Minnesota Labor & Employment Law Blog : Minnesota Employment Lawyers & Attorneys : Abrams & Schmidt Law Firm : Unfair Labor Practices, Workplace Investigations : Minneapolis, St. Paul, Twin Cities

Photo by:  Gregoria Borgia

If you haven’t heard about the Friday crash of cruise liner Costa Concordia off the coast of Italy, you must be disconnected from all technology, newspapers, and media, because it has been the #1 news story. The employment side to this tragedy at sea, is the alleged horse-play that went on in the ship’s bridge and the fact the Captain may have abandoned ship. Today, MSNBC.com reported this is not the first time the ship’s captain, Francesco Schettino has disobeyed orders. According to Italian news reports, Captain Schettino once left Marseilles, France in bad weather, against both company policy and Coast Guard orders. He was also once reportedly caught sailing too close to the shore in another part of Italy.

In addition to the human tragedy and loss of life, this event is going to be costly for Carnival Cruise Lines, the owner of the Costa Concordia. Especially, if it is shown that Captain Schettino had previous performance issues which were not addressed by Carnival.  According to news reports, human error is primarily to blame for the cruise liner crash, and that responsibility ultimately rests with the captain. Captian Schettino deviated from the correct route for the ship and contravened safety procedures.

I don’t know if Carnival took disciplinary action against Captain Schettino for past violations of company policy, but if they didn’t, they certainly should have.  Discipline for violation of company policies is meant to correct employee behavior.  Company policies are important for a number of reasons including but not limited to notifying employees of expected behavior, and outlining safety procedures. 

As a Minnesota resident, my thoughts and prayers go out to all the families involved in this crash, especially, the Heil family of White Bear Lake, who is still waiting for word on their missing parents.
 

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Apparently, the National Labor Relations Board (NLRB) can’t seem to make up their mind, because just before the holiday weekend it announced another postponement of the effective date for private sector employers to post the notice about employee rights. This is the third time the NLRB has delayed the effective date for the employee rights posting. Most private sector employers whether or not they have a union, were initially required to post the notice effective November 14, 2011. That date was later changed to January 31, 2012, and now the deadline is April 30, 2012.

Here is a link to the poster, which can be downloaded for free from the NLRB website. The poster is required to be 11 x 17 inches in size, so if you don’t have the capabilities to print on 11 x 17 paper, then print the two page 8.5 x 11 version, and tape the pages together. The NLRB also has the posting available in 26 other languages for download from their website. If 20% of your workforce speaks a foreign language, the poster must be posted in both English and that foreign language.

This employee rights posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The posting will include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

My law partner, Marylee Abrams and I will be presenting to the White Bear Area Chamber of Commerce on Thursday, February 2, 2012, “Did You Know, Even If Your Employees Are Non-union the National Labor Relations Act, May Apply To Your Business?” We will be discussing who the National Labor Relations Act applies to, the NLRB’s new posting requirement on employee rights, and updates on recent litigation regarding employee use of social media. If you want to learn more about this posting requirement and whether or not your business is required to post the employee rights poster on April 30, 2012, please join us.

Mark your calendars for April 1, 2012 to research if you are required to post the NLRA's employee rights poster at your workplace.  If so, be sure to download and hang the poster prior to the April 30, 2012 deadline.

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After a lot of publicity from angry employees about opening at midnight on Black Friday, the big box stores didn’t buckle to the pressure, and Target, Best Buy and Kohl’s opened their doors at midnight on Thanksgiving evening. Even though there were numerous petitions circulating online, signed by hundreds of thousands of people telling stores to not open at midnight, it didn’t stop the shoppers from coming out in droves to shop for bargains.

 The news stories following Black Friday had less to do with the petitions circulated by disgruntled employees and more to do with “competitive” shoppers. In Los Angeles, a female shopper sprayed a crowd of shoppers with pepper spray in order to clear a path to the display of Xbox video game players. Ten shoppers suffered minor injuries from the pepper spray.

Overall, Black Friday has been a boom for businesses. Reports are that Black Friday sales were up 16% this year from last year. Coupled with the good state fiscal news reporting a surplus of $876 million dollars and today’s improved unemployment numbers things may be looking up.
 

Hopefully, the employees who started all the online petitions are now focused on doing their jobs and positively contributing to business.
 

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What should I do about a problem employee? Train, transfer, or terminate? Many of our clients struggle with assessing employee misconduct, and knowing how to make good employee discipline decisions. Making the wrong decision can be costly, embarrassing, and damaging to workplace morale. Too harsh of discipline can be just as bad as ignoring misconduct. The goal for all employers should be to reach a reasoned decision, and mete out just the right discipline based on the facts, the record of the employee, and the practices of the workplace.

I am speaking at the Association of Minnesota Counties Annual Conference on December 5, 2011, on employee discipline. The subject of my presentation is “How to Lose a Discipline Grievance.” Most of our public sector clients deal with unionized employees who have grievance arbitration rights to appeal discipline decisions. Arbitration challenges mean an employer’s discipline decision will be carefully scrutinized, and will be subject to testimony and evidence before a neutral arbitrator.

The materials I prepared for the presentation include a checklist for employers. It is designed to be used when facing an employee discipline decision. It covers a wide range of things to consider from the quality of the investigation, to the employee’s personnel record, and the history and practice of the individual workplace. The checklist is based on a review of approximately 40 termination arbitration decisions posted by the Minnesota Bureau of Mediation Services in 2011. Approximately 20 of the termination decisions were sustained, and the other 20 were overturned and a lesser form of discipline was issued by the arbitrator. I paid special attention to the 20 terminations overturned by an arbitrator. The raw numbers indicate about half of the termination decisions were overturned in 2011. A 50-50 success rate is unacceptable, costly, and leaves much room for improvement.

Making an employee disciplinary decision can be difficult, but following good employee management practices can remove some of the guess work. The goal for every employer should be to make defensible decisions which will withstand outside scrutiny. Start with this checklist and seek legal advice when there are questions or uncertainty.

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Earlier this fall, my law partner, Marylee Abrams, blogged about several decisions issued by the National Labor Relations Board (NLRB) concerning employee’s use of social media. The NLRB decisions thus far have been very fact specific. Many of the cases have determined the employee’s use of social media was “protected concerted activity” under the NLRA, and therefore protected speech.

Now, employers not only have to worry about what employee’s say about them on Facebook and Twitter, but employees are using the internet to start online petitions to try to influence business decisions. Earlier this month, Anthony Hardwick, a part-time cart attendant with Target in Omaha, Nebraska started an online petition requesting Target Corp. push back its midnight opening on Black Friday to 5 a.m. Mr. Hardwick alleges, “A midnight opening robs the hourly and in-store salary workers of time off with their families on Thanksgiving Day. . . A full holiday with family is not just for the elite of this nation -- all Americans should be able to break bread with loved ones and get a good night's rest on Thanksgiving!” As of today, more than 157,000 people have signed this online petition. Target isn’t the only retailer store who is opening at 12 a.m. on Black Friday; Best Buy Co., Kohl’s Corp. and Macy’s are also opening stores at midnight, and other businesses, including Wal-Mart Stores, Inc. and Toys R Us are opening even earlier than midnight.   Petitions similar to the one started by Mr. Hardwick have been started on the Change.org website with the intent to pressure other retailers such as, Best Buy, Old Navy, Macy’s and Wal-Mart to name a few from opening so early.

A Minnesota Target Corp. spokesperson has indicated, Mr. Hardwick is not scheduled to work on Thanksgiving or Black Friday, because he had advised his supervisors earlier this month he was scheduled to work at his full-time job on Black Friday, and needed the day off from Target. Target honored his request.

Target, Best Buy, and the other businesses whose employees have started online petitions against them need to be very careful on how they react to these internet petitions and how they treat the employees who started the petitions. The NLRB could very easily consider these petitions to be “protected concerted activity.”

On the other hand, employees like Mr. Hardwick need to realize they work in retail, and working in retail results in you having to work on holidays. Additionally, there are many other jobs, such as utility workers, hospital personnel, paramedics, fire fighters, law enforcement, jailers, 911 dispatchers, United States military personnel, who are required to work on a holiday, and they don’t get to “break bread with loved ones and get a good night’s rest.” Thankfully, you don’t hear them complaining about it. Thank you to those hard working individuals who are willing to give us their holidays to keep my family and the rest of us cared for and safe!
 

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Checklists are a simple and useful tool businesses can employ to make sure steps are not forgotten or overlooked. This week a Florida diving company, RJ Diving Ventures, took a group of tourists out in the open ocean to scuba dive and left two of the tourists behind three miles from shore. The two tourists surfaced to find the charter boat gone, and ended up clinging to a fishing buoy for two hours before being rescued by a passing yacht. RJ Diving Ventures is lucky nothing serious happened to the stranded scuba divers.

Back in 2009, the New England Journal of Medicine published an article outlining the benefits from having a surgical safety checklist implemented in hospitals. The article was based on a one year study occurring in eight hospitals in eight cities throughout the world. The general conclusions were the use of a checklist/cheat sheet reduced patient complications and death.

Many other industries also use checklists including airlines, property management, and manufacturing companies. The use of checklists isn’t just necessary for safety reasons, but can also make work more efficient, because the steps which need to be followed are clearly outlined.

The stranding of two tourist scuba divers should have never happened and was easily preventable. All the crew on the charter boat needed was a simple checklist to review, outlining the necessary steps to take before departing any location, specifically confirming all passengers and equipment are safely on board. All businesses should review their work processes, and determine if having a checklist will ensure important steps are not missed.

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No one likes to be audited by the IRS. I have blogged in the past about properly classifying workers. A friend and colleague of mine, Mary Budge, attorney and author of Budge Law Blog, wrote this week about a new program through the IRS. The program is applicable to employers who are currently treating their workers as independent contractors or other non-employees, and want to prospectively treat the workers as employees.

Ms. Budge writes, “If you feel you have erroneously been treating workers as non-employees or as independent contractors, and fear that there may be severe consequences for doing so, the IRS launched a new program that will enable many employers to resolve past worker classification issues by voluntarily reclassifying their workers. So rather than waiting for an IRS audit, this voluntary classification settlement program will allow employers the opportunity to get into compliance by making a minimal payment covering past payroll tax obligations.”

Taxpayers must meet certain qualifications to be able to participate in the IRS’ Voluntary Classification Settlement Program.

It is important for employers to be proactive when it comes to business issues. For example, having workers properly classified as employees or independent contractors, or having employees appropriately categorized as exempt or non-exempt under the FLSA. If employers take a proactive approach to resolving potential workplace issues, the penalties may be reduced. Don’t wait for the IRS or the Department of Labor to knock on your door, and tell you the things you are doing wrong. Talk to your attorney or accountant and make sure you are doing things right.
 

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I have blogged numerous times over the past year about the importance of training employees and it bears repeating. Businesses who don’t train their employees can suffer from all kinds of potential problems, from fines for OSHA violations, fines for FLSA violations, or civil liability because of discrimination or negligence claims, just to name a few.

