Category Archives: Vanessa’s Views

‘Twas That Ol’ Christmas Feeling

‘Twas that ol’ Christmas feeling, crawling up my spine.

When the Powers That Be said, “A Holiday Swine!

For each employee, what a delightful treat.

What’s better than turkeys, as Noel-ish meat?”

 

“Buy local,” they said, and my heart gave a patter.

They get it, these guys! We’ll do something that matters.

A call to the slaughterhouse just up the street

Hmm, wait, is that morbid? I thought for a beat.

 

Never mind. It’s all done.  We’ll have fresh festive hams.

No worries my Vegans. I’ll get Yuletide Yams.

You’d think I’d know better, with the year that I’ve had

With all that behind me, this can’t get that bad!

 

Computer security issues, Oh my!

We thought we’d give phishing our employees a try.

One wrong click on a link and more training ensues.

Vowing not to be caught, no one gets HR news.

For open enrollment, on links you must click.

I just hope that my workforce doesn’t get sick.

 

Bring your child to work day was almost a success.

We had Becky, and Andrew, and then there was Wes.

Who found all the passwords slipped under keyboards,

And he shuffled, and shouted, and called out these words:

 

Fivedoghair! GoMounties! 1upper and Hatman!

Hotbiscuits! Threegoldfarb! HeartOprah and Buckfan!

 

To the top of the desk! To the top of his lungs!

Now change ‘em all! Change ‘em all!  And off he runs!

 

Changes in law on medical marijuana

Caught up to IT fresh back from Tijuana.

“Dude, we thought it was cool now. We all got a script.”

“Whaddaya mean we can’t come to work ripped?”

 

“For medical conditions, it may be all right.

But, workplace rules still apply, and those are uptight.”

HR’s drug testing program worked on overdrive.

It’s a wonder I managed to come out alive.

 

As I walk ‘round the building, it seems some are late.

We’d set today aside for plans to decorate.

When they finally show up, heads are hanging low.

Excuse must be a doozy, I can’t wait to know.

 

“Sorry, we were late, HR. There were traffic jams.

Seems our Christmas treats escaped; squealing, mobile hams.”

I’m sure they’ll be collected, as around I gaze.

That’s the cherry on the year, Happy Holidays!

GOOGLE TRANSLATE: MORE SAFER WORKPLACE LAW (THE SAFER WORKPLACE ACT)

These are some of the key providers who need to be aware of the safety environment. (These are some of the highlights employers should know about from the Safer Workplace Act.):

  • Safe workplace public policy is much better than the right to privacy. (The public policy of a safer workplace outweighs the right to privacy if you follow the Act.)
  • If a employer follows the lawsuit, it may legally prove the presence of drugs and drugs as a problem of employment. (If done in accordance with the Act, it may lawfully test employees and applicants for the presence of drugs and alcohol as a condition of employment or hiring.)
  • Do you have some masters that are covered? Employment insurance and the exception of public employers. (Employers with one or more full-time employees are covered, with the exceptions which include public employers.)
  • The patrons had a political writing. (Employers must have a written policy.) Drug and alcoholic methods should be distribute to employees and used by the candidates. (The drug and alcohol testing policy must be distributed to employees and made available to applicants.)
  • Before the Act, the patrons may conduct their tests only if they had a reason, good faith, seven complaints of drug use or the employee was in a sensitive sense of rescue. (Before the Act, employers could conduct drug testing only if it had a reasonable, good faith, objective suspicion of drug usage or the employee was in a safety sensitive position.) Now, staff can try for a number of reasons with the protection and experience of using drugs, drug abuse, to look at the harm to the business and the thief, and to the safety of the customer, and the product. (Now, employers may test for many reasons including deterrence and detection of illicit drug use, abuse of alcohol, to investigate workplace accidents and theft, customer safety, and productivity.)
  • The boss will be able to select the type of sample that could start the first job. (Employers may decide the type of sample to collect for initial testing.) The employers must be at risk to provide information about the use of acute or re-search. Employees must be given a chance to voluntarily provide information regarding their current or recent drug use.)
  • Prior to any event activity, the result must be confirmed by other tests. (Before any adverse employment action is taken, the result must be confirmed by another test.) Employees have the right to differentiate the initial results from compensating for the proven lakes at their expense. (Employees have the right to challenge the initial results by having their split sample tested at their own expense.)
  • Although an employer who has to undergo drug testing under another statute, you must follow these laws. (If you are an employer obligated to perform drug testing under another statute, you must still follow these laws.)
  • If you are entrusted with the document, you may not explain to request a positive positive confirmation result or a refusal to propose. (If you are in compliance with the Act, you cannot be sued for acting upon a confirmed positive test result or a refusal to submit to testing.) There is no reason for conduct for conduct related to drug abuse or alcohol abuse. (No cause of action exists for actions taken in relation to a false negative drug or alcohol test.) Behavior associated with a secret, he did not reject the case or if the employer for the employee. (Confidentiality is waived by the employee if he sues his employer for conduct relating to the Act.)
  • There is an environment where a worker can lose employment unemployment and employee compensation benefits, so consult your lawyer for help. (There are circumstances under which an employee may forfeit unemployment and workers’ compensation benefits, so consult your lawyer for assistance.) Will be obligated to inform employees that it is a state of employment to avoid and to mention work or to work with the presence of drugs or alcohol in their bodies. (The policy must inform employees that it is a condition of employment to refrain from reporting to work or working with the presence of drugs or alcohol in their bodies.)
  • After the accident, a drug-related injury investigation is covered by the employee’s compensation laws and the blood test requires that the employee finds work. (Post-accident drug testing is covered by workers’ compensation law and requires a blood test to determine whether the employee was intoxicated.)
  • Workers must teach alcohol and drug users and train their leaders. (Employers must educate their employees on the drug and alcohol testing policies and train their supervisors, too.)

