Workplace Litigation Trends Report

This is the 7th year that Fulbright & Jaworski has surveyed senior corporate counsel regarding litigation.  I'm focusing on the responses that affect businesses - and selecting those answers.  The results are illuminating!

In which area is there the most litigation pending in the U.S.?

Contacts: 53%
Labor & Employment: 49%
Personal Injury: 27%
(participants could pick more than one type)

In which area has there been the greatest increase in multi-plaintiff cases whether they be class, collective action, or significant multiple plaintiff action?
Wage & Hour: 46%
Labor Union: 13%
Age: 11%
ERISA: 10%


[What types of cases] will see the greatest increase in 2011?
Discrimination: 39%
Wage & Hour:35%
Labor Union: 17%

ERISA: 5%

FMLA Could Become More Complicated

The Department of Labor will be conducting a comprehensive survey on how employees in the United States use their Family and Medical Leaves.  The Obama administration has made a committment to improving work-life and work-family balance, and the results of this survey are likely to influence changes in FMLA.

For now, nothing to take action on - but keep your eyes/ears open.

Here's an article from the Chicago law firm of Franczek and Radelet.

Quarterly Newsletter and a Sage Cartoonist

I hope you'll checkout our HR & Management Newsletter by clicking here.

Also, I note with interest David Horsey's editorial cartoon from July 21.  Mr. Horsey is a talented cartoonist who's published through the Hearst Newspaper chain.  (You can see all his stuff here).  After I've been writing and speaking so much on this topic - that businesses are finding ways of doing more with fewer employers - a client saw this in the San Francisco Chronicle and gave it to me:

David Horsey - Hearst Newspapers

Ten Truths for the Boss

Anyone who's read this blog over the years, or who knows me personally, is aware that one of my heroes is Michael Josephson.  Mr. Josephson has commented for years on the relationships between ethics and successful, sustainable business models.  One of his greatest radio commentaries discusses "10 Truths for the Boss", which I've put here:

Why is it that most employees think their bosses are at least a little out of touch? Probably because they are. Even those who worked their way to the top lose some credibility and effectiveness because they don't recognize what I call Ten Truths for the Boss:

1. The more certain you are that "it can't happen here," the more likely it is that it will. Be careful about overconfidence and complacency.
2. There are lots of things you don't know, and lots of people who hope you don't find out. Hardly anybody tells you the whole truth anymore. Information is filtered through the fears and career aspirations of subordinates, and many employees believe you will "kill the messenger" if they deliver bad news so they tell you what they think you want to hear.
3. To those who want to please you, your whisper is a yell and your comments are commands. Be careful, people may do foolish things to please you.
4. What you allow, you encourage.
5. There's never just one bad employee; there's the employee and the manager who keeps him.
6. At least someone who works for you is "gaming" the system so they appear to reach their business objectives with smoke and mirrors rather than real achievement.
7. According to the law of big numbers, if you have lots of employees, you probably have a few crooks and psychopaths working for you.
8. Few people think as highly of your ethics as you do.
9. No matter how many good things you do, you will be judged by your last worst act.
10. No matter what your job description says, what matters most is how you manage relationships and people.

The Josephson Institute of Ethics website is here.

To follow Mr. Josephson on Facebook, click here.

To follow Mr. Josephson on Twitter, click here.

Workplace Violence: Suicides on the Rise

Recently, I was personally affected by suicide when a neighbor shot himself.  (Fortunately, we were on vacation).  So perhaps that's why this article at MSNBC.com was so impactful.

Workplace suicides are surging since December 2008 - not only in China (which was well publicized) but in the United States as well.  The US number could be as high as a 75% increase in 2009 from the previous year.

Richard Shadick, director of Pace University's Counseling Center, an adjunct professor of psychology and a suicide expert, notes some warning signs to watch for:

• Persistent depression or sadness that lasts for long periods of time and impairs ability to function at work or in relationships.
• Verbal altercations at work or home.
• Excessive drinking. 

Workplace violence doesn't go away.  And it's clearly a concern for employers.  An article I wrote for this blog 2 1/2 years ago remains the 3rd most visited page in our history.

Pay attention to this - and make sure your employees are aware of warning signs and feel comfortable reporting those signs to management.

