers are asked to dismiss unauthorized workers, Lashus said. Criminal prosecutions of employers also have risen under the Obama administration, he added.
“Raids the way they used to be are not used by ICE anymore,” agreed Mira Mdivani, an attorney with The Mdivani Law Firm in Overland Park, Kan. “In the past, ICE raided workplaces, arrested workers en masse and placed them in deportation proceedings.” Since April 2009, ICE’s stated priority has been the criminal prosecution of employers, she remarked.
“These days, ICE investigates the employer without the employer’s knowledge for months before serving a notice of I-9 inspection on the unsuspecting employer,” Mdivani said. “So while the decorum is much nicer, the consequences for the employer may be much more serious, including criminal and civil liability.” The focus has changed, Mdivani concluded, to prosecuting employers, not workers.
Some raids may continue where undocumented workers are present, according to Hector Chichoni, an attorney with Duane Morris in Miami. But Secretary of the Department of Homeland Security Janet Napolitano “has pledged over and over to increase the focus on criminal punishment for employer violators.” He added that under the Obama administration, possibly in association with other federal agencies such as the Labor Department and Internal Revenue Service, ICE inspections will continue and possibly increase.
“Instead of raids, the Obama administration has focused its efforts on auditing and investigating employers to determine if they are satisfying the Form I-9 requirements and are knowingly or unwittingly employing illegal workers,” Chichoni said. “The fines for simple Form I-9 violations range from $110 to $1,100 per violation, with the higher range applicable to employers with a higher percentage of mistakes. Employers with large workforces that fail to properly manage the Form I-9 process can face fines of hundreds, or even millions, of dollars. Employers and their managers also can face criminal prosecution if they deliberately neglect their legal responsibilities in this area.”
There are many more I-9 audits in the Obama administration, according to Bonnie Gibson, an attorney with Fragomen, Del Rey, Bernsen & Loewy in Phoenix. “There were so few audits in the Bush administration that I don’t have any basis for comparison,” she remarked. “There is a new crop of audit staff, and ICE investigators and fines and pending notices of intent to fine are up dramatically.”
Agency Cooperation
Another change has been the increased cooperation among ICE and other government enforcement agencies. Gibson said ICE recently established a joint agency task force to gather information from multiple government sources and to target joint enforcement efforts.
Fusion centers have been established to facilitate cooperation among agencies, added Mary Pivec, an attorney with Keller and Heckman in Washington, D.C. Wage and hour investigators, ICE auditors and tax auditors all are in one place at the fusion centers to share resources, leverage information and pursue top-to-bottom audits, she said. An employer in trouble tends to have violations that crisscross the workforce enforcement realm, so the government thinks it makes good sense to maximize its resources and have agents from different departments investigate together, Pivec said. What starts out as a wage and hour audit may become an ICE audit, as investigators have been cross-trained to recognize what might be violations of laws other than the ones they enforce, she commented.
Technical Violations
As for government audits of employers, Pivec said employers are being “nickeled and dimed with technical violations” of I-9s.
“In the past, an I-9 audit may have ended with a reprimand and a fine,” Mdivani added. “Now, it is ICE’s policy to use I-9 audits to lay the foundation for criminal prosecutions. When ICE is unable to do so, they still get their pounds of flesh.” She said that even in the case of a recent audit of Abercrombie & Fitch, where there wasn’t a single unauthorized worker, “ICE fined the employer $1 million for what essentially were paperwork I-9 violations. Under these circumstances, every employer is vulnerable.”
Allen Smith, J.D., is SHRM’s manager of workplace law content.
Related Articles:
Abercrombie & Fitch Fined More than $1 Million After I-9 Audit, SHRM Online Legal Issues, Oct. 4, 2010
Avoiding Immigration Audits, HR Magazine, January 2011
Edited for publication in this blog.
The Whitford Group
704 298-2115
Friday, October 8, 2010
Escaping the Pain of Retaliation Claims
Escaping the 'Incredible Pain' of Retaliation
Retaliation claims are growing, and it is no wonder—employees with baseless claims can make their retaliation claims stick. "You just don't want to be in front of a jury on one of these cases.” Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.