Earlier this week the Occupational Safety and Health Administration cited the City Brewing Company in La Crosse, Wisconsin for 16 serious safety violations. Over $100,000 in fines has been issued and the company has only 15 days to pay the fines or appeal OSHA’s decision. Another violation involved not training employees in an emergency-response plan.

With training, it is possible for employers to avoid or defend against many workplace issues.
Training:

• Puts employees on notice as to what is or is not appropriate in the workplace.
• Informs employees what laws are applicable to the workplace.
• Informs employees what penalties will occur if policies/procedures are violated.
• Should be on-going in nature. Refresher courses are important and helpful.

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Well, some of the fall T.V. shows had their season premieres this week. If you watched the series premiere of Free Agents on NBC last night starring Hank Azaria, I hope you would agree talking at a staff meeting about a co-worker’s evening escapade is not appropriate for the workplace. In fact, even more shocking was when the head of the company walks into the meeting and is told what the discussion is about, and encourages Hank Azaria’s character to just share “the good parts.” Hank’s character tries to shut down the conversation by stating, he met a woman last night and they had “wild animal sex” all night long. But, the discussion doesn’t end there. No, instead several colleagues begin to prod Hank’s character for more details, what was her body type, did her undergarments match, when the head of the company interjects, “Just the size and shape of breasts, straight to positions.” Of course, for T.V. the idea is to entertain, so you don’t want to just have the characters sitting around talking about work. But, if this type of discussion was occurring in your workplace, the doors are wide-open for a sexual harassment lawsuit.

It is important to remember in cases of sexual harassment, it is the welcomeness of the conduct by the recipient that is relevant to whether the conduct is harassment, regardless of whether the intent of the person engaging in the conduct is harmless or even friendly. Because it is almost impossible to judge whether conduct is welcome or unwelcome, most businesses have adopted a zero-tolerance policy with respect to sexual harassment in the workplace.

How do you protect your business?

1) Have a sexual harassment policy in your employee handbook or policy and procedure manual.
2) Train employees on the sexual harassment policy.
3) If you receive a complaint about sexual harassment, do a fair and thorough investigation.
4) If you see employees acting in inappropriate ways, put a stop to it immediately!

T.V. can be both entertaining and educational. The episode of Free Agents last night is a perfect example of what you do not want occurring in your workplace.
 

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The National Labor Relations Board recently announced another required posting that employers must place in the workplace. This time the required posting covers employee rights to act together to improve wages and working conditions, to form and join unions, and bargain collectively. The newly required posting will also include examples of unlawful employer and union conduct, and instructs employees how to contact the NLRB with questions or complaints.

The NLRB stated, “Private-sector employers (including labor organizations) whose workplaces fall under the National Labor Relations Act will be required to post the employee rights notice where other workplace notices are typically posted. Also, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice on those sites.”

Luckily, the required posting will be available to download for free off the NLRB website beginning November 1, 2011. It must be posted at your workplace no later than November 14, 2011. The 11-by-17-inch notice should be posted in a conspicuous place, where other notifications of workplace rights, and employer rules and policies are posted. Failure to post the required notice may be considered an unfair labor practice by the Board.

I imagine most workplaces are running out of space on workplace bulletin boards. To double check and make sure you have all of the required posters at your workplace, follow the prompts at the United States Department of Labor website. Make sure to check with your state for required postings as well. Don’t forget to make room for this latest required workplace posting by November 14, 2011.

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The American Civil Liberties Union (ACLU) recently filed a notice of claim against the Rocky Mountain Academy of Evergreen in Colorado alleging it let go of a teacher because she pumped breast milk on the job. The school has 90 days to respond to the claim, after which point a formal lawsuit may be filed. Colorado passed a law which requires employers to make reasonable accommodations to allow mothers to pump milk while at work. Minnesota has a similar law.

Minnesota Statute § 181.939 states, employers must provide reasonable unpaid break time each day to a nursing employee who needs to express breast milk for her infant child, unless it would unduly disrupt the operations of the employer. The break time can be at the same time as other break times already provided to the employee. Minnesota employers must also provide an employee a private room or location to use to express her milk. A toilet stall is not considered sufficient under the law for this purpose.

In addition to Minnesota state law which provides this benefit to nursing mothers, my law partner blogged last year about the changes caused by President Obama’s healthcare reform, one of which provided unpaid lactation breaks for nursing mothers.

It is important for employers to consider any potential discrimination claims before taking adverse employment actions against employees. Employment actions must be grounded in facts and evaluated based on legitimate needs. Presently, the Colorado employer is claiming the employee was not retained because her position was changed. I will update you as this case unfolds.

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Last year, I blogged about a tragic accident at a Wisconsin amusement park where a 12 year old girl fell more than 100 feet from the Terminal Velocity ride due to operator error. I stressed in that blog the importance of training employees and conducting refresher training, especially when safety issues are involved.

Last week, a double-amputee Iraq War veteran fell to his death at a New York state amusement park after being thrown from the Ride of Steel roller coaster. Signs at the roller coaster clearly stated, “[f]or the restraint devices on this ride to fully and safely engage, guests must have two legs and be within certain range of size and physical dimension. . . In addition, guests must have sufficient body strength and the complete use of at least one arm and hand to hold on to the grab bar.” The media has reported the ride operators were clearly aware Mr. Hackemer did not have legs and offered no explanation for why they let him ride it. It is uncertain if Mr. Hackemer was wearing his prosthetic legs at the time of the accident. A criminal investigation found no recklessness, intent or criminal wrongdoing, but that doesn’t mean the Darien Lake Theme Park & Resort is off the hook yet.

Just the fact that they had a policy in place, which had it been followed would have prevented this tragic accident, causes some concern when it comes to potential civil liability. This was a 29 year old young man with two young daughters to support and raise.

I can’t stress enough:

(1) The importance of having policies in your workplace, especially covering safety issues;
(2) Training employees on the policies, and providing refresher training; and
(3) Ensuring employees understand and follow the policies in all circumstances.

Employers can’t just train the employees and assume they understand. Employers must go further and insure employees can apply what they have learned and know not to deviate from safety policies. Safety policies serve two purposes: to protect citizens and the business. Unfortunately, they failed to protect both in this case.

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Technology and social media use is morphing at light-speed. Figuring out clear lines and appropriate social behaviors remains very murky. The court system has been no help in providing guidance, due to the lengthy delays between the filing of a case and a final court ruling, generally issued years later. Last year, my law partner blogged about a sexting workplace discipline case. There was an eight year delay between the employee's misconduct, and the final decision issued by the United States Supreme Court. By the time the Court ruled, the pager technology used by the employee was already out of date. Judges are historically reserved and reluctant to provide much guidance because they simply can’t predict where social media and technology is headed, and can’t fathom how quickly the social media/technology landscape is changing.

I keep looking for cases to help clarify the boundaries and the new rules, but they are few and far between. What are the appropriate boundaries on social media use, and what are the new rules?
The Minnesota Court of Appeals gave us a glimmer of guidance this week, in a case having to do with a University of Minnesota mortuary science student. We can extrapolate from the tenor of the decision and start to see where social media may be headed, and what seems to matter to the Courts.

In the case, a mortuary science student commented on Facebook about a cadaver she named “Bernie,” she described embalming as cathartic, and stated she wanted to stab someone in the throat with an embalming tool. She also mentioned wanting to take out her aggression on the cadaver and about updating a “Death List.” The Facebook posts went out to fellow mortuary science students, her Facebook friends, and friends of her friends. Her Facebook comments were determined to be threatening and inappropriate, and in violation of University rules. Her sanctions included: receiving a failing grade in the class, attending a clinical ethics class, writing a letter to department faculty addressing the issue of respect in the department and the profession, and completing a psychiatric evaluation.

The student challenged the University’s discipline as arbitrary, and argued that her Constitutional right to free speech had been violated. The Court of Appeals was not convinced and ruled, “A public university’s disciplinary sanctions do not violate a student’s right to free speech where the student’s posts to a social networking website materially and substantially disrupt the work and discipline of the university.”

Important points noted by the Court include the fact the University had held an in-depth orientation for students about the treatment of cadavers, and students were required to sign acknowledgment forms indicating they had read the department policies about the responsibilities of dissecting a human body. Additionally, because the University relied very heavily on a voluntary anatomy-bequest program for donated bodies, and because the program was jeopardized, the Facebook posts were deemed to be disruptive to the work and discipline of the program and the University.

Based on the Court’s rationale, we can extrapolate a few take-aways.  Clearly, the Court took note of the fact there was an adopted social media policy which established notice and expected accountability. Training on the policy, and requiring a signed acknowledgment form indicating receipt of the policy, were also mentioned by the Court as important to their ruling. Finally, if social media use can be proven to disrupt work and discipline, it is less likely to be determined to be protected speech.  Common sense won out in the end.  If it's not a good idea to shout out thoughts and comments standing on a street-corner, it is probably not a great idea to post them on Facebook.

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I previously blogged about Minnesota workplace leave laws covering family and children issues, and wanted to follow-up with a grab bag of some unique leave laws covering specific medical conditions, the military, and voting.

As a reminder, it is important to first determine which leave laws apply to your workplace. In order to do that, you should first review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace.

• Bone Marrow Donation Leave: Public and private sector employers employing 20 or more employees, must provide up to 40 hours of paid leave time to employees who elect to donate bone marrow. Employers may request medical verification for the leave. The paid leave is in addition to any other leave available to the employee.
• Organ Donation Leave: Only public (state, city, county, school district) employers with at least 20 employees, are required to provide up to 40 hours of paid leave to an employee, who elects to donate an organ. This leave does not apply to private businesses. Public employers may request medical verification for the leave. The paid leave is in addition to any other leave time available to the employee.
• Blood Donation Leave: Employers may provide paid leave for an employee to donate blood. This applies to all employers in Minnesota.
• Leave to Immediate Family Members of Military Personnel Injured or Killed in Active Service: All employers with at least one employee must grant up to ten working days of unpaid leave to an employee whose immediate family member has been injured or killed while engaged in active service in the United States armed forces. This also applies to independent contractors who perform work for a business or public employer. The ten days may be reduced, if an employee elects to use paid time off such as PTO or vacation time.
• Leave to Attend Military Ceremonies: All employers having at least 1 employee, must provide unpaid leave to employees of up to one day in any calendar year, to attend military ceremonies such as a send-off or homecoming for an immediate family member, unless the time off would unduly disrupt business.
• Leave to Vote: All employers must provide paid time-off for employees to go to the polls, cast a ballot, and return to work on the day of an election. This includes primary and general elections, as well as elections for state and federal legislators. Failure to provide time off to vote is a considered a misdemeanor.

A quick check of the leave laws that apply to your business will insure your workplace is in compliance with state law. Some of the unique leave laws are so limited in purpose that you may not have ever run across a situation where they apply. For example, in 27 years of labor and employment practice, I am only aware of one situation where an employee requested organ donation leave to donate a kidney to a family member. The large employer was unfamiliar with the statutory leave. I reviewed the legislative history and concluded paid organ donation leave was clearly in addition to any sick leave benefit the employee had available.

