Monthly Archives: June 2013

RANDOM ALCOHOL TESTING POLICY UPHELD UNDER THE ADA AS JOB-RELATED AND CONSISTENT WITH BUSINESS NECESSITY

While any medical testing for employees or job candidates may invite scrutiny under the Americans with Disabilities Act (“ADA”), many employers don’t always view drug and alcohol screening the same way as they do a typical medical test.  While overlooking that connection could be a mistake, not all the skies in this area are gray, as a recent decision from a federal district judge in Pennsylvania illustrates. 

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WEST VIRGINIA SUPREME COURT AFFIRMS THAT DELIBERATE INTENT CLAIM REQUIRES MORE THAN JUST AN UNSAFE WORKING CONDITION

Although plaintiffs’ lawyers like to think that an employee can get around the employers’ workers’ compensation immunity easily by making a “deliberate intent” claim, the West Virginia Supreme Court of Appeals recently affirmed that it takes more than just pleading that there was a specific unsafe working condition in order to prevail on such a claim.  In a complete victory for the employer, the Court also affirmed that a mere clerical error on an employee’s unemployment compensation paperwork is not sufficient evidence to show that the employer discharged the employee in retaliation for filing the workers’ compensation claim. 

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U.S. AIRWAYS, INC. V. MCCUTCHEN: SCOTUS SAYS ENFORCEMENT OF ERISA PLAN TERMS IS NOT “INEQUITABLE”

Employer-sponsored group heath plans typically allow reimbursement to the plan for benefits paid in connection with injuries sustained as a result the tortious conduct of a third party.  That right of reimbursement arises when the injured plan participant obtains a recovery against the tortfeasor and is enforceable, as an equitable lien by contract, against the proceeds of any recovery.  Plan terms also, as an alternative remedy, subrogate the plan to the rights of the injured participant and allow the plan to pursue the participant’s tort claim in its own name.  Read More »

WV LEGISLATURE ALLOWS FOR ATTORNEY’S FEES IN CERTAIN WORKERS’ COMPENSATION CLAIMS

In 2009, the West Virginia Supreme Court of Appeals created a formal Access to Justice program for the State of West Virginia.  The Access to Justice program was established to determine the needs of citizens accessing the justice system in the state.  One of the issues identified by the Access to Justice Commission was the lack of ability for claimants to obtain counsel in the litigation of denied medical treatment issues in workers’ compensation claims.  Accordingly, Supreme Court Justice Brent Benjamin formed a committee to address this issue.

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THIRD CIRCUIT AGREES WITH NOEL CANNING; IS THE 2ND COURT TO INVALIDATE NLRB RECESS APPOINTMENTS

If you are a regular reader of this blog, you know that the National Labor Relations Board (“NLRB”) has been the subject of a great deal of court attention during the Obama Administration.  Halfway through 2013, that train is still rolling and shows no sign of slowing down anytime soon.

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ONBOARDING: MAKING THE MOST OF THAT “FIRST DATE” WITH YOUR EMPLOYEES

I hear people describing their workplace as their ‘other family’ all the time.  Considering how much time many of us spend at work, there’s a nugget of truth to that.  Families, however, can be dysfunctional.  That’s when folks in my occupation tend to get involved.  What if, instead, we view a new job as the beginning of a life-long love affair?  The goal is to grow old together and retire after a long, fulfilling relationship.  Without a successful onboarding process, how can you make that first impression develop into a lasting “romance?” 

Onboarding is essentially the process you use to acclimate new employees into the culture and operation of your business.  In the old days, the process was called “orientation” and was a dreadful event full of benefits paperwork, long-winded PowerPoint presentations, and folks reading from scripts to welcome you to the company.  It was the equivalent of that first date where, five minutes in, you order the salad and tell the waiter you won’t be needing the dessert menu.  Orientation doesn’t have to be a bad word, though, and proper onboarding can provide the same content of a traditional orientation in a more inviting way.

A lot of employers use a 90-day probationary period to assess whether an employee is a good fit with their company.  A good onboarding process can make the most of this trial run.  One of my dating views is that you can only hide the crazy for so long.  That’s a less-than-artful way of saying that people can stay on their best behavior until they feel like they’re ‘in,’ and that philosophy has some application in the workplace.  But how do we combat that trend at work?

Well, making sure your employee hits the ground on day one with a mentor is one way to indoctrinate them into the corporate culture and find out whether the employee is a true fit or just behaving himself.  Consider networking events during the onboarding process, too.  I’ve read about companies that even use scavenger hunts which can only be completed by meeting other folks in the office and learning how things are done in their new workplace to break the ice.

Remember that your “date” is sizing you up too during these early months.  Research shows that employers with weak onboarding processes have higher rates of employee turnover, particularly in the first six months.  Letting your employees sink or swim after their initiation is not going to instill loyalty.  Follow up with them to make sure they are adjusting well and don’t have questions they are afraid to answer, either.  Make sure their mentor is actually mentoring them.  Show them that you are as excited for them to come work for you as they are to work for you.  The new employee’s office should be ready and waiting for them.  Perhaps you can even have a project for that first day so the employee feels like they are contributing right off the bat.

Another way to make that first day less trying is to send out forms and information ahead of time.  That way, you can dedicate some time to answering questions rather than reciting benefits information from your plan.  You can also avoid overload by breaking up the onboarding process into sessions that end in the early afternoon.  Scheduling casual meet and greets or facility tours for later in the day is another idea.    

The whole point of the onboarding process is to create loyal, happy employees.  It’s much less likely that those folks will give you trouble requiring my services.  On the other hand, a more formalized process is likely to identify the employees with whom you don’t want to get into a committed relationship.  Sometimes, it’s better you know if you’re going to be ordering dessert sooner than later.  In the end, each employer has to decide if one approach is better than the other, or if perhaps blending them is best.  I welcome any of your ideas on onboarding, so please feel free to share them.