In my opinion, the proper act of security was a sign of West Virginia’s labor force. (In my view, the Safer Workplace Act is a boon to West Virginia employers.) For a more complete explanation of the more secure workplace, please visit this blog. (For a more complete explanation of the Safer Workplace Act, check out this link to our blog.)

Sending Employees Abroad: Planning Ahead Can Prevent Tripping Up

The other day, my husband’s best friend called him from a beach in Dubai where he has been sent to work for the next six weeks (in Dubai, not on the beach – that part was boasting).  Now, world traveler that I’m not, I think of Dubai as “somewhere in the middle,” and I had no idea that it had beaches.  So, I looked it up (the beaches do look lovely), and it got me thinking about all of the planning it must take for an employer to ship even one employee off to another country to work for six weeks.  Turns out, there is a lot of preparation that should go into it.

Safety First

Employers are charged by OSHA to provide a safe workplace for their employees.  Here are some thoughts on how to do that for employees working abroad:

  • Have the employee see a qualified physician to obtain any necessary/recommended vaccines with sufficient lead time to maximize their effectiveness.
  • Check out the Centers for Disease Control and Prevention website (https://www.cdc.gov)

for information specific to the destination country.

  • If you provide health insurance to your employees, call the provider for information on coverage outside the U.S., including medical evacuation coverage, to see if additional insurance should be purchased. This also should include a look at your workers’ compensation coverage for extra-territorial work.
  • Establish a relationship with a local hospital or medical provider so that your employee knows up front where to go or who to call if he becomes ill.
  • Empower your employees to consider their own safety first. If the employee feels the location or timing of a business meeting is unsafe or suspicious, the employee should be able to use good judgment to cancel, reschedule, or make other arrangements.
  • Have your employee register with STEP. This is the Smart Traveler Enrollment Program through the U.S. Department of State (https://step.state.gov) which provides a number of benefits enhancing the safety of your worker.  The nearest U.S. Embassy or Consulate will provide important information about safety conditions in the destination country.  It enables the Embassy to contact the registered traveler in an emergency (such as natural disaster or civil unrest) and can help family and friends reach the individual in case of emergency.

An employer cannot eliminate all of the risks associated with an international assignment, such as political unrest, terrorism, disease, kidnapping, or even auto accidents.  To this end, an employer should have the employee sign an acknowledgment assuming the risk of the assignment.  Work with competent legal counsel to create a provision specific to your needs.

I’ve a Feeling We’re Not in Kansas Anymore. 

