What the Rosanne Movie "She-Devil" can Teach Us

My wife and I were looking for a fun, brainless movie to cap our Saturday evening. I will spare you the recommendation. It was perfect for our night, and we enjoyed it, but according to IMDB.com, we are in the minority on this front (IMDB Rating: 4.8 out of 10).

Here is the IMDB synopsis of the film:

An awkward and overweight woman, Ruth Patchett (Rosanne Barr) lives in the suburbs with her husband, Bob Patchett (Ed Begley Jr.). She becomes a a monster who wants revenge because her husband is seduced by authoress Mary Fisher (Meryl Streep) who writes trashy fiction

The most poignant part of the movie, to me, is when Bob explains the following to Ruth:

"I'm gonna tell ya something, Ruth... Life is made up of assets and liabilies. As a man I have four basic assets: 1. a home, that is my castle; 2. a family, that is loving and devoted; 3. a successful career that I worked very hard to maintain; and 4. the freedom to enjoy the fruits of my labor. But when it comes to liabillities, I have only one. That's you, Ruth! And I'm not gonna let you ruin everything."

His statement clearly foreshadows the path of the movie. In the end, Ruth destroys his house in a fire (no charges of arson...I guess the 80's were just different times), creates havoc in his relationship with Mary, ends his career, and has him imprisoned by framing him for embezzlement.

The moral?

If you don't pay attention to your liabilities, you may lose your assets.

Look at the Southwest Dental Group, which reached a settlement on a pregnancy discrimination charge with the EEOC for $130,000, in addition to being required to have the offending management officials attend two separate live training programs regarding discrimination issues with an emphasis on pregnancy discrimination. The company is also required to appoint an equal employment opportunity (EEO) consultant, create and implement anti-discrimination policies and procedures, and periodically report to the EEOC regarding its handling of internal complaints and compliance with the decree, if they open a new practice within the next four year.

You know what could have prevented that cost? A contract with HR Consult Team.

A basic compliance contract would have identified their offenses for about 3% of the cost of the settlement (not to mention the cost of training and of an EEO consultant). Southwest Dental would have known that asking questions about a woman's marital status, whether she is pregnant, planning to become pregnant, or if she has children, is not acceptable. Beyond being not acceptable, it creates liability.

This case was a result of the company paying attention to the assets and not the liabilities. Southwest Dental found out it is costly to do so. Bob Patchett could relate.

Hiring for the Long Term

By: Vicki Z. Lauter

Before launching a search for a senior-level manager, take time to figure out the skills, behaviors and values that will best fit your organization.

In today’s throwaway society, many organizations believe if they get two or three years of employment from a new hire, they have recouped their investment. In reality, organizations incur tremendous expenses in hiring and training higher-level managers and the only way to maximize the return on this investment is to retain productive employees.

To get the most out of hiring, an organization needs to strategically align its hiring needs with the talents of the individual. By investing on the front end of the hiring process—before advertising for a position and interviewing candidates business leaders create greater accountability for the open position within the organization and reap maximum return by retaining a candidate who can produce results and grow in their organizations.

Disposable Employees

Studies have proven it costs an organization more in time, resources and overhead to hire for the short term. A 2001 survey by the Hay Group, “Retention Dilemma,” estimated that turnover can cost employers as much as 40 percent of annual profits.

All of us come to a new job with natural strengths and challenges. By assessing candidates and jobs, we can match those candidates that best correlate to the needs of the job and the culture of the organization. When this alignment occurs, both the employee and the organization benefit through an enjoyable, productive work environment. When we hire only for skills, we end up firing for attitudes.

Take time to figure out what sort of person—as well as what set of skills— your organization needs. Envision the kind of candidate who will be ideal for your organization years down the road. Then, and only then, go out and find that person.

On the other hand, if you haven’t projected the future of this position, maybe you don’t need a permanent employee. Hire a contract employee instead.

Recruiting Strategy

I strongly recommend that organizations develop a recruiting strategy for open positions, one that they use each time they need to fill a senior management position.

Start the process by gathering all key stakeholders together to discuss the ideal candidate. Ask yourself the following questions:

- What is this employee meant to accomplish?

- What are the roles and responsibilities of this position?

- What personality will be the best fit for this position?

- Which departments will be communicating with and through this individual?

- What are the business goals of this position, and how will this person’s performance be evaluated?

Once you’ve answered these questions, devise the ideal candidate characteristics through a system of benchmarking. Benchmarking helps you identify the behaviors, values and culture of a job, as well as the specific responsibilities and expectations for the open position.

Furthermore, creating a benchmark based on current top performers can be an unexpected minefield. It is not uncommon to discover that performance improvements are possible by benchmarking the job itself, not the manner in which a current top performer is doing the job. If your current staff consists of B-level performers, and you benchmark them, your future expectation will be more B-level employees.

Candidate Assessment

When you’re ready to interview candidates, have applicants for the position complete an assessment to determine their fit for current and future roles in the company. All candidates will be compared against the benchmarks to determine the best fit for long-term success within the organization.

The process helps focus on the strengths of individuals and on the challenges of the position. It also helps streamline the interview process, so all involved in hiring know the goals of the position as well as the method for evaluating the new employee’s performance. Candidates whose natural talents and skills align with the needs of the position become an organization’s best choice for long-term employment.

Assessments should also be used during performance evaluations. This is a valuable aid in determining promotions or lateral moves within the organization.

A Better Approach

Short-term “fill the job” thinking often results in having people in positions that are in conflict with their natural talents and values. This commonly leads to burnout.

