More New Laws in California

This is a rare day – two blog posts!  Governor Brown was busy today.  Two more major changes to the law.

Paid Sick Leave is now here.

Also called the Healthy Workplaces, Healthy Families Act of 2014, is to provide that an employee who, on or after July 1, 2015, works in California for 30 or more days within a year from the commencement of employment is entitled to paid sick days for prescribed purposes, to be accrued at a rate of no less than one hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th day of employment. The bill would authorize an employer to limit an employee’s use of paid sick days to 24 hours or 3 days in each year of employment. The bill would prohibit an employer from discriminating or retaliating against an employee who requests paid sick days. The bill would require employers to satisfy specified posting and notice and recordkeeping requirements. The bill would define terms for those purposes.

This does not apply to exempt employees or employees under a collective bargaining agreement.

Add Two More to Your List of Protected Characteristics

Unpaid intern and volunteers.

 

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9/9/14 – New in CA: Harassment Training Must Now Cover “Abusive Conduct”

There are times when our legislature gets it right, and today Governor Brown signed AB 2053 which requires employers to now cover “abusive conduct” in their harassment prevention training.  I have always included examples of “bullying” and other abusive conduct in my training, now it’s the law.

As a refresher, Govt. Code section 12950.1  requires employers with 50 or more employees to provide a minimum of two-hours of training every two years to supervisors to ensure workplaces are free of sexual harassment.  The training must cover California and federal laws prohibiting sexual harassment, prevention and correction, as well as the remedies available to those who experience of sexual harassment.  The statute also requires the training include practical examples demonstrating how to identify, prevent, and correct sexual harassment, discrimination, and retaliation.  Of course, all good employers will include not just sexual harassment, but all the protected characteristics in the training examples.

The new amendment states “abusive conduct means conduct of an employer or employee in the workplace, with malice, that a reasonable person would find hostile, offensive, and unrelated to an employer’s legitimate business interests. Abusive conduct may include repeated infliction of verbal abuse, such as the use of derogatory remarks, insults, and epithets, verbal or physical conduct that a reasonable person would find threatening, intimidating, or humiliating, or the gratuitous sabotage or undermining of a person’s work performance. A single act shall not constitute abusive conduct, unless especially severe and egregious.”

Don’t forget, bullying (or abusive conduct) is not unlawful. Yet. Over 25 states have tried to enact anti-bullying legislation. Let’s not give people another reason to sue you in California.

If you need help with the new training requirement, please don’t hesitate to contact me. If you would like an anti-bullying policy – free – just send me an email. Everyone has to take steps to stop abusive conduct.

Posted in Bullying, Harassment | Leave a comment

Do you have a Donald Sterling in your midst?

The news just broke that NBA Commissioner Adam Silver hit Donald Sterling, owner of the LA Clippers, with a lifetime ban from the sport and a $2.5 million fine due to racist remarks attributed to Sterling.  The investigation was prompt, the action swift and the message being sent is powerful.  One of the big issues that remains is that Sterling has been known in the past for making racists comments – yet the NBA did nothing.  Time will tell what the fallout will be for the NBA.

What about your workplace – do you have a Donald Sterling working in your organization? Or, do you have someone who doesn’t like a group of people because of their religion, age or some other protected characteristic?  Don’t be surprised if the answer is “yes.”

Some lessons we can learn from the NBA:

1. Pay attention to rumors. Sometimes a rumor is just that, a rumor. Other times, there might be some hints of truth wrapped around exaggerations that distract us.  I train HR and managers to understand that a rumor is enough to put an employer on notice.  There is no more important word for an employer than “notice.” What are you on notice for in your workplace?  Don’t forget, an employee doesn’t need to use magic words such as Title VII or FEHA in order for you to be put on notice for harassment, discrimination or retaliation.

2. Be proactive. Don’t just wait for a complaint to be made about inappropriate or unlawful conduct.  Act on the rumors, complaints, concerns.  Go out and do an “inquiry” to see if there is anything that warrants further fact finding or an investigation.  Find out your soft spots or issues early on before they expand or become unlawful.  Remember, the law requires that you do a prompt and thorough investigation of EEO complaints, and as noted above, that “notice” of wrongdoing also requires your attention and possible investigation.

3. Stop making excuses. There is no defense entitled “They were only joking” or “our workplace is different.”  The law typically doesn’t make an exception for your “special” workplace.  Are excuses being made in your workplace because of the wrongdoer’s position or power?

4. Take prompt steps to stop the inappropriate conduct. Once you are on notice – do something.  Skip right past the excuses and stop the inappropriate or unlawful conduct.  Do what the NBA did – promptly investigate, take swift action and send a message of what is acceptable and not acceptable in your workplace.

5. Build a culture of respect. All workplaces must be built on respect and must strive for that high standard.  Your culture starts at the top. The NBA sent a message today that respect is the foundation of their league. Make sure you send the same message in your workplace.

