Author Archives: Vanessa L. Goddard


Employers frequently deal with issues touching on employee privacy rights, and in the world of smartphones, social media, Google Glass, and B.Y.O.D., the application of relevant laws in this area is getting more – not less — complex.  Want a primer on all workplace-related privacy issues this Easter? Look in the right margin or click here to download our free Workplace Privacy Toolkit as a gift to you from the Employment Essentials Team this holiday season.  Grab it and put it in your basket today because – like the Easter Bunny – it may disappear soon.  If you like the Toolkit, don’t forget to spread the word, and tell us in the comments below, as well!


Last time, I introduced the topic of gamification in the workplace.  If you want a refresher on the topic, click here.  This time, I’d like to talk about what I think are some of the best uses of gamification for employers – based on where I believe the most value could be obtained for the employer.  To be clear, I am not advocating gamification as a one-size-fits-all idea, and the last thing employers need is to turn the workplace into a second Facebook account where working with and socializing with your peers becomes entirely digital.  However, there’s no denying that gamification presents an interesting route for achieving common workplace goals.

Recruiting:  Gamification is already a common tool used in tech recruiting, but in my view, the application of the idea in this context could benefit more than just high tech companies.  Within gamification, a subset of tools exist called “serious games.”  These “games” can simulate real-life scenarios that test the skills actually used on the job.  Those candidates who score well in the game are more likely to be better candidates for the job.  Used properly, the potential employee gets a chance to see if your job is really a fit for him or her, too.  Also, if you’re already using gamification internally, reward your employees for referring solid candidates through that medium.  Your current employees are one of your best sources for recruits because they know your business, your culture, and the potential recruit.  Plus, it’s free! 

Training:  Many companies have a variety of trainings which must be completed on an annual basis.  With gamification techniques, you can turn mundane training into a lively, competitive experience.  Who has completed the most modules?  Who received the highest score on the test?  Recognition of these achievements encourages prompt completion of training.  Even better, it generates an electronic record you can use to monitor your employees’ training.  You will know whether their training is complete and up-to-date at a glance.  And, if someone takes several attempts to pass a module, you can identify and act on what is likely a need for additional training. 

Education:  This area is slightly different from training.  You can use gamification to educate employees or recruits on your industry, business, product lines, and processes.  You can use it to teach new skills, particularly where repetition and practice are necessary to solidify the skill.  You can also use it to teach employees how to cope with unusual scenarios they might otherwise not get to experience until crisis descends.  For instance, the U.S. Department of Homeland Security uses gamification to help emergency personnel learn how to deal with disasters. 

There are some applications of gamification which have more questionable utility to employers than others.  For example, certain research suggests that gamification is useful for enhancing workplace culture by encouraging certain behaviors from employees.  In my view, I’m not sure rewarding smiles or participation is the best use of this resource.  Also, applying gamification to workplace wellness programs – while intuitively appealing – is probably not going to get employers any more bang for their buck than the incentives already used (ex. water bottles, t-shirts, or reduced deductibles), and I’d be willing to bet that no employer wants to present the test case in court involving gamification of what might very well be protected health information.  

Are you using gamification?  Tell us your views on how it works for you.


Are you using gamification in your human resources functions?  Have you even heard of it?  Perhaps not, but some predict it’s the future of the workplace.  Gamification is the application of gaming processes to non-gaming applications.  Basically, it makes work more fun and engaging by adding gaming elements and achievements to what might otherwise be boring and mundane tasks.  In human resources, gamification has been applied to recruiting, training, and employee performance. 

Research tells us that a large majority of American workers are not engaged in their jobs.  This disengagement leads to higher rates of employee turnover, lower morale, and less productivity.  Gamification seeks to address these concerns by achieving higher levels of engagement on the job.  Most of you are familiar with the leadership boards used in sales to motivate and celebrate sales and stimulate competition.  Imagine applying those elements to non-sales workers.  

Let’s say, for example, that your employees have to satisfy multiple training modules on an annual basis, and maybe it is like pulling teeth to get their cooperation to timely complete these modules.  I know this stretches the imagination but bear with me.  Now suppose that these modules have been modified to allow for leveling-up as skills are attained (or refreshed).  Employees both earn badges for each module completed and earn points based on how timely they completed these modules.  Co-workers could see who has earned badges and who the point leaders are.  Suppose then that the top scoring employees got an actual reward – like half a day off or a two-hour lunch break – for completing their annual training.  Some employers have found that gamification has replaced pulling teeth.  