We recommend incorporating reference to applicable employee leaves into your Employee Handbook, so everyone knows who is entitled to what leave, and whether it is paid or unpaid time. Take the guess work out of employee leaves, and be prepared for a request for statutory time off from work.

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The facts in this case are quite unique. Twenty non-union employees of Hmong or Spanish descent were terminated when they refused to sign away their rights under the NLRA by signing up for Supply Technologies LLC's new Total Management System. The Total Management System (TSM) created an internal process for comprehensive grievance resolution. The TSM would require employees to use a 3-step procedure as its sole means for resolving any and all claims against the Company except workers compensation, unemployment, and criminal claims.

Prior to the twenty employees beginning terminated the National Labor Relations Board (NLRB) had conducted an election to see if the employees of Supply Technologies LLC wanted to join the International Brotherhood of Teamsters. The employees vote was a split decision and therefore the Union did not prevail. Supply Technologies LLC, Total Management System was introduced to employees only three days after the Union was voted down. The employees who refused to sign were immediately told to leave the facility and not return.

The unique twist in this case is that the International Brotherhood of Teamsters, even though it did not represent the twenty terminated employees, filed charges with the NLRB, concerning the new grievance procedure and the termination of employees, alleging the actions constituted an unfair labor practice.

Administrative Law Judge Alemán agreed with the Union and ordered Supply Technologies, Inc. to discontinue its new grievance procedure in all its locations and reinstate the twenty discharged employees with full back pay.

Consider this a word of caution; if your employees are considering unionizing everything needs to stay status quo. Even if the Union doesn’t prevail in the election, don’t take that as an opportunity to immediately change policies and terminate employees.

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Last week, there were two interesting articles in the St. Paul Pioneer Press about providing medical care on-site at businesses.

The first article was about school districts which have started free on-site clinics for teachers and staff. In Minnesota, the Brooklyn Center school district has an on-site clinic and the Farmington and Minneapolis school districts have approved on-site clinics and are working at getting them established. The Brooklyn Center school district program is run by NeoPath Health. The clinic is staffed one day a week by a doctor who sees patients and dispenses free generic drugs. The rest of the week, the doctor is available by phone, e-mail, or webcam. The goal of the clinics is to prevent illnesses and manage chronic conditions, such as diabetes. The school districts involved in this new endeavor hope the use of these clinics will not only save on increases in insurance premiums by having fewer doctor’s visits, but also save the cost of replacing teachers and staff who need to take time off in order to go to their normal physician.

The other article profiled a new business called OnSite Care Doctors PLLC. The purpose of this company is to provide work-site health and wellness services to small and medium size businesses. They provide on-site educational services as well as treatment services including chiropractic and acupuncture. The purpose of this company is to combine the convenience of care in the workplace, and reduce health care costs by reducing stress, reducing injuries and preventing illnesses.

These are fascinating new developments in how to deliver healthcare to employees. It will be interesting to watch how these end up benefitting workplaces in the long run. Thinking outside the box can cut costs and improve productivity.

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Minnesota workplaces are required to provide time off to employees for a variety of ten little known leaves of absence. While most employers are familiar with the federal Family Medical leave Act (FMLA), and military leave law, few realize Minnesota has a variety of state leave laws which cover some very unique and dare I say, unusual circumstances.  The potpourri of leave laws include four which cover family, health and children matters. The last six cover a variety of individual employee issues, including two newer military leaves for family members of service members. 

To determine which leave laws apply to any particular workplace, it is important to review the definition of employer in each situation. Some of the statutory leaves define an employer as a business employing one person, while other statutes require a workplace to employ at least 20 employees for the leave law to apply. Some of the unique employee leaves only apply to public sector workplaces such as cities and counties, while other leave laws apply to every workplace including private businesses. The important point is to determine which state leave laws apply to your workplace. The first four employee leave laws are:

• Parenting Leave: This law provides up to six (6) weeks of unpaid time off for the birth or adoption of a child. It applies to employers who have 21 or more employees, and is like a mini-FMLA. Employees must work for at least 12 consecutive months and at least half time prior to making the leave request. The employer must continue to make health coverage available during the leave, however there is no requirement the employer pay the costs of the health coverage during the parenting leave.
• Leave for Adoptive Parents: If an employer provides maternity/paternity time off to employees, they must also provide a minimum of four weeks paid or unpaid time off for the adoption of a child. This statute has a broader application than parenting leave above, and is not restricted to employers of 21 or more employees. It applies to all employers. There is also no restriction on the length of time an employee must work to qualify for the leave.
• School Conference and Activities Leave: Employers are required to grant up to 16 hours of unpaid leave time during any 12 month period, to attend school conferences or activities of the employee’s child, which cannot be scheduled during non-work time. It applies to all public and private sector employers in Minnesota who employ at least one employee. Employees are permitted to use vacation or PTO for any time taken under the statute.
• Sick or Injured Child Care Leave: If an Employer provides sick leave benefits for the absence of an employee, the employee is permitted to use sick leave to care for an ill or injured child. It applies to employers who have 21 or more employees, and requires employees to have worked at least 12 consecutive months and at least half time prior to making the sick leave request. Sick leave benefits do not  mean short or long term disability.

After checking the definition of employer, it is also a good idea to carefully check the definition of family member and child to determine who has what rights, and who is covered by each particular statutory leave. If you determine a particular leave applies to your workplace, it is a good idea to include mention of it in the Employee Handbook.  Don't forget to revisit the statutory leave laws as your workplace grows in size to remain in compliance. 

Stay tuned for Part 2 covering organ, bone marrow, and blood donation, as well as two newer  military leave laws covering military ceremonies and caring for an injuured service member.

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Every day more and more applications become available for smartphone users some are for fun and some are useful. I personally have a barcode scanner app, The Weather Channel app and a stopwatch app on my smartphone. The federal government has gotten into the app business and created an application which will help employees track the hours they work and determine the wages they are owed. At this time, the Department of Labor app is available in either English or Spanish, but only for the iPhone and iPod Touch. The Department of Labor timesheet app does not handle tips, commissions, bonuses, deductions, holiday pay, pay for weekends, shift differentials and pay for regular days of rest.

Secretary of Labor Hilda Solis remarked, "I am pleased that my department is able to leverage increasingly popular and available technology to ensure that workers receive the wages to which they are entitled. This app will help empower workers to understand and stand up for their rights when employers have denied their hard-earned pay."

I’ve blogged several times about employers who have been fined for not properly paying their employees under the Fair Labor Standards Act, including Levi Strauss & Company and Walt Disney Parks & Resorts in Orlando, Florida. Now, employees have technology in their favor. In the past, if the Department of Labor received a complaint and the Wage and Hour Division conducted an investigation, the only party with any evidence was the Employer. Through this new app the employee can now provide verification of their tracked work hours to the Wage and Hour Division. The Department of Labor states, such information could prove invaluable during an investigation when an employer has failed to maintain accurate employment records.

Employers make sure you are correctly tracking your employees’ hours of work, and make sure employees are properly compensated under the FLSA. You don’t want your business subjected to an investigation by the Wage and Hour Division and then have to rely on the evidence provided by an employee through a smartphone app, because you don’t accurately track an employee’s work hours.
 

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Many work accidents are preventable through training and actively managing employees. Accidents at work can be devastating to the public, employees, and the employer, not to mention the liability exposure and resulting loss of employee work time and productivity. The federal government maintains statistics on fatal accidents, as do most states. Most recently, the Monthly Labor Review reported on a “Survey of Occupational Injuries and Illnesses,” based on national data from state and local governments. The survey noted a higher rate of injuries and illnesses in the public sector as compared to the private sector, and a higher rate of injuries and illnesses in local government workplaces, in comparison to state government. It is estimated there are approximately 1.6 million workplace injuries each year. The data is daunting.

Workplace safety numbers are impressive, but they only tell part of the story. Behind each workplace accident or injury, is the potential for employee discipline. Employees can and should be held accountable for safety violations. This month in Minnesota, two different arbitrators ruled in favor of the Employer, in two separate cases dealing with safety violations at work.

Arbitrator Martin upheld the termination of a public works employee who failed to stop for a school bus that had its flashing lights on and stop arm out. The Anoka City employee was driving a street sweeper at the time. No accident occurred and no small children were injured, but the arbitrator still upheld the employer’s decision to terminate the public works employee. He based his decision on the careful attention the City had paid to safety matters, and the safety training and policies they had adopted. The employee had a lengthy work record which included a laundry list of at least fifteen (15) past careless acts, including some intentional acts of disregarding safety rules. The Arbitrator noted there was no formula to determine discipline in safety cases “…how many events, over how much time, with what lulls require what discipline…” He did indicate the City did not have to wait for a serious accident before terminating the public works employee.

In another safety related case, Arbitrator Beens upheld the termination of a Metro Transit bus driver who had four chargeable accidents in a three year period. Almost four pages of the arbitrator’s award discuss the safety training, policies, and rules adopted by Metro Transit. A policy was in place indicating four “responsible accidents” within a three year period would result in termination. The driver had adequate notice her three previous accidents were going into her permanent file, and she elected not to grieve any of the prior determinations by the Employer.
The union and management disagreed on the definition of a “responsible accident,” and the arbitrator ruled in favor of the Employer, agreeing that a responsible accident means a preventable accident. Despite the union arguing the driver was well-liked by bus-riders, and enjoyed her job; safety won out in the end.

Employers prevailed in both arbitration cases because they had focused a lot of time, attention, and money relaying the importance of safety to employees through training, policies, and consistent application of discipline. Accidents will happen; Employers need to make safety a priority, and hold employees accountable for safety violations.

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Spring is in the air, which means love is in the air, and we are fast approaching the official wedding season. It is estimated that roughly 1/3 of romantic relationships begin at work. This isn't hard to understand when you consider “...the average American spends 46 hours per week at their job, and 38 % spend more than 50 hours per week on the job,” according to the National Sleep Foundation. The workplace is the new dating arena, making it more likely that romance between employees may blossom. What does that mean for employers?

Workplace romances can be a nightmare for most employers, fraught with potential sexual harassment claims, cries of favoritism, and reduced morale and productivity on the job. Romance between an employee and a customer/client presents another set of problems in the workplace. It is best to not just let cupid run amuck at work, but instead assume a workplace romance will happen, and plan for it.

Outright prohibition of all workplace romances is not generally favored. It can be hard to define the difference between dating and “just friends,” and could invite an invasion of privacy claim, or a discrimination claim based on marital status. The better choice is to proactively advise employees about work expectations concerning romances through your employee handbook. Cupid is not the only one with arrows in his quiver. 