 

 

 

 

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238k Reasons Why Interviewing the Complainant and Alleged Wrongdoer Simultaneously Is a Bad Idea

I swear it’s true. Mendoza v. Western Medical Center Santa Ana.  (CA Ct of Appeal, filed 1/14/14) Mendoza received a nice jury award of $238k.  This is another case about the importance of conducting a good faith investigation.

Facts: Mendoza was employed as a nurse for over 20+ years. By everyone’s account he was an excellent employee.  Even the defense counsel conceded this point.  In 2010, Del Erdmann was  Mendoza’s supervisor.  Both men are gay.  Mendoza filed a complaint alleging that  Erdmann sexually harassed him on multiple occasions. The allegations included inappropriate, sexually lewd, crude comments, physical contact (blowing in his ear) and that Erdmann had exposed himself.  Erdmann contended that Mendoza was flirtatious and consented to the conduct.  At the end of a crappy investigation (see below), both men were fired.  Mendoza later sued for retaliation.

Employer Mistake #1:  Wrong investigator. Who did the investigation? Mendoza and Erdmann’s supervisor.  Not HR. Not an experienced employee relations professional or an outside investigator.  A regular supervisor with zero investigation training or skills.

Employer Mistake #2: Never interview the complainant and alleged wrongdoer (or anyone else) at the same time.  Given the serious allegations, it is unfathomable that anyone, even an inexperienced investigator would interview the two together.  Erdmann was Mendoza’s supervisor.  The goal of an investigation is to figure out what happened, not to shame, embarrass and intimidate the complainant.  Also, Erdmann was entitled to answer questions and give his version of the facts without anyone present.

Employer Mistake #3:  Only interviewing the complainant and alleged wrongdoer and no other witnesses.  Are there times when the only witnesses are the complainant and alleged wrongdoer?  Absolutely.  However, even in a classic case like this one of “he said, he said” there are other witnesses to interview.  Many times these cases come down to the credibility of each person.  In these cases, as the court highlighted, interview witnesses who can attest to the credibility, or lack thereof, of the complainant and alleged wrongdoer. These are not easy cases. But, as investigators we are charged with reaching a conclusion, so we need to be thorough and must make credibility determinations.

Employer Mistake #4:  Doing an investigation just to say you did, as opposed to trying to figure out what happened.    The court stated, “The lack of a rigorous investigation by defendants is evidence suggesting that defendants did not value the discovery of the truth so much as a way to clean up the mess that was uncovered when Mendoza made his complaint.”  I guess that about sums it up.

But wait, there’s more.  Here is the final footnote of the case:

“At oral argument, defense counsel asked (perhaps rhetorically) just what employers
were expected to do when faced with a scenario in which two employees provide conflicting accounts of inappropriate conduct. Our answer is simple: employers should conduct a thorough investigation and make a good faith decision based on the results of the investigation. Here, the jury found this did not occur. Hopefully, this opinion will disabuse employers of the notion that liability (or a jury trial) can be avoided by simply firing every employee involved in the dispute.”

At the end of the day, a good faith investigation means an employer must show it honestly believed that the employee engaged in misconduct based upon substantial evidence obtained through an adequate investigation.  Western Medical Center has 238K reasons to learn what that really means.

 

 

 

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Lessons for a Happy Life with an HR Spin

We learn life lessons throughout our lives. Sometimes the lessons are from our own mistakes, from being inquisitive, and other times we learn from others.  Often, the lessons are unexpected.  I recently watched a video of Sam Bern, an amazing 17 year old young man who suffered from Progeria, an extremely rare disease which causes rapid aging and various other side effects.

Sam died of the disease on Friday, January 10, but not without leaving behind some wonderful lessons for having a happy life.

I’d like to take a stab at giving life to his lessons, with an HR spin.

1. Do things that make you happy.  Shoot for the stars, you only live once. Really, it is only once.  Find out what makes you happy.  Don’t expect the job, your boss or anyone else to make you happy. Find it yourself. Encourage creativity in the workplace so everyone can find what makes them happy.

2. Surround yourself with people you want around you. This means create meaningful relationships, both inside and outside your company.  Encourage mentoring.  Don’t close the door on someone because you think they might be “different.”  If you work with people who suck the life out of you or the organization – fix it.

3. Keep moving forward.  When you look around your workplace do you see people who are stuck in the past? Afraid to move forward? Afraid to make changes? Afraid to think out-of-the box? Inspire change.  Encourage employees and management to come up with new ideas.  Motivate employees and management to do more, and be more, than they think they can.

4. Never miss a party if you don’t have to. I have no idea how to tie that to HR or employment law. To me, this is what I got from Sam’s last lesson: always be on the lookout for fun.