When employees find a natural match between their strengths and the needs of the position, they flourish. Going into a new role with accountabilities clearly spelled out instills a sense of confidence and focused motivation for employees. They feel in control of their success and responsible for the betterment of their organization. There is a stronger sense of loyalty, thereby establishing long-term opportunities for continued employment with the company.

Everyone working toward the same business goals ... that’s just crazy enough to work.

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This is a guest post by Vicki Z. Lauter, Founder of Strategic Human Insights. Strategic Human Insights is an HR Consult Team preferred provider for assessments. Learn more about Strategic Human Insights at:

http://www.strategichumaninsights.com/

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Practice Sets Policy

I recently audited a company, which shall remain nameless (because I am going to point out a few issues)--let us call it Practice Inc. In my initial interview with the company's lead HR professional, I felt that she was intelligent, informed, and working hard to make sure the company avoided legal liability. I left the meeting with the impression that I would be done with the audit in a few hours and have little to offer.

When I got home and started reviewing the company's policies, I found out they varied from the practices the HR professional (let's call her the HRP to help stave off Carpal Tunnel Syndrome) described to me. In the end, the audit report was about 42 pages long, and it took me nearly 60 hours to complete.

Using one example to illustrate my point, Practice Inc. had a policy that prohibited bringing firearms, ammunition, or concealed weapons of any kind onto the company property or premises. I noted this policy in my audit report because Georgia Law (the “Business Security and Employee Privacy Act”) states:

Section 7 (a) Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall establish, maintain, or enforce any policy or rule that has the effect of allowing such employer or its agents to search the locked privately owned vehicles of employees or invited guests on the employer´s parking lot and access thereto.

(b) Except as provided in this Code section, no private or public employer, including the state and its political subdivisions, shall condition employment upon any agreement by a prospective employee that prohibits an employee from entering the parking lot and access thereto when the employee´s privately owned motor vehicle contains a firearm that is locked out of sight within the trunk, glove box, or other enclosed compartment or area within such privately owned motor vehicle, provided that any applicable employees possess a Georgia firearms license.

http://www.legis.state.ga.us/legis/2007_08/fulltext/hb89.htm

So, the law trumps the company policy with regard to allowing guns on the premises. No big deal. My recommendation was to limit the policy to the actual facility and not the parking lot. Discrepancy resolved.

The problem is, in a post-audit interview with another employee, he revealed that the CEO carried a gun at all times and frequently had it out in plain sight while in the building. Again, this is not necessarily a big deal, but the CEO has effectively voided the policy by carrying this gun.

In my initial interview with the HRP, she mentioned that the company had an employee make a strange statement that if he got fired he would shoot everyone. She mentioned that the statement was said in jest, but that she was concerned given the fact that this employee was a sniper in the military. Big deal. And I don't mean that in a sarcastic "big deal" kind of way. This is an actual big deal. I intend to cover pre-employment testing, workplace violence, and employer liability in another post, so here I will focus on the Practice vs. Policy question.

As Practice Inc. believed the comment was made in jest, it decided not to address the comment directly. The company's HR team had considered using the gun prohibition policy as a method of termination. They made the decision to monitor the employee, and if they found that he brought a weapon to work he would be subject to dismissal. After learning about the CEO's behavior, I informed the company that it had lost the option of terminating under that policy.

When I worked with a skilled nursing facility in Memphis, Tennessee, we were often forced to defend our employment decisions. We always prevailed because we followed the edicts of consistency, documentation, and fair treatment. With regard to consistency, we remained consistent with policy, and where we deviated from policy, we noted strong reasoning for doing so.

Once you begin deviating from policy, you have set a new policy and must abide by it. Deviation is to be avoided at all costs.

I had a manager at this skilled nursing facility (SNF) on whom we received a complaint about him using inappropriate language. He was a good guy, and his language was not intended to belittle anyone, however intent and impact are different, and impact means more. The problem was that his manager did not want to address his behavior because "that is just the way he is."

I explained that allowing him to behave in that manner, when we have disciplined and even terminated other employees for similar behavior, would subject us to scrutiny and potential liability. Given the rate at which our employment decisions were called into question, I refused to allow decisions that would create the appearance of discrimination. In the end, we followed policy and disciplined the manager for his inappropriate language.

Later, when we were questioned after firing an employee for a similar offense, we could show the documentation that the terminated employee had been warned and could show consistent treatment in line with our policy.

It is important to remember that policy is only valuable if it is followed. I can spend 60 hours reviewing your policy and making recommendations on how to improve it, but if you don't follow your policy, the time spent is valueless. Well, valueless to you...I still get paid.

Georgia Law Update

This post is an update on a few employment related legal issues in Georgia:

1. House Bill 97

House Bill 97 was filed on January 31 of this year and assigned to the House Committee on Industrial Relations. The purpose of this bill is to reform the state's minimum wage law, which is currently lower than the Federal minimum wage of $7.25 per hour.

H.B. 97 would increase the statewide minimum wage to $15 and increase it concurrently with increases tied to the Consumer Price Index. Tip credit would be 50% of the minimum wage.

There are exemptions from the state minimum wage for companies with $50,000 or less per year in profits, companies with 5 or fewer employees, high school and college students, and newspaper carriers. However, farmers, sharecroppers, land renters, and employers of domestic employees would lose their previous exemptions.