The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called "Uncle" and "Grumpy." Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty's lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a "team player." He always thought he knew better they said, and he made faces during meetings.
Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney's fees for retaliation.
This employer could have avoided all liability if it had done its homework when the attorney's letter arrived. "No matter how much of a pain it is." In this situation you buy the executive out and get a release.
Components of a Retaliation Claim
There are three primary elements of retaliation:
1.Protected activity
2.Adverse employment action
3.Causal connection
Protected Activity
Protected activity is of two main types: opposition and participation.
•Threatening to file a charge or other formal complaint alleging discrimination
•Complaining to anyone about alleged discrimination against oneself or others
•Refusing to obey an order because of a reasonable belief that it is discriminatory
•Requesting a reasonable accommodation or a religious accommodation
Remember, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
•Rejecting a supervisor's sexual advances
•Asking an employer whether race factored into an employment decision
•Peaceful picketing.
However, the employee's opposition must be reasonable. Some examples of acts that were not protected:• Disruptive and violent picketing
•Violations of legitimate company rules
•Knowingly disobeying company orders that are not discriminatory
•Conscious efforts to hamper the company's business pursuits.
Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Making a preliminary visit to an EEO counselor
•Expressing an intent to file a charge
•Being a probable witness
•Assisting fellow workers in their discrimination claims
There is an important distinction between "opposers" and "participants." Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn't believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants. They will ask the participant. "Whose side are you on anyway?" You must train your managers that participation is protected.
Another element of a retaliation case is adverse action. What constitutes an adverse employment action?
For sure, employment actions such as the following: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
•Making vague or isolated remarks about protected activity
•Contesting unemployment compensation
•Complaining about undesirable work assignments.
The EEOC and courts may also define adverse action more broadly as an action "reasonably likely" to deter charging parties from engaging in protected activity.
Best Practices for Avoiding Adverse Actions:
•Create and implement a specific anti-retaliation policy
•Train managers and supervisors
•Prior to taking any adverse actions against employees:
oInterview managers, noting any possible protected activity
oEnsure legitimate reasons exist for taking the adverse action
oConsult with your legal department or outside counsel.
Causal connection
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence; for example, time proximity (e.g., fired the day after lodging a complaint).
Escaping Liability
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
•Insubordination
•Refusal to perform assigned work
•Failure to get along with others
•Violence
•Business reorganization
•Misconduct
Retaliation Tips
•Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
•Ensure that documentation is consistent with employee's employment history. Be especially wary in situations that show a sudden drop in performance.
•Treat complainants like other employees to negate an inference of retaliation.
•Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.
Summarized from Today's HR Tip: Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.
Retaliation claims are growing, and it is no wonder—employees with baseless claims can make their retaliation claims stick. "You just don't want to be in front of a jury on one of these cases.” Jurors distrust employers to start with. And they easily identify with retaliation claims as part of human nature.
The Story of Uncle Milty
Uncle Milty was a 62-year-old executive whom colleagues called "Uncle" and "Grumpy." Uncle Milty lost out on a promotion which was given instead to a 35-year-old, says Faillace. Uncle Milty's lawyer fired off a letter accusing his employer of age discrimination, and days later, Uncle Milty was fired. His employer said he was fired because he was not a "team player." He always thought he knew better they said, and he made faces during meetings.
Jury Agrees: No Discrimination
A jury agreed with the employer that there was no evidence of discrimination; however, they did award Uncle Milty $5 million plus attorney's fees for retaliation.
This employer could have avoided all liability if it had done its homework when the attorney's letter arrived. "No matter how much of a pain it is." In this situation you buy the executive out and get a release.
Components of a Retaliation Claim
There are three primary elements of retaliation:
1.Protected activity
2.Adverse employment action
3.Causal connection
Protected Activity
Protected activity is of two main types: opposition and participation.
•Threatening to file a charge or other formal complaint alleging discrimination
•Complaining to anyone about alleged discrimination against oneself or others
•Refusing to obey an order because of a reasonable belief that it is discriminatory
•Requesting a reasonable accommodation or a religious accommodation
Remember, that an articulated expression of opposition is not required. Conduct itself may be enough, for example:
•Rejecting a supervisor's sexual advances
•Asking an employer whether race factored into an employment decision
•Peaceful picketing.