When I looked up the alleged beaches of Dubai, my research pulled up several hits just outlining the rules to follow if you wish to frolic or bask on their sandy shores.  Before sending your employee off to another country, you should consider establishing a relationship with reliable local counsel who can guide you and your employee through any legal hurdles he might encounter.  Depending upon your business, local laws relating to the taxation of goods and services or customs regulations may be important to know.  The country’s laws against bribery may be necessary for some employees to know.  Thus, it is vitally important to know the details of the employee’s anticipated work so that local counsel can properly advise you into compliance.

Training is the Ticket 

The unknown can be scary.  Take as much of the unknown away by training your employee in advance of an international assignment.

  • Make sure your employee has all of the necessary authorizations and visas for the trip, and teach him how to present himself and his documentation to immigration authorities and what to expect.
  • Train your employee on local customs, business etiquette, attire, and similar matters specific to that region/culture.
  • If your employee does not have the language of the destination, make sure that he knows some key phrases (¿Dónde está el baño? Où sont les toilettes?), as well as the address and phone number for his hotel, the U.S. Embassy, the local hospital, and that he has a geographical understanding of the vicinity in which he will be working.

And the List Goes On . . . 

Depending upon the nature of the assignment and how long it will last, you may want/need other legal arrangements in place.  Your risk assumption acknowledgment may be only one piece of a larger contractual arrangement.  Will you be sharing the employee with another employer?  Will there be hazard pay?  What are the expected working hours the employee must keep?  Which country’s holidays will be observed?  In which country’s currency will salary be determined, or what exchange rate will be used?

Lastly, employers need to consider data privacy concerns.  If your employee will be using a smart phone or laptop to conduct business in another country, you want to make sure your data is properly encrypted.  You should also have a plan in place should the employee lose or have stolen a laptop, phone, or other media containing confidential data.  The country in which your employee is working may have laws with certain reporting requirements for data security breaches, so know those too.

This has been my 10,000 foot View of things to keep in mind when you send your employees abroad.  We live in an age of information, and the more you know up front, the less likely you are to trip up later.

THE VIRTUAL REALITY OF JURY DUTY

For the first time in my life, I received a summons for jury duty. I was over-the-moon thrilled. No really. I was. As I gushed with excitement, I noticed my family looking at me like I’d lost my mind. “Why would you want to be on a jury?” my children asked. “Because I want to know what it’s like to be in that room, deciding a case . . . and civic duty, blah, blah, blah.” I get that most folks are not going to be as excited as I am to see the inner workings of a jury, but I’ve also noticed a general dread of jury service. But, would all of that change if virtual reality worked its way into the courtroom?

If you haven’t had the chance to experience virtual reality gaming, I highly recommend it. My son got a Vive for Christmas, and it’s blown my mind. You don’t even need to be a gamer. Just take a walk through Google Earth, and you’ll be a convert to the world of VR. The applications of virtual reality appear endless, but can it work in a courtroom? I’d like to think the answer is “Yes!”

Suppose you are defending a workplace injury lawsuit in which your operator/employee improperly fed a piece of material into a machine and lost three fingers. Describing the proper operating procedure while using a laser pointer on a blow up of a diagram of the machine or showing a video of the machine in operation are both legitimate ways of explaining your case to the jury. But, would you rather show the jury the machine itself? Would that make it easier to explain how the accident occurred and why it was preventable? There are rules that permit an attorney to ask the court to allow a site visit by a jury. But, these are not readily granted and are awkward to arrange, to say the least.

Now, think about how virtual reality could let you explain your case. The jury puts on headsets and headphones and instantly experiences a sensory transport to your plant. The jury could safely watch a demonstration of the proper operation of the machine. They could walk around it. They could see the guards and posted warnings on the machine. Heck, the jury could operate the machine. What was once a complicated explanation challenging the imagination of the jury has become a virtual reality for it.

For those of you who have had the misfortune of going through a jury trial, you know that one of the most difficult parts is preparing your employee witnesses for their testimony. HR is typically very much aware of who is not troubled in the least by speaking to an audience and who is likely to do dreadfully on the stand. A completely honest witness can cause a trial to crumble out of a bad case of the nerves. Trust me – I’ve seen it. With virtual reality, however, that employee could be placed in front of a jury to practice responding to questions and to gain more confidence in the process.