Think about what gamification has done in this very simplified example.  It breathes a little competition and interest into otherwise mundane or painful tasks.  It engages employees.  It modifies employee behavior to achieve a result desired by the employer.  Success within the module results in leveling up and ultimately a reward, which means that feedback is immediate.  It sets clear goals to be achieved, and those goals are achievable.  It provides feedback to managers as well.  An employee who is having trouble with a module will be identifiable, and additional training can be given to that employee to help him succeed.  Lastly, HR is assisted by the computer’s retention of those who have completed each module, making recordkeeping easier. 

One selling point of gamification has been that it will keep the “gaming generation” feeling more engaged and committed as they enter the workforce.  However, I recently spoke with a start-up founder of a gamification app who also happens to be a member of the “gaming generation” about to enter the workforce and he wasn’t buying that selling point.  He told me that he and his peers are no more attracted to an employer who uses gamification in recruiting, training, or other processes than those who did not.  Beyond that, he made some other valid points that you might want to take to heart if you’re considering adding gamification to your workplace: 

  • Adding gamification just for the sake of having it adds no value.  The gaming generation is used to beating the game and moving on because they’ve gotten all they wanted out of the game.  Think about the $70 video game you got your kid for Christmas only to have him announce to you before you even rang in the New Year that he had already beat the entire thing.
  • Adding gamification to a bad product (or a bad process) still leaves you with a bad product (or process).  Gamification doesn’t fix something that’s broken, but it can help you get more out of your workers where specific behaviors need to be modified.
  • Gamification doesn’t work unless the incentives are real.  The person I spoke with could see where gamification has valid application in the health and wellness context because the individual is seeing and feeling the results as they get healthier, and the competitive element can keep you motivated.  Badges and leaderboards alone won’t always make gamification work, though.

The jury is still out on whether gamification techniques have the efficacy to be the wave of the future in human resources practices.  In my view, gamification might add value to the workplace in a few areas.  I’ll talk about those next time.  Until then, what do you think about gamification?



Did you know that 98% of your clientele will judge the reliability and strength of your business based upon the appearance of the first employee with whom they interact?  Probably not, because I just made that up, but what if they did? 

Company dress codes are often treated like an afterthought rather than as a policy which should be thoughtfully drafted, timely updated, thoroughly explained, and seriously enforced.  Many employers don’t think about them until faced with an employee who is inappropriately attired, and then they discover that their policy doesn’t cover the specific situation, or that it’s simply never been enforced.  Admittedly, sitting down with an employee to discuss their fashion sense or personal hygiene is an uncomfortable scenario for any manager.  However, a properly drafted and circulated dress code can ease that situation. 

As a general proposition, employers can require employees to abide by set standards for their workplace attire, and employers have many reasons for such standards.  For instance, employers may wish to establish a desired public image, to ensure workplace safety, or to promote worker productivity and morale.  No dress code is a one-size-fits-all, however, and you should not assume that one standard is sufficient throughout your organization.  For example, a business may have employees who work in manufacturing a product, employees who run the office, and employees who conduct outside sales of the product.  In each of those areas, an employer may have different employee dress expectations.  Manufacturing employees typically require special safety gear, like steel-toed shoes, gloves, or protective glasses.  They may be at risk for injury if they wear long necklaces or bracelets while at work.  Outside sales personnel are typically the face of the company and require a more professional appearance.  Office staff may be in a better position to wear casual clothing while they work, but when office or sales staff enters the manufacturing area, additional dress codes may apply to them.   

As you do with other workplace policies, try to provide specific guidance to your employees.  “Business casual” and “inappropriate attire” do not have set definitions which are understood by all.  Give examples: “Clothing appropriate for yard work or exercise is not appropriate professional attire.”  Additionally, be specific: “Skirts need to fall no shorter than two inches above the knee.”  Don’t forget to address accessories and grooming: “Employees are expected to maintain good personal hygiene” and “No one may wear necklaces on the operating floor.”  Finally, address your specific business needs: “Employees must wear an employer-provided name tag while at work.”  

