Managing People in the 21st Century

The Importance of Your First Job

2011-07-29T16:35:00.000-07:00

The first job a person gets is, in many ways, the most important job you'll ever have. If - that is - you look upon it as what is should properly be - a learning experience.

Never, ever look down on any work you do thinking it is beneath you or will have no value you to you in life. Every task and opportunity can be a learning experience if you make sure to look at it that way.

Take a look at me, for example. During my last year in college (and for a couple of years after), I worked at a restaurant. I started out busing tables, then waiting on tables and bartending and eventually participating in buying wine for the restaurant. This was a moderately upscale seafood restaurant. Twenty five years later, I can tell you it was the greatest learning experience I’ve ever had, with better “real life” training for my career than any college course or seminar I took.

One day, I’ll write an article that will be called, “Everything I Know About Sales I Learned From Waiting Tables.” Think that’s not true? I learned about multi-tasking, and customer service, and that different people need to be treated different, with varying levels of urgency. I learned how to upsell, and look for signs that a patron was looking for something better than the house white wine. That meant learning about my products and understanding what they mean to people. The restaurant offered an incentive for additional wine sales, and that was my first experience with commissions.

Working with different types of people in different positions, and treating them the way they prefer to be treated. Not just clients, but the restaurant management and ownership; chefs and busboys and cocktail waitresses and hostesses. One of the first great leaders I saw was the owner of the restaurant, who saw something in me and encouraged my development.

It’s only a crappy job if you view it as a crappy job. Everything is an opportunity to learn. And in life, learning ultimately is everything.

Forbes List Fail

2011-01-13T15:34:00.000-08:00

Recently, Forbes unveiled its newest list – "America's Best Small Companies 2010",which led me to wonder: What criteria did the magazine use to determine the “best small companies”?

Instead of taking a thoughtful, comprehensive approach to this process, Forbes chickened out, took the lazy way out, and insulted all small business owners and those of us who work with them. And, in the process, Forbes embarassed themselves. Their list should have been called “America’s Best Publicly Traded Small Companies Based on the Best Earnings Growth and ROE in 2010,” because that’s what the list really is. What it decidedly is not is a list of Americas Best Small Companies.

Someday, Forbes will realize there’s more to a successful – or “best” – company than a stock price. But that’s probably too much to hope for.

First, Forbes excluded millions of small businesses by requiring that candidates: “…for our list had to be publicly traded for at least a year, pull in annual revenue between $5 million and $1 billion, and boast a stock price no lower than $5 a share.” That eliminates a lot of companies – there are about 27.5 million businesses in the United States, but only about 6,500 are publicly traded. There are also thousands of successful small businesses that earn less than $5 million in revenue, but are profitable nonetheless. (In any event, the $5 million threshold was an illusion; the company on the list with the lowest revenue was Nevada Energy, with $29 million in sales).

But, we’ll cut Forbes a break here. They probably didn’t want to research millions of companies, and it’s a lot easier to measure publicly traded companies, since their financial reports are naturally made available to the public.

But that’s where the breaks stop. For Forbes imperically decided the only attributes that comprise a “Best Small Business” are:

earnings growth;
sales growth;
return on equity in the past 12 months and over five years; and
stock performance compared with that of its peers.

Say what?

Long-term, sustainable success in business – especially small business – is based not only on financial terms, but the quality of a company when it comes to such crucial areas such as:

employee satisfaction and productivity;
customer satisfaction and loyalty;
how well a company benefits its community and strategic partners as well as its vendors.

Satisfied employees are always more productive; becoming an employer of choice takes a combination of corporate values, compensation, challenging work, a good environment and the opportunity for personal and professional growth. Businesses measure this all the time through Employee Satisfaction Surveys, or 3600 Surveys.

Customer satisfaction and loyalty – also easy to measure and benchmark - were not included as criteria by Forbes. Why? Because this list was clearly intended not to be the “Best Small Companies in America” – but actually a tip sheet for short-term investors and traders.

I’m not suggesting that financial measurments be eliminated when determining a best small company – it should just not be the only measurement.

Values play a significant role in successful business. How an owner’s values permeate throughout the workforce is essential to long-term success. Having and implementing long-term values such as quality of product and service; commitment to clients and customers; appreciation and understanding of the workforce creates a culture where the “best” truly comes out.

It’s ironic, then, that Forbes on one hand says, “we dropped companies that are thinly traded and those with fuzzy accounting or major legal troubles,” and on the other hand names Medifast as the #1 Best Small Business in America. Medifast, as you might know, is in the middle of a major lawsuit in which Fraud Discovery Institute accused the company of “ ... pyramid-style selling - is unsustainable and will lead to a revenue trajectory similar to other multi-level marketing companies: dizzying initial expansion followed by lackluster revenue or worse.....”

Whether these accusations are true or not – they are illuminative. If Medifast is indeed one of “America’s Best Small Companies,” won’t they still be there in 2011 when the lawsuit is behind them? Why rush?

If you’re a day trader looking to make a quick buck – the Forbes list might be just right for you. If you’re looking companies to emulate or model as a Best Business – Forbes is out of answers, and this list is one epic fail.

Follow Eric Swenson on Twitter: www.twitter.com/managingpeople.

Employees First

2011-01-04T17:39:00.000-08:00

Dave Berkus is an accomplished speaker, author and angel investor. He provides common sense advice to all businesses through his blog, Berkonomics.

His recent post deals with the frustrations of business owners who perceive that government regulations always favor employees. His advice? Recognize the realities of the times.

He's right!

Workplace Litigation Trends Report

2010-11-29T14:48:00.000-08:00

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

2010-08-21T12:27:00.000-07:00

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

2010-07-22T10:34:00.000-07:00

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

2010-07-20T16:17:00.000-07:00

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:

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.
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.
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.
What you allow, you encourage.
There's never just one bad employee; there's the employee and the manager who keeps him.
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.
According to the law of big numbers, if you have lots of employees, you probably have a few crooks and psychopaths working for you.
Few people think as highly of your ethics as you do.
No matter how many good things you do, you will be judged by your last worst act.
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

2010-06-12T08:45:00.000-07:00

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

2010-05-11T08:45:00.000-07:00

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

2010-03-26T10:59:00.000-07:00

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

2010-03-04T11:49:00.000-08:00

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

2010-02-24T12:37:00.000-08:00

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

2010-01-31T12:23:00.000-08:00

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

2010-01-26T09:26:00.000-08:00

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

2010-01-10T08:34:00.000-08:00

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.

Independent Contractor or Employee? Better Be Sure, And Fast!

2009-11-23T10:21:00.000-08:00

Many employers incorrectly classify an employee as an independent contractor. Some employers do it intentionally (to avoid workers' compensation and payroll taxes); but most are unaware of what the difference in classification actually is.

If you use Independent Contractors (also known as 1099's), you better audit all of them at once. The IRS is about to launch comprehensive audits of 6,000 businesses. The focus is - you guessed it - properly classifying employees.

Please take a moment to review the criteria the IRS uses to determine whether a person should be classified as an employee or Independent Contractor. It's about control. I've had clients insist a person is classified as a 1099 simply because that person requested classification that way! (That's wrong as well, by the way).

Get a qualified consultant or employment attorney to audit your practices and procedures as soon as possible.

Courtesy Baker Hostetler

Small Business Planning for H1N1

2009-11-15T11:50:00.000-08:00

The Small Business Administration recently published “Planning for 2009 H1N1 Influenza Season Preparedness Guide for Small Business.”

Here are seven H1N1 preparedness steps that the government recommends you review and apply as appropriate to your place of business:

Identify a Workplace Coordinator -This person would be the single point of contact for all issues relating to H1N1 and be responsible for reaching out to community health providers and implementing protocols for dealing with ill employees - in advance of any outbreak or impact on the business.
Examine Policies for Leave, Telework and Employee Compensation - Obviously this will vary by business, but the emphasis here is on refreshing yourself and your employees about what your company's health care plans cover in the event of sick leave as a result of H1N1. You should also re-evaluate leave policies to ensure a flexible non-punitive plan that allows for impacted individuals to stay at home. Employees may also need to stay at home to care for sick children or telework in the event of school closures - so be prepared for this by implementing appropriate teleworking infrastructures in advance.
Determine who will be Responsible for Assisting - Appoint an individual or individuals who will be on-hand to assist ill personnel at your workplace - essentially a "go-to" person, who may be the same as the person chosen as your workplace coordinator.
Identify Essential Employees, Essential Business Functions, and Other Critical Inputs - Make plans to maintain communication and ensure clear work direction with critical personnel and vendors (and even customers) in the event that the supply chain is broken or other unpredictable disruptions occur.
Share your Pandemic Plans with Employees and Clearly Communicate Expectations - Consider posting a bi-lingual version of your preparedness plan, leave information, health tips, and other H1N1 awareness resources across all your work locations and online if you operate an Intranet.
Prepare Business Continuity Plans - Absenteeism or other work place changes need to be addressed early on so you can maintain business operations. Get tips on common sense measures your business can take from Business.gov here.
Establish an Emergency Communication Plan - Hopefully your business already has some form of emergency communication plan. If not, document your key business contacts (with back-ups), the chain of communications (including suppliers and customers), and processes for tracking and communicating business and employee status.

Managing Social Media in the Workplace

2009-11-13T09:04:00.000-08:00

The impact of social media in the workplace is growing. Time is being wasted, employees are 'friending' each other and liability for these issues is a litigation attorney's dream come true.

RSJ/Swenson has prepared a special report on Managing Social Media in the Workplace, based on Eric Swenson's recent presentation at the CalCPA Employment Practices Conference. You can download the report here.

And bosses & managers: Don't "friend" your employees!

Retaliation Claims on the Rise

2009-11-02T10:48:00.000-08:00

It's always been easier for lawyers to prove retaliation in the workplace than harassment, discrimination, or even wrongful termination.

With so many people now out of work, it's natural that retaliation claims against employers is now on the rise - 23% this year over last.

The classic example of retaliation comes from an employee who did the right thing - a whistleblower notification, a complaint against a supervisor or fellow employee - and that was terminated, transferred or had other repercussions from their employer.