The video (link below) is inspiring and I encourage you take a few minutes to watch it – you will be forever changed. And, hopefully, you will see life a little differently than before you watched it.

diagnosed with the rare disease progeria, which causes rapid aging and various other side effects, Read More: http://www.whydontyoutrythis.com/2014/01/right-before-dying-from-a-rare-lifelong-disease-sam-revealed-his-three-secrets-to-happiness.html | Follow us on Facebook: http://www.facebook.com/whydontyoutrythis
with the rare disease progeria, which causes rapid aging and various other side effects, none of which could prevent Sam from leading a happy life. Read More: http://www.whydontyoutrythis.com/2014/01/right-before-dying-from-a-rare-lifelong-disease-sam-revealed-his-three-secrets-to-happiness.html | Follow us on Facebook: http://www.facebook.com/whydontyoutrythis

http://www.whydontyoutrythis.com/2014/01/right-before-dying-from-a-rare-lifelong-disease-sam-revealed-his-three-secrets-to-happiness.html

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Investigation Training in Houston and Dallas

I love delivering investigation training and I get to do just that in Houston on Monday, January 13 and then in Dallas on Tuesday, January 14.  The training is interactive – no ppt and is filled with tips, tools and, of course, many examples from my own investigation practice. Did I ever tell you about the investigation where the general counsel brought his wife’s underwear to work?  I guess you’ll have to attend to find out more about that one and other investigations from my archives.

Here is a link to register:

http://store.hrhero.com/tx-investigations-workshop

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$1M Arbitration Award for Shoddy Investigation

I am hoping the title of this post got your attention.  I was retained as an expert for the plaintiff in a case that alleged a poor investigation, breach of implied contract and defamation.  Last week the arbitrators awarded the plaintiff  $1M. Yep, one million bucks.

For over 15 years I have been an investigator and have spent considerable time over the years training HR and others how to conduct investigations.  Before that, I was a management side employment attorney.  I feel compelled to share some of the major mistakes made by the employer along with the HR Director who conducted the worst investigation I have ever read or heard about in my career.

Key facts:  Jim (the plaintiff) is accused of concealing facts regarding a co-workers fraudulent expense report. The real wrongdoer, Ed, (hey, I don’t have to be impartial) used Jim and his clients as part of his cover-up for his expensive dinner with his wife.  Jim consistently told his manager and others he was not at the dinner.  The matter is dropped. Months go by and then management starts digging around and does a further investigation into Ed the wrongdoer’s expense report. HR Investigator Mike is now brought in to do a more formal investigation. Let’s go over some of the highlights of the investigation:

1. Investigator Mike spent 7 minutes on the phone with Jim to ask about his version of the facts. (We know this from the phone records.) My position is I would have spent about 7 minutes introducing myself, going over admonitions and then getting into the questions. Oh, right, did I mention the HR Mike didn’t introduce himself? He felt Jim should remember him from when they met on Jim’s first day over a year before.  Oh, right, did I mention at the end of the call Jim asked, “who are you again?” Investigator Mike felt the question was a clear sign of deception.  Huh?

 Tip: I recommend that an investigator introduce himself or herself to the witness. Even if you know the witness, complainant or alleged wrongdoer, explain your current role as the Investigator.

During an investigation interview, many witnesses are nervous and it can be the first time they are learning of the nature of the investigation. In the situation involving the alleged wrongdoer, the interview is often the first time they learn they are the subject of the investigation. 

 Additionally, I am comfortable stating unequivocally that an investigator cannot interview an alleged wrongdoer in seven minutes. Nope, can’t be done.  In California and other states, investigations must be done in good faith. That means giving the alleged wrongdoer an opportunity to answer the allegations against him or her.  Moreover, the investigator must flesh out any inconsistencies, show documents or other evidence for review, dig deep to understand the alleged wrongdoer’s views and assess credibility.

 Finally, if you think the witness is deceptive – you must, yes, you must ask questions to further uncover information to support your conclusions. In other words, just having a “gut” feeling isn’t enough. Without more questions – shoddy investigation.

2.  Investigator Mike only makes cursory notes of the interviews he conducted.  The seven-minute interview was only one-half page of notes.

Tip: Take good notes! You may think you have a good memory. You don’t.  Can you take down every word like a court reporter – of course not. However, you must make an effort to make as accurate a record as possible of the interview responses. Do what you need to do to take better notes: get the witness to talk slower, occasionally read all or part of your notes to the witness to make sure you are as accurate as possible, stop the witness from speaking until you are done writing and make sure you can read your writing.

3.  One of Investigator Mike’s entries from his interview with Jim stated: “Admits he wasn’t at the dinner nor his clients. ‘You can put the rest together.’ Would not come out and say Ed & wife were at the dinner instead.”