Consider the following:

• Place limits on supervisor-subordinate romances as these relationships are the most likely to result in a harassment claim, if the relationship turns sour. A policy should spell out this type of relationship will require one member of the couple to transfer or resign.
• Spell out professional expectations of all employees at the workplace. If a romantic relationship creates a conflict of interest or dissension amongst employees, then a transfer or resignation may be necessary.
• Require employees to notify Human Resources of a dating relationship at work, and include a penalty for not reporting. This will afford an opportunity to have a discussion with the romantic couple about professional expectations, and to document the relationship.
• Outright prohibition of an employee/customer dating relationship is different than prohibiting employee-employee romances. It is easier to identify a legitimate business need to support the prohibition of a romantic relationship, when an employee wants to date a customer/client. The employee handbook should be clear on the issue, and state employees are prohibited from dating clients or customers.

An interesting arbitration case in the public sector ruled an employer can restrict a supervisor-subordinate romantic relationship through policy, even if the policy was initiated after the relationship had begun. The case dealt with a City of Champlin police sergeant, who started a relationship with a female officer under his command. It seems looking for love in all the wrong places can even lead to a demotion.  Cupid can be managed with a little bit of planning.
 

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I must confess I told a little white lie to my 4-year old daughter about how the Easter Bunny was able to leave the eggs so high up on a shelf. I told her, bunnies can hop really, really high and that is how he was able to get it on the high shelf. She was pretty impressed with this feat by the Easter Bunny. In the employment setting though, lying is not recommended, not even little white lies.

Ms. Robin Shea with Constangy, Brooks & Smith LLP wrote an excellent blog on why employers should not tell little white lies to employees. I fully agree with everything she outlines in her post.
Ms. Shea states, “…it is notoriously hard for an employer to tell an employee that he's not doing a good job, and is one more screw-up away from being fired. Of course, having never been properly warned, the employee then commits the final screw-up and gets fired, and didn't even see it coming because the employer was so afraid of hurting the employee's feelings. . . Not only is this unfair to the employee, but it's also throwing the door wide open to an allegation that the employee was actually terminated for an illegal reason.”

Nothing is more difficult for an attorney than to try to defend a case against an employee, when the employee hasn’t been told the complete or accurate reason for their discipline or dismissal. It makes the job for the attorney more difficult, requiring them to play catch up. Employees have a right to know what mistakes they are making in order to have an opportunity to improve their performance. Notice is fundamental to establish a discipline case.

If you have an employee who is having performance problems, don’t let them think their performance is acceptable. Talk to the employee about the performance issues, and document the problems. This will help you and your attorney if any legal action is subsequently taken by the employee.

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My law partner, Tiffany Schmidt and I have been asked to present, “What to do about Employee Misconduct?” as part of St. Paul College’s Smart Start Breakfast Series. As usual, we will skip the legalese and instead offer practical tips and suggestions gained through years of experience in labor relations. Join us for an informative and fun early start to your work day.

St. Paul College designed the Smart Start Series as part of their quality training programs designed to deliver information to help businesses and organizations throughout the Twin Cities metro area stay informed and educated about best practices pertinent to workplace skills, leadership, organizational sustainability, and business solutions.

The spring Smart Start Series includes other presentations on:

• “Best Business Practices: Keeping Your Business Out of Legal Trouble” by attorneys Susan Minsberg and Mary Budge;
• “Getting What You Want” by attorneys Gayle C. Hendley and Karen E. Marty, and
• “From Divorce to Death” by attorneys Susan Minsberg and Catherine R. Thatcher.

We hope to see you there.

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 Yeah! Spring is on its way with summer soon to follow. Most everyone gets excited about the warmer weather and longer days. In Minnesota, we are experiencing the unique weather pattern which normally accompanies early spring. In the morning, it may still be below freezing and winter attire is necessary, but by afternoon the temperature warms to the fifties and a lighter jacket could suffice. So, now is the time employees may start “changing” over their clothes to accommodate the warmer weather.

Most businesses nowadays allow for some type of “business casual,” whether it is only on Fridays or anytime there are no meetings in the office. Now, with the changing of the seasons and the warmer weather it is a good idea for employers to remind employees about the business’s dress code policy.

Twin Cities Business Magazine had a nice article on “How to Talk to the Employee Who’s Turning Heads at the Office (But not for good reasons)”. For example, flip-flops are generally not considered appropriate for work not only because they look unprofessional, but they can also be a safety hazard, due to the potential to trip and fall. So, what should you do if you do need to speak with an employee about their attire? Twin Cities Business Magazine interviewed Ms. Julie Haltom, who has 15 years of human resources experience. Her tips: ‘Be gentle. Try to have a sense of humor about it. Send occasional company-wide e-mails reminding everyone of the dress code. Lastly, don’t embarrass an employee by singling them out in front of others, but instead talk to them privately about the issue.’

By being proactive and reminding employees about the business dress code, employers can avoid having to have an awkward conversation with an employee about their attire. If your business doesn’t have a formal dress code in the employee handbook, outlining what types of clothing is or is not appropriate, now may be the right time to develop one and share it with the employees. If your business does have a dress code policy, now maybe a good time to review and update it, if necessary.

(Photo courtesy of Steve Johnson, Valparaiso, Indiana) 

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You smell alcohol on an employee’s breath after lunch. What should you do? One of your staff is acting weird, and you suspect they may be smoking marijuana. An employee has a motor vehicle accident with a company car, and you suspect they were under the influence when they crashed. What’s an employer to do?

From experience, more and more employers are turning to drug and alcohol testing of employees as a means of screening new job applicants, and also being able to respond to chemical use and abuse of present employees. Minnesota employers can’t just act on suspicion that an employee was drinking alcohol or using drugs before coming to work. State statute governs drug and alcohol testing of employees in the workplace, outlining what, when, where, and under what circumstances an employer can test an employee for alcohol or drugs.

Before an employer asks a job applicant or an employee to submit to testing, they must have adopted a policy that fits within state guidelines, and the individual must be given a copy of the testing policy. The policy must set out:

1. the employees or job applicants subject to testing under the policy;
2.  the circumstances under which drug or alcohol testing may be requested or required;
3. the right of an employee or job applicant to refuse to undergo drug and alcohol testing and the consequences of refusal;
4. any disciplinary or other adverse personnel action that may be taken based on a confirmatory test verifying a positive test result on an initial screening test;
5. the right of an employee or job applicant to explain a positive test result on a confirmatory test or request and pay for a confirmatory retest; and
6. any other appeal procedures available.

Employers are required to use certified labs which meet minimum qualifications, and follow specific protocols. For example, a positive drug or alcohol test must also be subject to a confirmatory test. A job applicant or employee must be notified about a positive test result, that they have an opportunity to explain the positive test results, and that they can request a confirmatory retest of the sample, at their own expense.

“Safety sensitive” positions can be subject to random drug testing. Random drug and alcohol testing means the employer has initiated a testing schedule, whereby a random sample of employees are tested on a monthly or quarterly basis. Most employees however, are not considered “safety sensitive” and would be subject instead to a reasonable suspicion standard.  Reasonable suspicion means there is a “…basis for forming a belief based on specific facts and rational inferences drawn from those facts.” This may mean a car accident with the company vehicle, observation of behavior and an odor of alcohol on an employee’s breath, or the employee caused harm to another employee.

If the workplace is unionized, drug and alcohol testing must be negotiated with the bargaining agent. If there is no union, the employer is free to adopt a drug and alcohol testing procedure that meets the guidelines of Minnesota state statute. Most employers incorporate the drug and alcohol testing policy in their Employee Handbook.

To test or not to test, that is the question? If the answer is to test- then state statute needs to be followed.

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You’re a retail employer. You have a job opening for a clerk and you place an ad in the local paper for the position. You receive applications from a dozen potential employees. You interview several prospective employees. One applicant honestly shares with you he had a problem in Illinois with a girlfriend, but had served his time. You believe in second chances and hire the applicant without doing a background check. What is your liability to customers if this new employee attacks one of them?

An employer in New Prague, Minnesota is dealing with this issue right now. Last summer, a 15 year old girl was raped by a convicted sex offender who was employed at the local Radio Shack. The family of the girl is now considering legal action against Radio Shack.

Minnesota state law does not generally require private employers to perform background checks. My law partner, Marylee Abrams has blogged in the past about considerations to look at before doing a background check. To avoid discrimination concerns, employers should require background checks on a consistent basis instead of “picking and choosing” when do to do them. In Minnesota, you can access public data online at the Bureau of Criminal Apprehension website for Minnesota criminal convictions within 15 years following the completion of the sentence.  Pursuant to Minnesota Statute § 13.87, subd. 3(f), if you intend to access the BCA website to obtain information regarding an applicant for employment you must notify the applicant that a background check using the BCA website is being conducted.

It is important for employers to ask the right questions when hiring prospective employees. Do background checks consistently and especially for safety-sensitive positions. Lastly, don’t forget to ask candidates for references and then following up by contacting those references.

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Overrating an employee’s performance creates a Lake Wobegon effect in the workplace. Famed fellow Minnesotan, Garrison Keillor, begins his radio monologue on Prairie Home Companion with, “Welcome to Lake Wobegon, where all the women are strong, all the men are good-looking, and all the children are above average.” It is cute and very Minnesotan, and it works for a funny radio show; it does not serve employers well when conducting performance evaluations.

Some employers avoid performance evaluations altogether, deeming them unnecessary. If they are conducted, there is a tendency for employers to over-inflate the employee's performance, resulting in an inaccurate representation of the employee's strengths and accomplishments.  Inflating performance evaluations doesn’t give any guidance to the employee, or help document weaknesses. They are not constructive and are essentially a waste of time.The goal should be to create an accurate reflection of each employee's contributions to the workplace. 

Conducting accurate employee performance evaluations is critical for employers. It provides valuable feed-back to employees so they can change behaviors to meet the expectations of their employer. It also serves as valuable documentation for employers to support possible future disciplinary decisions, including termination from employment.  Many on-line resources exist that can help employers to conduct effective employee evaluations. The goal should be to create an accurate reflection of each employee's work performance.

Do:
• An evaluation on a regular basis. (Annually at least.)
• Accurately capture the good, the bad, and the ugly.
• Write in clear and concise language.
• Give the employee a copy.
• Include goals for the coming year.

Don’t:
• Inflate an employee’s work performance.
• Just focus on the bad things.
• Be general, instead make sure you include specific examples of behaviors.

Remember use the evaluation process as an opportunity to have a meaningful dialogue with an employee. The goal is to encourage productivity and improve employee performance, or in the alternative to document that adequate notice and opportunity was provided to the employee, to support discipline should the employee fail to make the necessary changes.

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This week the EEOC filed discrimination charges against Kaplan Higher Education Corporation, alleging the use of credit checks to screen job applicants was discriminatory. Kaplan had rejected job applicants based on their credit history since at least 2008. According to EEOC, the practice had a disparate impact on black job applicants, and was not job-related or justified by business necessity.

This is actually the second recent claim against an employer who used credit checks to reject job applicants. Last month, similar charges were filed in federal court in a class action lawsuit against the University of Miami. There the job applicant had been offered a job, and quit her previous position. She was then informed she would not be hired due to her credit score.