However, the employee's opposition must be reasonable. Some examples of acts that were not protected:• Disruptive and violent picketing
•Violations of legitimate company rules
•Knowingly disobeying company orders that are not discriminatory
•Conscious efforts to hamper the company's business pursuits.
Participation
Generally, employees are also protected when they make a charge, testify, assist, or participate in any manner in an investigation, proceeding, or hearing.
Making a preliminary visit to an EEO counselor
•Expressing an intent to file a charge
•Being a probable witness
•Assisting fellow workers in their discrimination claims
There is an important distinction between "opposers" and "participants." Opposers must have a good faith belief that the employer is violating the law; however, participants generally do not have to have such a belief. For example, a person testifying is protected even though he or she doesn't believe a law was broken.
Managers and supervisors tend toward retaliatory behavior against participants. They will ask the participant. "Whose side are you on anyway?" You must train your managers that participation is protected.
Another element of a retaliation case is adverse action. What constitutes an adverse employment action?
For sure, employment actions such as the following: denial of promotion, refusal to hire, denial of job benefits, demotion, suspension, and discharge are adverse actions.
The EEOC also includes threats, reprimands, negative evaluations, harassment, or other adverse treatment, but the federal courts don't always agree on these points.
Actions that have been found not to be adverse actions include:
•Making vague or isolated remarks about protected activity
•Contesting unemployment compensation
•Complaining about undesirable work assignments.
The EEOC and courts may also define adverse action more broadly as an action "reasonably likely" to deter charging parties from engaging in protected activity.
Best Practices for Avoiding Adverse Actions:
•Create and implement a specific anti-retaliation policy
•Train managers and supervisors
•Prior to taking any adverse actions against employees:
oInterview managers, noting any possible protected activity
oEnsure legitimate reasons exist for taking the adverse action
oConsult with your legal department or outside counsel.
Causal connection
The third element of retaliation claims is the causal connection. That is, the employee must show that the employer took the adverse employment action because the plaintiff engaged in the protected activity. In addition, the suing employee must show that the protected activity preceded the adverse action and that the employer had knowledge of the protected activity.
Sometimes the causal connection is shown by direct evidence, such as e-mails, and sometimes by indirect evidence; for example, time proximity (e.g., fired the day after lodging a complaint).
Escaping Liability
Once a claim against an employer is established with the three elements discussed above, the employer may defeat it by producing evidence that the employer had non-retaliatory reasons for its action. For example:
•Insubordination
•Refusal to perform assigned work
•Failure to get along with others
•Violence
•Business reorganization
•Misconduct
Retaliation Tips
•Carefully document performance problems. Progressive discipline records will help suggest that no retaliation took place.
•Ensure that documentation is consistent with employee's employment history. Be especially wary in situations that show a sudden drop in performance.
•Treat complainants like other employees to negate an inference of retaliation.
•Do not order surveillance on employees who have complained. That can constitute an adverse action and is unlawful if conducted because of the protected activity.
Summarized from Today's HR Tip: Faillace, managing partner of Michael Faillace & Associates in New York City, offered specific steps HR managers can take to prevent retaliation at a Society for Human Resource Management (SHRM) conference.
10 Mistakes Employers Make and How to Avoid Them
Focus on Ten Mistakes, Eliminate 90% of Problems
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Sometimes it seems that there are one thousand ways to go wrong managing people, but attorney Peter Janus suggests that 10 critical errors cause most of the problems.
1. Conducting Unlawful Pre-employment Inquiries
Inappropriate questions can be a source for claims of discrimination. To the extent possible, standardize the application and interview process. Make sure that all applicants for a particular position are asked fundamentally the same questions. Keep questions objective and focused on the job requirements and the skills necessary to perform the requirements. Ask:
•Does this question disproportionately screen out minorities, women, or individuals with disabilities?
•Does this question measure or explore something other than a person's ability to do the job?
If the answer to either question is yes, is there a way to ask the question to obtain the information needed that is not inappropriate?