2. Senate Bill 7

Senate Bill 7 was filed on January 24th of this year and was referred to the Senate Committee on Insurance and Labor. This bill would bar any award of workers compensation benefits to employees who were not lawfully admitted to the country at the time of the injury.

The bill would prevent payment of both lost wages and medical expenses. No payment would be made to aliens unless they were present in the United States legally at the time the payments would be made. The bill would add a requirement for workers compensation claimants to document the legality of their presence in the country. Current law does not prohibit illegal workers from collecting benefits.

It is believed there is an incentive basis for creating this law, as it will make the state less attractive to illegal workers. Employers should be concerned with the possibility of I-9 violations if a workers is denied benefits due to being an illegal worker.

3. Vicarious Employer Liability

The Georgia Court of Appeals decided the case of B-T Two Inc., V. Bennett, affirming that the employer was not responsible for the actions of his employee.

At a party for a manager of the company, an employee of the company got into an altercation with the claimant. The claimant indicated that the company was responsible for sponsoring the party and liable for his injuries.

The Georgia Court of Appeals noted that Buffalo's did not own or lease the house where the party was held, nor did the company pay for any of the expenses, provide food or alcohol, receive revenue, or place any promotional materials at the party.

Beyond that, the Georgia Court of Appeals stated that the general rule regarding vicarious liability is whether or not the employee was acting in the scope of his or her employer's business at the time. Given that the assailant in the case was not attending the party in connection with his employment, the Court indicated there was no evidence to show that the assault was in the scope of employment.

The take-away here is that the general rule for vicarious liability is limited to when the employee is acting within the scope of his or her employment.

4. Classification of Workers - FLSA

In the case of Williams v. Gold Car Lending, Inc. a Georgia court rejected the employer's assertion that the employees were outside sales and thus exempt from overtime provisions.

In this case, the employer attempted to classify the employees as outside sales, although their sales responsibilities were rarely equal to other responsibilities, which included collections, washing cars, transferring cars, making deposits, and similar duties.

It is important to realize that titles and classifications are less important than the actual duties an employee completes. A thorough review of positions and their duties is necessary, along with a compensation review, in order to determine if an exemption actually exists. When in doubt, err on the side of caution.

NLRB and the Facebook Firing

The National Labor Relations Board (NLRB) settled with American Medical Response of Connecticut on February 7th with regard to the so called "facebook firing" in which the employee posted disparaging remarks about her supervisor on her facebook page.

The employee posted these comments, then other employees responded creating a string of negative responses on her facebook page. The employer found out and subsequently fired the employee, stating the employee violated the company's internet policy.

The NLRB investigation resulted in the determination that the postings were "concerted activity" and thus protected under Section 7 of the National Labor Relations Act (NLRA). Section 7 prohibits employers from interfering with employee efforts to work together to improve the terms and conditions of their workplace/employment.

The NLRB ruled that an employer's attempt to restrict personal use of the internet outside of the workplace or the scope of work, including the use of social media sites, to communicate with co-workers was a violation of Section 7.

Despite the fact that the company could show the employee was a poor performer, it was forced to provide an undisclosed settlement to the employee for violation of Section 7 of the NLRA. The company also agreed to revise its policies to protect the rights of employees to discuss working conditions, wages, work hours, and other conditions of employment.

Companies should review their policies to determine if they contain overly restrictive covenants that could be construed as violating Section 7 of the NLRA as demonstrated by this settlement.

Family and Medical Leave Issues

I got an email this morning regarding the Family and Medical Leave Act (FMLA). The employer has been having issues getting the appropriate documentation from the employee's medical provider. She contacted me to see what she could and should do.

According to the FMLA Regulations, the employee must provide a complete and sufficient certification to the employer, if required by the employer, in accordance with sections 825.306, 825.309, and 825.310. If the employer finds the certification incomplete or insufficient, the employer must advise the employee, in writing, about what is necessary to make the certification complete and sufficient. The employer must then provide the employee seven days to correct any deficiencies. If the deficiencies specified by the employer are not cured in the resubmitted certification, the employer may deny the taking of FMLA leave, in accordance with §825.313.

It seems simple enough, but any HR practitioner who has had to deal with FMLA will tell you it is just not that simple.

If you deny FMLA leave, do you still provide the employee with time off? If you do, how much time do you give them? Do you allow them to continue benefits?

If you process as FMLA, do you require the certification requirement for other employees?

One problem with denying FMLA leave is that you may have a good employee who runs into problems with his or her provider. If you make an exception for that employee, then you are creating a new practice, which you must follow for the bad employees who do not make an effort to get their forms completed.

I once had an FMLA issue where the employee's provider told him that he charged $10 per page to complete the FMLA form. The employee was already going to be on leave without pay and did not have the money to get the form completed. I was aghast that the provider would be so callous as to create a situation that might negatively impact the employee but later found out it is not uncommon.

The point is that there are legitimate situations that are not the fault of the employee which could negatively impact his or her eligibility for FMLA leave. Do you create a policy that would have the employees suffer?

According to every attorney I have ever spoken with on the matter, the answer is YES.

Yes, require the certification. Yes, deny the leave if the certification is insufficient and not corrected in the appropriate time period. Yes, offer other leave if it is available through company policy. Yes, terminate if the employee is not eligible for any additional leave and does not come into work. No, it does not matter if the employee was a good worker or not.

As you know (from reading my posts so diligently) consistency is one of the edicts of good HR work. By utilizing the certification process and applying it consistently, you allow the company to act within its rights and terminate those employees who miss time outside of the leave they are provided by company policy and/or employment law.

