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.