The policy should further state that it is not all-inclusive and will be reviewed periodically to keep it up-to-date.  It should also identify an individual (e.g., supervisor) or group of individuals (e.g., human resources) to whom questions may be directed on the appropriateness of attire.  Don’t forget to warn that disciplinary action may result for violation of the policy.  

Once the policy is in place, you must train your employees on the policy if you intend to enforce it.  Consider having employees sign an acknowledgement that they have read and understood the dress code policy as you do with other policies.  Further, when addressing a grooming issue with an employee, do so in a non-judgmental manner.  Use the policy to describe factually the distinction between what the employee is wearing and what the policy permits.            

Of course, when drafting and enforcing dress codes, remember that certain laws may apply.  Religious requirements, cultural practices, and certain disabilities may require an employer to explore whether an accommodation – including an exception to the dress code – is necessary to avoid violating anti-discrimination laws.  You may want to consider adding a procedure for requesting an exception or accommodation in your policy.  

Gender discrimination may also be an issue – and one more difficult to spot.  While men and women may have some different grooming standards, you must make sure the policy is applied evenly and accurately.  For example, if your policy prohibits ponytails and earrings, but the policy is only enforced against males, it may be found to be discriminatory.  On the other side of the coin, requiring women to wear skirts could also be found to constitute gender discrimination. 

The risks don’t stop there.  If an employer is not careful in how it addresses a dress code violation or in how it communicates the dress code, sexual harassment claims may be brought.  Additionally, an employer may face an unfair labor practice charge if it enforces a dress code that interferes with the exercise of Section 7 rights under the NLRA.  This may occur when an employer prohibits slogans or other expressions on articles of clothing.  

Do you have any suggestions on dealing with employee attire/grooming issues?  Do you have any creative accommodations which met both the employer’s needs and the employee’s protected concern that you can share?  If so, I’d love to hear your views.


‘Twas the month before Christmas,
I’m ahead of the curve.
All our policies in place,
Though I’m on my last nerve.


The year’s been a long one,
But we’re on the last leg.
No more laws are forthcoming,
Not even a reg.


They thought they could break me.
They tried all year long.
 Every move they made, I countered.
Documenting each wrong.


I’ve covered all my bases.
I’ve thought it all out.
No more surprises for HR.
I haven’t a doubt.


Criminal records
And background checks
All are compliant
With E-E-O-C specs.


Job descriptions are updated,
Acknowledgements signed all around,
Ready to accommodate and pay properly
Our essential functions are sound.


Been searching the Marketplace,
Hip hooray Obamacare!
Another minute with that law,
And I’ll tear out my hair.


But the notices have been sent,
Employees now know where to find,
Insurance coverage options
May they not lose their minds.


Social media has been a challenge
For instance, when an employee did tweet
A company secret or three
He was fired tout-suite.


That’s why the company attorney and I
Have become really tight
She’s number 1 on my speed dial
Tho’ no calling at night.


But, I’ve held on regardless,
My sanity deprived
Even when the Thanksgiving Turkeys
showed up alive!


The holiday party’s up next
With Secret Santas and snow,
But to avoid last year’s lawsuit,
There’s no mistletoe.


The booze is gone too,
As well as those cells.
No more postings on Facebook
Of folks wearing just bells.


The Christmas bonus is all that’s left.
The turkey debacle won’t repeat,
Because ham’s not an animal,
It’s totally a meat.


Merry Christmas!



I was bouncing around recently on Twitter (@SJEmpEssentials is a recommended handle, by the way) when I came across an interesting piece about an employee who was not promoted due to her “nervous laugh.”  Apparently the employee had little customer contact in her position, but the job she applied for included significant customer interaction.  The employee had been the subject of complaints from co-workers and a few customers because of her laugh.  She was not promoted.  The article went on to include comments from lawyers around the country on the potential legal pitfalls of such a decision. 

Reading that article made me recall an older case from West Virginia where a woman was twice passed over for promotion due to her eye socket being “somewhat sunken and hollow.”  The basis for the refusal to promote was not the fact that she was blind in that eye; rather it was the “unsavory and unacceptable” appearance it would have supposedly created in dealing with the public.  Now, being mindful of the fact that this case occurred before West Virginia recognized a “perceived as” definition of disability, the West Virginia Supreme Court then concluded that discrimination based solely on unacceptable physical appearance did not meet the definition of handicap under the WV Human Rights Act. 