It is sad that you have to terminate a great employee because the healthcare provider did not do its part. It would be worse if you had to keep a bad employee because he or she played the system and exploited your vulnerabilities. It should be noted that you could always hire the great employees back when they are able to return to work.

Still, I have never been comfortable with the approach. In my opinion, if your company can afford to give people the time off, then it behooves the company to get the FMLA clock ticking. If you can run FMLA time concurrently with a worker's compensation injury, then do it. If you can count sick time as FMLA time, then do it. The employees who are scamming the company will use up their mandated leave and then they will be stuck.

FMLA allows 3 months of leave per 12 months. Smart employers use a rolling 12 month period to determine available FMLA leave. This means that the employee cannot use FMLA for 3 months at the end of a year and then another 3 months at the beginning of the year.

The problem with the approach I prefer is that you run the risk of having employees abuse FMLA leave. This creates problems with scheduling and continuity of business operations. If you have enough redundancy and/or a part-time/as-needed workforce, then you should be fine. That is not going to be the case with most employers.

Knowing that, my recommendation is in line with the attorneys' points of view. Keep your rights by requiring the certification and holding employees accountable for providing the appropriate documentation. If they are not eligible for FMLA, then provide applicable company leave. If they are not eligible for company leave, then deny the leave and, if necessary, terminate.

I cringe to write that. To counter my cringing, I will go one step further. Offer as much assistance as you can to help the employee. Explain the ramifications of not having the form completed. Call the provider to explain if necessary. Document these steps (again, if you have been reading my posts, you know about my rule of documentation). Do your best to ensure you have taken steps in good faith to help the employee. If they do not meet the requirements, then they are not eligible for the protections of FMLA, specifically the job protection and benefit continuation aspects.

By keeping a strict line on your actions, you are protecting the company from charges of discrimination. By offering your assistance, you protect the company by showing good faith efforts to help the employee.

Know Your Target

Last week in our FastTrac course we did an exercise...we made paper airplanes. Then the facilitator told us to throw our paper airplanes. There were airplanes flying in all directions across the room.

Then the facilitator asked if we hit our targets. Of course, no one had a target, as we expected we were seeing if our plane was able to fly.

Then the teacher put up an actual target, and we were told to throw our plane at the target...success was greatly improved.

This was a simple exercise designed to relay a basic point. If you know what your goal is, then you are much more likely to achieve it.

Earlier last week, I attended the Athens Area Society for Human Resource Management's monthly meeting at which Kevin Hanville spoke about upgrading your workforce during the difficult economic times. Kevin's speech covered many areas, but for the purposes of this post, I want to focus on the idea that companies should only retain the most talented employees in order to achieve success.

While I feel that Kevin might disagree on some elements of this post, Kevin and I agree on the following responsibilities of an employer:

1. Use metrics to measure employee success

2. Base the metrics on factors that actually contribute to successful completion of the task to which the employee was assigned

3. Provide meaningful, real-time feedback to the employee regarding his or her performance

4. Terminate when the relationship is not working out

If Kevin reads this post, I hope I have not simplified things too much. I just want to illustrate a few points and feel this version provides the gist. I don't believe any disagreement we might have imply that Kevin is wrong in his assessment. He is an intelligent person, and there is no questioning that. My point is that knowing the target may impact a company's behavior.

The intent of this post is to illustrate two elements of knowing your target. The first is that a company must know its target, and the second is that an employees must know their targets.

Company's Target:

Regarding the list of employer responsibilities, where Kevin and I might disagree is number four. I like asking questions to set-up an explanation, so here goes. When is it clear that the relationship is not working out, necessitating termination?

I believe Kevin would define that line as being much earlier than I would, but in the end, it depends on your company's target.

If a company is looking to be the most profitable in the industry, then it needs to consider the value of having a top-notch workforce at all times. Kevin shared this article with me:

http://www.businessinsider.com/fire-everyone-who-is-a-six-out-of-ten-2011-2

The article explains that most companies will get rid of the employees who would be five-out-of-ten or lower, but it is specifically the six-out-of-ten's that differentiate the top performing companies from the rest of the pack. It is a solid argument. The article says the six-out-of-ten's are not bad...they are just not good.

It makes sense. After all, it is business, and if things are not working, then you have to make changes.

I have to admit here, I am in Human Resources. Rarely do people go in to the HR field without being a "people person," and I am no exception. Still, I have at least some business sense, and I believe in holding people accountable for their performance. However, I believe there are ways to operate a business that provide income and security for the business owner, gainful employment for workers, and quality products/services for the client which do not require a cold-blooded approach to conducting business.

In those types of businesses, I would say maybe those six-out-of-ten's are salvageable. Yes, hold employees accountable. Yes, let them know as soon as problems arise. Yes, if they are not meeting the standards of the job, then let them go. But, no, don't expect the employee to be perfect.

Alexander Pope penned "To err is human," and I agree. Mistakes are bound to be made, and I see peril in creating a culture that creates a fear of mistakes. We learn from mistakes. They can be valuable. In fact, they can be fruitful. Think saccharin, penicillin, the pacemaker, TEFLON, fingerprinting, X–Ray, and the microwave oven which were all inadvertent successes borne of failures.

I'll admit, the likelihood of discovering the equivalent of penicillin is low, but the point remains. When people are scared of making mistakes, their work behaviors are impacted. They become less creative and take less initiative.