A good article on this trend is from the Wall Street Journal.

Credit Reports for Hiring? Still A Bad Idea!

2009-11-02T04:30:00.000-08:00

Using a credit report is becoming more popular for businesses hiring employees. We've always felt this was an unnecessary risk to employers because:

What is the business justification? If a job requires an employee to handle large amounts of cash, or have access to the same, that's good justification.
If someone has a bad credit report - especially in these economic times - does that make them a poor candidate for a job? Not necessarily.
There is a risk that women and minorities may be disproportionately affected, and that could cause big problems.

So unless you have a good reason to do it, don't!

Managing Swine Flu in the Workplace

2009-10-29T12:30:00.000-07:00

RSJ/Swenson has prepared a special report on managing swine flu in the workplace.

Click here to receive your free copy.

Employee Morale: The leading predictor of future growth and profitability

2009-10-23T14:52:00.000-07:00

...or so says Roxanne Emmerich, author of "Thank God It's Monday: How to Create a Workplace You and Your Customers Love."I have no reason to disagree with her.

In this economy, there are fewer employees doing more work. And for those employees who are unhappy - and there are legions - there are no other jobs to get.

While the economy begins to recover but job creation a long long way away, it's time to find out what to do in order to improve morale in your workplace.

Give 'em training, self-improvement courses, or survey your employees to find out what they want.

When this economy recovers, the last thing you'll need is to have all your employees looking for another job.

10 Telltale Signs of Workers' Compensation Fraud

2009-09-29T04:30:00.000-07:00

Workers' Compensation rates are once again spiraling. Here are 10 possible signs of potential workers' compensation fraud:

Monday-morning accidents.
Unwitnessed accidents.
Injuries following discipline, demotion, or transfer.
Claims from employees with private disability insurance.
Claims from employees with histories of on-the-job injuries.
Claims from employees with high-risk hobbies (such as skiing or snowmobiling).
Delays in reporting accidents.
Several versions of an accident.
Claims from employees with financial or domestic problems.
Claims for injuries not received on the job.
Discrepancies between reported injuries and medical evaluations.

USCIS Conducting H-1B Site Inspections

2009-09-26T09:02:00.000-07:00

The United States Customs and Immigration Service (USCIS) is now conducting more than 20,000 random on-site inspections in 28 cities of businesses that employ H-1B nonimmigrant workers.

The purpose of the inspections is to verify that the H-1B employees are being paid prevailing wages and that they are employed in their positions of record.

Many of the visits - which are unannounced - are being conducted by contract USCIS employees, but at the very least affected employers must ensure that they have maintained proper documentary files for their H-1B employees, in addition to paying them prevailing wages and keeping them in the positions for which they originally petitioned the USCIS.

Why You Should Never Include A "Discipline Policy" In Your Employee Handbook

2009-09-15T10:50:00.000-07:00

If your business is in an "at-will" state (and you are, unless you're in Montana), you should never ever include disciplinary steps in an employee handbook.

Latest case in point: Buttrick v. Intercity Alarms, LLC. This company, located in Massachusetts, had a section in their employee handbook called "Disciplinary Policy"which indicated the severity of any disciplinary action taken by the company would “in accordance with the following: Verbal Counseling . . . Written Counseling . . . Suspension.”.

Guess what? An employee was terminated after one verbal counseling, but not written counseling or suspension. That is a business owner's right - unless it's in writing in the employee handbook!

So, the employee sued, and won $41,888 from Intercity Alarms. (To say nothing of the legal fees incurred by Intercity).

Don't put a discipline policy in your handbook. Train your management team in appropriate steps and anytime an employee needs to be disciplined, run it by your HR department or your HR Consultant.

A great write-up on the case is here from Ogletree Deakins.

Leading People In A Down Economy

2009-09-10T07:59:00.000-07:00

Yes, the economy is slow to recover and things are tough all over.

But now the workforce cuts have largely been made and the question for business owners is – how do I do more with less?

The following are two major trends I’ve noted in working with small businesses (generally less than 200 employees) in the western United States:

EMPLOYEES HAVE TRANSFORMED THEIR MENTALITY…
A few years ago, the typical employee had an ‘entitlement’ mentality – they felt their employer was lucky to have him or her. Unhappy employees could (and did) pick up and leave for a better opportunity at the first sign of disappointment. The typical attitude was not that of a team player – but as an individual who is owed a promotion, salary increases and more attention. This was nowhere more apparent than the “Generation Y” workforce.

Now, things have changed completely on its axis. Everyone has worked with people and are friends with people who have lost their jobs with little hope for a similar compensation program in a future job. As a result, employees now feel privileged to have their job. Everyone knows that layoffs have been pervasive, and they could be the next to go. This will result – if managed properly – in employees who will complain less, work harder, and become more appreciative of the job they have.

BUT THEY ARE REALLY, REALLY UNHAPPY…

Employees are simply grateful to have a job right now, but that doesn’t mean they’re happy in their job. A survey from Adecco North America, released just this week, shows:

Two-thirds (66 percent) of American workers are not currently satisfied with their compensation.
76 percent are not satisfied about future career growth opportunities at their company.
Almost half (48 percent) of workers are not satisfied with the relationship they have with their boss and 59 percent saying they are not satisfied with the level of support they receive from their colleagues.

Workers are also critical of their organization’s brain trust, with 77 percent saying that they are not satisfied with the strategy and vision of their company and its leadership.

We’ve noticed the number of complaints from workers are way down. People are still being harassed and discriminated against, but they’re afraid to complain because of fear of job loss.

By the way, most large companies have laid off more employees than small companies; that’s because it’s easier to lay off workers at bigger businesses because employees at smaller companies typically perform multiple tasks.

That means when the economy starts kicking into gear, and there are more job opportunities, those employees are going to either leave or file major complaints.

WHAT TO DO?

Lead. The number one thing that business owners and managers can do is actually lead. You're a leader. You are on stage. You're not allowed to show frustration or weakness. Leaders lead - they say "here is the way I believe we need to go," and then go. This is the attitude you must take when managing change. Virtually any change breeds opportunity - the key is finding the opportunity and act on it.

Communicate. It is imperative that frequent and clear communication lead the way to your success. There is fear in the marketplace. Employees are wondering if you’re going to cut staff, perquisites, and their free coffee. Employees are heavily invested in the success of the business, and they have a right to know what you’re doing. Even saying, “I don’t know” is preferable to not communicating. And it’s more than a memo or company-wide e-mail; managers and supervisors must be empowered to candidly talk with their staffs as well.

Performance Management. If you're maximizing the people you have, you won't need so many people! You can get more done with fewer people by knowing what your people do best. Evaluate your talent. Carefully consider your need for every one of your employees. Most businesses are not maximizing each and every employee they have. There are techniques available to ensure talent maximization – so find and replicate your best performers.

In 2009, the business owner and leader who has the ability to honestly evaluate talent, performance and make the decisions necessary to sustain the business not just in the short term, but for the long term, is the leader who will be highly successful both this year and beyond.

Training New Managers

2009-08-31T07:04:00.000-07:00

Most managers get that role because they're the hardest worker; the best salesperson; or the smartest person in the office.

But those traits don't translate into being an effective manager. That's where screening, development, and - most importantly - training - comes into play.

A new article in HR Executive Online discusses how and why to get managers properly trained as well as establishing metrics for success.

And yes, I'm quoted in the article.

Thanks to Scott Westcott and HR Exec Online

Nevada Wage & Hour Lawsuits

2009-08-20T08:55:00.000-07:00

We've been warning employers for several months that wage & hour compliance issues will result in numerous lawsuits this year - especially in Nevada.

It's starting to happen.

Wells Fargo & AutoZone have been sued (class-action status is currently pending) for mis-classifying employees.

With Wells Fargo, business banking specialists were allegedly mis-classified as exempt (from overtime, meal and rest breaks) when they were required to be 'on-call' on certain evenings.

In AutoZone's case, Assistant Managers were not compensated for working overtime (this is a case very reminiscent of the Long's Drugstore case in 2004).

The federal government is taking Wage & Hour violations seriously: Labor Secretary Hilda Solis recently announced plans to add 250 field investigators, increasing staff by 33%. The DOL believes 7 out of 10 businesses are not in compliance with Wage & Hour laws.

Garry Mathiason of Littler recently wrote:

No employment-law trend is more certain, universal or important than the total wage-and-hour compliance initiative and stopping the epidemic of wage-and-hour class-action (lawsuits)...

More ominous and prescient are these words from Mathiason (and, I believe, completely true):

With thousands of plaintiffs' attorneys examining every aspect of the payroll process, employers must expect maximum scrutiny..."Every employee who is terminated or demoted, or who experiences an unpleasant workplace event, is encouraged by Internet and television advertising to seek the advice of counsel. In almost every intake interview, the attorney's questioning turns to wage-and-hour issues in an attempt to find additional claims. Inspired by the prospect of turning a small individual claim into a multimillion-dollar class-action, the organization's wage-and-hour compliance goes under the microscope."

Thanks to Las Vegas Sun.

Businesses Taking Action Against E-mails, Linkedin, Facebook

2009-08-10T15:49:00.000-07:00

In its 6th annual survey, the security firm Proofpoint reveals some new information regarding social media and e-mails by employees - and it's almost always resulting in bad news for the employees:

43 percent of US companies surveyed have investigated an email-based leak of confidential or proprietary information in the past 12 months. Nearly a third of them, 31 percent, terminated an employee for violating email policies in the same period (up from 26percent in 2008).
US companies are also experiencing more exposure incidents involving sites like Facebook and LinkedIn as compared to 2008 (17 percent versus 12 percent). US companies are taking a much more forceful approach with offending employees -- eight percent reported terminating an employee for such a violation as compared to only four percent in 2008.
Even short message services like SMS texts and Twitter pose a risk. 13 percent of US companies investigated an exposure event involving mobile or Web-based short message services in the past 12 months.

Read the entire survey here.