2. Delivering "Dishonest" Evaluations
Too many managers and supervisors would rather be nice than honest. As a result, many legitimate actions taken against an employee based on lack of performance can be questioned on the basis of the nice reviews. Janus suggests the following:
•Avoid putting off the inevitable
•Do not overinflate performance evaluations
•Do not make promises that you cannot keep
•In narratives, avoid making personal comments
•If you set standards and they were not met, say so
•Rely on documentation and objective criteria whenever possible
•Do not rely on incidents arising in a time period that is not covered by the evaluation.
3. Making Rash Disciplinary Decisions
Before disciplining an employee, evaluate the circumstances to avoid (or defend, if necessary) claims of discrimination and wrongful discharge. Consider the following:
•Conduct a thorough investigation
•Review company policy and the employee's personnel file
•Ascertain that the employee received a copy of the policy
•Give the employee an opportunity to give his or her version of the facts
•Make sure similarly-situated employees were treated the same.
4. Committing Termination Errors/Omissions
Terminations are tough for everyone involved, and it's easy to make mistakes in the interest of getting through the uncomfortable process as quickly as possible.
•Conduct a thorough review before discharging an employee
•Determine whether the employee was given any oral or written assurances of continued employment
Do tell the worker in person
•Do use prepared notes
•Do keep it brief (10 to 15 minutes)
•Do treat people like adults
•Do clarify the logistics of leaving and severance
•Do have an outplacement counselor nearby
•Do escort the employee to the next appointment
•Don't say "How are you, Good to see you" or use platitudes like "I know how you feel"
•Don't chitchat or try to be funny
•Don't threaten or berate
•Don't make promises you can't keep
•Don't apologize
•Don't talk about other employees
5. Making Uninformed Responses to Medical Requests
Few management tasks are more challenging than dealing with employee medical problems—the Bermuda triangle of FMLA, ADA, and workers' compensation. The time to avoid the legal pitfalls is when you are first aware of the situation. The following questions will help:
•Does the worker have a serious health condition under FMLA?
•Is there an impairment that substantially limits a major life function under the ADA?
•Does the employee have any other handicap, infirmity, or impairment of any kind that might be covered by state disability law?
•Is there an injury present that occurred during work which would mean workers' compensation would apply?
Generally, managers should contact HR when employees are going to miss work for reasons that might involve "the triangle."
6. Failing to Update Policy Handbooks
Many employers have a handbook that they prepared and distributed to employees years ago and have not kept up. As many changes have occurred in the course of the last decade, these old handbooks and policies can create serious legal problems.
You should consider your handbook as a document that must change with the times, and it must be reviewed and updated regularly.
7. Supervisors Not Knowing and Enforcing Policies
Supervisors are responsible for much of the day-to-day enforcement of the company's policies. Many of them do not know the company's position on key issues. For example, imagine a supervisor telling an employee that he or she does not have time to handle a claim of unwelcome harassment. Regularly review your policies with all supervisors and update them on all changes before the policies are distributed to employees.
8. Managers Not Knowing All Applicable Policies and Laws
"Ignorance of the laws is no excuse." Managers have an obligation, as unreasonable or impracticable as it may be, to be aware of and understand the policies and laws that apply to their workplace. Failure to comprehend these laws can initiate lawsuits, can cause embarrassment in court ("You're responsible for upholding these taws, and you've never had formal training in how they work?"), and may even result in legal action against the manager as an individual.
9. Making Incorrect Wage/Hour Assumptions
The costs of wage/hour mistakes can add up fast. Typical examples:
•Thinking that paying a salary makes an individual exempt from overtime.
•Reducing an exempt employee's pay for disciplinary reasons.
•Having employees voluntarily agree in writing to receive less than time-and-a-half for overtime hours. Employees cannot waive their rights to overtime.
10. Including Medical Records in the Personnel File
Medical records should not be included in an employee's personnel file. Medical records include all papers, documents, and reports prepared by physicians, psychiatrists, or psychologists, that are in the possession of an employer and work-related, or upon which the employer relies to make employment-related decisions.