In the end, it depends on what the company's target is. If the company wants financial success, then hire the best, fire the rest, and focus on the bottom line. If the company also wants ingenuity, then encourage experimentation. Know what your goals are and then draft your plan to match them.

Which brings me to part two.

Employee Targets:

As I outlined earlier, employers must create metrics to measure success in a position. For sales, success might mean a certain percent increase in sales from quarter to quarter or year over year. For production it might be a decrease in waste or defects, or perhaps an increase in total number of products produced.

More likely than not, it will be several factors that contribute to overall success in a position. Determine what factors contribute to the success of the company. Make sure they are aligned with the company's goals. Additionally, you should weight the factors accordingly to ensure that your performance evaluation program contributes to the overall success of the organization. Most importantly, convey these metrics to the employees BEFORE they are to be held accountable.

Let your employees know their targets. Otherwise, you will have a bunch of people throwing airplanes around the room hoping they fly. While you may get a few that hit the target, success will be much lower than it could be.

Beyond informing employees of the metrics on which they will be judged, it is important to monitor the performance and provide real-time feedback on the employee's performance. Let the employees know when they are aiming their airplanes in the wrong direction. Let the employees know when the airplanes are not achieving the appropriate distance. Let the blogger know when he has gone too deep with his analogy.

When employees know their targets, they are much more likely to hit them. When employees are aware that they are exhibiting behaviors which are impeding their ability to hit the target, then they are much more likely to make the necessary adjustments they need to make. Most importantly, when you have taken these steps and the employee still cannot hit the target, then you know it is time to terminate.

To Sum:

When a company knows its target, designs metrics to measure success in achieving goals, provides employees with the metrics on which their performance will be measured, and provides feedback on whether or not the employees are meeting standards, then the company will have a greater chance of hitting its target.

Why am I last?? That's not fair.

As one of my favorite co-workers of all time, Bill Garrett, used to say, "A fair is a place where pigs get ribbons."

Fair treatment is a difficult concept to convey. What is fair to me? What is fair to you? Who is the judge?

In my opinion, the heart of all employment law is based on fair treatment. The Fair Labor Standards Act is a great example of this. It defines minimum wage, overtime, work hours, child labor rules, and what records employers must keep. This prevents employers from abusing their power and short-changing employees.

Title VII, ADA, ADEA, and the Equal Pay Act ensure that employers treat all employees equally, not favoring one sex, religion, race, national origin, age, etc. over others. Numerous state laws address these issues in many ways, with California leading the way. Some states specifically prohibit employers from terminating employees for lawful activities conducted outside of the workplace, while the employee is not "on the clock," and I think that is a great idea.

Companies hire employees for a purpose--to complete a task. Employees are hired to make widgets, to sell widgets, to provide great customer service, to make the widget makers coffee, etc. If the company could hire all robots and machines to do these things, then from a business standpoint, presuming the costs made sense, the company should do that. At the current time, that is not economically feasible, and I am glad that is the case.

Still, I think the idea illustrates the point. Employees must be functional with regard to the task they are supposed to complete. As you may have noticed in reading my blog, I believe that if the employee is completing that task in a satisfactory way, then it should not matter if his hair is long, her tongue is pierced, or he prefers the company of men.

Further, employers should not vary the way they treat employees based on those types of characteristics. There is just no business sense in it. If I have a white, male employee with short hair, a suit and a tie, who attends church twice a week, but who cannot meet his sales quota, and I have a black, male employee with dreadlocks, a t-shirt and jeans, who thinks religion is evil, but who consistently wins all sales competitions and sets new sales records, which one is more valuable to the company?

To be sure, I would certainly enforce the dress code of the company - if jeans are not allowed, then I would address it.

Still, I use the discrepancies to illustrate a point. It is not the person, his or her dress, or his or her behavior outside of work that should be of concern to an employer. Rather, it is a person's ability to perform the functions assigned by the employer.

As I write that, I hear a voice inside my head warning about outside behavior such as drug use or other unsavory behaviors that might negatively impact the company. "What if the employee uses drugs then goes postal," the voice says. My response is that (1) if you know an employee is using drugs then address it. All companies should have a drug-free workplace policy and procedures for addressing issues that even appear to be related to drug use. And (2), to the degree an employee exhibits behaviors that are concerning, the company should address those behaviors.

In fact, number 2 gets at the point of fair treatment. Employees are not robots. They have feelings, emotions, outside issues that get brought into work, and numerous other factors that impact their performance. Companies should give the employee an opportunity to succeed by addressing performance issues and offering support to overcome them.

A company I worked with in Florida had a good employee who got divorced and subsequently went on a drinking/partying binge. Her work showed the impact of that behavior. Instead of firing her, the administrator of the facility took her aside and addressed her performance. He went the extra step to ask her what was going on and to let her know, in no uncertain terms, that if her work continued at a low level, she would be terminated. The administrator granted her leave to get her act together.

The employee took some time off, got her life together, and came back. She continues to be employed by the company and is one of its top performers. Instead of losing an employee, the administrator gained someone who is loyal to the company. It cost him a couple of weeks of paid time off (which would have been paid to her if she was terminated per state law). The employee felt she was treated fairly, and it paid off for the company.

Fair treatment is not just about saving employees. The main benefit of fair treatment is in being able to defend employment decisions. Let's look at an example to illustrate this point. The laws protecting the example employee are in parentheses.

Let's say I have a forty-five year old (ADEA), Indian female (Title VII) with AIDS (ADA and potential FMLA).