In my view, if VR can enhance performance in an operating room, in a factory, or in a science lab, then it can enhance the presentation of a case to a jury. Tech takes a long time to make its way into a courtroom, but when it does, I’ll bet everyone will be just as excited as I am about jury duty.

‘TWAS THE HOLIDAY SPIRIT COME ROUND AGAIN, AND JUST IN TIME.

‘Twas the month of November, the holiday season

December ‘round the corner, my mind taxed beyond reason.

 

The workplace has been digitized down to an app.

My records and files appear with a tap.

As do Pidgey and Horsea and even Hypno,

My millennials have got me playing Pokémon Go.

 

But never during work, we all know the rule.

Use your own time to catch Tentacruel.

Or so our policies say about mobile devices,

For productivity suffers when Eevee entices.

 

The months passed by quickly, a really smooth ride.

I finally thought, “Hey, we’re hitting our stride.”

When what to my wondering eyes should appear,

But an OSHA inspector in full hazard gear.

 

“That’s really not necessary,” I say with a smile.

While calling our attorney on my speed dial.

“We come when we want. We need no complaint.”

Another surprise and I swear I will faint.

 

The tweeting! The posting!

The Clinton! The Trump!

Oh, Trans-Pac! Obama!

Just get through this bump.

To the polls we will go.

It’s time to decide.

Appoint a new justice

‘Cuz Scalia died.

 

The DOL clearly hates we HR reps

Implementing tough standards without giving us the steps.

Non-exempt status has caused quite a fuss,

Leaving me to explain to Valerie and Gus,

“You’ll be paid by the hour and make overtime.”

“No more salaried exempt; no more reason or rhyme.”

 

When the EEOC ruled on work wellness plans,

We double-checked our policy on medical exams.

The program’s voluntary, with biometric screening.

My skyrocketing blood pressure gives “stress” a new meaning.

 

Now, I’ve let loose the reins on the holiday party,

Delegating the task to Helga and Marty.

It seems that their plan for spreading good cheer

Has something to do with that hidden beer.

 

Not to worry, no matter, I’ve got just the thing.

Little do they know, they’ll be Ubering.

And, I’ll hear them exclaim as they’re driven out of sight:

“Happy holidays, y’all. Peace out and good night!”

DON’T TAKE IT FOR GRANTED: WHAT YOUR NEW HIRES MAY NOT KNOW

My oldest son will be heading to college in a year. This has caused me to think about all of the things he doesn’t know how to do that I simply take for granted. He’s never had to sew on a button or remove a stain in his clothing. He’s never had to get along with a stranger who shares his same living space. He’s never had to get a loan or manage his money. My job will be to teach him how to navigate these waters. Well, there are many things that your newly graduated (whether high school, college, or grad school) employees don’t know that you may take for granted. Your job is to make your onboarding process both informative and realistic by addressing both the specifics of your organization and the basics of the workplace in general.

Let’s start with the basics. What attire is appropriate in your workplace? If you use a company uniform, this may be a simple issue. If you work in a business like a law office, for instance, different attire may be appropriate for different occasions. Going to court and certain client meetings demand business suits. Everyday office work may be acceptable in khakis and dress/golf shirts. Casual Friday may allow for jeans. Quite likely, those first few days of work, when orientation is being conducted, permit a more relaxed dress code. Spell this out for your new employees. That’s one less thing for them to be nervous about when they come to work that first day, and they will be nervous.

Another thing you can do to allay those first day jitters, and to make your onboarding process go smoothly, is to tell your new employee what to bring to work that first day/week. Do they need to bring supplies? Own a briefcase? Pack a lunch? Make a list of the documentation you will need from them when they fill out those monstrous forms required by the law – things like birth certificates, drivers’ licenses, or social security cards. You have to assume they’ve never done this before.

With regard to work itself, make sure your new employees understand the hours they will be expected to work. Shamefully, I laughed out loud when a young relative, new to the workforce and the concept of being salaried, commented on how he was going to be working a 40 hour week. He was stunned to learn that he might have plenty of 50 and 60 hour weeks in his future – at that same salary. Let your new employees know the realities of their job. If there’s one thing we learn in college – well, it isn’t how to do our jobs.