Firing an "At-Will" Employee

Gina Madsen is one of the really bright small business attorneys in Nevada.  She recently asked me to write an article on a 'real-life' situation - and I chose the concept of firing an at-will employee.

Even though most states abide by at-will concepts (you can fire an employee at any time for any reason - other than a few exceptions), there are many compliance and management principles that should be followed.

Here's the blog on her great website - http://www.madsenlawoffice.com/

The Art of Persuasion

It's always a little strange to see your thoughts in writing - especially if they're being written by someone else.

I was recently interviewed by students at the USC Marshall School of Business - they are candidates for Master's degrees in Leadership and Management.  The focus of the interview was how to persuade employees to see your point of view.

Here's the paper (and I didn't edit at all!)

Background:  Eric Swenson has over 20 years of experience in management, sales, training and marketing. He has managed hundreds of employees and interviewed over 2,000 people in his career. RSJ/Swenson LLC is a management and human resources consulting firm with offices in California and Nevada.

Interview Summary: Eric shared his insightful thoughts about the leadership and persuasion. For Eric, persuasion is a natural process and he prefers soft tactics. He is always honest to his superiors and subordinates. Eric believes that effective leaders are very expressive when they come to everybody. They are very candid and direct and these personal traits play a key role for persuasion process. According to Eric, the three most important aspects for managing up and down are communication, openness, and setting a positive tone that focuses on the end result.

Persuasion Strategies:

• Self Persuasion: “If you were in my position, how would you handle my problem?”
• You should let team members identify the solutions on their own. You also remind them why they live in the same organization. This especially helps you deal with some conflicts with your members.
• Logical reasoning: 
• You use facts, figures, and belief that your idea is correct. You also consider the goals, needs, and interests of your subordinates/superiors you’re trying to persuade. The more they see an idea can help them, the more likely they are to help you.
• Persuasion Tactics: 
• Collaboration: You need to work with your subordinates, not at them, in order to get them to enthusiastically support your requests. You collaborate with team members, rather than using authority. You don’t need to overuse that power. The relationship based on the trust is a key for the collaboration.
• Communication/Honesty: You should facilitate communication and be very honest to your people.
• Improving Persuasive Skills: Appeal to the subject’s self-interest: You make it sure that what you need align with their best interests.
• Present strong evidence to support your views/positions: You do intensive research and show the team members an idea that will likely work.
• Establish credibility: You’re more likely to persuade your subordinates when trust and respect you. You promise to take the blame if it does not go well. This leads you to build up the trust and respect you’re your subordinates.
• Make your objectives clear: You should get your team understand what you are doing and why are why you are doing that.

Other key factors:
Decision making is a collective effort: As a leader, you have to be honest to your team members. If you found you made a wrong decision, you would change the decision. There is nothing wrong with admitting a mistake.

Employee Communication is a 2-Way Street

The most frequent criticism of management, in every 360 survey we’ve done (and seen on a national basis) is

“I don’t get enough feedback from my boss.”

- or -

"My boss(es) is/are not good at communicating.”

I believe that communication is the crucial component in managing people.

And I agree that most managers and leaders don’t do a good job at communication.

One of the best bosses I ever had was the Training Manager at a large company. He trained me when I started years before. I eventually became a trainer. Chris spent time watching me train and really left me alone. But I had no idea what he though of my performance.

I finally asked him what he thought, and he said, “You’re the best trainer I have, and one of the best I’ve ever seen.”

That was flattering, but I asked him for his suggestions for improvement, and he gave me a few which really helped me.

Chris told me his attitude was “If you’re doing well, I don’t need to talk to you.”

His mistake, which he corrected after this conversation, was that I didn’t know what he thought of my performance.

Implicit in the failure of managers to properly communicate is the failure of employees to “manage up”. Managers cannot simply divine, through ESP, what an employee wants and needs; it’s equally incumbent upon employees to ask and tell their manager what they’re looking for as well.

A good manager will always welcome the chance to find out what their employees need.

So – if you’re an employee who’s unhappy with the lack of feedback, or feels that communication is poor – make sure to ask your boss! You’ll be surprised that your boss didn’t know that was an issue, and the best bosses will take your information and be able to transform your employment experience.