Tip: What Investigator Mike wrote is just plain wrong. An investigators role is to ask questions, probe, probe some more and then ask more questions. The notes should have simply reflected what Jim said – not an interpretation of what the investigator thought the witness was saying. Any analysis as to the meaning of what a witness says takes place at the end of the investigation and is included in the verbal or written report. It would have been fine if Investigator Mike wrote, “witness refuses to directly answer if Ed and his wife were at dinner.”

I could go on and on about other egregious errors made by Investigator Mike, but the key teaching point is: conduct a good faith and unbiased investigation by giving the witnesses every opportunity to fairly and completely answer your questions. Do not put your own spin on the facts, do not “read between the lines” when you have no facts to back up your conclusions. Beware: Conduct an investigation like Investigator Mike and I guarantee I will write a blog post about it.

 

Posted in Investigations | 1 Comment

Women harassing men? No way…

Today I read an interesting article about the Co-CEO of Archie Comics, Nancy Silberkleit who was recently sued for $32 million by 5 male employees.  Silberkleit is accused of yelling “Penis! Penis! Penis!” during a business meeting and allegedly acting like “a dictator,” and a “bully,” and displaying “deranged behavior.” She contends her comments are not actionable because the plaintiff’s have not shown that the comments were directed  specifically to any of them or even if they were, they could not cause extreme emotional distress.

Although this case is in its infancy, here are three reminders and lessons.

Reminder #1:  Women can harass men. These types of cases are not as common as males harassing females. I can think of a couple of reasons why.  First, while it takes courage for anyone to come forward with a claim of harassment, I believe it is magnified for men because of embarrassment and humiliation due to stereotypes of men being strong and not being “victims.”  The second reason: what I call the “high-five syndrome”.  This encompasses the view that men should be flattered by the attention, regardless of how unwanted or vulgar the conduct. This is not healthy or fair to men. Stop the stereotypes in your workplace.

Reminder #2: Keep #1 in mind when you investigate claims of harassment.  Be fair and open-minded that the conduct could have been unwelcome and offensive even if female to male.

Reminder #3: Address female to male and same-sex harassment in your training. Make sure you create a safe and respectful environment so that everyone feels they can come to HR and make a complaint.

Also, what the Archie Comics’ case also reminds us about is bullying. While bullying is not yet unlawful in the US (watch out for NY and NJ, could be happening soon!), I recommend addressing this topic in your harassment training. A bully is only one little step away from being a harasser. If you would like a free anti-bullying policy – please shoot me an email @ awest@employmentpractices.net

 

 

Posted in Harassment, Investigations | 3 Comments

Please join me for a free webinar on Investigating Sexual Harassment on 10/31

Managers, HR professionals and investigators must sometimes deal with employees who allege they are being sexually harassed at work. In order to address the allegations properly, they must interview the accuser and accused, verify facts and investigate the harassment allegations thoroughly. Failure to investigate properly can lead to lawsuits and even serious harm to those involved.

Join me on October 31st, 2013 at 2PM EDT for a free webinar. During this presentation I will outline the critical steps that need to take place when investigating sexual harassment and how to avoid the common investigation mistakes.

In the webinar, I will cover:
•             what harassment is and what it isn’t
•             policy vs. the law
•             how to handle delicate interviews
•             gender of the investigator
•             “reasonable person” standard
•             gathering evidence
•             the “he said, she said” dilemma
•             same sex harassment

Click here to register: http://i-sight.com/investigating-sexual-harassment/

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Heading to the SHRM Annual Conference…

I am excited about my upcoming presentations at the SHRM Annual Conference. If you are heading there, please consider attending my top-rated program – Seven Steps to Creating Bulletproof Documentation.  Here is a link to this Mega Session: http://annual.shrm.org/sessionplanner/session/4629.  I know for most of you, your eyes gloss over when you think of getting your managers to actually document performance or disciplinary issues. My seven steps will help. I promise.  So, come to the session at 4:00 on Monday, June 17.

I am also delivering a program on Tuesday June 18 at 2:15 called California: The Golden State for Big HR Mistakes. Yes, I know California is like no other state, except for New Jersey, another very pro-employee state.

I hope to see you there. So, if you don’t attend the conference and would still like my presentation handout – send me an email. Just be patient and I will send it to you after the conference.

 

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A Few Thoughts on Winning and Losing (Go Giants!)

I am not a big sports fan and tend not to use sports analogies in my writing or training. But when you live 20 minutes from a team headed to the World Series, you become, as if by osmosis, a devoted fan. Everyone loves a winning team. But, in order to have a winning team, there must also be a losing team. Now I am pretty sure the Cardinals (they were the other team, right?), must still be outstanding to have made it through 7 games for a chance to win the Pennant (am I even saying this correctly?)  However, in the end, to the world, the Cardinals are the losers.