Today's HR Daily Advisor Tip:
Janus is a partner with Siegel, O'Conner, Zangari, O'Donnell & Beck, P.C. in Hartford, Connecticut. This material originally appeared in our sister publication, the HR Manager's Legal Reporter.
Tuesday, July 20, 2010
The Interview
Single Key to Attracting the Best Hires
The Interview—it's not a time to chat and visit, it's a time to dig and investigate.
Preparing is a two-step process.
First, use the job description to identify the traits, skills, and abilities you need. (No job description? I can help you write one.)
Second, determine how you will figure out if the candidate has the skills you require.
It's one thing to say you need a sharp financial analyst who can meet deadlines and knows about corporate reporting requirements. But how do you figure out if a candidate can meet those criteria?
It's easy, right? Just ask:
•Are you a sharp financial analyst? ("Yes.")
•Can you meet deadlines? ("Yes.")
•Are you familiar with corporate reporting requirements? ("Yes.")
That's a pretty quick interview. And a pretty meaningless one. Instead of yes/no questions that telegraph the desired answer, figure out some other ways to get at the information.
•Ask about the types of projects the person has done (biggest, most interesting, most challenging, for whom, with what help).
•Ask about the environment the person works in (what sort of deadlines, how many projects at a time, what he or she does when priorities conflict).
•Ask about the boss (likes and dislikes, pet peeves, time you pleased or annoyed).
Go through the job description, pick out key issues, and design questions that will help you get at those issues.
A side benefit of this work is that you'll end up with a set of questions that you can ask of all candidates, ensuring consistency in your interview process.
Otherwise, you'll end up asking different questions of each candidate, and you will have little basis for comparison (except, perhaps, the basis for a discrimination charge).
Finally, don't forget to ask routine questions that are deal breakers. For example:
•If a certification or degree is required, be sure the person has it.
•If travel is required, be sure the person can travel.
•If relocation is required, be sure the person can relocate.
If you're bringing someone in from out of town for the interview, get these questions answered by phone before the visit—you don't want to have to report to the boss and the hiring manager that you just flew someone in from the coast for an interview, only to discover that he or she was missing a key criterion.
Summarized from Today's HR Daily Advisor Tip, July 15, 2010
Amoung many others, two of my areas of expertise are in writing job descriptions and helping clients prepare for interviews that will be meaningful, provide the information needed to make a good hiring selection and help reduce liability associated with a poor hire.
Contact me at TheWhitfordGroup@aol.com
The Interview—it's not a time to chat and visit, it's a time to dig and investigate.
Preparing is a two-step process.
First, use the job description to identify the traits, skills, and abilities you need. (No job description? I can help you write one.)
Second, determine how you will figure out if the candidate has the skills you require.
It's one thing to say you need a sharp financial analyst who can meet deadlines and knows about corporate reporting requirements. But how do you figure out if a candidate can meet those criteria?
It's easy, right? Just ask:
•Are you a sharp financial analyst? ("Yes.")
•Can you meet deadlines? ("Yes.")
•Are you familiar with corporate reporting requirements? ("Yes.")
That's a pretty quick interview. And a pretty meaningless one. Instead of yes/no questions that telegraph the desired answer, figure out some other ways to get at the information.
•Ask about the types of projects the person has done (biggest, most interesting, most challenging, for whom, with what help).
•Ask about the environment the person works in (what sort of deadlines, how many projects at a time, what he or she does when priorities conflict).
•Ask about the boss (likes and dislikes, pet peeves, time you pleased or annoyed).
Go through the job description, pick out key issues, and design questions that will help you get at those issues.
A side benefit of this work is that you'll end up with a set of questions that you can ask of all candidates, ensuring consistency in your interview process.
Otherwise, you'll end up asking different questions of each candidate, and you will have little basis for comparison (except, perhaps, the basis for a discrimination charge).
Finally, don't forget to ask routine questions that are deal breakers. For example:
•If a certification or degree is required, be sure the person has it.
•If travel is required, be sure the person can travel.
•If relocation is required, be sure the person can relocate.
If you're bringing someone in from out of town for the interview, get these questions answered by phone before the visit—you don't want to have to report to the boss and the hiring manager that you just flew someone in from the coast for an interview, only to discover that he or she was missing a key criterion.