Krispy Kreme Fined for hiring illegal workers

2009-07-28T04:15:00.000-07:00

If Krispy Kreme didn't have enough problems already - here comes news they've been fined by the EEOC for hiring illegal (undocumented) workers in their Cincinnati factory. The fine amounts to $40,000.

What is remarkable about this fine is how easily it could have been prevented. The paperwork is easy - you just download an I-9 form off the internet. If there is any doubt about the documentation a candidate provides, just login to e-verify that's provided by the Department of Homeland Security. That would have been much cheaper than $40,000 and the embarassment caused by the resulting publicity.

And in case you think it might not happen to you - ICE has announced audits of 652 other businesses in the coming months (and we're sure there are more to follow!). The Obama administration has changed the focus from illegal employees to the employers that employ them.

References, Linkedin, and Common Sense

2009-07-25T11:08:00.000-07:00

Just after posting my opinion on job references comes more comments. In a recent Wall Street Journal article, a job applicant was frustrated because potential employers wanted a minimum of three job references, but her prior employers had a policy of not providing such references.

Elizabeth Garone provided good advice, suggesting that supervisors no longer with the same company might be willing to be references (and because they're no longer with the company, may be more willing to talk to a prospective employer).

Again, if I'm leaning towards hiring a candidate, I'm not going to spend time calling references - more often than not, the reference can't give me any good information and the candidate is only going to list references that show that person in the best possible light! It's not worth my time! I can do criminal investigations, skills testing and personality/instinct testing that will more properly predict success than a reference check.

Now, many attornies are warning employers about the hidden dangers of LinkedIn. Specifically, attorneys are advising employers to be wary of giving glowing remarks about employees on the site because the employers risk having the recommendations used against them in a discrimination or harassment suit.

Do References Matter?

2009-07-18T12:20:00.000-07:00

You're about to make a job offer to a candidate. Should you call his or her references?

Some people say yes, others say no. I'm in the latter category.

First, unless the candidate is a complete moron, they're not going to give you names of people who provide a negative reference. And most previous employers are understandably nervous about providing any information on a former employee.

Some of our clients like to verify the candidates dates of employment or compensation. Fine - ask the candidate for a copy of their most recent W-2 form or paycheck stub. Other than that, calling references is a lot of time for a very little reward.

Following standard procedures, you can require a background check, drug testing or even skills testing to verify information and make sure the candidate is you he/she says they are.

Here's an article in the South Jersey Courier Post that talks about the reference controversy. However, I seriously disagree with parts of the article that suggest visiting a candidates social networking sites as a pre-hire investigation. As I wrote back in May, using google and social networking sites to evaluate potential candidates is a really bad idea.

What does calling references accomplish?

American Apparel and a Big Immigration Problem

2009-07-01T16:14:00.000-07:00

American Apparel has been accused by ICE of employing 1,800 people in Los Angeles who are not authorized to work in the United States.

It begs the question - is your I-9 house in order?

One of the biggest mistakes we see when conducting HR Audits is when businesses screw up their I-9 process.

We've seen I-9's unsigned, misfiled, lost - and - in many cases - business owners who never used I-9's in the first place!

Get an audit completed today - you may be next...

Why Health Care Reform Is Necessary

2009-06-30T04:30:00.000-07:00

It's a deliberately provocative title. And this is not an article about which reform is best for our country.

But...

The Department of Labor just came out with their statistics regarding benefits paid by employers.

The cost of medical benefits to private employers has doubled in the past 10 years.

In March 1999, employers paid an average of $1.03 per employee per hour for medical benefits (about 5.4% of total compensation)

In March 2009, employers paid an average of $2.00 per employee per hour for medical (about 7.3% of total comp).

And based on my work with small and medium-sized businesses, the quality of those benefits has declined dramatically in the past 10 years (along with huge increases in deductibles, co-pays, etc.).

Twice the cost with half the benefits. All underwritten by private businesses.

Something must be done.

Nevada Expands Parental Leave Requirements

2009-06-27T04:30:00.000-07:00

Effective August 15, Nevada has expanded its parental leave entitlements for employees who wish to attend or participate in school activities of their children.

AB 243 allows parents, guardians and custodians of children in private or public schools up to 4 hours of unpaid leave per school year for each child.

The law requires employers who have 50 or more employees to grant that unpaid leave.

More detailed information from Rick Roskelley of Littler Mendelson.

Management & Leadership Trends 2nd Half 2009

2009-06-25T04:15:00.000-07:00

Last week, I gave a presentation in Las Vegas on what I perceive to be the significant trends for managers and leaders during the last half of this year - check it out!

Management Leadership Trends 2nd Half 2009

View more OpenOffice presentations from Eric Swenson.

Can You Prevent Employees From Leaving?

2009-06-23T04:30:00.000-07:00

We live in a free society, and all businesses (except Montana and limited other exceptions) must abide by the 'at-will' employment concept - employees can leave at any time for any reason.

Many employers ask us what they can do from preventing valued or critical employees from leaving (and taking their clients or proprietary information with them). The answer is - not much, unless you have a really good employment attorney.

Let's review the basic components (adapted from a terrific article by Joseph Shelton of Fisher & Phillips LLP)

Non-Compete Agreements

A non-compete provision prohibits a departing employee from competing with the former employer after termination. Most states highly restrict their use.

Non-solicitation

Non-solicitation provisions allow an employee to work for a competitive business, but prohibit the solicitation of specific customers. The employee is free to compete and is free to work in whatever territory he or she desires, so long as the employee does not solicit business from a specific group of customers.

Non-recruitment

A non-recruitment (or no-raid) clause is designed to protect your employees from being hired away by former employees. Non-recruitment covenants restrict departing employees from trying to take others with them.

Non-disclosure

A confidentiality (or non-disclosure) provision usually limits the employee's ability to disclose information learned about customers, suppliers, or the employer's operations. While non-disclosure agreements often include the term "trade secrets," most states have a trade-secrets statute that prohibits misappropriation of such information even without a contract.

Return of property

A return of property agreement typically states that the employee must return all company property and all documents related to the company upon termination of employment. While all employers expect their employees to return company property upon termination of employment, there is oftentimes a dispute as to what is company property and what is the employee's property.

For example, many employees may claim that their rolodex or list of business prospects is their "property," despite the fact that such information was assembled on company time and with company resources. A return of property agreement may help an employer avoid such disputes by defining via contract what the company considers to be its property rather than the employee's.

Bottom Line: These agreements are highly legal in nature and should only be implemented with the input and agreement from a qualified employment attorney.

California Labor Complaints - 2008

2009-06-21T08:27:00.000-07:00

The California Department of Fair Employment & Housing released its statistics for 2008 last month, and there are some ominous signs that all employers should know:

Complaints to the DFEH increased by more than 15% in 2008 (3,000 more complaints);
Disability claims were most frequently filed, followed by retaliation, sexual harassment and age discrimination;
In fact, disability claims comprised more than 36% of all claims;
Prosecutions of employers increased by 28 percent.

California also has a disproportionate ratio of total employee complaints - one out of every 5 complaints in the country is from California.

Time to get your house in order!

And a good analysis of these statistics is found from Christopher Olmstead of Barker Olmsted & Barnier.

Even More Questions To Ask Your Boss

2009-06-20T04:15:00.000-07:00

The most important component of management is the ability to communicate.

But communication goes both ways. A manager can't inherently know what an employee wants. Good managers ask - and good employees proactively manage up by asking what their boss wants.

In April 2008, we wrote about great questions to ask your boss, and it remains the most visited article in the history of this blog.

Here are some more questions, courtesy of Caroline Ceniza-Levine via CareerBuilder.com:

How will we gauge my success in three, six or 12 months?
How do you prefer to communicate and how often?
What does my career path look like at this company?
What areas do I need to develop to advance my career?
What's our top priority?
Let me see if I understand this correctly ... am I missing anything?
What are my strengths?
What can I do to help you?
I'm working on X, Y and Z -- do you think I can handle this task?

Workplace Investigations - Who's Telling The Truth?

2009-06-17T04:30:00.000-07:00

One of the most difficult things we must determine in conducting a workplace investigation is, 'who's lying and who's telling the truth?'

In interviews, I always have an associate taking notes and acting as another observer.

In one investigation last year, I was interviewing an employee who accused another of sexual harassment. Significant harassment. After the interview, I told my associate that the accuser was in my opinion, completely empathetic and totally believable. My associate looked at me and said, "Are you crazy? She's lying through her teeth!"

As it turned out, my associate was right. (It's always good to have a female associate present when conducting an interview of a female - they can always tell!)

He said/she said scenarios are very difficult. The most an investigator can do is assess both sides and write up a report without a recommendation but with a slant on what we believe.

Louis DiLorenzo of Bond, Schoeneck & King, PLLC has written an article in Business Management Daily with which I completely agree - regardless of the obstacle of he said/she said, the investigation must go on.

English Only In The Workplace? Bad Idea

2009-06-15T04:30:00.000-07:00

It's very tempting for employers to mandate their employees speak only English during working hours.

It's also - in most cases - very wrong.

The EEOC provides some examples where English-only would be justified by business necessity:

For communications with customers, co-workers, or supervisors who only speak English.
In emergencies or other situations in which workers must speak a common language to promote safety.
For cooperative work assignments in which the English-only rule is needed to promote efficiency.
To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with co-workers or customers.

If you wish to mandate an English-only workplace, we strongly suggest you review the policy with an employment attorney prior to implementation.

It's not worth it!

Wage & Hour Enforcement On The Rise

2009-06-13T11:41:00.000-07:00

We've written previously on the increase in wage & hour claims by employees. Now, the federal Department of Labor is joining the fray.

The DOL has proposed hiring 200 new investigators in their wage & hour division for the 2010 budget. This will bring investigation staffing up to the levels last seen in 2001.

Audit. Prepare. Be proactive. It's better than having to react to an investigation or claim.

More information from Ford & Harrison.

Concentration, Poker, Effectiveness and Liz Lieu

2009-06-09T15:39:00.000-07:00

Last Friday night, I spent an hour watching (sweating, in poker parlance) a professional poker player in a tournament at the World Series of Poker. It ended up being a lesson in how concentration works in different ways.