Overtime Gets A Little More Complicated in California

An employee makes a false claim for overtime. He says it's a mistake, but you believe otherwise, so you fire him.

That's OK, right?

Uh..not so fast. A new court decision, Barbosa v. Impco Technologies, makes that a wrongful termination.

Here's the recap and implications from Christopher W. Olmsted of Barker Olmsted & Barnier.

Job Bias Charges Approach Record High In Fiscal Year 2009

The U.S. Equal Employment Opportunity Commission (EEOC) has announced that 93,277 workplace discrimination charges were filed with the federal agency nationwide during Fiscal Year (FY) 2009, the second highest level ever, and monetary relief obtained for victims totaled over $376 million. The comprehensive enforcement and litigation statistics for FY 2009, which ended Sept. 30, 2009, are posted on the agency’s web site at http://www.eeoc.gov/eeoc/statistics/enforcement/index.cfm.

 

Discrimination based on disability, religion and/or national origin hit record highs. The number of charges alleging age-based discrimination reached the second-highest level ever. Continuing a decade-long trend, the most frequently filed charges with the EEOC in FY 2009 were charges alleging discrimination based on race (36%), retaliation (36%), and sex-based discrimination (30%). Multiple types of discrimination may be alleged in a single charge filing.

 

The near-historic level of total discrimination charge filings may be due to multiple factors, including greater accessibility of the EEOC to the public, economic conditions, increased diversity and demographic shifts in the labor force, employees’ greater awareness of their rights under the law, and changes to the agency’s intake practices that cut down on the steps needed for an individual to file a charge.

Social Media and the Workplace

I will be writing extensively in the upcoming weeks about Social Media and the Workplace.  Actually, not so much about social media (there are experts in that area all over the place), but the impact it has on employers and businesses.

So let's start off with an excellent article written by Maria Greco Danaher of Ogletree Deakins on the potential liability employers have when an employee uses social media.  Here's an important excerpt:

"...an employee who uses electronic media, including e-mail, blogs, or social networking sites, to make comments about a product made by his or her employer, and who fails to disclose his or her relationship with that manufacturer may create legal liability under the FTC guidelines.  Further, should a consumers rely on a particular comment in that posting to his or her detriment, any ensuing damage could be attributed to the manufacturer/company."

It's pretty apparent that social media has a place in the workplace.  Most experts (including me) agree that it's not practical to ban social media in the workplace.  So what do you do?

More to come...

California Alternative Workweek Schedules

One of the best ways of improving morale without costs is to consider Alternative Workweek schedules.  Up until January 1, it has been most difficult to implement.  However, California law regarding alternative workweek schedules have been eased somewhat as a result of AB 5.

Alternative workweek schedules allow non-exempt employees in a “work unit” to work in excess of 8 hours per day without incurring overtime. (California law includes a daily overtime requirement.) Generally, an employer may propose AWS work schedules of up to ten hours per day (12 for healthcare workers). Hours in excess of 10 per day, or 40 per week are overtime. Typically employers propose schedules consisting of four ten hour days or a “9/80” schedule. Special procedures describe advance disclosure and a secret ballot election prior to implementation of the AWS.

The AWS can apply to a “work unit” within a company, rather than to all employees. Previously, the Labor Code did not define “work unit,” although state regulations included a definition. The new law defines a work unit as “a division, a department, a job classification, a shift, a separate physical location, or a recognized subdivision thereof.” The amendment also clarifies that even a single employee may qualify as a work unit as long as his job function meets the definition.

In setting up an AWS, an employer may propose a single work schedule, or it may propose a menu of work schedule options for workers to select. Can the “menu” include a traditional 5 day week for those employees who do not want to work longer days? The amended law clarifies that the menu options may indeed include a regular schedule of five eight-hour days in a workweek. Consequently, employees who do not wish to work an AWS schedule may still vote in favor of the AWS by choosing to work the regular 8 hour day. This change greatly increases the odds of achieving the 2/3 employee supporting vote need to implement an AWS.

Additionally, the new law specifies how often employees may move from one schedule option to another on the menu. For example, if an employee opts to work four 10 hour days, how frequently can he opt to go back to regular 8 hour days? As amended, Labor Code § 511 allows employees to move from one schedule option to another on a weekly basis.