The words we choose have power. They have the power to make someone feel fabulous – “You look beautiful in that shirt.” Or, can be brutally raw and hurtful, “That presentation was lame and a waste of time.”

The word “loser” connotes many images – someone who didn’t try, wasn’t good enough or is a failure.  I have personal story concerning power of the word “fail.”

Back in 2003, CBS approached me to be in one of their featured segments on adoption as I was nearing the end of the process of adopting a baby from Belarus.  I was given a camera to chronicle my journey to meet my son and bring him home.  CBS sent a crew to our town near San Francisco to film us for a day, and voila, our segment appeared on The Early Show back in December 2003.

Sounds great, right?

Well, as I began to watch the show (with the rest of America) I heard the narrator say, “Allison West…after two failed marriages…” I couldn’t hear anything else she said about my need and great desire to be a mom. All I heard was “failed.”  I was shocked.  Sure, I was acutely aware my marriages didn’t work out (not my fault according to my mother) but I never used the word “failed.” Somehow, that word made me see myself differently – for a short time. Was I a failure? I didn’t think so, but hearing that word made me pause and wonder if the rest of the world would view me that way as well. Ultimately, I decided to not let that word define me.

So back to the Cardinals. They lost a Pennant, but they are not losers. The point is – they failed to meet their goal, but they are not failures or losers.  Just as we are not losers if a marriage or job doesn’t work out.  As HR professionals, we need to guide managers and supervisors to use words correctly, deliberately and with integrity. Words can empower. Instead of saying to someone – let’s look at your weaknesses and turn them into strengths. You can say let’s look at ways that I can help you improve your performance to meet your goals. By taking away the word “weaknesses” we can turn that sentence around so it is creating a more positive message. Words have power.

On a personal note, this past Sunday was the 9th anniversary of the adoption of my son, Tyler. The love of my life. For those who might be interested in seeing that CBS special I referenced above, here is the link.  Just fast forward over the failed marriages part…

http://www.cbsnews.com/2100-500178_162-589296.html

 

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Please Join Me for a Free Webinar on the NLRB Confidentiality Dilemma

The NLRB recently ruled that employers who tell employees involved in an internal investigation to keep the details of the investigation confidential must now be prepared to prove that the confidentiality restriction is necessary to further a legitimate business need. This puts a significant burden on the employer to justify something that most investigators would agree should be a given and constrains the ability of employers to conduct thorough and accurate workplace investigations. As an investigator – I can tell you I now do some things differently.

So, what should employers and investigators to do?

To answer this question i-Sight Software will be hosting a free webinar featuring – yours truly – on October 18th from 2 to 3pm EST/11-12 PST

The webinar will explore:

  • Working through the 4-prong test to prove a legitimate business need for confidentiality
  • Who should decide whether or not confidentiality is necessary for a particular investigation.
  • How to properly document the case for requesting confidentiality
  • Various dilemmas the case creates for investigators
  • Some suggested wording for retainer agreements

Here is the link to register:

http://i-sight.com/investigation/confused-by-the-nlrbs-ruling-on-confidentiality-in-investigations/

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Beyond Our Borders: after “hola,” then what?

As I noted at the end of my recent blog post, I am on vacation in Barcelona, Spain. My 9 year old son and I take advantage of traveling by doing a home exchange – meaning we swap homes with folks in other parts of the world. Last year was Paris, this year we swapped with a lovely Spanish family who are now in our home and we are in their apartment. I have planned for months for this trip, but of course things come up I didn’t plan for or expect. Nothing life shattering or enough to impact the trip, but, I need to adapt, be flexible and be ready for contingent plans.

This reminds me of the many of you who work for large multi-national companies that frequently send employees abroad for conferences, meetings or to live for an extended period of time. Maybe you are one of the ones who keep a passport in your desk. As HR professionals, are you doing everything you can to help prepare these employees for both an exciting and often times stressful journey? For those of us who love to travel we are “up” for the adventure, however, there are still many things to contemplate such as language difference, culture, food, transportation and basic comforts.

Here are some things to consider the next time you say “Hasta la vista” to an employee:

1. Consider setting up a buddy in the new country. If your company has an office in the country, pair the American with someone who can be there to answer even the most basic questions. Having a buddy in any situation gives the traveler (or new employee to your company) someone to quickly bond with and get an idea of the rules of the road so to speak, rules within the company and city.

2. Send the traveling employee off with a nice organized packet of information about the location. What? Aren’t there tour books for those kinds of things? Yes, absolutely. However, I can tell you lugging around a 414 page Barcelona guidebook is not fun. I actually ripped some pages out of the Lonely Planet guidebook as I was tired of the dead weight. Make it easier for the working traveler. The packet should include, but not be limited to: local transportation, American Embassy locations, credit card emergency numbers, company hotline or other key numbers, places to exchange money and a recommended list of over-the-counter medications to bring. You are not being paternatlistic – many folks you are sending abroad hav never traveled before. I highly recommend also preparing a one-page sheet of key phrases – how to get to the bathroom, bank, foods, etc. When I went on a trip in college called Semester at Sea, we were given a “green” sheet that contained useful phrases and locations of things and it was a very handy document and I continue that tradition now.