Liz Lieu has been a professional poker player for several years; she's won tournaments and had top finishes at other prestigious events. (As a side note, I love watching poker - it's one of the ultimate ways to study people).

You would expect a professional to have incredibly focused concentration; to talk little and always watch other players at the table and how the hands unfold. Not Liz. She had her I-Pod on (several people tell me that an I-Pod improves concentration; that's never been my experience). At every chance (mostly when she was out of a hand), she was on her PDA - twittering and texting. People, mostly other pros, came over to chat and she was gracious and funny with them.

And, by the way, she was winning!

What I also noticed was when she was involved with a hand (or before she even saw her down cards) - she was intense. Behind those sunglasses (the photo, courtesy of Poker News, was taken the day I was sweating her), she wasn't missing a thing. She saw the reactions of her competitors as they looked at their cards - what they were betting, etc. Her face gave away nothing, but she was seeing and processing everything.

What does this have to do with management?

Just as some people work better with a messy desk than a clean one, people have differences in they way they concentrate best. It's a temptation for a manager to insist on a clean desk, or tell an employee to take out their I-pod earpiece. But it's the wrong temptation as long as an employee is performing well.

It's the role of a manager to foster an atmosphere where employees can flourish and perform at their best level.

Although there's no way I could play in a poker tournament while doing all the things Liz does, what she does works best for her. Remember that when the temptation strikes with your employees.

Employers & Body Art

2009-05-30T12:46:00.000-07:00

We've previously discussed the growing number of employees (mostly under the age of 30) who have body art. What can you as an employer do about it?

Recently, a Texas hospital wanted to develop dress code and grooming policy for all employees. The proposed policy required all tattoos to be covered, and piercings to be limited to earlobes and a nose stud only.

The proposed changes sparked vigorous debates among employees and even press coverage. It's a sensitive subject!

Even employers that permit piercings or tattoos should set limits. A detailed dress code and grooming policy should clearly spell out what is permitted.

If you permit tattoos, for example, you should prohibit the display of sexually graphic, violent, or otherwise offensive tattoos, or require employees limit the number of visible tattoos.

Traditional dress code and appearance standards are being challenged today more than ever. Employers still retain wide latitude, but the increase in body art is mandating more careful consideration of requests.

Seek employee input before making major changes to employee appearance standards.

Employers and Social Media

2009-05-27T04:30:00.000-07:00

Most employers can't get enough 'inside' information on their employees. The temptation to spy on employee's social media sites (Twitter, Myspace, Facebook) is great.

Don't do it!

There's a case coming before a New Jersey court later this month. Employees at a local restaurant created a password-protected myspace chat room, where they could (on their own time) comment and vent on the issues of the day.

The owner apparently got an employee to spill the password, and found out the 'inside information'.

Whether this case has legal merit is another argument for another day.

But ethically and realistically, don't spy. If worktime is wasted on social media, have your IT person prevent employees from using them. But spying can only get you into trouble.

Avoiding EFCA and Leading Better

2009-05-25T09:45:00.000-07:00

The EFCA is designed to make it easier for employees to organize into a union. Although the bill has lost some momentum recently, the possibility of your business turning into a union shop is stronger now than at any time since the NRLB was enacted in 1935.

If you don't want your workforce subject to the demands of a union, what do you do?

In 2008, Kenexa Research Institute published a report of a study made of 10,000 U.S. workers. Each participant was asked to agree or disagree with a list of statements about their employers. A significant percentage of those favoring unions responded negatively. Although there were also negative responses from the employees who were not in favor of unions, the number of negative responses was substantially lower. The following are statements for which the “pro-union” employees had a significantly more negative view as compared with employees who did not favor unions:

My organization shows a commitment to ethical business decisions and conduct.
I have confidence in my company's senior leaders.
When my company's senior management says something, you can believe it is true.
Where I work, ethical issues and concerns can be discussed without negative consequences.
My manager treats me fairly.
Senior management is committed to providing high quality products and services to external customers.
My company enables people from diverse backgrounds to excel.
My manager treats me with respect and dignity.
Management shows concern for the well-being and morale of team members.
Senior management demonstrates that employees are important to the success of the company.
I feel free to try new things on my job, even though my efforts may not succeed.
My company supports employees' efforts to balance work and family/personal responsibilities.

How do you know if your employees agree or disagree with those statements? Many employers believe wrongly that their employees are satisfied, but with little evidence to back that up. Remember, employees will tell you what they think you want to hear.

Get an employee assessment/360 degree survey done right away. At a minimum, it will provide a road map to show you how to improve your business.

And at most, it may help you avoid unionization of your workers.

When At-Will Works

2009-05-21T04:30:00.000-07:00

At-will employment - the concept that employer or employee may terminate their relationship at any time, for any reason - is subject to so many exceptions that people frequently despair. Depending on the state, at-will can be exempted for such things as violations of public policy, discrimination, or a 'contracted' employee.

Montana is the only state that does not follow the at-will doctrine for general employment. However, an employee in Montana who is still within the company-determined probationary period (or, if the company does not have a probationary period, the first six months of employment) can still be termed under what is essentially an at-will relationship.

HOWEVER - there's good news. Done properly, at-will can benefit the employer. The most important thing is to mention at-will every time (or at least most times) an employee or job candidate signs a document.

Case in point - Radio Shack. A former employee alleged that Radio Shack terminated her for medical reasons. But the employee:

First, expressly agreed with the terms of her “Preliminary Online Application” that, if employed by the Company, she would be employed at-will. The document also provided that if she was hired, her at-will employment could only be modified by a separate written document signed by the employee and an executive officer of the Company.
Second, in her formal “Application for At-Will Employment,” the plaintiff again agreed to these same terms.
Third, in acknowledging receipt of her “Team Answer Book,” the plaintiff signed a form confirming her at-will employment status with the Company.
Moreover, there was also evidence of a personnel record noting the plaintiff had taken a leave of absence, which stated that “The below named person is an AT-WILL employee and no information on this form shall change the employment status.”

That's a lot of documentation to support the at-will concept. And a good reminder with what to do is here, from McGuire Woods LLP.

Ways To Improve Morale

2009-05-19T04:30:00.000-07:00

In the down economy, with layoffs all over the place, its critical for management to take steps to maintain and improve morale of their existing employees. After all, you need your existing employees to do more now that there are fewer people to do the work.

How do you increase morale when budgets are so tight?

The key is constant, frequent, and candid communication with employees. They deserve to know what's going on and what you're doing about this frightening economy.

An excellent summation (including, thankfully, the call for transparency and communication) is found in this Wall Street Journal post about a case study at a company in Boston - Greenough Communications.

Age Discrimination And Pay Reductions

2009-05-17T12:50:00.000-07:00

Age discrimination lawsuits are increasing rapidly. The trend of terminated employees contemplating and filing lawsuits are also on the increase.

If you want to terminate an employee for poor performance, then do so. But don't use a layoff as an excuse. And if you replace a terminated employee with a younger one, make sure that you're doing so for proper business reasons only.

Case in point: George Carras, who was in his early 60s, worked as the chief financial officer for a shoe importing business. When management said it was terminating him because of financial pressures, he offered to take a steep cut in pay, down to $60,000. The company rejected his offer and laid him off.

Then Carras found out that his younger replacement was making more than $60,000. When he sued for age discrimination, he told the court it was obvious that economics really hadn’t been the true reason for his termination. The trial court dismissed his case, but Carras appealed.

Now the 2nd Circuit Court of Appeals has reinstated the lawsuit and Carras will get a chance to persuade a jury that his former employer fired him because of his age and not because the company was having financial troubles. (Carras v. MGS 728 Lex, No. 07-4480, 2nd Cir., 2008)

Thanks to Labor Center Blog and Business Management Daily.

Nevada Minimum Wage(s) Increase on July 1

2009-05-13T04:30:00.000-07:00

Nevada has a fairly unique minimum wage rule. Actually, it's not one rule - it's two.

Starting July 1 - employers who offer their employees qualified health benefits will pay a minimum wage of $6.55 per hour.

Employers who don't offer qualified health benefits will pay a minimum of $7.55 per hour.

The details here from Fisher & Phillips.

Wage & Hour Issues Dominating Employment Laws

2009-05-12T04:30:00.000-07:00

One of the management trends we previously identified for 2009 is the additional assault of wage & hour claims by employees.

It is clear that - in a down economy - terminated employees employment elsewhere (at least not quickly). With time on their hands, those former employees are talking to their friends and attorneys about the 'abuse' they had working for their former employer - you.

In the meantime, attorneys LOVE wage & hour claims. They are relatively easy to prove, are frequently not understood by employers, and the opportunity for a class action is available.

So - what do you do?

First, audit your operations.

Second, read this article by John Skousen of Fisher & Phillips - some excellent practical advice for all employers.

Why Do I Root For Troubled People?

2009-05-08T10:10:00.001-07:00

People who have amazing and unique talents fascinate me. Yet so many of those people have problems and issues that their talent can go to waste.

Do we forgive or do we forget?

Two such people are in the news these days - Manny Ramirez and Artie Lange.

Their similarities might surprise you - both have insane talent; both have battled substances; and even Lange (while you might not notice it today) was an All-League Shortstop at Union High School in New Jersey. Both are making incredible amounts of money - Ramirez, about $20 million per year for the Dodgers, and Lange - at least a couple of million a year doing standup comedy and serving as Howard Stern's invariable foil and sidekick on Sirius XM Radio.

Ramirez' troubles have been extensively noted. Lange has battled cocaine (and won) and heroin (an ongoing fight). Ramirez, after infuriating the Boston Red Sox and their fans with boorish antics - was literally given to the Dodgers despite his amazing offensive prowess.

Lange, who is trying desperately to get off of heroin, has missed several days of work on the Stern show; had to cancel a major gig at the Comedy Central Bob Saget Roast (ironically, it was Saget who gave Lange his comeback opportunity when casting him in Dirty Work).

The classic manager in me says they're not worth the trouble. They should be fired or given ultimatums - clean up or your out the next time.

