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

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 18^th 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/

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.

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)

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?

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.

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.

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.

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!

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.