3. Sleep. Please remind the employee traveler that it takes time to adjust to the time difference. Recommend some type of sleeping aide. Be sensitive to planning meetings immediately after the person arrives (depending on the lengthe of flight, etc.). Give the employee a day to get acclimated once they get home. You will have a rested and happier employee.

Any other travel tips for employees? Please pass them on.

Hasta luego.

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The NLRB Says Go Ahead and Talk about Investigations…

You read the blog title, slap your head and say, “Really?” Last week the NLRB came out with a decision that really has HR and employement attorneys rolling their eyes. In its Banner Health Systems decision, the Board ruled that employers (read: HR and outside investigators) who tell employees/witnesses to keep the nature of the investigation confidential must now be prepared to prove that the confidentiality restriction is necessary to further a legitimate business need. HELLO! What more legitimate business need can there be than
1. encouraging employees to come forward with a complaint,
2. protecting witnesses and employees from retaliation, and
3. helps maintain the integrity of the investigation (e.g., rumor mills, spoliation of evidence and on and on.)

On July 19, I delivered a session at The HR Star Conference rconference entitled The Top 10 Mistakes Investigators Make. One of the mistakes is not keeping things confidential. I did caution the audience that asking an employee or witness to keep the matter confidential could snag the ire of the NLRB but that investigators still have an obligation to manage the investigation and so long as the instruction on confidentiality is narrowly tailored – you may, might, hopefully be ok. My advice was timely, but where are we left now with this decision?

The Boards decision is not a total prohibition on asking for confidentiality. Just be prepared to establish that confidentiality is necessary to protect a witness, prevent the destruction of evidence, preserve testimony, prevent a coverup, or further another legitimate business interest.

(I am writing on an ipad in Barcelona so please forgive typos)

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What I Learned from Jerry Seinfeld

Last week Jerry Seinfeld was the entertainment at the SHRM Annual Conference held in Atlanta. He was dressed in a suit which I greatly admired – he took his audience seriously. He was in perfect form and had about 15,000 of us laughing for over an hour. Here are some takeaways from his wonderful performance:

1. Watch your tone. Now Jerry spent quite a bit of time relaying how his wife didn’t like his “tone.”  I am sure you can all relate whether it is your wife, husband or parents telling you about your tone.  When it comes to the workplace, how HR and managers relay their message is often impacted by the tone we use.  Pay attention to how others view your words, demeanor and intent. Do they line up?

2. Stop sitting so much.  Jerry’s opening routine was about sitting. We are all looking for the next place to sit.  One popular management technique is to manage by walking around. The same holds true for HR. Get up out of your chair and walk around – visit with employees and managers.  Let them know that your open door attitude goes both ways and that you are willing to get out of your chair to meet, greet and assist.  By walking around you may actually learn more about issues, concerns and ways you can help.

3.  Watch your words.  Pay attention to the words you use and how you use them – they have many meanings.  Ask folks for their definitions – listen and connect.  For example, an employee may say they feel “uncomfortable.”  I know what that word means and so do you. But, maybe the employee has a different definition and by asking you can gain insight to a particular issue going on.  The words we select can give away a lot of information – don’t miss out on a great opportunity to learn and be able to assist your employees.

Have any other lessons from Jerry Seinfeld you want to share?

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Lessons from Mad Men #1

Ok, so I am a recent addict of the hit show Mad Men and love it.  Although, as an employment attorney I often watch with a gurgling stomach as I am bombarded with non-stop drinking and sexist, racist, homophobic language and attitudes.  While our society has come a long way from the 60’s mentality, we still have a long way to go.

In the episode I watched last night, one of the characters (Kurt from Russia) commented that he was “homosexual.”  Someone replied, “I don’t think you really know what that means.”  After Kurt left the room, another colleague replied, “I knew their kind existed, I just didn’t want to work with one.” Wow.  Fast forward to 2012. Last week I delivered sensitivity training to an executive who describes a gay male subordinate as “sister” when asking about the employee.  Really? Yes.  It’s just not funny. Even if the employee described himself that way – not cool for the manager to repeat. Manager’s often forget they are role models.

Race issues are still alive in 2012.  Back in the Mad Men days, before the Civil Rights Act of 1964, we know that African Americans were treated in ways that we wouldn’t treat our pets.  One of the Mad Men characters, Paul Kinsey is dating a black woman and is with her on the marches for equality down south.  Harry Crane doesn’t miss a beat and says, “why do those people (blacks) have to stir things up?” Oh, Harry.