But the human in me recognizes how few people possess the talent that Ramirez and Lange have - Ramirez at 36 already has Hall of Fame numbers, and Lange's legion of fans are notoriously loyal to a man who's appetites have spawned websites such as savebabygorilla.com and artielangedeathwatch.com.

Both are tinkering with losing what's most important to them - their core consitutency, their fans. How long can they expect to keep loyal fans with their screw-ups.

What's worse, and perhaps what makes them more empathetic, is that I don't think either can help themselves. It's easy to write a blog and tell Manny no more banned substances, or tell Artie to shut up, quit drugs and booze cold turkey, and show up to work.

There are demons there, and until they are completely conquered, the demons may end up destroying a talent the precious few of us have.

If you're a manager - do they stay or do they go?

What Generation Y Wants From Their Boss

2009-04-27T04:00:00.000-07:00

Volumes of research has been conducted on how to manage Generation Y. I find most of the information way too general and not specific enough - after all, Generation Y, like Gen X and boomers, are still individuals and cannot all be gathered into one generic group.

A couple of people stand out in understanding Gen Y: Jessica Lee and Jennifer Kushell.

Recently, while conducting management training for a bunch of Gen Y'ers, I asked them to think of the best boss they ever worked for. Then I asked them what that person was their best boss. Here are their responses:

Gave me frequent and good feedback
Explanations before delegating to me
Pushed me to better myself
Helped in my career development/was a mentor
Provided clear direction and purpose
Showed concern for a work/life balance
Treated me as a partner and collaborator, not just an employee
Trusted me/empowered me
Focused on my strengths
Was a good teacher

If you manage Generation Y employees - is this the type of boss you are?

What Generation Y Managers Want

2009-04-25T11:13:00.000-07:00

I'm in the middle of conducting a Leadership Development Program for a company that is young. And their managers - 11 of them - are really young: the oldest is 29 and the youngest is 23. What's more - none of them have had management training before, so it's been an interesting experience for all of us.

Prior to conducting the program, I asked them what they most wanted from their training. Here are their answers:

How to give both positive and negative feedback.
How to utilize people's strengths and optimize their weaknesses.
How to get subordinates to Manage Up.
How to keep my team motivated
How to make the most efficient use of my time.
How to delegate (this is related to #5).
How to manage expectations.

A pretty good list - and, I think, not just limited to Gen Y Managers.

Thoughts?

How Leaders Find Focus

2009-04-22T04:00:00.000-07:00

Patricia Sellers, the editor-at-large of Fortune magazine, has three excellent tips for staying focused as a leader (my comments are italicized):

Know what you’re not good at. I find that most people know what their strengths are, but most people - especially Gen Yers - don't know what their weaknesses are. Honestly determine what you're not good at, and hire or delegate to those weaknesses. This will help you focus on your strength areas.
Know what not to do. Just as important as what you decide to do is what you decide not to do.
Find a focus and stick with it. A major failure of leaders and managers is that they are trying to focus on too much. Successful people are focused like lasers on one thing.

Leading During Difficult Times, Part 3

2009-04-21T04:30:00.000-07:00

In previous posts, we've discussed leading during difficult times. It's about making hard decisions and communicating them effectively.

Some new studies are now showing issues that leaders and HR departments should immediately address.

Employees across the country reportedly spend an average of nearly three hours a day worrying about their job security, according to a telephone survey of approximately 1,000 U.S. workers commissioned by the firm Lynn Taylor Consulting.

Bosses might be exacerbating employees’ fear by one simple action—staying behind closed doors; 76 percent of employees responding to this survey said that when faced with this scenario unexpectedly, it triggers thoughts of being laid off.

Now, it's about effectively managing those who stay after reductions in force. The concept that 'we must do more with less' needs to have a process in place to make sure it happens.

Workforce Training Myths

2009-04-20T04:30:00.000-07:00

A terrific list of workforce training myths from Vince Grassi, the director of global learning and knowledge management at Air Products, as quoted by John Teresko in Industry Week:

Myths of workforce training:

If you build it, they will come.
When times are tough, training is the first thing you should cut.
Just build Web-based (e-learning) courses. It's cheaper.
All training must be done in an instructor-based classroom setting in order to be valuable and important knowledge.
Once learners go through training, the manager never needs to find out how they are applying what they learned.
It is always better to look for your own local vendor. National, regional or global contractors involve too much internal bureaucracy, and they don't understand your special problems.
Sending people on a training course will solve all performance problems and development needs.
It will be obvious to a skilled trainer what each class participant needs so there is no need to discuss it in advance.
I've done presentations. Professional trainers make out that it is far more difficult than it really is.
We don't need a university -- we have a learning management system.

The most important part of workforce training - whether you conduct it in-house or use a consultant - is to understand that training is not an event, it's a process. A training course by itself cannot provide the sustainability needed to allow the trained concepts to fully integrate throughout your organization. Follow up is always needed.

To Severance Or Not?

2009-04-18T09:25:00.000-07:00

When laying off, or even terminating employees, the inevitable thought and process of offering a severance package comes up. Most businesses - especially small businesses, don't have an existing written policy on severance packages. Therefore, a severance offer is not completely thought through.

I've had two clients in the last few weeks who needed to layoff employees and they had no existing policy. Suddenly, an issue which requires a great deal of thought had to be made immediately. There was even an article in the Wall Street Journal which addressed this.

Some thoughts on offering severance:

Get a policy in writing now. This helps greatly with consistency and avoids any claim of favoritism or discrimination. Even if you don't contemplate layoffs, it's still an important item to have in place.
When you offer a severance package for laid off employees, be consistent. An example would be two weeks of pay for each completed year of service. You can't show better programs for more favorite employees.
Every employment attorney I've worked with says the same thing - never offer money without getting a 'hold harmless' agreement signed by that employee. Consult your labor attorney - it's worth the cost.
Consider paying medical insurance for several months. COBRA now requires employers to pay 65% of existing benefits; but offering to pay all of the premiums for longer is a small cost but shows you - the employer - are trying to do the right thing.
If you're terminating an 'older worker' (someone over the age of 40), make sure the agreement contains provision required by the Older Workers Benefit Protection Act.

Can A Manager Be Too Nice?

2009-04-11T11:30:00.000-07:00

Of course he/she can. And just like raising a child, a parent or manager needs to set clear parameters and goals.

So what happens when a manager is too nice? Alison Green writes in U.S. News that there are four immediate issues from an employee perspective (the italicized comments are mine):

The boss won't make hard decisions or have hard conversations. That's true. But managers are there to make the hard decisions. That's why their paid more.
You'll have a slacker working at the next desk over. There are always employees who attempt to do as little as possible. A nice manager avoids confrontation with that employee - which often results in everyone lowering their performance standards.
You'll receive fuzzy, unclear messages. Managers need to be directive and establish expectations early in the employment cycle. Most importantly, managers must follow up to ensure their expectations are met.
You won't get useful feedback. Good bosses tell employees how they can grow and develop, which necessarily entails pointing out things they could be doing differently, something too-nice managers often find awkward. Another trait all good managers must have is the ability to help their employees develop. Candid feedback is the only way to accomplish this.

Alison Green also writes a wonderful, succinct advice column for managers. I love her thoughts. You can see them here: http://askamanager.blogspot.com/

Blogging and Networking on Company Time

2009-03-31T04:30:00.000-07:00

Facebook signed up its 100 millionth member in August 2008. Just 7 months later, they're about to hit the 200 million member mark.

The time Facebook members spend on the site must be staggering. And much of that time is likely spent during working hours.

Do you know what your employees are doing when they're at work? And if its not myspace or facebook or linkedin, what about their own blog?

These issues illustrate the importance of having a handbook policy regarding blogging—either as a separate policy or as part of your electronic communications policy. The policy provide the following:

Do not blog on company time.
Do not disclose confidential information.
Do not include defamatory or racially or sexually offensive material.
Do not disparage the employer or its products, or a competitor.
Do not use the company logo.
Be truthful and respectful.

Given the increasing use of blogs and social networking sites, its time to update your handbook now.

EFCA: What Employers Can Do

2009-03-30T06:49:00.000-07:00

The Employee Free Choice Act has been introduced in Congress, with plenty of vocal proponents and opponents.

The bill has two main elements:

It would give workers the option of forming unions by getting a majority of workers to sign cards to join without having to hold a secret ballot election. (Current law leaves it up to employers to decide whether workers must hold an election or can organize via "card check.")
If employers and workers cannot reach a contract within 120 days, a government arbitrator intervenes and sets terms.

The possibility of many non-union businesses becoming unionized is real. So what can employer do? The best advice I've seen yet comes from Mark Mathison and Abigail Crouse of Gray Plant Moody in this article here. I've summarized their excellent suggestions:

Adopt an Internal Position Statement on Unions and Labor Relations
Conduct An Employee Issue and Satisfaction Audit
Ensure that Communication Lines are Open and that Managers are Responsive to Employee Issues
Review Employment Policies and Practices

Further, say Mathison & Crouse, it is important to audit for actual employment practice and policy enforcement within the organization because disparate enforcement adversely affecting unions or employees’ labor law rights can also be unfair labor practices with substantial negative impact in critical situations.

When You Lay Off The Wrong People

2009-03-23T04:30:00.000-07:00

So your business needs to cut expenses, and downsizing your workforce is a necessary component in reduction.

But who do you lay off?

It's a complicated task, and you need both an organizational development expert and likely an experienced employment attorney to guide you, because it's not as simple as it seems.

For example, an older and more expensive employee may be your first choice for termination - but there are unforeseen problems. You can't just lay off an employee for those reasons (which is why you need that OD consultant and attorney). Or, if you do, you could spend a lot more in legal fees and lawsuits than you could possibly save with the cutback.

The EEOC reports that age discrimination filings leaped 29% in the year ending September 2008. Over 25% of all EEOC claims are now age-related.

Five Most Read Articles

2009-03-21T10:51:00.000-07:00

The five most read articles on our blog since October 1, 2008:

You've Laid Off Staff. Now What?