Plaintiff’s attorneys are actively seeking class action clients who may have been rejected for a job, based on their credit score. According to the EEOC, the problem with using credit checks to screen applicants is that they are not recognized as predictors of job performance. Given the present economy many consumers have struggled with debt and their credit scores have suffered. Coupled with potential errors in credit reports, their use in making job decisions should be carefully scrutinized.

Unless an employer is hiring a CFO, or an accountant, credit scores simply do not meet the job-relatedness and business necessity tests necessary to avoid discrimination charges. Employers should rely on more reliable predictors of job performance to make their 2011 hiring decisions.  This may mean different screening and hiring processes based on individual job descriptions.

The EEOC reports, “Workplace discrimination filings with the federal agency nationwide rose to an unprecedented level of 99,922 during fiscal year 2010.” I predict this number will increase in 2011, and we will see more discrimination claims concerning the use of credit reports as well as an expansion to include other automatic job screening exclusions such as the use of criminal arrest records that don’t result in a conviction.
 

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Each year Attorney Molly DiBianca of the Delaware Employment Law Blog prepares a list of the top 100 labor & employment law blogs worth reading. I am pleased to announce our blog was included in her 2010 list of the best labor and employment blogs. We are grateful for the acknowledgment and honored to be included among the company of some very excellent bloggers.

The list of blogs is an impressive resource for employers. Readers can either subscribe to an individual blog or add it to their RSS feeds. Keeping updated on what is happening concerning labor and employment issues is crucial to every employer. We will keep blogging and you keep reading.  Merry Christmas!
 

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George Orwell published his classic social science-fiction novel “1984” over sixty years ago. We all know the theme from high school English literature class. The world is embroiled in perpetual war, and government practices pervasive surveillance and mind-control to manage citizens. The main character, Winston Smith, is responsible for re-writing history to fit government’s ideology when he rebels against “Big Brother.”

I am not suggesting something as sinister as “Big Brother” is alive and well today. I am suggesting surveillance technology in the workplace is expanding and being used in new and different ways.

Bloomberg Businessweek reports an increase in the number of employers using the surveillance services of private detective agencies, to catch employees who abuse sick leave and play hooky from work. “Kronos, a workforce productivity firm in Chelmsford, Mass., recently found that 57 % of U.S. salaried employees take sick leave days when they are not really sick-a nearly 20 % increase from statistics gathered between 2006 and 2008.”

Detectives reportedly uncovered a teacher who fabricated an inoperable brain tumor to take an extended leave, firefighters caught attending a hockey game on-duty, and a health-care worker taking three days off for the flu, who was actually visiting Universal Studios theme park. Employees were found to use technology to cover their location, such as the employee who mailed his GPS tracker to the hotel where he was supposed to be attending a conference, while he had opted for an exotic vacation. It appears there is a thriving business for detectives, hired by employers to stop employee sick-leave abuse.

A different kind of surveillance is being used by the Burnsville, Minnesota, Police Department, which allows police officers to record citizen contacts with the help of body cameras. They are the first police agency in the state to purchase and equip its officers with this new technology, which includes a camera worn on their hat, and a portable computer where recordings are stored. The department reports, “The cameras will cut down on officers working overtime to testify in court because the video will speak for them in many cases. And there will be a lot fewer personnel hours spent investigating complaints against officers.”

As new technology is developed, employers will have to intentionally review their potential use and determine how it fits into their workplace philosophy. To the extent employers notify employees about core values and workplace expectations, and advise employees that misconduct will not be tolerated, then surveillance may not be viewed as “Big Brother” watching over their shoulders. Instead, it will be viewed as a means of holding employees accountable. 
 

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Years ago, I heard the creative prose “Lessons from Geese” at a fund-raising social event. The speaker identified the author as anonymous. Thanks to the Internet, I have since read credible documentation attributing the lessons to Dr. Robert McNeish, former Associate. Superintendent of Baltimore Public Schools, 1972.

I have often thought of “Lessons from Geese,” especially during the fall of the year. In the Midwest, we have the pleasure of watching the V-shaped flying formation of large flocks of Canadian geese leave Minnesota for their southern winter homes.  Dr. McNeish observed the migratory behavior of geese and penned a beautiful prose on teamwork. It is not a big leap to see how it applies to workplaces.

5 teamwork "Lessons from Geese"

Fact 1: As each goose flaps its wings it creates an “uplift” for the birds that follow. By flying in a “V” formation, the whole flock adds 70% greater flying range than if each bird flew alone.

• Lesson #1: People who share a common direction and sense of community can get where they are going quicker and easier because they are traveling on the thrust of one another.

Fact 2: When a goose falls out of formation, it suddenly feels the drag and resistance of flying alone. It quickly moves back into formation to take advantage of the lifting power of the bird immediately in front of it.

• Lesson #2: If we have as much sense as a goose we stay in formation with those headed where we want to go. We are willing to accept their help and give our help to others.

Fact 3: When the lead goose tires, it rotates back into the formation and another goose flies to the point position.

• Lesson # 3: It pays to take turns doing the hard tasks and sharing leadership. As with geese, people are inter-dependent on each other’s skills, capabilities and unique arrangements of gifts, talents, and resources.

Fact 4: The geese flying in formation honk to encourage those up front to keep up their speed.

• Lesson # 4: We need to make sure honking is encouraging. In groups where there is encouragement, the production is much greater. The power of encouragement (to stand by one’s heart or core values and encourage the heart and core of others) is the quality of honking we seek.

Fact 5: When a goose gets sick, wounded, or shot down, two geese drop out of formation and follow it down to help and protect it. They stay with it until it dies or is able to fly again. Then, they launch out with another formation or catch up with the flock.

• Lesson # 5: If we have as much sense as geese, we will stand by each other in difficult times as well as when we are strong.
   

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By: BHernandez

Most businesses have employees who bring their own talents, attitude and knowledge to the job. They also bring their personal lives. Even though work life is generally supposed to be separate from home life, we know it isn’t 100% possible. If an employee is up half the night with a sick child, he or she isn’t going to be 100% focused when they come to work the next day. If an employee’s spouse is laid off from a job, the employee is going to be experiencing extra stressors which may affect their work.

Ms. Aoifa O’Donnell, CEO of National EAP Inc in Ronkonoma, NY has written an excellent article about how to prevent personal issues from affecting performance. She states, “Managing overall behavioral and mental health performance disruptors effectively is key to health care cost containment, long-term retention of valuable employees and ultimately, the organization’s overall success.”

I agree with her suggestions:
• Promote a work environment, which effectively manages work/life demands.
• Reduce the social stigma associated with seeking help for behavioral or mental health issues.
• Promote mental health education and substance abuse awareness programs.
• Train managers about early recognition of behavioral health issues and referral for work performance issues.

Employees are the biggest assets and expense of any business. Do what you can to help your employees be better workers and the entire business will benefit in the long run. 
 

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Tomorrow is Election Day as I’m sure everyone is well aware based on the campaign advertisements which have been dominating the airwaves and mailboxes lately. The polls open at 7:00 a.m. and close at 8:00 p.m. So, how should employers handle it when employees want to vote during the work day?

In past elections, Minnesota employers only had to allow an employee, who was eligible to vote, to be absent from work for the purpose of voting during the morning of Election Day. That is no longer the case.  Effective April 2, 2010, in Minnesota, every employee who is eligible to vote in an election has the right to be absent from work for the time necessary to appear at the employee's polling place, cast a ballot, and return to work on the day of the election, without penalty or deduction from salary or wages because of the absence. An employer or other person may not interfere with this right. Minn. Stat. § 204C.04. Employers who violate Minn. Stat. § 204C.04 can be charged with a misdemeanor.

Minnesota employers remember to allow your employees the right to exercise their civic duty to vote in tomorrow’s election. I know I will be getting my little red "I vote" sticker first thing in the morning.

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Mr. Stagg worked for Vintage Place Inc. for approximately 14 months, during which time he struggled with tardiness and absenteeism. Vintage Place Inc. employee handbook contained a progressive-discipline policy, which provided that Vintage's employee[s] may be disciplined according to a five-step schedule. The schedule permitted an oral warning for the first unexcused absence, a written warning for the second, a three-day suspension for the third, a ten-day suspension for the fourth, and termination for the fifth. As a result of his attendance problems, Mr. Stagg had received both an oral and written warnings, and a three-day suspension, but was fired before receiving a ten-day suspension.

This summer, the Minnesota Court of Appeals reversed an unemployment law judge’s determination an employee was precluded from receiving unemployment benefits because he was terminated for misconduct. In Stagg v. Vintage Place Inc. A09-949 (Minn. Ct. App. 2010) (pdf) the Court of Appeals ruled the employee, “could have reasonably expected Vintage to follow the disciplinary steps, and because Vintage skipped the fourth step of a ten-day suspension, relator's absenteeism does not amount to employment misconduct precluding eligibility for unemployment benefits.”

I have blogged about this in the past, you don’t want to include specific discipline procedures in an employee handbook, because, “Minnesota courts (pdf) have decided when an employee handbook includes specific disciplinary steps to be taken prior to termination, an employee’s “at-will” status is modified and some job security is presumed.”

What should you do?
1) If you have a specific discipline procedure in your employee handbook and you are currently dealing with a problem employee, then you better follow your procedure.
2) If you have a specific discipline procedure in your employee handbook and you do not have a current problem with an employee, then this would be a good time to update and revise your employee handbook.

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Many employers mistakenly assume all employees are entitled to two fifteen minute breaks and an hour lunch break, in a normal work day. I have even spoken to attorneys who have made the same incorrect assumption.

Minnesota law outlines minimum breaks and meal periods, but does not specify the length of time for these breaks. The law applies to many, but not all places of employment. It may not apply if the employer has negotiated a labor agreement, as the parties are free to negotiate break periods which may be different than those provided in the law.

Minnesota Statute §177. 253, requires that employees be permitted adequate time from work within each four consecutive hours of work, to utilize the nearest convenient restroom. There is no mention of time for coffee or a smoke break.

Meal breaks are similar. Minnesota employers must permit each employee who is working for eight or more consecutive hours, sufficient time to eat a meal, but the meal break need not be paid. Once again, nothing prohibits employers and employees from establishing meal periods different from those provided in the law through collective bargaining.

Before an employer tries to reduce employee break times, it is a good idea to first determine if the Minnesota statute applies to the particular employer and employees. (For example exempt employees, agriculture employees, fire and police, elected officials, are all exempted from coverage.) Other questions to consider: Is there a collective bargaining agreement in place which covers breaks? What are the needs of the workplace? What does the employee handbook say about breaks? How do breaks fit into the work schedule and staffing levels? Where did the current break schedule come from, or was it just based on assumptions about what employees may be entitled to for breaks? Above all else, talk with your attorney before you make any changes. 
 