Tell your recent graduate/new employee what must be done to request a day off or to take a vacation. And, believe it or not, you have to tell them how holidays are handled. I had my first real job over the summer of my sophomore year of high school. When the 4th of July holiday weekend came around, I was dutifully sitting on the front stoop of my employer’s business on Friday, July 3rd waiting for the shop to open. I had no idea that people were given the day before a holiday off when the holiday was on the weekend.

One skill you need to consider immediately addressing with your recently-graduated, new employees is proper business communication. Mentoring is one of the most effective ways to do this. The ways in which we communicate with our peers while in school differ greatly from how we should communicate with our colleagues, management, and customers in the business world. The newest generation entering the workforce is somewhat accustomed to over-sharing and informality in their communications, which is not a good business habit. Pair your new employee with someone who knows the ropes so that s/he can learn proper email etiquette and the art of conversation and listening. Make opportunities for your new employees to interact with their new co-workers. Not only is this a great way to work on those communication skills, it indoctrinates those employees into the company culture.

Do not forget to teach your new employees how to deal with your customers. This skill is not taught in college. Ask your teenager or young twenty-something if they know what you mean by the phrase “The Customer is Always Right.” Our kids have been raised with hand-held computers that enable them to prove who is right and who is wrong in any conflict. A frustrated young friend recently told me about his day at work which was spent arguing over the phone with his client about the value that had already been added to his work product and the inefficiency of expending many more hours on the product for what would be a marginal gain at best. His manager had to take over the conversation; and of course, the client got what it wanted. My friend could not understand why the manager had just “caved in.” He did not know that engaging the customer in an argument over the work product for which it was paying was not the appropriate way to handle the situation. But, he had never been taught any different.

One final area I offer for your consideration is adding a cyber-security segment to your orientation program. This new generation of employees knows how to use their computers, tablets, and phones, but they’ve likely not been trained in safeguarding company information on these devices. They probably already have apps they like to use to find information. Your IT department should make sure those apps are compatible with your security program or provide incoming employees with a list of approved applications. And, I know most of us have gotten weird looking emails claiming to be from our manager or our CEO. New employees need to be shown how to identify legitimate company communications from bogus ones.

I’m sure there are many “givens” in business that we who have been in the job market for a while do not realize are “unknowns” to the incoming workforce. You’ve probably thought of a few of your experiences while reading this. One final suggestion to help you help your new employees: ask your current employees who have been through the onboarding process in the past three years what they wish they had been told about the job on that first day. Their views may provide you with some keen insight that you can apply to your onboarding process.

WILL UBER SOON BE DRIVING COUNTRY ROADS?

If you’ve been following my series on the “uberization” of the workplace, you’ve probably cued in to the fact that I’m a huge fan of the services Uber provides.  I love the on-demand economy.  I used VRBO for my honeymoon.  I ubered around beautiful Asheville, North Carolina for my birthday (a 15-minute ride cost me $15 – seriously!).  And, now the West Virginia Legislature has made my little heart go pitty-pat by passing a law that will let Uber help me travel some country roads.

Effective July 1, 2016, “transportation network companies” (feel free to think Uber – I know I do) may use technology to link drivers and riders in our great State.  The transportation network company (or “TNC”) will have to get a permit from the Division of Motor Vehicles to operate in West Virginia.  The TNC must provide proof that it has an agent for service of process in this State (which would enable it to be sued if appropriate).  In addition to an annual $1,000.00 permit fee, the TNC will also have to provide: (1) proof of insurance, (2) a copy of its zero tolerance for drugs and alcohol policy, (3) a copy of its policy prohibiting solicitation or street hails for rides, and (4) a copy of its nondiscrimination policy with respect to riders.

The Legislation puts several safety measures into place.  In addition to the zero tolerance policy and insurance coverage (by both the TNC and the driver), the TNC’s app must show the potential rider a picture of the driver and his or her license plate number.  The TNC must conduct, and all drivers must pass, a background check that includes:

  • A search of a multi-state, multi-jurisdictional criminal records locator or similar nationwide database with validation
  • A National Sex Offender Registry search
  • A driving history research report.