She has had a history of tardiness and unexcused absences that are not accounted for due to any medical needs. We addressed her attendance issues per policy, offered her leave under the Family and Medical Leave Act (FMLA), and assisted as much as possible with the processing of that paperwork. We kept her medical information confidential. Additionally, we sought to find other ways to assist her with her tardiness, such as adjusting her schedule.

We documented each conversation and had her sign a copy attesting to the accuracy of the document. In the final conversation before termination, we noted that any additional incidence of tardiness or absence in the next 90 days will result in termination (again, this is per policy).

She filed a workers compensation claim after hurting her back when lifting a patient using improper procedure and not using the lifting device provided by the company. This occured 80 days after the final conversation before termination.

Her doctor put her on leave for a week. She was released to full duty and scheduled to return to work on the 8th day following her injury. On the day she was scheduled to return to work, she arrived 10 minutes late and was subsequently fired for violation of the attendance policy.

On the surface, attorneys would be salivating to get this case. You have an employee who is protected by the ADA, ADEA, Title VII, and state law regarding workers compensation retaliation. The proximity of her termination to her workers compensation claim could establish a prima facie (meaning "at first face") case.

However, if we can produce documents showing that we tried to assist this employee, spelled out expectations, and subsequently held the employee accountable, then the company would have a solid defense against any claims of discrimination.

In the example above, exposure could still exist if all employees were not treated consistently. For example, if we did not enforce the attendance policy with each employee, then this is likely acase of discrimination.

The main point is that by being able to show that you endeavor to treat employees fairly, taking into account their situations while holding them accountable for business needs, you will be able to defend your business decisions.

I want to spend a moment on what fair treatment is not. Fair treatment is not giving the employee what he or she wants. The most common complaint of unfair treatment I have received hinges on this belief. An employee wants something, the manager can provide it, but chooses not to, and does not give a reason for this decision. The employee believes that is not "fair" and contacts the human resource department to make it known.

Perhaps the manager did not grant the request because it would have caused bigger issues for the department. The employee did not know that, and maybe the employee did not need to know that. Regardless, it was not unfair that the request was not granted purely because the request was not granted.

Fair treatment is about being reasonable. Fair treatment is a mind-set by the employer that requires taking into account the needs of the business first and then the needs of the employee. Setting expectations is fair treatment because it gives the employee knowledge of the standards of performance. Providing the metrics by which performance is measured is fair treatment because employees know how they are being rated. Addressing problems as they arise is fair treatment because employees are not blindsided when the problems become too big. Holding employees accountable is fair treatment because employees know that you are true to your word.

Where is my phone number?

I was trying to think of a reasonably OK title for this post. The focus is on consistency, but doing another "What is my phone number" made me yawn. So, boo-ya, the ole change-up. Did I just blow your mind?

Ok, referencing my last post, my three edicts of HR are consistency, fair treatment, and documentation--not necessarily in that order. As I discussed in the previous post, documentation of actions is beneficial because it ensures you will not forget the actions you have taken or your reasoning for taking those actions. By creating real-time documentation, you are better able to defend your decision making when it is called into question.

Likewise, consistency helps defend you against charges of discrimination. I am definitely Pro-Title VII and any law intended to ensure employers do not discriminate against otherwise qualified individuals with regard to employment decisions. I have known too may sexist and racist employers to believe that they are unnecessary.

That being said, I have likewise dealt with the frustration of defending a company against frivolous charges of discrimination. Anyone can file an EEOC charge, regardless of whether or not there is merit to the claim. The EEOC has a duty to investigate. Sometimes this is limited to a response, but even the response should be drafted by an attorney, and attorneys aren't cheap.

Sometimes the response is deemed insufficient, and your company will get a visit from an EEOC field investigator. This can not only be time consuming and costly, but also may create additional exposure, as a field investigator may find other issues. If this can be avoided, it should.

The best way to avoid an investigation by the EEOC is to follow my three edicts. Fair treatment is always good business. More important is consistent treatment. Discrimination exists when a protected class is treated differently than other similarly situated employees. If you treat employees the same way, you are not discriminating.

That is probably a bit simplistic, but it gets the point across. To be sure, there are cases of potentially unintentional discrimination (disparate impact) such as a hiring test that excludes minorities at a higher rate than other individuals. What I am talking about is disparate treatment, the idea that you are treating members of protected classes differently from how you treat others.

"But, I am not a racist/sexists/whatever-ist," you might say to me. "Doesn't matter," I might reply.

I have seen employment decisions that are based on solid reasoning that have been subject to scrutiny because of a discrepancy in the way two employees were treated. Perhaps you grant the non-protected employee the time off because he or she filled in for a sick employee and the protected employee never goes above and beyond the call of duty. If that is the case, you had better hope you read my previous post and documented the reason. If not, then it might look like you are discriminating against the protected employee.

When I advise managers on a course of action, regardless of the specifics of the recommendation, I always tell them to review their previous actions to ensure they are acting consistently, and if not, then they must document the reason for the discrepancy. There are legitimate reasons to make exceptions to policy, but the goal should be consistent application of policy, at least at the manager level.

I have worked with companies where one manager is strict about time and attendance, and the other manager allows more leeway. So long as the organizational needs don't require a consistent policy on time and attendance, then the variance is fine. However, if the strict manager selects employees that can be late without penalty but disciplines other employees for being late, then the company is exposed.