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Every Sunday, I receive the Parade magazine in my newspaper. It typically has some interesting articles or interviews with celebrities. This summer, it had an interesting article on workplace bullying. Parade magazine did an informal poll on their website asking, “should workplace bullying be illegal?” The results:

Should workplace bullying be illegal?   Yes = 93% and No = 7%

Bullying is not uncommon, whether it is on the playground, in high school or in the workplace. Workplace bullying can cause low morale, increased employee turnover, and decreased productivity, none of which is a positive contribution to the workplace. There is even an employee-advocate group called Workplace Bullying Institute (WBI). WBI defines workplace bullying as “repeated malicious mistreatment, verbal abuse, or conduct that is threatening, humiliating, or intimidating, or that interferes with work.” Workplace bullying is different from harassment and discrimination which is unlawful under state and federal laws, though there can be overlap. General workplace bullying is not covered by harassment or discrimination laws and instead targets someone without regard to their sex, race, national origin, color, religion, etc. Presently, seventeen states have introduced bills which would allow victims to sue for damages resulting from workplace bullying.

In Minnesota, it is possible for employees to seek recovery for workplace bullying under the common law claim of “intentional infliction of emotional distress.”

So, what should an employer do to prevent or address workplace bullying?

1) Implement a general code of conduct policy.
2) Train employees on what is acceptable workplace behavior.
3) Train supervisors to recognize and address bullying when it occurs.

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Let’s face it, accidents happen. They happen at home and they happen at work. People make mistakes, get distracted or just don’t pay attention and accidents happen, it is human nature. Sometimes the accidents are small and harmless and other times they are serious and costly.

Last month, a twelve year old Florida girl was seriously injured after falling 100 feet from the amusement park ride Terminal Velocity at Extreme World in Lake Denton, Wisconsin. Recently, the employee, who was working the ride when the accident happened, was charged by local prosecutors with one count of first degree reckless injury, because he claimed he “blanked out.” He said he never got the all clear signal from the employees on the ground before letting the girl drop.

This accident is costly in many ways. The employee is charged with a felony punishable by up to 25 years in prison and a $100,000 in fines. The employer is dealing with negative publicity, lost revenues due to the ride's closure, and most likely looking at some type of lawsuit, although liability maybe limited due to various disclaimers which appear on the ticket stubs. And of course, the family is dealing with the injuries received by their young daughter, who may or may not be left paralyzed from the fall.

Can all accidents be avoided? No. But, you can do your best to prevent them and limit the affect on your business.

I’m sure I sound like a broken record, but I can’t stress the importance enough - train your employees. Conduct refresher training periodically, especially when it involves safety issues, because you can never be too careful. Make sure employees know their job duties, especially when specific steps have to be done in a particular order. Talk to your employees, get their input on the kinds of training they would like or would find helpful. Ask the employees if they understand their job duties. The goal is to prevent an accident from harming your business.
 

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Some would say there is nothing worse than a woman scorned, except maybe an employee scorned by their employer. Before the Internet, scorned or disgruntled employees told all of their family and friends about how bad their job was, how unfair their boss treated them, or how lousy their employer’s products were. Today the Internet can take the comments of a scorned or disgruntled employee and make them viral in a matter of hours through Facebook, Twitter, YouTube, or a blog.

No workplace is exempt from the wrath of a scorned employee, not even a law firm. The ABA recently blogged about a former associate of Levinson Axelrod, a New jersey law firm, and the “cyber-assault” created by the associate’s blog site “Levinson Axelrod Really Sucks.” The parties have reached a settlement and the blog site has since been removed, but not until many blogs were posted and a lawsuit was commenced.

Employees have taken to using the Internet to vent about workplaces, co-workers, and bosses. Several websites encourage employees to talk candidly about their jobs including:

• www.workrant.com, which offers a bulletin board for employees to express their workplace frustrations,
• www.glassdoor.com, which offers company reviews including salaries,
• www.vault.com, which offers help with resumes, career changes, and the chance to $500.00 if you submit a review of your employer, and
• www.jobvent.com which asks employees, “Love your job, hate your job, share your experience, post an anonymous review of your company.”

Workplace rants by employees using social media can be a real headache for any business. Having a plan and a strategy is the first step for any employer. The question is not whether a workplace may be attacked through social media by a scorned employee; the question is when will it happen. I have blogged about the need for any business with employees to have a tailor-made social media policy in place, and to train employees on the policy. Having the name of a good media relations firm on hand is also a good idea, to be able to respond quickly to the viral attack, and to manage the response of your business. 

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Last December, I wrote about the 9th Circuit Court of Appeals case between the City of Ontario, California and its employee, Police Sergeant Jeff Quon which was appealed to the United States Supreme Court. On June 17, the U.S. Supreme Court issued its decision (pdf).

The question before the U.S. Supreme Court was whether or not the City’s review of text messages sent and received on an employer issued pager violated Sergeant Quon’s Fourth Amendment’s protection against unreasonable search and seizure? Sergeant Quon argued, he had a reasonable expectation of privacy in the text messages he sent and received.

The Court acknowledged, we

“…must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. . . .Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices. . . .At present, it is uncertain how workplace norms and the law’s treatment of them, will evolve.”

The U.S. Supreme Court did not address whether Quon had an expectation of privacy, but instead stated, “[t]he case can be decided by determining that the search was reasonable even assuming Quon had a reasonable expectation of privacy.” The Court in choosing to dispose of this case on narrower grounds, assumed several propositions arguendo: (1) Quon had a reasonable expectation of privacy in the text messages sent on the pager provided by the City; (2) The City’s review of the transcript of the text messages constituted a search within the meaning of the Fourth Amendment; and (3) The principles applicable to a government employer’s search of an employee’s physical office apply with at least the same force when the employer intrudes on the employee’s privacy in the electronic sphere.

The Court held, “[b]ecause the search was motivated by a legitimate work-related purpose, and because it was not excessive in scope, the search was reasonable. . .Petitioners did not violate Quon’s Fourth Amendment rights.”

Because the Court chose to decide this case on very narrow grounds, which are very fact-specific, not much guidance was provided to other employers dealing with technology issues. What employers need to continue to do is:

1. Make sure policies are updated and cover all your current technology.
2. Policies should clearly outline employees’ expectations concerning personal use of technology and equipment.
3. Insure your policies are being followed and not contradicted by management.
4. Train employees on all policies, including new or revised policies.
 

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Just like Dorothy following the yellow brick road to Oz battling lions, tigers, and bears, the path to determining the right classification for summer employees, interns, independent contractors, and volunteers can be hazardous. Mischaracterizing a worker can lead to sanctions and fines for Employers. Due to current economic challenges, concerns are being raised that Employers are misclassifying workers as interns, volunteers and independent contractors to save from paying wages, benefits, and taxes. The Department of Labor is paying close attention and auditing workplaces.

There is a presumption anyone performing work for a “for-profit” enterprise is an employee.  In Minnesota, the nature of the employment relationship is determined by using the same tests, and in the same manner as employee status is determined under both workers’ compensation and unemployment insurance law. Compensation of Minnesota employees is determined under Minn. Stat. § 181.722, Subd. 3, and the federal Fair Labor Standard Act.  Dorthy Gale had to stay on the yellow brick road to try to avoid the wicked witch and her flying monkeys.  As an Employer the path to proper classification of workers will avoid the ire of the Department of Labor.   Correctly assessing a  worker as an employee, student/intern, independent contractor, or volunteer is critical.   

Employee: An employee is someone who works for hire in the services of another. The existence or non-existence of an employment relationship between two parties is a question of fact.   To the extent the facts lead to a conclusion the parties have an employment relationship, the Employer is responsible for state and federal taxes, workers’ compensation, and unemployment insurance. 

Student/Intern: The use of student/interns in the workplace has increased over the years. This group of workers is currently the subject of close scrutiny by the Department of Labor.  Student/interns are not considered employees under both state and federal law, if their use in the workplace generally passes six tests offered by the Department of Labor. The tests are:

1. The training experience is similar to what is provided at school;
2. The training experience is for the benefit of the student/interns;
3. The student/interns do not displace regular employees;
4. The employer providing the training receives no immediate advantage from the activities of the trainees;
5. Student/interns are not necessarily entitled to a job at the conclusion of the training; and
6. The employer and the student/interns understand the work is unpaid training. (Note: a reasonable stipend may be permitted)

 Independent Contractor: Independent contractors are hired to perform special services of a limited scope and duration, and they typically perform the same services for a variety of businesses. The standards in Minnesota to be considered in determining whether or not an individual is an employee or an independent contractor include: 

1. The right to control the means and the manner of performance;
2. The mode of payment;
3. The furnishing of materials or tools;
4. The control of the premises where the work is done; and
5. The right of the employer to discharge the individual. 

Generally, the more control an Employer has over the individual performing the work, the work site, and the nature, quality, and manner in which work is performed, the more likely the relationship is an employer-employee relationship vs. an independent contractor arrangement.

Volunteer: Volunteers freely offer services to non-profits, charitable organizations, and churches at no charge without expectation of compensation. “…Any individual who renders service gratuitously for a nonprofit organization,” is not considered an employee. Minn. Stat. § 177.23 Subd. 7 (7).   Volunteers at a non-profit organization are not subject to workers’ compensation or unemployment benefits. Someone performing work on behalf of a for-profit enterprise, is presumed to be an employee.

Properly classifying workers, including summer workers, is important to your business. Minn. Stat. § 181.722 prohibits the misrepresentation by an Employer of the nature of an employment relationship with its workers, including not requesting a worker enter into an agreement, or sign a document which results in misclassification of a worker’s status. An Employer may be subject to penalties for improperly classifying workers. Be sure to intentionally follow the yellow brick road to avoid the lions, tigers and bears along the way. OH MY!

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Do you have employees? Do your employees enjoy sports? Well, this week there is a trifecta of major sporting events going on. Game 6 of the Stanley Cup Finals is televised tonight, tomorrow is Game 4 of the NBA Finals and Friday is the kick-off concert for the World Cup. It seems there is something for every sports fan. What does this mean for your business? Well, that depends on how you address workplace distractions.

Mr. Daniel Schwartz with the Connecticut Employment Law Blog has some excellent points about the opportunities and distractions which can accompany various sporting events, in particular this year’s World Cup, which will be televised between 8:00 a.m. – 5:00 p.m for the next month.

I agree with Mr. Schwartz suggestions and recommend you plan ahead.

• Remind employees about your policy on using computers for “personal use.”
• Review your PTO or vacation policy and decide how much flexibility you are able to use to address employees’ requests for time off.
• Encourage employees to watch during their lunch hour, and allow some flexibility in scheduling breaks and lunch hours to accommodate game time.
• Encourage professional behavior in the workplace.

These tips can also be applied to any other high profile televised events which may be distracting to your employees and affect productivity at your workplace.
 

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Many firms have blogged about the most recent U.S. Supreme Court decision, Lewis v. City of Chicago No. 08-974 (May 24, 2010) including Ford & Harrison and Jackson Lewis.