Is looksism something we should be concerned with?  The District of Columbia’s anti-discrimination statute includes “personal appearance” as a protected category.  Other state and local laws protect physical characteristics, height, and weight.  The Americans With Disabilities Act includes “cosmetic disfigurement” under the definition of impairment, and if characteristics such as obesity or being too thin are the result of a disability or constitute a disability in and of themselves, employees may also seek protection under the Act.  If only one gender is subject to the appearance standard – only requiring women to be beautiful or men to be tall, for instance – a sex discrimination claim is the risk.  

The questions don’t stop there, however.  By far and away, some of the most interesting stories going right now are about reverse looksism, where – for example – women who are too beautiful or too sexually appealing are discharged because of their appearance.  In fact, there recently was a fairly newsworthy case in Iowa where the plaintiff was fired because her boss viewed her as a threat to his marriage on account of how attractive he found her.  Keep in mind that there was no consensual sexual relationship between them; only a working relationship.  The Iowa Supreme Court found the employer was within its legal rights when it discharged her.  Now, “I’m afraid I’m going to sexually harass you so I have to fire you” is being touted as a legitimate, nondiscriminatory reason for discharge. If beauty is the true reason (not simply being female), has anything illegal occurred? 

Should we even be concerned with legislating looksism?  Who is qualified to make a determination on attractiveness?  The thought that employment law may be headed this direction is mind-boggling in my view.  What about yours?


If you want to stay on the cutting edge of social media, just ask your kids.  The latest obsession in my household is Vine.  If you haven’t heard of it yet, don’t worry.  You will.  Vine is essentially video Twitter.  Users make 6 second videos that are uploaded for mass consumption quickly and easily.  The videos play in endless loops that have the potential to induce insanity.  And if your workplace users aren’t just demonstrating their time-traveling powers like my boys are, the potential hazards of Vine for you as an employer are likely to take the definition of insanity to a whole new level.

Let’s begin with a brief informative tutorial provided by my 10 year old son, Josh: Vine is an app that you must upload to your smart phone.  Like Twitter, you have a home that houses your videos.  You can also follow others on Vine, and like Twitter, their posts will appear on your profile page.  To record a video, just hold your finger on the screen or lift it up to stop recording (according to Josh, that’s how you time travel or teleport).  Once you’re satisfied with your product, you have the option to place a caption on your video.  Hashtags are encouraged.  Don’t forget to identify your location.  Then, it’s ready for viewing, viewer comments, and re-vining (sharing). 

Nervous yet?

The first set of concerns about Vine for employers involves viewing issues.  Procrastination in six second bursts is still procrastination.  Because Vine is quick and addicting, your employees’ productivity could be impacted by viewing Vines.  Vine does not have a website (yet), so all of the action is taking place on the phone.  Many employers do not provide their employees with phones, so policies on the use of employer equipment and discipline for misuse of that equipment aren’t going to cover Vine use.

Thankfully, other policies may (should) cover the issues raised by employees spending time at work viewing Vines.  Your anti-harassment policy may prohibit the viewing of Vines that constitute harassment on the basis of protected status.  Your policies on working time and personal phone use may also capture Vine use issues.  You should probably review these policies to ensure that they are broad enough to cover this latest, greatest social media platform.

The second set of concerns for employers is much bigger, and involves creation.  How much damage can an employee do creating a Vine in six seconds while at work?  Get comfortable.  Policing Vine use is difficult due to the brevity of the action, but in six seconds, employees could display classified documents, rant about their job, co-workers, or customers, harass and discriminate, and breach the privacy of others. 

Vine may also present safety concerns.  There are posts of employees operating heavy equipment at work.  Six seconds is plenty of time for an accident to occur.  As if accidents and injuries aren’t enough of an employer concern, now they may be preserved on video.  The worst part of all this is that your employees can do everything I mentioned while identifying their location as your workplace.  This is why it’s vital to make sure that your policies covering these concerns are broad enough to encompass Vine misbehavior. 

While Josh has informed me that Vine is “made specifically for comedy,” there are other uses, and not all of them are bad for employers.  Vine is being used successfully for marketing and advertising purposes.  It can allow an employer to showcase a new product, highlight a recent success, or promote a brand.  Vine is also being used to humanize a business with its constituencies.  You can conduct attention-grabbing tours of your facility, engage your followers in discussions about shared interests, promote contests, and share the culture and history of your business. 