I would often receive calls from employees complaining about how an employee in a different department was late and did not get in trouble, so they want their own disciplinary action thrown away. My response was always that managers have different standards, and an employee is subject to the standards of his or her manager. Rarely could employees point to variant standards within their departments, and when they did, I began investigating immediately. Issues of that nature must be addressed, and managers who vary standards should be educated.

The goal of Title VII, the ADA, the ADEA, and similar laws is to ensure that if an applicant/employee is qualified for a position that he or she is given the opportunity to succeed in that position. When an employers consider factors that are not relevant to employment, such as color, race, national origin, disability, religion, etc., they are doing a disservice to everyone.

If there are performance issues, then address performance issues. If there are violations of policy, then address violations of policy. These things should be considered in employment, however, do them consistently. It will save you headache and money.

What's my phone number again?

So, my previous post got me thinking about documentation.

When dealing with human resource matters the following three steps will help defend you from accusations of wrong-doing:

Documentation, Consistency, and Fair Treatment of employees.

I intend to discuss all three at some point, but for this post, I am going to focus on documentation.

Einstein implied that it would be foolish to memorize something that you can look up. Conversely, it is foolish not to document something you might not remember. You can't do an internet search to remember how you handled the last time someone asked off to watch their child graduate. If you want to look it up later, you have to create the document.

While the Greeks said it first, I cannot write Greek, so in Latin the term is nosce te ipsum, "Know Thyself." I know that in a year (or less), I will have no recollection of the specific steps I took relative to any employment action. To combat this, I write myself memos outlining the steps I took, to whom I spoke, and any other details that may be pertinent, including the logic behind my decisions.

It is kind of fun to review those memos. Often I am impressed by myself. More importantly, it has proven VERY useful. Most recently, my previous employer was sued for an employment action, but my paper trail provided sufficient evidence to prove there was no discrimination. In fact, my supervisor called me to thank me for doing such a thorough job with documentation.

Beyond writing myself memos, I always follow up in-person conversations with an email outlining my understanding of the tasks I need complete or the understanding reached during the conversation. I ask the recipient(s) of the email to respond back affirming their understanding or noting any necessary changes. This has saved me more than once, and I highly recommend the practice.

In my first position after college, I handled a lot of COBRA and State Continuation clients. Our company was owned by an insurance broker who gave his clients free COBRA and State Continuation service. We had a new client and were unsure of the total number of employees (which determines if COBRA or State Continuation applies). I emailed the insurance agent who was the lead on the account, and he responded that it was COBRA.

About five months later, the company had an employee who had a qualifying event. COBRA paperwork went out and the employee elected COBRA only to find out he was not eligible. State Continuation applied, and he had missed a deadline. Since the mistake was our fault, he was allowed to obtain continuation coverage, but I was in the hot seat. I was astounded that I had made the error and could not fathom why I would have done it.

I started reviewing my files for the client, hoping to understand why I had made the mistake, and came across the email I sent the agent. I forwarded the information to the President of my company and went from being a scapegoat to being championed for taking the right steps and documenting those steps. In this situation, I was lucky the email was still in my outlook folder.

The lesson was so profound that I immediately implemented my rule about email follow ups and documentation.

After that, any email exchange regarding a serious issue or in which I was seeking information became part of an electronic file on the topic. I saved the file on my desktop and backed it up on the server. One cannot be too safe with regard to documentation. Sometimes it just comes up missing.

Another example of having email save me was during an insurance renewal project. We were shopping for new brokers and a new third party administrator. I met with our Director of Accounting and was given my task list. I emailed her after our meeting, outlined the steps I was to take, and asked her to approve or correct any discrepancies between my understanding and hers.

She emailed back and approved my list I. About three weeks later, she called for an update, and I informed her where I stood. She began to berate me, questioning why I had not completed an additional series of tasks. Befuddled, I apologized. I began to doubt myself and question how I could have missed completing these tasks.

After I caught my breath, I remembered my "modus operandi" and reviewed the file. I could not find anything in my outlook inbox, as the email must have been archived. I went to my project file and found the email agreement. I forwarded it to the Director of Accounting, and she apologized.

I use these stories to illustrate how documentation has benefited me in a few extreme circumstances, but there are more run-of-the-mill times to document. Any decision made outside of the norm should be documented to account for the reason the decision was made. If an employee is permitted an exception to a policy, document who made the decision and why the decision was made. Include any support that was used in making the decision.

Relative to performance, document any particularly bad or good performance over the course of the year. It is a shame to think that an employee will be subject to only our memory to determine their performance evaluation. Documenting in real time and reviewing documentation before completing performance evaluations ensures that you will have the maximum amount of information from which to determine how employees perform over the course of the year.

Even if your memory is great, it is hard to remember everything. Furthermore, why bother wasting time remembering it, when you can just look it up?

What's my phone number?

One of my favorite anecdotes about Albert Einstein:

One of Einstein's colleagues asked him for his telephone number one day.
Einstein reached for a telephone directory and looked it up.

"You don't remember your own number?" the man asked, startled.

"No," Einstein answered. "Why should I memorize something I can so easily get
from a book?"
=====================================================================================
Seriously, what a great life lesson.

I am no savant. Idiot or otherwise. I cannot recall my phone number from my first apartment (I know the last four digits spelled ACES). I have trouble sometimes remembering when an injury has to be recorded on the OSHA 300. I refuse to memorize the list of items you can purchase with your Flexible Spending Account. I kind of fear that if I do, it will make me boring.

However, what I do know is how to find information. For one, I know how to search government sites (while I admit they are easier now than 4 years ago, they can still be a maze). I know where to get information, and maybe that makes me Einstein. To be sure, in this case "Einstein" is pronounced without sarcasm.