In Lewis, the City of Chicago gave a written examination to applicants seeking positions with the city as firefighters. After the examination, the applicants with passing scores were categorized as “well qualified” or “qualified.” More than a year after receiving notice of the examination results, several African-American applicants who had been categorized by the City of Chicago as “qualified,” but had not been hired, filed discrimination charges with the Equal Employment Opportunity Commission (EEOC). Federal law required EEOC charges be brought within 300 days after the unlawful employment practice occurred. Lewis and others then filed suit against the City alleging, the City’s practice of selecting only applicants who scored 89 or above, categorized as “well qualified,” had a disparate impact on African-Americans in violation of Title VII. The City objected claiming the petitioners had not filed the EEOC charges within the required 300 days.

The issue before the U.S. Supreme court was, “[w]hether a plaintiff who does not filed a timely charge challenging the adoption of a practice – here, an employer’s decision to exclude employment applicants who did not achieve a certain score on an examination – may assert a disparate-impact claim in a timely charge challenging the employer’s later application of that practice.” The U.S. Supreme Court held, a plaintiff may timely challenge an employer’s later application of a practice, as long as he alleges each of the elements of a disparate-impact claim.

What is disparate impact? Disparate impact is defined as, “an unnecessary discriminatory effect on a protected class caused by an employment practice or policy that appears to be nondiscriminatory.” What is a protected class? A protected class is, “a group of people intended by a legislature to benefit from the protection of a statute.”

Since the enactment of Title VII of the Civil Rights Act of 1964, employers have known they are prohibited from discriminating against an individual based on their race, color, religion, sex, or national origin. However, as originally enacted, Title VII did not expressly prohibit employment practices that caused a disparate impact on individuals. In 1971, the United States Supreme Court first recognized “disparate impact” claims.

What does this decision mean for employers? It isn’t when a policy or practice is adopted that may start the time clock for discrimination or disparate-impact claims, but when the policy or practice is applied/used that is important.

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I have previously posted about the topic of “at-will” employees and cautioned employers that it is possible to create an expectation of job security in the documents issued to employees, thus negating the “at-will” status.

In the case Ellis v. BlueSky Charter School, A09-1205 (Minn. Ct. App. 2010) (pdf) the school director challenged his termination based on language in his employment agreement. Mr. Ellis was hired as school director for the 2008-2009 school year. An employment agreement was executed between Mr. Ellis and the school board stating, “[t]his is a general at will agreement.” It also set forth the work year as July 1, 2008 – June 30, 2009 and provided, “[p]ositions will automatically renew for one year after one year of service unless specific actions are taken by the board before April 15th of each year.” Mr. Ellis was terminated by the board on May 7, 2009.

In Minnesota, an employment contract for a fixed term is generally interpreted as terminable only for cause. The Minnesota Court of Appeals in an unpublished decision held in this case, “[t]he plain language of the “at-will” phrase overrides the general rule for construing a fixed-term contract, expressly replacing any implication that might have been drawn from the reference to start and end dates. The asserted tension between the at-will declaration and the stated dates of service does not create ambiguity.” Mr. Ellis’s position was determined to be at-will.

If you are hiring new employees, make sure their employment status is clear to them. If an employee is “at-will,” tell them so.

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April 28, 2010 was Workers Memorial Day. U.S. Secretary of Labor Hilda L. Solis issued a nice statement in honor of the memory of workers killed on the job. Employees are the life blood of most businesses. They are who get the work done and keep a business going.

Employees are injured on a daily basis in workplace accidents. When this happens it affects a business operations and finances. It causes employees to lose time from work to recover, it diverts the attention of other employees to cover the work of the injured employee, and it will affect an employer’s worker’s compensation rating.

What can you do to prevent workplace injuries?

• Make sure your employees have the proper safety equipment.
• Make sure employees have the proper training.
• Make sure employees keep their work areas clean.

If you provide a safe work environment, and train your employees, you won’t have workplace injuries affecting your company’s bottom line.

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All workplaces should have a social media policy in place which outlines behavioral expectations for employees. This includes non-profits, governmental agencies, as well as private sector businesses. It is pretty difficult to discipline an employee for spending too much time on Ebay or Facebook, or for sharing corporate news through Twitter, without specific guidelines in place.

I previously blogged about the need for social media polices in your workplace. Employers should consider the scope of their social media policy and make sure the policy fits their business model. Do you want employees to be sharing business information on social media? How does social media use by employees fit into your business public relations plan? Is it necessary to limit an employee’s use of social media? What are potential business advantages and disadvantages as a result of employees using social media? Should you exercise some type of control over social media and funnel it through one source?

If you are still not convinced you need a social media policy, the Federal Trade Commission recently posted its "Guides Concerning the Use of Endorsements and Testimonials in Advertising."   It indicates employers could be liable for false statements about their  buisness/products made by employees through social media, and that employees are required to disclose their employment relationship to your buisness when making any endorsements.

Social media policies should address your unique business needs. Many model policies are available on-line, however one size does not fit all.  You don’t need to recreate the wheel while drafting your own social media policy, you just need to tailor it to fit the needs of your business.

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Anyone engaged in business wants to increase profits, streamline efficiency, and save money. This is true if you are running a manufacturing plant, designing buildings, or installing high end fiber optics. Following good solid business practices and practicing fiscal management are key principles to business success.

The soft side to a successful business is often underestimated. I am talking about “employees” or “talent.” While employee wages and benefits can be one of the most expensive line items in a business budget, the non-cash, human element of employing workers can be grossly underestimated.

Depending on which survey you believe, worker dissatisfaction seems to be a problem for many workplaces to some degree. This may be attributable to a variety of factors including the economy, increased pressures at work and home, or generational differences between workers and supervisors. A general restlessness amongst employees is not good for any business. To determine if you have a problem in your business, the first step is to assess your employees current level of satisfaction.

The opposite of employee dissatisfaction is what every business owner should want, that is loyalty from its employees. Harvey Mackay, author of “Outswimming the Sharks,” is on the circuit promoting his new book about job search secrets. He identifies a common theme among job hunters as, “It’s not all about the money.” He suggests four things can breed loyalty of employees to a business or organization:

• Professional development: Employees who are challenged and learn new skills stick around longer. Mentoring is a tool to keep employees growing professionally.

• Coaching and feedback: Employees like to hear how they are doing and that their contributions matter.

• Positive work environment: Surroundings and co-workers make a difference in job satisfaction, and a little fun helps too.

• Good bosses: People don’t leave jobs, they leave bosses.

All of these will lead to increased profits, streamlined efficiency, and saving money. Loyal employees enjoy being at work, experience less absenteeism, are more productive, and they are less likely to engage in litigation against their employers.

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As the City of Detroit is learning, discrimination claims under the Americans with Disabilities Act may not result from your typical disabilities. Susan McBride, a city employee, filed a lawsuit under the Americans with Disabilities Act in 2007, claiming the City violated her rights under the ADA by failing to accommodate her chemical sensitivity. Ms. McBride claimed a life-long chemical sensitivity to scented substances such as perfume, body lotion, aftershave, cologne, hand cream, hair spray, deodorant, and various cleaning compounds. Exposure to these and other irritants caused headaches, nausea, chest tightness, cough, and rhinitis and required her to seek medical care. When a coworker refused to quit wearing perfume Ms. McBride complained to her supervisor and requested the City implement and enforce a “no-scent policy” as an accommodation to her chemical sensitivity. The City denied her request and offered no alternative accommodation.

A disability determination under the ADA (now updated and revised as the ADAAA) is to be made on a case-by-case basis. The City of Detroit filed a motion to dismiss Ms. McBride’s case in 2007, but the motion was denied. (pdf) Recently, the City of Detroit settled out of court with Ms. McBride for $100,000. It will also be putting up signs warning workers to avoid wearing scented products. Because the case was settled, it is not possible to say if her chemical sensitivity would be considered a disability under the ADA or ADAAA.

What do employers need to take away from this case? A few things spring to mind:

(1) Take employee complaints seriously.
(2) Address issues promptly to avoid unnecessary costs later.
(3) Consider if a policy might fix a problem.

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Maybe you have heard of this concept or maybe not, it is a new trend in workplaces called ROWE, which stands for Results-Only-Work-Environment. ROWE is a management strategy where employees are evaluated on their performance and productivity, and not their time or presence in the workplace. ROWE allows employees to work from home or during less conventional hours, as long as productivity goals are met. ROWE was co-founded by Cali Ressler and Jody Thompson.  According to the ROWE founders, the strategy can help a business:

• Increase productivity and efficiency
• Attract and retain talented employees
• Optimize work space
• Eliminate wasteful work processes
• Increase teamwork and morale among employees

In Minnesota, Hennepin County currently has 500 employees who participate in ROWE and an additional 1,500 county workers are being trained in ROWE. Full-time Hennepin County employees are still required to maintain a 40 hour work week.

In this time of economic uncertainty, perhaps ROWE can benefit your workplace and save you money, while increasing productivity and job satisfaction.

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The debacle of Toyota continues to play out in the media. Today, the embattled car manufacturer once touted as the most successful in the world, is the subject of U.S. government safety investigations and numerous court cases. Toyota owners are suing over the loss of value of their vehicles and families are suing over the tragic loss of at last count 34 lives, involved in crashes attributed to unexplained acceleration problems. You don’t need a crystal ball to predict Toyota stands to lose billions of dollars, or that the global impact on the manufacturer will continue for years to come.

How could this have happened to the car manufacturer? Didn’t they develop their own “lean” manufacturing and production process which has been adopted by other corporate giants trying to emulate Toyota’s success? Didn’t Toyota have a book written about their corporate climb to success called The Toyota Way, which details the 14 management principles that drove them to the top of the heap of automobile manufacturers? 

Despite developing corporate principles covering philosophy, people, process, and problems, Toyota fostered a culture that prevented reporting of the acceleration malfunctions. Toyota’s fall from grace can’t be attributed to just one thing. Instead it should be viewed as a series of events including:

• poor supplier control,
• lack of leadership,
• employing too many “yes” people,
• failing to see an automobile as the sum of its parts,
• human resources problems,
• procrastination, etc.

Intervention at a variety of individual points in the chain of events could have prevented this corporate train wreck. Unfortunately, in the words of an old Japanese saying, “The nail that stands out was not encouraged to be different, but instead it was pounded down to conform.”

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Under the Occupational Safety & Health Act of 1970, businesses and employers are responsible for providing safe and healthy workplaces for employees. OSHA is assigned to enforce these standards, provide training, education, and assistance.

OSHA is proposing to revise its Occupational Injury and Illness Recording and Reporting regulation by restoring a column for identifying work-related musculoskeletal disorders on the OSHA form 300. The existing requirements on when and under what circumstances employers must record musculoskeletal disorders on their illness/injury logs remains the same.

If you want to provide input on the regulation you may submit comments about the proposed rule electronically prior to March 15, 2010. A public meeting on the proposed rule will be held on March 9, 2010.

We will keep you posted on these regulatory changes.
 

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Many times employees are promoted to management positions because they are great producers. Unfortunately, the skills needed to be a star employee, do not translate to being a great boss.