And, drum roll, the West Virginia Legislature has addressed the legal relationship between the TNC and the driver head on by setting forth five requirements that, when met, establish an independent contractor/employer relationship.

  1. The TNC does not prescribe the specific hours of work for the driver, i.e., when he or she must be logged in to its digital network.
  2. The TNC does not prohibit the driver from using other TNC networks, i.e., the driver can use other apps.
  3. The TNC does not assign the driver a particular territory.
  4. The TNC does not prohibit the driver from holding other employment or conducting another business.
  5. The TNC and the driver agree in writing that the driver is an independent contractor of the TNC.

In my view, this test reinforces the mainstay of the independent contractor analysis in West Virginia:  CONTROL is the key factor.  The Wage and Hour Division of the U.S. Department of Labor (“DOL”) announced its disagreement with the significance that should be accorded the control factor in an Administrator’s Interpretation issued last year (for more information see the fourth installment of my uberization series – link here).  If our new law is any indication, the DOL is going to be receiving a lot of push back from the states where “control” reigns supreme.  In the meantime, I hope that Uber accepts our invitation to do business and take me home country roads.

IS YOUR WORKPLACE A MCGREW’S ZOO?

March 2nd was Dr. Seuss Day and in honor of the Great Seuss, I want to spend a little time reflecting on the workplace zoo.  We know Dr. Seuss, the environmentalist (e.g., The Lorax).  We know Dr. Seuss, the equal rights advocate (e.g., Horton Hears a Who).  But, what about Dr. Seuss, the Human Resources guru?  The wondrous world of Dr. Seuss may seem like pure make-believe.  But, then again, maybe it’s not.  In my View, you can find many of his fantastical creatures right in your own workplace.

So I’d open each cage.  I’d unlock every pen.

Let the animals go, and start over again.

And, somehow or other, I think I could find

Some beasts of a much more un-usual kind.

If I Ran the Zoo (1950)

The Human Resources department is a key component in the collection and categorization of employees.  Searching far and wide for people with diverse backgrounds and unique qualifications can make yours the “gol-darndest [workplace] on the face of the earth.”  It worked for Gerald McGrew.  It can work for you, too.

In fact, Human Resource managers could take a few tips from Gerald McGrew.  For instance, he looked at the typical zoo and decided “a few changes” would make it something special, something better.  He searched all over the world for the most unique animals, each having special characteristics.  That’s what Human Resources can do to diversify their workforce.  So, when you consider your workforce and the folks you will be dealing with, who are the characters you might find?

The Rep

“Mister!” he said with a sawdusty sneeze, “I am the Lorax. I speak for the trees.

I speak for the trees, for the trees have no tongues. 

And I’m asking you, sir, at the top of my lungs” –

he was very upset as he shouted and puffed –

“What’s that THING you’ve made out of my Truffala tuft?”

The Lorax (1971) 

Human Resource personnel may interact with employees at a personal level, as well as in a more formal manner.  The Rep may be a union steward, and the interaction governed by a collective bargaining agreement.  He may be the go-between – an employee trusted by co-workers and management alike to share ideas and start discourse on issues affecting the workforce.  Or, he may be the friendly face accompanying an employee who is working through the grievance process.  Regardless, the Rep is most certainly in your workplace, so make sure you follow the policies and procedures in place when dealing with this individual.  He will know the rules of engagement, be they peaceable or not, from the get-go.  Communication with the Rep should not be viewed necessarily as a bad thing, either.  When The Lorax could not get the Once-ler to talk through the problems he was creating, everyone suffered great loss.  It would be a shame not to make such an effort in your workplace, unless, of course, that person is actually . . .

The Stirrer 

“I know some good games we could play,” Said the cat. 

“I know some new tricks,” Said the Cat in the Hat.

“A lot of good tricks.  I will show them to you. 

Your mother will not mind at all if I do.”

Then Sally and I did not know what to say.

Our mother was out of the house for the day.