2009-03-18T04:30:00.000-07:00

Perhaps the easiest part of reducing expenses is cutting back on staff. Because the next step - "What Do We Do Now?" is extremely difficult.

What Do We Do Now? You have fewer employees but need to have the same or better performance.

Hopefully, when reducing staff, you took the first important step which is to identify those employees who are capable of doing more and retaining them.

In identifying employees who can do more - look at attitude (desire) and aptitude (ability). Communication (as always) is key - those employees are going to be doing different things and more of them.

The employees who stay need to understand why they're there and what their role is.

Employees who stay after a layoff are even more valuable now. There is some guilt (why did I stay and my friends have to depart?), a lot of trepidation, and no small amount of concern and fear.

It's up to the employer to alleviate those concerns and allow the business to move forward.

Communicating in a Recession

2009-03-17T04:15:00.000-07:00

The most important thing an employer can do in this economic downtown/recession/potential depression is communicate with employees. It's one of the cornerstones of my trends for business leaders in 2009.

Because your employees have a vested (albeit self) interest in your success, they deserve to know what's happening and what you're doing about it.

In fact, one of the best things you can do is survey your employees and find out what they'd do to cut costs and improve performance in the short- and long-term.

Note - I said communicate 'with' employees, and not just 'to' employees.

This article in cnnmoney.com offers more advice.

You Know You're A Bad Boss When...

2009-03-16T04:15:00.000-07:00

Comedian Jeff Foxworthy created a cottage industry when he started saying, "You know you're a redneck when..."

This post talks about a similar awareness: "You Know You're A Bad Boss When..."

And awareness is the key component. Employees will always tell you what they think you want to hear. If you aren't completely aware of what's going on in your workplace, then you're failing as a manager.

The other key component in awareness is to be completely honest with yourself when assessing your strengths and weaknesses. It takes a courageous manager to ask employees what is good and bad about his or her management style. (A 180-degree survey is also helpful, and most managers are rightfully scared to death of them).

Steve Wyrostek, the Chicago Small Business Strategies Examiner (www.examiner.com), wrote a recent article that inspired my post. Among his excellent thoughts:

You just might be a poor boss if ….

You claim an open door policy and wonder why no one comes through that door.
Your employee has to ask you why her check increased instead of you telling her prior to payday that you gave her a raise.
You feel sorry for the Dabney Coleman character in the movie “9 to 5”
The turnover percentage in your area is the same as the winning percentage of the White Sox.
Your leadership role models are Machiavelli, General Patton and Atilla the Hun.
You find a copy of A Survival Guide for Working With Bad Bosses: Dealing With Bullies, Idiots, Back-stabbers, And Other Managers from Hell by Gini Graham Scotton an employee’s desk.
You have a budget of 30k to spend on employee bonuses and never use it.
You think it’s good management to come in under the paltry 3.5% budget available for salary increases.
You think that losing your temper is an indication of management strength.

Remember, being honest with yourself is the first, most important step in improving both your skills and performance - and those who work for you.

The Dangers of E-mails in the Workplace

2009-03-15T08:45:00.000-07:00

There is no such thing as an innocent e-mail in the workplace. While people believe it's electronic and potentially harmless, e-mails live in storage forever, and often are resurrected by lawyers when it comes to employee litigation.

In a recent newsletter, Fisher & Phillips attorney Tillman Coffey top lines the reasons why e-mails are so dangerous. We've also written about it here and here.

There are several reasons why both managers and employees should re-thinking sending an e-mail hitting the "Send" button:

E-mails about employees are discoverable. Comments on an employees performance (including comments whether they are too old, or sick, or ineffective) are actionable. Lawyers love to see these e-mails.
Among the most common problems in e-mail: Messages that create a sexist, racist or hostile work environment, note experts. One e-mail message that made the rounds at Chevron in 1999 was titled "25 reasons why beer is better than women," Flynn said. Four female executives used it as evidence of a hostile work environment and were awarded $2.2 million.
The tone of an e-mail is easily misconstrued (using all CAPS, for example).

Before sending an e-mail, take a breath. Ask yourself if you'd like to answer questions about it in front of a jury.

Make sure to get an e-mail policy included in your handbook.

And remember, hitting the send button memorializes your comments forever.

Tardiness on the Rise

2009-03-11T04:15:00.000-07:00

So 20% of American workers are late to work at least once a week.

In an era where jobs are becoming more and more precious (and conversely, layoffs are becoming more common) - it's disturbing to think that 1 in 5 workers think so little of their jobs that they're willing to gamble on being late once a week.

The usual culprits are excuses: traffic, dealing with children or pets, etc.

I am beginning to advise employers of the benefits of a high employment rate - that is, you can get a much more qualified worker now than ever before. And if that worker has been out of a job, they will be more loyal, work harder, and improve your productivity.

Jobs are scarce. Workers had better value their job (and show up on time), because there are many people out there who would take that job more seriously.

New I-9 Form Due April 3

2009-03-10T04:30:00.000-07:00

It's once again time for a new I-9 form to be used by all employers.

All employees hired must complete the form within 3 days of hire. The revisions are minor, but the new forms must be used as of April 3, 2009.

Employers need not have existing employees complete the new form; the old form will suffice for them.

Who or What Is Lilly Ledbetter?

2009-03-09T04:30:00.000-07:00

Lilly Ledbetter was an employee at an Alabama plant of The Goodyear Tire and Rubber Company, plant from 1979 until 1998. She filed a complaint with the Equal Employment Opportunity Commission in 1998, alleging her supervisors gave her poor performance evaluations because of her sex.

In 2007, by a 5-4 decision, the U.S. Supreme Court found in favor of Goodyear.

President Obama recently signed a law that overturned that ruling. The new law will make it possible for employees to assert claims of discrimination in compensation virtually without any time limit. Depending on how the statute is construed, it could affect other discrimination claims as well. As a result, employers not only will face increased discrimination claims, but also difficulty defending against them. (Even more ominous is the law backdates any claims to May 2007, when the Court made its ruling).

So now what?

Review your pay practices. Conduct a pay/compensation audit for your entire company to ensure your procedures meet the criteria of the Ledbetter Pay Act. This includes reviewing your past pay practices as well.
Train and educate your management team. Everyone who conducts performance reviews needs to understand the ramifications of this act.
Review your records retention policies.

Management & Leadership Trends 2009

2009-03-08T04:30:00.000-07:00

My recent article generated enough interest that I recently turned it into a presentation. Here it is in PowerPoint format.

Management & Leadership Trends 2009

View more presentations from Eric Swenson.

Facebook - Another Employer Dilemma

2009-03-02T08:21:00.000-08:00

Some recruiters and hiring managers just can't get enough information about a job candidate. And the restrictions on what you can - and cannot - ask in the interviewing process are restrictive.

So therefore, there is no reason for any employer to search Facebook, MySpace, etc. for further information on a candidate. Sure, you might find more information - but it may or may not be true. And if you find information that you're not supposed to know, then you could be liable for a wrongful employment decision - whether you used that information or not.

Just say no to Facebook when hiring an employee.

Jackie Ford at Marketwatch has a good article which articulates specific, additional reasons why employers can be liable.

When Employment Applications Go Bad

2009-02-23T04:00:00.000-08:00

Starbucks narrowly missed losing another employment-related lawsuit - this time, about their employment application.

A California State Court of Appeal overturned a decision that would have made Starbucks liable for $26 million because of an improper employment application.

In California, it's permissable to ask if a candidate has previous criminal convictions - except for minor offenses, such as possession of marijuana. The Starbucks application made no such provision.

An excellent summary of the case is written by Richard S. Rosenberg of Ballard, Rosenberg, Golper & Savitt here.

What is of bigger concern is what application form most businesses are using. One of the first things we review during our HR Compliance Audit is the employment application. Small businesses often use applications from their local office supply company.

Big mistake.

Each state has different criteria, and the employment application needs to be state-specific and legally reviewed.

Time to check your employment application!

Alternatives To Employee Layoffs

2009-02-18T04:00:00.000-08:00

When consulting on potential workplace layoffs, the first thing I try to do is get an employer to quantify how valuable an employee is. For example, when the economy eventually rebounds, what will it cost that employer not to have that employee there?

It's easy to make a rash decision to eliminate jobs, but the long-term consequences can be significant to a business.

Now, the California Employment Development Department has issued a "Guide For Worksharing Employers" - an alternative to employee layoffs. It’s an Unemployment Insurance program, which allows certain employers to reduce employee hours while the employees collect partial unemployment insurance benefits.

The program may help employers with cost-cutting as well as keep key employees. and avoid the mad hiring dash later.

An employer may be able reduce the employee workweek from five days to four - which results in a 20% reduction. The employees would be eligible to receive 20 percent of their weekly unemployment insurance benefits—and are spared the hardship of full unemployment.

There are qualifiers - but this is a good example of yet another alternative that should be considered when contemplating employee layoffs.

If You Don't Act, They Will Come

2009-02-17T04:00:00.000-08:00

There are a number of missteps an employer can make when faced with an employee accused of harassment or discrimination.

But the easiest mistake to avoid is often the first decision an employer makes - to ignore that accusation.

Employers are mandated to take "prompt corrective action". In most cases, that means conducting an independent, unbiased workplace investigation; consulting with a labor attorney; avoiding retaliation; and taking appropriate action against the accused.

These steps are appropriate and necessary for all businesses. I'm constantly amazed, however, how large corporations replete with well-staffed human resources employees get accused in this area.

Case in point: The Cheesecake Factory, which was recently sued by the EEOC for failing to respond to accusations of same-sex sexual harassment.

The case is documented by Melissa Fleischer, Esq. in the Employment Law Information Network blog.

"Linkedin.com" and the Employer's Dilemma

2009-02-16T07:06:00.000-08:00

Most employers have a policy in their Employee Handbook (as they should), limiting the use of internet to 'business use only'). Many employers also have 'firewalls' to ensure appropriate use of the internet and to mitigate the intrusions of viruses.

Myspace and Facebook are clearly social sites and - in my opinion - should not be used during worktime.

But what about linkedin.com? This is a business networking site which toes the line between social ("look up old classmates") and networking for professional opportunities.