Summarized from Today's HR Daily Advisor Tip, July 15, 2010
Amoung many others, two of my areas of expertise are in writing job descriptions and helping clients prepare for interviews that will be meaningful, provide the information needed to make a good hiring selection and help reduce liability associated with a poor hire.
Contact me at TheWhitfordGroup@aol.com
Why Bother With a Reference Check?
One-Third of Résumés Lie—Reference Check, Anyone?
Everyone agrees that reference checks are important, but actually doing them is difficult. Employers want to get information about candidates, but when other employers want the same information from them, they don't want to give it.
One-Third of Résumés Contain a Lie
According to industry experts, up to one-third of résumés contain material falsehoods. Remember, for employers, the résumé is a factual document, but for applicants, it is a marketing tool.
What Can You Achieve with Reference Checks?
Achieve better hiring fits. Often, the best indicator of future performance is relevant past performance. And the best way to find out about that is the reference check. A general rule: Information often trumps intuition.
Unexplained gaps. By verifying dates of employment, an employer can make sure that there are no unexplained employment gaps that might signal trouble.
Protect the investment. Employers make a substantial investment when hiring. Bad decisions create untold administrative, financial, and legal difficulties, not to mention substantial cost, wasted time, and delayed productivity.
Honesty and accuracy. Verification also confirms the honesty and accuracy of the résumé.
Verification means checking factual matters, like start date, title, and salary.
Reference checking refers to qualitative matters (job performance, strong points, weak points, and so on).
Policy and Legal Considerations
As we mentioned above, unfortunately, employers want to get reference information, but they don't like to give it. Employers fear defamation lawsuits if they give any information beyond basics like dates of service and title. And if the employee in question has filed any sort of suit or made complaints, there's the added possibility of retaliation lawsuits.
Some states provide protections for employer references. For example, in North Carolina, an employer giving a reference has protection, provided the information is:
•Job related
•Based on credible evidence
•Made without malice
But even with that protection, many legal sources still believe that the risk of a defamation claim outweighs any benefit to an employer from giving reference information. Furthermore, they point out, what constitutes "credible evidence" and "job related" can be open to interpretation.
If You Can't Say Something Nice …
One alternative for employers is to provide only positive reference information.
However, even that policy can lead to legal difficulty.
First of all, some courts have found that employers have a duty to provide full and complete recommendations. In one California case, an employer gave a positive recommendation, leaving out important negative information. The court ruled that the employer providing a recommendation owes a duty to protect employers and third parties and could not misrepresent the qualifications and character of a former employee where there was a substantial risk of physical injury.
A similar problem occurs when employers give recommendations only for employees with good records. Employees who are not given recommendations may sue for defamation on the basis that no recommendation is equivalent to a bad recommendation.
No Such Thing as 'Off the Record'
There's no such thing as "off the record" when it comes to references. Whatever the reference provider says to a reference checker must be revealed during a deposition.
There is no privilege involved.
Reading Between the Lines
Sometimes you'll get a lot of information when you get "no information.
Two examples:
An HR manager asked for a reference says, "Why don't you ask the applicant to send us a release for his performance appraisal files; they would make interesting reading."
In another case, a reference checker said to the applicant's former manager, "Everything says I should hire this lady, but I have a gut feeling that something's wrong." The former manager said, "I always think it's a good idea to go with your gut."
Summarized from Today's HR Daily Advisor Tip
Recently a lot of my supervisory and management training sessons with clients have focused on the hiring process, reference checking and preparing defensible appraisals. Some people think these activities are busy work and a waste of time, however, it is clear from this post and many of my other recent posts that they are very important and if done correctly, can potentially save a company a lot of time a money.
Let me know if I can help you with these or any other human resources issues. Contact me at TheWhitfordGroup@aol.com
Everyone agrees that reference checks are important, but actually doing them is difficult. Employers want to get information about candidates, but when other employers want the same information from them, they don't want to give it.
One-Third of Résumés Contain a Lie
According to industry experts, up to one-third of résumés contain material falsehoods. Remember, for employers, the résumé is a factual document, but for applicants, it is a marketing tool.