The Cat in the Hat (1957)

The Stirrer likes to cause trouble.  He is an HR nightmare, unless you shut him down.  The key to this is communication with your employees.  The Stirrer enjoys creating discomfort and chaos in the workplace.  He will bend words and filter events in the least positive light just to see what happens.  If you can discuss the subject of The Stirrer’s current focus with your employees, do so.  If you give your workers the facts, you take away one of the arrows in The Stirrer’s quiver – misinformation.  Once you’ve done that, talk to The Stirrer, and explain why his behavior is unacceptable.  State your expectations for improvement, and follow up to make sure he’s received the message.  It’s possible a little re-direction is all he needs.  After all, the Cat cleaned up his mess in the end.

The Dumper 

Sighed Mazie, a lazy bird hatching an egg: 

“I’m tired and I’m bored and I’ve kinks in my leg

From sitting, just sitting here day after day.

It’s work! How I hate it! I’d much rather play!

I’d take a vacation, fly off for a rest

If I could find someone to stay on my nest!”

Horton Hatches the Egg (1940)

This is the employee who has a last minute emergency on a regular basis.  She’s the employee who’s eager to team up and then sloughs off all the work onto others (while managing to be there for all of the credit).  The Dumper sucks the camaraderie out of your workplace.  Your treatment of The Dumper may have more impact on the rest of the workforce than on the The Dumper herself:  “That’s only small trouble.  I know it.  But, brother, one small bit of trouble will lead to another!”  [How Officer Pat Saved the Whole Town (Oct. 1950)].  So, train your managers to recognize effort, as well as results.  When doling out assignments to The Dumper, stay task oriented with set deadlines to the extent possible.  Should discipline be necessary down the line, you’ll have a paper trail of your efforts to change The Dumper into . . .

The Do-Er 

“You do not like them.  So you say. 

Try them!  Try them! And you may. 

Try them and you may, I say.”

Green Eggs and Ham (1960)

Was there ever a more persistent, more positive go-getter than Sam-I-Am?  This employee is the one who gets things done.  For Human Resources, The Do-Er is your superstar, and you want to keep him.  You want to groom others to be like this employee.  With The Do-Er, you and your managers should be looking for what motivates him.  Recognition and money may not be enough.  Autonomy, upward mobility, even working in an environment that does not suffer fools (see The Dumper) may be factors impacting whether you can keep your Do-Er happy and on the payroll.

The Hawk

Oh, the jobs people work at!  Out west, near Hawtch-Hawtch,

there’s a Hawtch-Hawtcher Bee-Watcher.  His job is to watch . . .

is to keep both his eyes on the lazy town bee.

A bee that is watched will work harder, you see.

Did I Ever Tell You How Lucky You Are? (1973)

The Hawk is a manager who presents different challenges for Human Resources.  She may be the micromanager who can’t let anything go.  She might be the manager who believes her employees are inherently lazy and must constantly be watched.  Either Hawk can damage workplace morale.  In Hawtch-Hawtch, a Hawtch-Hawtcher Bee-Watcher was employed, and another, and another, with the bee never working any harder.  Manager training can help The Hawk tone down her management style to the level of supervision commensurate with the job being done.

Point of View 

Oh, the sea is so full of a number of fish,

If a fellow is patient, he might get his wish!

McElligot’s Pool (1947)

If your wish is a happy, productive workforce, then knowing the employees you’re likely to meet can help make that wish come true.  Dr. Seuss introduced us to a lot of these types, including the Nerd, I might say.  But, we’ll save that one for some other day.

THE LAW IS AN IDIOM

Here’s a little fact that may knock your socks off:  according to the EEOC, retaliation is the most frequently alleged civil rights charge in the federal sector and has been for nearly a decade.  In West Virginia, retaliation claims comprise approximately one third of such cases, and that’s nothing to turn a blind eye to.  Retaliation claims tend to hitch their wagons to claims for other forms of discrimination or harassment; yet, it’s pretty common for the underlying discrimination claim to disappear in a puff of smoke while the retaliation claim keeps on trucking.  This is a tune we’ve been singing for years on this blog, but with the EEOC taking a closer look at retaliation, we’ve got a few tricks up our sleeves to help stop retaliation in its tracks.