The answer? It's really up to the manager. While professional networking can increase visibility and potential sales, a lack of productivity may result as employees spend too much time 'networking' and not enough time producing.

My recommendation is to monitor each employee's productivity individually. If productivity is falling, then consequences should result.

And remember - a lot of linkedin users are on the site to network for another job...

An article from Eric J. Sinrod via cnet.com adds some more perspective.

Creating Value For Your Employees

2009-02-12T04:15:00.000-08:00

In the last two employer assessment surveys we conducted for medium-sized businesses (both since the recession started) - both employers were ranked very low by their employees with the statement "I know what my benefits are". In addition, employees felt their benefits package was inferior.

One way small businesses can manage those issues (which go directly to morale and performance) is to communicate precisely what those benefits are worth to each employee. In fact, we're designing those communications for those clients right now.

The best communication tool I've seen in this area in a long time comes from Jessica Lee, an HR executive with APCO Worldwide, and blogger at Fistful of Talent and now her own blog.

Take a look how she designed the compensation summary - it's clear, concise, and communicates not only what is included in the employee's benefits package but the dollar value on what it costs the company.

Beautiful

Pitfalls of Reductions-In-Force

2009-02-11T04:00:00.000-08:00

We're presently working with a number of clients on reducing their workforce. There are a number of organizational development issues related to a RIF (such as who stays, who goes, what does the company look like after the reduction and how will all the tasks continue to be done).

But there are a number of compliance issues as well.

Baker Donelson has a good piece on some of those pitfalls.

A reduction-in-force is not simply "let's eliminate 'x' number of positions"; it takes careful decision making; excellent organizational development consultation; and a good employment attorney.

What's The Best Way To Communicate In The Workplace?

2009-02-10T04:00:00.000-08:00

One of the cornerstones of my management philosophy is:

Without the ability to communicate well, a manager is doomed to failure, no matter how well he or she does in every other required area.

How should you communicate?

Lindsey Pollack, writing at abcnews.com, suggests that how you communicate information is predicated on the person you're communicating to. [By the way, she's right!]

That means you must understand your boss (or your subordinate) well enough to be able to make that correct decision.

Employers: Get a new Employment Application

2009-02-09T04:00:00.000-08:00

When we conduct HR Compliance Audits for our clients, one of the first things we look at is their employment application (assuming they even have one).

Most smaller business go to Office Depot and pick up a packet of standard applications. Big mistake. Most of those applications are not state-specific and may even ask questions prohibited by state laws.

A legally reviewed employment application is critical. Solely relying on a resume does not solve the problem: you should get signatures that the candidate signs understanding that you're an at-will employer; that they approve of you getting references or background checks; and that any lies on the application could result in failure to hire or termination.

Also - studies suggest that up to 70% of all resumes contain false or misleading information.

An even clearer argument is made by Jennifer Brown Shaw and Matthew Norfleet in this post on the Shaw Valenza website.

Management and Business Trends For 2009

2009-02-08T08:39:00.000-08:00

2009 is shaping up to be a challenging year for small businesses with a world full of unknowns. The businesses that succeed will be those who can quickly adapt to change; embrace unknowns; and innovate.

Successful small business owners don’t look at this recession as a challenge – they look at it as an opportunity. Your competition is going to struggle, but that doesn’t mean you have to.

For the purposes of this article, we’re defining a small business as one who employs between 1 and 500 people. Here are our predicted employment trends for 2009, and ways you can use these trends to sustain and improve your business for the long term.

1. Employees have transformed from an ‘entitlement’ mentality into a ‘privilege’ mentality.

We’ve observed over the past several years that employees have generally viewed their employment as that of entitlement – they are owed by their employers for the work they do. With a robust, growing economy, that means they can pick up and leave for a better opportunity at the first sign of disappointment. It also means their attitude is generally not that of a team player – but as an individual who deserves promotion, salary increases and more attention. This is no longer the case. Everyone knows that layoffs have been pervasive, and they could be the next to go. This will result – if managed properly – in employees who will complain less, work harder, and become more appreciative of the job they have.

2. Adapting to change is key to success.

Change is one of the most misunderstood and feared actions in business. No one knows how to deal with it well. When things are going well, you don't want change. When things are going badly, change can't happen fast enough. To employees the fear relating to change is simply the fear of the unknown. People get into comfort levels and resist mightily when someone or something attempts to break that comfort zone.

Regardless of whether it's good or bad change, it rests upon management's shoulders to incorporate the changes with a minimum of difficultly. The first thing to do is find a way to make the change work for you and your employees. What can you do within your power to mitigate the negative aspects of the change? How can you emphasize the positive aspects of change, if any?

Next, realize that you're a leader. You are on stage. Your team will know your nuances, so you're not allowed to show frustration or weakness in front of them. Leaders lead - they say "here is the way I believe we need to go," and then go. This is the attitude you must take when managing change.

Some people never accept change. They are the ones who have to leave or they become so jaded and negative they no longer are functioning members of your team. When change happens, it happens. End of story.

Virtually any change breeds opportunity - the key is finding the opportunity and acting on it. Focus on the positive.

3. Wage & Hour lawsuits will become even more prevalent.

Your house needs to be in order before you take action. Labor lawyers are changing their practices to focus solely on wage and hour lawsuits, which are easy to prove and violations are myriad in businesses throughout the United States.

Employees everywhere are reading about the huge sums of money ‘won’ by disgruntled ex-employees filing lawsuits against their employers. The major focus will be on exempt or non-exempt status, meal and break periods and whether an ‘independent contractor’ should properly have been classified as an employee.

Think it can’t happen to you? Or is your excuse that you’ve never had it happen to you before?

All it takes is one employee to talk to an attorney. Ask Wal-Mart, Starbucks, Electronic Arts, and the thousands of small businesses that have paid hundreds of millions of dollars in the past year. If you’re going to terminate or reduce an employee, they’re going to look for a way to get money – especially in a dismal job marketplace.

4. The opportunity is now to do more with less.

If you're maximizing the people you have, you won't need so many people. You can get more done with fewer people. How? By knowing what your people do best. Evaluate your talent. Carefully consider your need for every one of your employees. Most businesses are not maximizing each and every employee they have. There are techniques available to ensure talent maximization. Find your best performers. Decide you can best support you and your efforts both over the next year and the next few years.

5. Businesses that communicate effectively are those who will succeed.

There is fear in the marketplace. Employees are wondering if you’re going to cut staff, perquisites, and their free coffee. They’re wondering what you are doing to sustain your business this year. It is imperative that frequent and clear communication lead the way to your success. Your employees are heavily invested in the success of their business, and they have a right to know what you’re doing. Even saying, “I don’t know” is preferable to not communicating. And you need to do more than put out a memo or company-wide e-mail. Your managers and supervisors must be empowered to candidly talk with their staffs as well. The last thing you need is to lose a great employee simply because they didn’t know what was happening in your business.

Before you consider cuts, survey your employees: What benefits would you cut if we needed to? You will be surprised that the suggestions you get. The things you think employees hold dear are not necessarily the ones they believe are important.

6. Adversity breeds innovation.

Too many businesses over the past several years have become complacent. And that complacency (“we’ve always done it this way”) has failed both businesses and employees. When times become difficult is the exact moment to innovate. I never saw a successful manager who didn't take a calculated risk now and again, or who was not considered an innovator. On the other hand, I've seen many average managers miss becoming great because they were afraid to make a mistake. Great leaders do not avoid or fear trouble: they embrace it.

Put together groups of your employees into focus sessions. Ask them what they would do if they were in your shoes. Encourage participation and never denigrate an idea. At this time – any idea is worthy of exploration.

Your competition will be inert this year. The best way to excel over your competitors is to honestly re-evaluate your business. Solicit the advice of your employees and make no pre-conceived notions of them.

For my book, I developed a list of hallmarks of great managers of people. Several years later, they are even more appropriate for business owners and leaders:

Vision. They know where they want to go and, equally important - they know how to get there.
Communication. They are world class communicators.
Equality. They treat employees the way they want to be treated and they are no more demanding of others than they are of themselves.
Decisiveness. They can make decisions quickly, are accountable for those decisions but are never so rigid they are wed to those decisions.
Leadership. People want to work for them. (There's a big difference between liking someone and wanting to work for someone).
Knowledge. They know their position, their industry and what their employees do better than anyone else.
Accomplishment. They get things done.
Style. They are not so entrenched with their professional lives they forget that a quality personal life is the most important thing to most people.
Commitment. They are committed to the success of their business unit, of the people who work for him, and to the company they work for.
Temperament. Employees want to work for a person who has a great temperament – someone who isn’t moody or subject to numerous highs and lows, but one who has an understanding that he or she is always on stage, because employees are always looking at their leaders to set high standards of both temperament and judgment.

In 2009, the business owner and leader who has the ability to honestly evaluate talent, performance and make the decisions necessary to sustain the business not just in the short term, but for the long term, is the leader who will be highly successful both this year and beyond.

Managing Layoffs

2009-02-04T04:00:00.000-08:00

A lot of large businesses have been laying off employees, and small and medium-sized businesses are doing the same.

The difference is that (generally speaking) large corporations have large teams of attorneys and HR specialists managing that process, while smaller businesses do not.

If you're considering laying off employees, slow down. The process is fraught with potential for lawsuits if not managed properly.

We have gained many clients in the past few months who wish to layoff segments of their workforce, and doing it properly is key.

If this is a consideration for you, read this article from our friends at Jackson Lewis first.

New California Law for 2009 - Reporting Workplace Injuries

2009-02-02T04:00:00.000-08:00

A new amendment to the California Labor Code has changed reporting of work-related injuries and illnesses.

Employers currently must file a form 5020 with the Division of Labor Statistics and Research (DLSR) within five days of an incident. Once new regulations are finalized, insured employers must file a form to be prescribed by the Division of Workers’ Compensation (DWC) with the DWC, and self-insured employers must use a new, yet to be created, electronic form within the time specified by the DWC.

Talk to your insurance carrier or human resources consultant to ensure you're using the most up-to-date forms.