Just this week, a federal district court jury in Buffalo, N.Y., awarded $25 million in damages to a Elijah Turley, a black steel worker who worked for Luxembourg-based ArcelorMittal and claimed severe racial harassment over several years by co-workers.

Turley testified during the three-week trial that “KKK” and “King Kong” graffiti were written on the walls of the plant and a stuffed monkey with a noose around its neck was found hanging from the driver’s side mirror of his car, according to the reports. Mr. Turley said the harassment occurred between 2005 and 2008.

Take the time to remind your employees that comments, jokes, cartoons, etc, that are racist, sexist, involve any other protected characteristic are just not acceptable and will potentially violate your policy and subject the employee to some discipline.

While many who watch Mad Men will say things have gotten better since the 60’s – clearly not enough.

 

Posted in General, Investigations, Legal Issues, Management | Leave a comment

Sheryl Crow’s Brain Tumor and Your Employees

Last week Sheryl Crow announced she had a benign brain tumor.  Thankfully, she is fine.  Her announcement made me wonder: What if one of your employees came in and told you they had a benign tumor?  Are your managers familiar with what to do when they receive this type of information? Remember the following:

1. Don’t make any employment decisions based on the information you learn until the time is right.  In the example above, if an employee somehow notified you that they had a brain tumor, don’t panic.  They said benign, not much to do. But remember to ask why they are letting you know.  For applicants, remember, under the ADA and some state statutes (such the Fair Employment and Housing Act  “FEHA” in CA) you  can only inquire into an applicants medical condition, including a medical exam, once an offer has been made and the approval of the medical information is the only contingency to the employment.

2. Engage in the interactive process.  This is the most critical part of figuring out if your employee is a qualified individual and is protected under the law.  I recommend starting from the point the employee is protected.  Assume they can do the essential job functions as a starting place for the discussion.  Chat about what the employee needs.  Make sure the employee participates in the discussion – this means a two-way conversation. Document every conversation – no matter how short or incidental. Don’t forget to ask the employee all the ways they need assistance to get the essential job functions completed.  Many HR professionals and managers get stuck on what they think the employee needs – just ask them. Remember, it’s the employee’s responsibility to understand his or her own physical or mental condition so they can provide the employer with restrictions that must be met to accommodate the request.

3. Accommodate, accommodate, accommodate.  Most of the time, some type of accommodation is available.  Think out of the box, be creative.

Another piece to the Sheryl Crow scenario to keep in mind is that many states – California is one, have broader protection than found under the ADAAA.  For example, under FEHA, an employer’s duty to engage in the interactive process to reasonably accommodate extends to applicants and employees who are “regarded as” having a disability even they actually do not.  If Sheryl or your employee says they are fine, but you have trouble believing it – watch out and stop yourself (and your managers) from treating the employee any differently than before you learned about his or her medical condition.  However, the ADAAA puts no such requirement on an employer to accommodate someone who is simply “regarded as” having a disability.

Keep breathing when you learn an employee might have a disability and hum a few bars from Sheryl’s song about having fun.

 

Posted in Disability, Discrimination, General | Leave a comment

Make Your Documentation Bulletproof

In three weeks (June 25) I will be presenting my signature documentation program at the 2012 SHRM Annual Conference in Atlanta entitled Seven Steps to Creating Bulletproof Documentation.  I thought I would share some tips from the program…

Words to avoid: always and never.

Manager: You are always late.
Employee: I was on-time today!

Manager: You never volunteer to work overtime.
Employee: I did last week!

Unless you are 100% accurate, the speaker (manager or HR) loses credibility and the employee may walk away thinking you are exaggerating, the conduct isn’t that bad and you are picking on them unnecessarily.

Other words to consider:
Typically
Frequently
Often
Periodically
Occasionally

Watch your words, they all count.

Posted in General, Management, Training | Leave a comment

More Clarification (ahem) from the NLRB on Social Media Policies

Well, on May 30, the NLRB has issued its third memo on social media and other workplace policies. I think the Board believes it’s trying to help employers understand what policy language they find unlawful that infringed on employee Section 7 rights, and those policies that pass the NLRB’s smell test.  The trouble is, the smells are subtle.  Sometimes we can’t distinguish the smells. Ok, enough on that analogy, but the thing is, the more I read the memos, the more confusing it gets.