What Can You Achieve with Reference Checks?
Achieve better hiring fits. Often, the best indicator of future performance is relevant past performance. And the best way to find out about that is the reference check. A general rule: Information often trumps intuition.
Unexplained gaps. By verifying dates of employment, an employer can make sure that there are no unexplained employment gaps that might signal trouble.
Protect the investment. Employers make a substantial investment when hiring. Bad decisions create untold administrative, financial, and legal difficulties, not to mention substantial cost, wasted time, and delayed productivity.
Honesty and accuracy. Verification also confirms the honesty and accuracy of the résumé.
Verification means checking factual matters, like start date, title, and salary.
Reference checking refers to qualitative matters (job performance, strong points, weak points, and so on).
Policy and Legal Considerations
As we mentioned above, unfortunately, employers want to get reference information, but they don't like to give it. Employers fear defamation lawsuits if they give any information beyond basics like dates of service and title. And if the employee in question has filed any sort of suit or made complaints, there's the added possibility of retaliation lawsuits.
Some states provide protections for employer references. For example, in North Carolina, an employer giving a reference has protection, provided the information is:
•Job related
•Based on credible evidence
•Made without malice
But even with that protection, many legal sources still believe that the risk of a defamation claim outweighs any benefit to an employer from giving reference information. Furthermore, they point out, what constitutes "credible evidence" and "job related" can be open to interpretation.
If You Can't Say Something Nice …
One alternative for employers is to provide only positive reference information.
However, even that policy can lead to legal difficulty.
First of all, some courts have found that employers have a duty to provide full and complete recommendations. In one California case, an employer gave a positive recommendation, leaving out important negative information. The court ruled that the employer providing a recommendation owes a duty to protect employers and third parties and could not misrepresent the qualifications and character of a former employee where there was a substantial risk of physical injury.
A similar problem occurs when employers give recommendations only for employees with good records. Employees who are not given recommendations may sue for defamation on the basis that no recommendation is equivalent to a bad recommendation.
No Such Thing as 'Off the Record'
There's no such thing as "off the record" when it comes to references. Whatever the reference provider says to a reference checker must be revealed during a deposition.
There is no privilege involved.
Reading Between the Lines
Sometimes you'll get a lot of information when you get "no information.
Two examples:
An HR manager asked for a reference says, "Why don't you ask the applicant to send us a release for his performance appraisal files; they would make interesting reading."
In another case, a reference checker said to the applicant's former manager, "Everything says I should hire this lady, but I have a gut feeling that something's wrong." The former manager said, "I always think it's a good idea to go with your gut."
Summarized from Today's HR Daily Advisor Tip
Recently a lot of my supervisory and management training sessons with clients have focused on the hiring process, reference checking and preparing defensible appraisals. Some people think these activities are busy work and a waste of time, however, it is clear from this post and many of my other recent posts that they are very important and if done correctly, can potentially save a company a lot of time a money.
Let me know if I can help you with these or any other human resources issues. Contact me at TheWhitfordGroup@aol.com
Firing Without a Defense!
Defense Failed Because of Performance Appraisal?
In court, an inadequate or inaccurate performance evaluation can be used against you with devastating results. Many companies that have fired employees for poor performance and then found out too late that its appraisal documents didn't support the defense.
We often don't think of appraisals as legal challenges, but they often figure prominently in lawsuits. Juries tend to come down hard on employers who:
•Don't appear to have told the employee what was expected.
•Don’t appear to have given an employee a chance to improve.
•Say bad performance as the reason for a firing, but awarded the person a "satisfactory" or "good" rating.
In some companies, vital personnel decisions are made casually. This informal approach is easy, but dangerous. When there are no established criteria or performance standards on which to base personnel actions, such as transfers, promotions, terminations, and pay increases, managers tend to be influenced by the employee’s personality rather than what he or she is actually doing on the job.
10 Rules for Appraisals
Here are 10 tips for building a solid defense so it’s there in case you ever need it:
1. Carefully document how all employees are performing
You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.