Better still, Vine can be used to make boring business events more interesting.  You can engage your new employees by using Vine to introduce them to your business and their co-workers during orientation.  You can add life to presentations by including Vine clips.  You can pass company information along to your employees using this entertaining format to get their attention and ensure that the information communicated is being heard.

Vine was released in January 2013, and like most vines, it’s going to grow.  Being aware that it exists is the first step to controlling its impact on your workplace, both good and bad.  Are any of you using Vine?  Let us know.  We’d love to hear your Views on the pros and cons of Vine at work.


Making the decision to discharge an employee is not an easy one.  Hopefully, not all of our readers know the feeling.  However, the FOX network is giving viewers a glimpse into what it’s like to be the boss on a new reality show titled “Does Someone Have To Go?”  It was suggested to me by my editor that this series might be ripe with topics for this column.  He wasn’t wrong. 

By combining the best of Survivor and Jerry Springer, the premise of the show begins with the notion that all workplaces have dysfunction.  Of course, since everyone thinks they can do a better job running the company, the owners tell their employees to have at it:  for the next 48 hours, they are to identify the three employees who are the biggest problems and decide whether to put them on probation, cut their pay, or fire them.  Two weeks earlier, everyone had the chance to vent about their co-workers in front of the camera.  Now, those clips are played to the new collective “boss” showing what everyone really thinks of each other, and that’s where my employment attorney heart first seized up.  On national television, these folks start labeling each other.  I’ve seen the nice older lady whose memory is going.  I’ve heard them talk about the alcoholic.  Others are outdated, lazy, annoying, and controlling.  Another is chronically absent (and she blames it on health conditions). 

For those of you in HR, the buzz words in that last paragraph probably have you feeling a little nervous.  While troublesome enough that the employees who made these comments and hold these opinions are about to make discipline and discharge decisions affecting these folks, there’s still one more surprise before they do:  pictures of each person flash up on the screen with their salary and their years of service.  Armed with this information, the group breaks up into their natural cliques and discusses who should be placed on the chopping block.

Ultimately, the three candidates with the most votes are selected and thereafter, each makes an appeal to the collective “boss” on why they should stay.  The group then decides the fates of the three, and the owner returns to observe the meting out of punishment.  The cameras come back to the business three months later to check in and see how things have been.  Miraculously — poof:  the dysfunction is gone, and business is booming.

In all frankness, there’s some value to showing people how emotionally challenging it can be to have to make the decision to discharge an employee.  You’ll hear folks on the show repeating, “It’s just business.”  Of course, that part is right.  But, the way the decisions are made on “Does Someone Have To Go?” are not how they should be made in the real “reality.”  For instance, the decisions on the show do not take into consideration company policy, the contents of personnel files, or past practice.  No employer should make a discipline or discharge decision without determining whether company policies have been violated.  Also, the employee’s file should be reviewed to determine if counseling or warnings have been given to the employee.  Last but not least, consistency in treatment is fundamental to fairness – and that’s really what a jury is looking for.  If others in the same situation were treated differently, you could be facing a discrimination charge.

In the real world, employers should not discharge or discipline employees based upon generalizations.  For instance, “outdated” is a term that begs for an age discrimination claim.  Instead, you should say he or she refuses to use the new computer program the company has trained all of its sales associates to use to boost their sales.  You also shouldn’t call an employee lazy; rather, an employer should say he or she hasn’t met goals in three months despite two coaching meetings to drive improvement.  Finally, employers certainly shouldn’t call an employee an alcoholic; it should use progressive discipline and try to get him or her in an EAP. 

The show doesn’t get it all wrong.  The employees up for elimination are given the opportunity to appeal to the group.  Those that take advantage of that time to educate their peers on what their jobs actually entail and the specific steps they will take to fix the problems identified fair far better than those who take offense or tell a sob story.  The actual “boss” also does a good job with the folks who are placed on probation.  They identify specific goals to be met in three months, and they follow up.  Those elements notwithstanding, the show certainly is far from a picture of the way things are supposed to work at work. 

All told, you certainly can check out FOX’s new show for the entertainment.  But if you start to get ideas, be sure you consult the HR and employment practice guidance from the Employment Essentials blog team along the way.  You may need it.


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.