As Eric Meyer (attorney and blogger on TheEmployerHandbook.com) noted in his blog today, the Board’s recent memo (similar to the previous two) is all over the place and filled with a number of inconsistencies.  Here’s what Eric wrote:

  1. A requirement that employees “be honest and accurate” is ok (sample social media policy), but requiring employees to be “completely accurate and not misleading” online is unlawful because as long as the published information isn’t “maliciously false,” it’s all good. (p. 6-7). Understand the distinction? Me neither.
  2. A social-media-policy prohibition on sharing “Secret, Confidential or Attorney-Client Privileged Information” (p. 6-8) is ok, but various other restrictions on sharing confidential information (with a lower case “c” and “i”) sprinkled throughout the NLRB memo are no good. Are capitalized terms that special? Yes, I imagine that “Secret, Confidential or Attorney-Client Privileged Information” may be defined in some other policy, but maybe not. The Board memo is silent about that.
  3. “Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]” is ok (sample social media policy), but a prohibition on “disparaging or defamatory” comments is bad. (p. 16-17). My head is spinning.

Like Eric, my head is also spinning.

So, check out the memo at the NLRB memo and see what you think. The Board also provided a policy it feels passes all smell tests. So, if you want a policy, that is the place to start.  Just remember these pointers:
1. All policies need to be customized to your workplace and should be reviewed by employment counsel. Not the attorney who handles your real estate deals.
2. Define key terms in the policy.
3. Be careful about absolutes (“we prohibit the posting of pictures showing any company logos, work environments, etc), the Board just doesn’t like them and will find most will restrict concerted activity.
4. A savings clause won’t necessarily save you. E.g., “nothing in this policy is meant to limit or restrict your rights to unionize, discuss wages and benefits, etc.”  Make sure the policy language itself doesn’t limit your employee’s rights to organize.

Good luck!

Posted in General, Legal Issues, Social Media | 2 Comments

A Cure for Misbehaving Managers – Try Sensitivity Training

I am starting to think there is an epidemic out there in corporate land.  In the past couple of months I have received 7 new assignments to deliver sensitivity training to wayward managers. Is something in the water?  The bad behavior includes everything from inappropriate and/or unlawful comments, bullying (e.g, yelling, anger, sabotage), poor management skills, passive-aggressive communications and the list goes on.

To solidify my theory, I read an article this morning about a bad, offensive, tasteless joke told by Safeway’s General Counsel, Robert Gordon, when he opened the company’s annual shareholders meeting on May 15.

Here’s a snapshot: President Obama was carrying two pigs under his arms, and a Secret Service agent complimented him on the pigs, to which Obama explained they were special pigs. He said he got one for Hillary Clinton and one for Nancy Pelosi, to which the agent responded, “Excellent trade, sir.”

Safeway’s CEO was mortified and wrote letters apologizing to Ms. Clinton and Ms. Pelosi.  Allegedly, the GC also wrote his own letters.  Hmm, does Mr. Gordon need sensitivity training? In mho, you bet.  In case anyone at Safeway is reading this, I am available.

Employers seem to have less of an appetite for the misbehaving manager these days. Why? The answers seem pretty obvious – liability, turnover, morale, distractions, impacting the bottom-line.  One question I always ask the prospective employer client: is the person worth saving? Sometimes the caller says, “um, good question”, and then promptly hangs up.  More often, the answer is “yes.” So, why keep someone who creates such turmoil in the workplace?

Easy answer: Because the misbehaving manager is often a great performer.  Funny isn’t it, how your greatest performer can also be your greatest liability? They are great, but, at the same time, their inappropriate workplace behavior is unsettling the office or even putting your company at risk for litigation. You don’t want to lose this asset, but you want to make sure that their out-of-line behavior doesn’t continue.  Oh, that’s right, some of you are working with this person, or know of one in your organization.

Given the surge in this type of training, I thought I would provide some tips if you need some help with your bad-behaving, great performer.

1. Don’t sugar coat the issues. Be direct, be specific. “Sue, your employees came to us as a group and said they can’t take it much longer. They need some relief.” This is an actual quote from a matter I handled last week. The manager is abusive, snotty, passive-aggressive.  Those are his better qualities.  Make sure you talk about the impact of the conduct – not just that you want it to stop.  However, be careful not to make the targets of the bad behavior sound weak or like whiners. Lay out legitimate concerns and cite very specific examples. Simply saying, “Stan, be nicer,” won’t get you anywhere.

2. Remind the person they are a role model.  I am finding that many managers forget they are role models. The yellers and abusers are actually giving tacit permission for everyone to act the same way.  The harassers need to know they, too, are the ones who must enforce the policy and create a safe environment.  Remind the bad actor of their role, how you expect them to act. Highlight your culture of respect and that you put people first.

3. Consequences. Don’t bother telling them to act nicer, stop yelling, stop the bad jokes and be a better “culture” fit if you don’t attach some consequence to their actions. What kind of consequences? Try termination. But, you have to mean it. I do not accept an assignment unless there is some significant consequence connected to the training. Doesn’t always have to be termination in the beginning – but it has to be enough to get the person’s attention. By the time you need outside help – termination is really the only option.

Stay tuned for more tips down the road.

 

 

Posted in Bullying, Sensitivity Training | Leave a comment