I frequently get questions regarding employment law. When possible, my response is always supported by documentation, even when I know the answer. If the question is asked in person, and I cannot supply documentation immediately, I add the caveat that I will pull the information and submit the documentation later. The truth is, I just don't trust myself enough to go off only my knowledge.

Presumption sometimes masquerades as knowledge, and I have trouble differentiating between the two.

Recently, a member of the Athens Area Society for Human Resource Management asked me a question about required leave for an employee attending a military graduation. The employee indicated the leave was required, but the member was not sure. She asked me, and my response was four-fold.

The first portion of my response consisted of tips for finding information, including links to various governmental sites and contact information for the Employer Support of the Guard and Reserver (ESGR). The second portion included references to the law and my opinion (clearly stated as opinion) that there was no obligation. Then I encouraged her to follow up with the ESGR and to document the information she received. The final step was to encourage her to allow the employee time off, if possible and so long as it did not interfere with their standard practices (it shows good faith dealings and supports the employee - always a good step).

In adage form, I both fed her a fish and taught her how to fish.

It is valuable to know information, and I do know information. However, I value the information I know less than my ability to find information. I consider my ability to research information my real strength.

Just ask any of my friends who cringe anytime a question comes up when I am around.

Get a Haircut! - Technical Professionalism vs. The Spirit of Professionalism

Man, I need a haircut.

I struggle with this all the time. The problem is, when I lived in New Orleans, I had a friend who was one of the top hair stylists in the city. He cut and styled my hair for free. When you get an $80 haircut for free, it is hard to start paying for them.

My solution in my younger days was to vacillate between a shaved head and long hair. Long hair can be pulled back into a pony tail for more formal occasions and a shaved head was no muss, no fuss.

The problem was that neither extreme was particularly professional looking. In fact, during my senior year at LSU, a professor called one of my friends in the class aside to let him know about a job opportunity. I followed up with the professor to ask why she did not mention the opportunity to me, seeing as I had the highest grade in the class. Her response was that she did not think I was looking for work, given my long hair and goatee. She apologized and passed along the information, so yay for me following up.

Still, the point was clear. The message I sent by having long hair and a goatee was that I was not looking for professional employment. As George Thoroughgood sings, "get a haircut and get a real job." Right or wrong, people look for external clues to cue them to the motivations and desires of others.

My daughter was at her Kyuki-do class (martial arts) and somehow the question came up about what a "bad guy" looks like. All of the students identified "bad guys" as having tattoos and wearing black leather. It made me laugh to see the simplicity of their understanding of "good" and "bad" based on outward appearance.

Conversely, I was watching the John Waters film Cry Baby with my daughter (I can almost hear gasps), in which the "Drapes" are bikers and societal outcasts who are at odds with the "Squares" who exemplify the professional appearance. Despite the stereotypically "evil" dress of the "Drapes," they are the heroes of the movie and demonstrate kindness and acceptance of others (similar to Jesus and his acceptance of tax collectors and prostitutes). I took the opportunity to explain to my daughter that regardless of their outward appearances, the "Drapes" were the good guys, and the "Squares" demonstrated intolerance and acted violently towards others.

I would like to draw an analogy between behavior in the film Cry Baby and professionalism. In this analogy, the "Squares" represent technical professionalism. Their outward cues give the appearance that they are "good" people. Contrary-wise the "Drapes" may appear to lack professionalism, but they demonstrate that they are actually "good people" in their kindness towards others. The "Drapes" personify the spirit of professionalism in this analogy.

Despite being trite, the adage holds true; you cannot judge a book by its cover. Yet, I concede that there is no value in designing book covers that do not attract buyers.

And again, here I am, needing a haircut, mostly for fear that people will see hair that touches my collar and presume I am not a professional. They may disregard the Human Resource Certification Institute's (which did not bother checking my hair or dress in obtaining this certification)assertion that I am a certified Senior Professional in Human Resources. They may disregard the recommendations on my LinkedIn profile that indicate my work is thorough and effective. My outward appearance may be sufficient for them to determine that I am not the right "fit" for the company, and honestly, I think there is peril in that approach.

Do a search for job interview tips. I guarantee that each post will include a reference to appropriate dress for the interview. Any individual can read one of these posts and dress accordingly. Regardless of people's actual work ethic, knowledge, skills, and abilities, they can fit the bill for Technical Professionalism. They can learn to walk like a duck and quack like a duck, regardless of whether or not they are actually a duck (duck = professional).

What they cannot replicate is the Spirit of a Professional. One cannot fake a history of working hard and delivering a good product. These are the areas employers should use as a basis for hiring, not whether the applicant has too many earrings or too many tattoos. The Spirit of Professionalism is based on ethics, integrity, hard-work, and a desire to do the best job possible.

Any old fool can get a conservative hair-cut, put on a suit and tie, and shave to make a good first impression, but is that really what companies need? I assert that companies need individuals who have the knowledge, skills, and abilities to do the job well, and the Spirit of Professionalism to do the job thoroughly and to the best of their ability. I suggest that if appearance should be balanced against performance and that performance should be heavily weighted.

The point is, I fully understand that an unkempt appearance provides clues about an individual's behaviors. I would not encourage anyone to show up to a job interview wearing the clothes from last-night and skipping a shower. The Spirit of Professionalism prohibits it. I just wish that my hair could be long, so I wouldn't have to pay for haircuts so frequently!