While it may be as obvious as the nose on my face, step one would be to reduce discrimination claims.  While some folks seem to always have an ax to grind, employers can do something about employees who have a real beef.  You probably (hopefully) have a company anti-discrimination policy, so use it.  Make sure your employees are treated consistently and in accordance with this policy.  Remember too: actions speak louder than words when it comes to zero tolerance for harassment and discrimination.  So, make sure that elimination of discrimination is a value held from the top down in your organization.  Fewer discrimination claims = fewer retaliation claims.

The next step you can take is to go the extra mile when you investigate complaints.  Document what you do and when you do it.  Certainly, I’m preaching to the choir when I remind you of the importance of keeping the investigation as confidential as possible, within the bounds of what the law permits.  This is particularly vital with regard to claims of retaliation because the fewer people who know about the complaint and the investigation, the fewer people who could possibly retaliate.

Make no bones about it:  you must have a written company policy prohibiting retaliation.  You will remind the complainant at the conclusion of the investigation not to keep mum if s/he experiences what they believe to be retaliation for their complaint.  You will remind the accused and witnesses that retaliation is prohibited.  Don’t beat around the bush with your employees; instead, train them on what retaliation is so they can spot it and stop it dead in its tracks.  Remember, the EEOC boils retaliation down to three key phrases:  retaliation occurs when an employer takes an adverse action against a covered employee for engaging in a protected activity.  For example, an adverse action can run the gamut from telling an employee to hit the road to moving him to the graveyard shift.  It all depends upon the circumstances.  A covered employee can be someone who has requested leave or a reasonable accommodation or may be the person we’ve been talking about who made a complaint about something she reasonably believed to be an unlawful practice.  Protected activities are usually as simple as you might expect:  filing a charge of discrimination, participating in an investigation of discrimination, or requesting a reasonable accommodation based upon disability or religion.

Finally, with retaliation claims, timing is EVERYTHING.  In most cases, timing is the best evidence a plaintiff has of retaliation.  It goes like this:  a complaint is made, investigated, and resolved under the company’s policy.  Before the complaint was made, however, the employee was treading water at the company, and his career was on its last legs.  If you’re lucky, your supervisor was on the ball, documenting the problems, the counseling, and the warning to shape up or ship out.  So, when the last straw finally breaks the camel’s back, you will have the documentation to support the adverse action you are about to take with the employee.  In each instance, you must look before you leap into taking an adverse employment action against an employee who has recently been involved in protected activity.  If the timing, documentation, or past practice do not support the decision you are about to make, put the brakes on it before it costs you an arm and a leg in court.  Assuming the conduct is not something that must be immediately nipped in the bud, get your ducks in a row by going back to the drawing board with the employee and documenting it properly the second time around.

While you should be glad to see the end of any claim for discrimination or harassment, the remaining retaliation claim can prove to be a tough customer to defend.  As they say, an ounce of prevention is worth a pound of cure.  Whether we see eye to eye on the matter, or maybe you think I’m off my rocker, I’d love to hear your Views about how you dodge the bullet of retaliation claims.

‘TWAS THE HOLIDAY SEASON: HERE WE GO AGAIN.

‘Twas the holiday season upon us once more,

Not a single employee was at HR’s door.

The silence was heavy; I was starting to freak.

I hadn’t a complaint in more than a week.

 

No lawsuits or grievances were pending at all.

Instead of unease, I should be having a ball.

Our lawyer thinks I’m dead – I haven’t made a call.

Yet, all I know to do is wait for the other shoe to fall

 

Employees were trained as required by law.

Not to grope, fondle, or otherwise paw.

The handbook was updated, acknowledgments signed.

That NLRB Guidance almost blew my mind.

 

I took out the language that was certain to chill,

Because wages and hours can be discussed at will.

Our handbook was given a complete overhaul.

Revising conduct rules was the hardest of all.

 

And speaking of conduct, where has everyone gone?

Are they suddenly (eerily) getting along?

I take a deep breath and head to the break room.

The postings are current, not a single cartoon.

 

Then what to my wondering eyes should appear

But all my employees and staff I hold dear.

“We all want to thank you for all that you’ve done.”

“Let’s start the holidays by having some fun!”

 

“No beer! No liquor! And no copying our bums!”

“No mistletoe smooching!  We’re just having fun!”

My heart swelled with pride, as tears blurred my sight.

Merry Christmas to all.  Let’s do this party right!