2. Make sure employees know what’s in their files
Don't slip negative information into files without letting employees see it. Ask workers to initial a summary of your discussions and the goals that have been agreed to. (Note that in some states, employees have the right to inspect their personnel files.)
3. Be candid and explicit
Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There's room for improvement," or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.
4. Don’t give raises to marginal employees
Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.
5. Don’t mention age, gender, race, etc.
This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need some young blood around here.”
6. Don’t let marginal performers slide
When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.
7. Use relevant, objective standards
Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:
•Maintaining or increasing sales volume
•Handling customer complaints
•Operating within a budget
•Meeting deadlines
•Writing reports
•Complying with certain company policies (such as those regarding absences)
•Reducing costs
•Overall productivity
8. Back up judgments with facts
Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusion
9. Make sure employees understand all performance standards
If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.
10. Keep all performance evaluation materials in a confidential file
While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.
Summarized from Today’s HR Daily Advisor Tip
In court, an inadequate or inaccurate performance evaluation can be used against you with devastating results. Many companies that have fired employees for poor performance and then found out too late that its appraisal documents didn't support the defense.
We often don't think of appraisals as legal challenges, but they often figure prominently in lawsuits. Juries tend to come down hard on employers who:
•Don't appear to have told the employee what was expected.
•Don’t appear to have given an employee a chance to improve.
•Say bad performance as the reason for a firing, but awarded the person a "satisfactory" or "good" rating.
In some companies, vital personnel decisions are made casually. This informal approach is easy, but dangerous. When there are no established criteria or performance standards on which to base personnel actions, such as transfers, promotions, terminations, and pay increases, managers tend to be influenced by the employee’s personality rather than what he or she is actually doing on the job.
10 Rules for Appraisals
Here are 10 tips for building a solid defense so it’s there in case you ever need it:
1. Carefully document how all employees are performing
You might be tempted to document only your problem employees. A better practice is to keep performance records on all of your workers. This means carefully recording your observations, praise, counseling, and warnings—in writing—in clear, objective language.
2. Make sure employees know what’s in their files
Don't slip negative information into files without letting employees see it. Ask workers to initial a summary of your discussions and the goals that have been agreed to. (Note that in some states, employees have the right to inspect their personnel files.)
3. Be candid and explicit
Although many managers are uncomfortable with this, it’s important to be frank. Don’t use euphemisms, such as, “There's room for improvement," or duck out of giving an employee strong, but necessary, constructive criticism. Be specific about what’s gone wrong and offer concrete steps for improvement. It is unfair and unrealistic to expect an employee to improve unless he or she knows exactly what is amiss.
4. Don’t give raises to marginal employees
Some employers give poor performers a raise in the hope it will motivate them to improve. Without counseling an employee about his or her inadequate performance, however, this strategy is doomed to fail. What’s more, if the employee is terminated and sues, he or she can point to the history of pay raises to show that he or she was doing a good job.
5. Don’t mention age, gender, race, etc.
This means, for example, not telling a 45-year-old, “The younger salespeople seem to grasp our new products better than you do,” or “We need some young blood around here.”
6. Don’t let marginal performers slide
When an employee’s poor performance goes uncriticized for several weeks or months, negative comments in a performance evaluation lose credibility and are likely to trigger complaints of unfairness or bias.
7. Use relevant, objective standards
Look at the job and how it is being performed, rather than the person. Some examples of objective criteria are:
•Maintaining or increasing sales volume
•Handling customer complaints
•Operating within a budget
•Meeting deadlines
•Writing reports
•Complying with certain company policies (such as those regarding absences)
•Reducing costs
•Overall productivity
8. Back up judgments with facts
Use production records, disciplinary reports, attendance records, examples of work quality, etc., to back up your assertions, and be clear about how you arrived at your conclusion
9. Make sure employees understand all performance standards
If they don’t fully understand their obligations and how their work is being judged, the performance appraisal system will be of little use, either as a performance management tool or a defense in a lawsuit.
10. Keep all performance evaluation materials in a confidential file
While employees should have access to their performance appraisals, others’ access to such information should be strictly on a need-to-know basis.
Summarized from Today’s HR Daily Advisor Tip
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