Linda Hill wrote an article in the Harvard Business Review titled, “Becoming the Boss.” She suggests, new bosses mistakenly think the road to success lies in ordering subordinates around. There is nothing further from the truth. Authority and leadership emerge as a result of the operation of time, the establishment of credibility, and the demonstration of character, competence, and influence. Hill suggests new bosses need to be armed with realistic expectations about supervision, and actively seek out opportunities for coaching and mentoring.

Lighter reading for a new boss may be a review of the submissions for the Internet contest sponsored by Heliotrope Books. The independent publisher is compiling psycho boss stories for inclusion into a new book titled, “Jobs of the Damned.” Rate Your Boss websites are another popular source for horror stories about workplace bullies and poor managers. Learn from their mistakes and do the opposite.

Watching Michael Scott at the helm of the Dunder Miflin Paper Company on the television show “The Office,” is yet another learning tool. Do exactly the opposite of Michael Scott and you may succeed in your new management role. Michael Scott describes his management philosophy as, “I'm friends with everybody in this office. We're all best friends. I love everybody here. But sometimes your best friends start coming into work late and start having dentist appointments that aren't dentist appointments, and that is when it's nice to let them know that you could beat them up.”

You’re the boss, not their friend. Your job is to create a successful team, maximize positive change, and assist employees to reach their peak performance. Your new role as a boss is, after all, about managing people.

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Marylee Abrams and I attended an excellent seminar yesterday presented by Jay Larson, about the FISH Philosophy. The FISH Philosophy was developed or maybe more accurately, discovered by ChartHouse Learning, a documentary film company, who made a film about the Pike Place Fish Market in Seattle. What they discovered was a group of fish mongers who took a tedious and dirty job selling dead things from the ocean, and made it fun and entertaining. By doing so, not only have they made work more enjoyable, but customers and browsers alike have a wonderful experience and return for more. The result has been increased sales and great public relations for the Pike Place Fish Market.

The FISH Philosophy has four principles, designed to provide a different way to show up to work.

1. Play: Make work fun. Encourage creativity. Be enthusiastic. Anything can be boring if you make it boring, so make the commitment to make your workplace more fun and more like play. Tap into natural creativity. Be child-like, not childish.
2. Make Their Day: Find special ways to connect with everyone you encounter for no reason than to brighten their day. Share a cup of coffee, ask about someone’s weekend, share a joke. If employees love their job it is going to show through to others. Encourage your employees to interact and connect with the people who come to your place of business, whether it is the mailperson, delivery person, customers or other coworkers.
3. Be There: Be physically and emotionally present for people, especially when they need you. It’s a powerful message that strengthens relationships. Be present in the moments you are dealing with customers, employees, or others.
4. Choose Your Attitude: No matter the situation, take the responsibility for consciously choosing how you want to show up in the world. Every person has the choice each minute of each day to choose their attitude. Choose a good attitude.

If you conclude you can’t throw fish, shout out customer orders, or play jokes at your business, you are missing the point. The four principles are all about engaging employees, providing exceptional service to customers, and exploring how to make your business more successful. The principles can apply to any business with a little thought and creativity.

By encouraging your employees to follow the four principles of the FISH Philosophy you are likely going to see increased productivity, happier employees, and happier customers, which can result in more $$$$$ and business growth.

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CBS rolled out its’ new reality television show “Undercover Boss,” right after the Super Bowl Sunday evening. In the first episode, Waste Management President and COO, Larry O’Donnell, went undercover for one week performing entry level positions in his own company. A camera crew followed him under the guise they were filming a documentary on entry level positions.

President O’Donnell was filmed working the conveyor belt and picking out cardboard from other recyclables, learning to clean out portable toilets, picking up paper at a worksite, following an overworked administrative assistant/payroll clerk/ truck weigher, and riding along with a female garbage hauler.
 

Overlooking the manufactured drama of reality television, O’Donnell seemed to really learn from his experience performing the entry level positions. He learned one of his recycling plants implemented his 30 minute lunch rule, by docking employees 2 minutes for each minute they were late returning from their limited lunch break. This punishment was never his intention, not to mention the possible FLSA problem it may pose to reduce an employee’s earned wages this way.
 

O’Donnell also learned the female garbage hauler was forced to drive a route which does not permit her to stop and use a restroom, so she carries along a can in her truck to use when she needs to urinate. He admitted maybe his company was not too female friendly and he vowed to make necessary changes. He was surprised to find the employee who cleans out the portable toilets had a cheerful attitude and worked hard at his given tasks. O’Donnell wondered how he could translate that work ethic and attitude to more of his employees.
 

The big lesson for O’Donnell was making the connection between his management policies and the impact they had on his front-line employees. It was an eye-opening experience and O’Donnell vowed to be a better boss based on the experience.  What kind of boss are you?

Stay-tuned for next week’s expose where the CEO of Hooters goes undercover as a management trainee. He uncovers a Hooters manager requiring the waitresses to perform a reindeer dance which looks a lot like sexual harassment.
 

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Tiger Woods was silent for almost a week amidst wide-spread media coverage of his suspicious late night car accident. For months Toyota was not only silent about the real problem with their gas pedals, they tried to initially blame the acceleration problem on floor mats. Both stories continue to have intense media coverage which includes reports on every new twist or detail, while rehashing the basic facts over and over again.

In contrast, David Letterman self-reported his sexual trysts with female staffers on his own terms, in his own words, ahead of a threatened blackmail scheme. Media coverage of Letterman’s trysts has dried up and the matter is now considered a non-story. What is the difference and what can businesses learn from these major news stories?

Self-reporting of problems helps to control the message and the timing, and seems to shorten the media life of a story. Coming clean can help a business move on past the initial media flurry, return to business as usual faster, and hopefully preserve sales and reputation. Businesses should consider credibility and accountability, and the perception of the public. Admitting mistakes and accepting responsibility is more than just something your mother tried to teach to you. It applies to businesses, sports superstars, and celebrities as well.

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Cindy Hanson and Kali Wilson Beyah of “Corporate Counsel” magazine and blog, warn employers to stop using credit reports and criminal background checks to weed out job applicants, or risk being embroiled in an EEOC lawsuit.

EEOC has taken the position that, due to the disproportionate conviction and arrest numbers of African American and Hispanic people as compared to white people, blanket policies regarding employment decisions based on arrest and conviction information are presumed to have a disparate discriminatory impact on African American and Hispanic applicants.

Until the issues are resolved by the courts, employers should make sure background checks are job-related for the position in question and are consistent with business necessity.

I agree with the authors suggestions for employers to;

• Apply testing criteria in the same way to all individuals.

  
• Audit hiring pools to determine if there is a disparate hiring impact on any one group of applicants.

  
• Tailor the type of the background check conducted to the nature of the position.

  
• Document the rationale for the type of the background check conducted.
   

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As the New Year dawns, it is the perfect opportunity to do a check-up of your current business practices and determine if any changes are in order. Everyone needs a check-up every now and then, and this includes your business. A business check-up will help you reach your 2010 goals to increase revenues and productivity.

Some things you should review and questions to ask:

• Employee handbook or policy manual - Are all policies current? Do your actual business practices follow these policies or do they conflict? Do you need to add any new policies?
• Rental leases – Is everyone living up to the lease? Is an extension in order?
• Business contracts – Are there any changes needed in any vendor or supplier contracts?
• Insurance policies – Is your insurance coverage adequate to protect your business?
• Marketing practices - Did each effort bring in new business as expected? Why did you choose certain marketing options, was it to stay in front of clients or to try to get your name out to new clients? Do you feel your efforts were successful?
• Membership in Associations – Does this membership serve your business plan?
• Office technology – Do you have a replacement schedule? Do you need to upgrade or replace any office furniture or technology?

Often businesses can get stuck in a rut. There is no better time to kick start new ideas or to stop wasting time and money than the start of a new year. Take the time to do a check-up on your business practices and kick-start 2010.

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The economic recovery is slower and more sluggish than most expected. While hiring new employees may be on the back burner right now, this is the perfect time to tune up the hiring process at your business in anticipation of better times ahead.

Resources abound to help you develop a sound hiring process which should include creating specific job descriptions, conducting back-ground checks, and reviewing resumes/cover letters. Many businesses today are screening candidates over the phone, and electing to use behavioral interviews to select the best candidate for the job.

What is clear is that your hiring process should have a standardized format so you are able to compare and contrast candidates: apples to apples. When you do begin hiring again, it is important to not overlook obvious red flags.

• 1st Red Flag: If candidates don’t use common sense during the hiring process, there is a really good chance they won’t use common sense on the job. A candidate I interviewed for a paralegal position gave a very good 45 minute interview, and made the first cut. When I left the office, I found the candidate sitting in his car in the parking lot with a dead battery. He had been outside in below freezing temperature for 2 hours, waiting for a friend to jump his car battery. Someone who doesn’t know to come in out of the cold is not the right candidate for a high pressure, deadline oriented position.
• 2nd Red Flag: If candidates don’t use good manners during the interview, they won’t use good manners on the job. Another paralegal candidate answered her cell phone during the interview and carried on a conversation with her spouse over who should pick up the kids. She was cut mid-interview based on the telephone call.
• 3rd Red Flag: If your workplace has a formal business dress code and the candidate shows up for the interview in a polo and khaki pants, pass on the candidate. Everyone knows or should know to dress your best for a job interview. Impressions do count.
• 4th Red Flag: How the candidate speaks to your staff when scheduling the interview, responding to follow-up requests to supply references, or even to the receptionist the day of the interview speaks volumes about how they would fit into your workplace. If a candidate is rude and demeaning during the hiring process, take a pass and look for someone else.

In conjunction with having a standardized hiring process, considering whether or not a candidate raises any obvious red flags will insure you select the right candidate for the job.
 

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In December 1843, Charles Dickens wrote a novella he originally called a “Ghost Story of Christmas.” In the story we all know as “A Christmas Carol,” Ebenezer Scrooge is visited by four ghosts, including his deceased business partner Jacob Marley, followed by the ghosts of Christmas past, present, and future.

The ghost of Christmas past takes Scrooge back to the time he was a young man working at Fezziwig’s Warehouse. The Warehouse is closing Christmas Eve, in preparation for a rousing party with dancing and sumptuous food. The ghost of Christmas present reveals to Scrooge the poverty of his sole employee at the Scrooge & Marley Counting House, Bob Cratchit, and the plight of his family.

Comparing your workplace to Scrooge’s Counting House or Fezziwig’s Warehouse is more than just a fanciful holiday exercise. It is designed to get you thinking about the tone and personality you have set at your business. If the goal is to raise productivity of employees, generate new business, and increase revenues, it is worth a look at what type of workplace you have created to accomplish those goals. There is no better mirror for this type of business assessment than the eyes of your employees.

Fezziwig’s Warehouse and the Scrooge & Marley Counting House were two very different workplaces. The differences lie in the philosophy and values of the business owners themselves, and how these values were communicated to employees. Which one best describes your philosophy and your workplace?

Employers set the tone for workplaces. Determine your business philosophy and be sure to share it with your employees.
 

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