The 2009 Handbook Review

2009-01-31T12:06:00.000-08:00

Your employee handbook should be reviewed on an annual basis, and now's the time to do it.

You may ask, why do I need to review the handbook?

D. Albert Brannen of Fisher & Phillips outlines, in this article, some excellent reasons for why your handbook should be reviewed and outlines 10 policies that should be included. (Here's our list as well).

Of the many things to procrastinate on in early 2009, the handbook is not one of them. Diane Krebs, writing in the New York Law Journal, indicates that "todays environment has primed employees to sue."

A terminated or laid-off employee is not going to find another job easily. And the time spent not working is time that employee will consider looking for an attorney, or learning more about other laid off employees who have won huge sums by suing their previous employer.

FMLA - Can You Require An Employee on Leave to Check In?

2009-01-20T04:15:00.000-08:00

Yes. Even a daily phone call is acceptable.

The 8th Circuit Court of Appeals ruled that an employer can mandate daily check-in calls for an employee who's on FMLA Leave.

I'm not sure that it's necessary to mandate 'daily' call-ins, but frequent check-ins are a good idea. But make sure that policy is in your employee handbook - and enforce it consistently.

Thanks to Maria Greco Danaher of Ogletree Deakins.

Sexual Harassment Training is a "Sham"?

2009-01-18T08:35:00.000-08:00

Alexander McPherson, a professor at UC Irvine, wrote an op-ed in the Los Angeles Times recently outlining his reasons for not participating in mandatory Sexual Harassment training.

His rationale proves that even professors of molecular biology can be idiots.

He cites three reasons for refusing to comply with California law:

The training is 'a disgraceful sham';
"The state, acting through the university, is trying to coerce and bully me into doing something I find repugnant and offensive...I am being required to do it for political reasons. The fact is that there is a vocal political/cultural interest group promoting this silliness as part of a politically correct agenda that I don't particularly agree with."
[The training] "violates my academic freedom and my rights as a tenured professor."

Of course, Professor McPherson hasn't attended the training yet, and is relying on others:

As far as I can tell from my colleagues, it is worthless, a childish piece of theater, an insult to anyone with a respectable IQ, primarily designed to relieve the university of liability in the case of lawsuits...

Actually, the university has nothing to do with it; the law was passed by the state legislature and is required for all businesses with 50 or more employees.

In FY 2007, the Department of Labor received over 12,000 charges of sexual harassment. That does not take into account the number of harassed employees who went directly to their attorney, or (in California), went to the state labor board with complaints.

Professor McPherson obviously is too important and too intelligent to lower himself to the level of every other supervisor and manager in California by taking the course. It's two hours long and not the end of the world.

There is no 'vocal cultural/political interest group' promoting the training. Unless you count the thousands of businesses who have paid hundreds of millions of dollars because their management did not know how to manage a hostile workplace, or avoid retaliation.

The EEOC alone fined employers nearly $50 million for harassment charges. Someone is paying for all of that.

The imposition of training that has a political cast violates my academic freedom and my rights as a tenured professor. The university has already nullified my right to supervise my laboratory and the students I teach... It has threatened my livelihood and, ultimately, my position at the university. This for failing to submit to mock training in sexual harassment, a requirement that was never a condition of my employment at the University of California 30 years ago, nor when I came to UCI 11 years ago.

Uh, no it doesn't. If you were a professor only, you wouldn't have to 'submit' to the training. But you supervise a laboratory and others - you are in a position leadership and responsibility.

And the fact that training was never a condition of employment 30 years ago? Wah.

30 years ago, you could still smoke in the workplace. It was likely that women and minorities did not have an equal opportunity for promotions. Times change. Professor McPherson has not.

No one is impacting his livelihood other than the good professor himself. If he 'lowered' himself enough to attend a 2 hour class, there would be no impact.

But clearly he is too self-impressed and too important to do what everyone else in the state has done.

Sexual harassment training won't eliminate harassment or absolve employers from liability. But it's the law. Same as stopping at a stop sign.

Buckle up and deal with it, professor.

Additional Leadership Tools in a Recession

2009-01-16T04:15:00.000-08:00

Since publishing my special report on Management Trends for 2009 earlier this month, I've received many e-mails on additional ideas for business owners and managers. Here are some ideas:

Mark Roden, a Subway Franchise Owner, as quoted in azcentral.com:

"This is a time when you have an excuse to cut back, but now is really the time to show your commitment to your employees."

From an Adecco article:

Keep the line of communication open and honest -- Don't hide vital information from your employees.
The only thing worse than laying someone off is losing key talent because they feared for their jobs.
Talk frequently -- Communicate as often as possible, striving to keep your staff well-informed about what's happening internally and externally and how it will affect their place a the company.
Be creative -- companies will need to be as innovative and creative as possible to successfully meet the current challenges.
Treat everyone with respect -- Unfortunately, the effects of a recession are not limited to the workplace. Many of your employees will be under additional stress in their personal lives. Going the extra mile and making sure everyone is treated fairly will not go unnoticed and will yield huge benefits in the form of better retention when everything turns back around.

More coming in the upcoming weeks...

Ways To Motivate Employees In Tough Times

2009-01-15T04:15:00.000-08:00

While I don't agree with every suggestion offered by HR author Peter R. Garber, I do agree that innovative ways of motivation are crucial to maintaining a productive work environment in tough economic times.

Adversity breeds innovation. And businesses that think about innovation first are those that will succeed in this economy.

Courtesy HR Daily Advisor, through my friends at blr.com.

Layoffs & Wrongful Termination Lawsuits

2009-01-14T04:00:00.000-08:00

When businesses get hit by a recession, employee layoffs inevitably follow. And when layoffs occurs, wrongful termination lawsuits inevitably follow as well.

Generally, layoffs should be a last resort; there are many other techniques available to reduce your payroll costs that should be strongly considered before terminating your employees.

Extreme care must be used when terminating or laying off employees. You need to consult with a qualified Human Resources expert or employment attorney.

Do you know about the WARN Act?

Do you know about the Older Workers Benefit Protection Act?

Are you completely comfortable with knowing that your layoffs will not result in a discrimination or wrongful termination lawsuit?

Extreme care. Use it in these situations.

Age Discrimination Begins Early

2009-01-13T04:30:00.000-08:00

The Age Discrimination in Employment Act (ADEA) bans discrimination on the basis of age, and age in this act is defined as any employee 40 years of age or older.

Emily Brandon, writing in usnews.com, quotes a report from Gray Hair Management, an Illnois-based outplacement firm. Gray Hair survey 900 executives to determine at what point does age begin to negatively affect hiring decisions. The executives said:

Before age 50: 24 percent
Between age 50 and 54: 39 percent
Between age 55 and 59: 23 percent
Age 60 or older: 11 percent

This is the first time I've seen statistics involving age discrimination by age.

Never ask a candidate how old they are. Never ask for proof of identification UNTIL AFTER a job offer has been given.

And never take any job action against an employee until you're sure you can defend that action on the basis of business, and not a protected class such as age.

$185 Million For Wage & Hour Violations

2009-01-12T04:00:00.000-08:00

Earlier this month, the EEOC announced that it has collected $185 million in unpaid wages on behalf of more than 228,000 workers nationwide. This was for their fiscal year 20087 alone, and represents an increase of 40% over 2001 numbers.

Violations enforced by the EEOC include minimum wage, overtime, and child labor provisions of the Fair Labor Standards Act.

What this number does not include are class-action lawsuits and other legal proceedings where the employee didn't bother to go through the EEOC. And in states such as California, the state has their own enforcement department.

The biggest issue facing small businesses is compliance with the complex wage and hour issues. Ignorance is not an excuse.

Special Report - Management & Leadership Trends in 2009

2009-01-11T11:06:00.000-08:00

Successful small business owners don’t look at this recession as a challenge – they look at it as an opportunity. Your competition is going to struggle, but that doesn’t mean you have to.

I just published a special report for our clients - "Management and Leadership Trends for 2009".

It's available free by clicking here.

How To Avoid Burnout

2009-01-02T04:00:00.000-08:00

The economy has moved the overall workforce from an 'entitlement mentality' to a 'I'm just happy I have a job' mentality.

But with layoffs already taking place and more sure to follow, it means fewer workers will have to work harder. This leads to stress and burnout - and this is a realistic theme for 2009.

It's a major decision for an employee to make - do I hate my job? Or, - am I burned out?

If you truly hate your job, you need to quit. Life is too short to be saddled with a miserable existence for one-third (at least) of your life.

But if it's burnout, there are a number of steps you can take to turn it around. It always starts with you. Only you can change your attitude.

Sherri Campbell and Bob Rosner of workplace911 have these tips on turning around workplace burnout.

Courtesy ABC Action News in Tampa Bay.

Love Contracts - Making Things Easier

2008-12-31T04:00:00.000-08:00

The workplace world is more intense than ever. And the likelihood that a workplace romance will develop is increasing - A 2007 Spherion survey showed that about 40% of U.S. workers have dated a co-employee, and another 40% would consider a workplace romance.

Employers generally cannot prohibit employees from dating one another (although you can prohibit supervisors from dating subordinates) - yet 50% of all sexual harassment cases begin when the relationship was consensual.

A non-fraternization policy in your handbook is a start, but generally isn't good enough. More and more, businesses are starting to rely on love contracts as a method to mitigate the chance of problems when the romance eventually turns sour.

Joseph Gagnon, writing on behalf of Fisher & Phillips LLP, says that

Properly implemented and appropriately drafted, love contracts will reduce the likelihood of litigation arising from workplace relationships.

To my knowledge, love contracts haven't been fully tested in the courts yet - but Gagnon's outline of what should be in a 'love contract' and its benefits are useful reading.

Here's the full article.

Out of State Residents Subject To California Labor Law While Working In State

2008-12-30T04:00:00.000-08:00

If you have employees who occasionally work in California, here's some important news for you.

Sullivan v. Oracle Corp, a recently decided federal appeals court decision, found that California labor law applies to nonresident workers. While the decision was based primarily on exempt/non-exempt status of two Colorado-based employees, the ramifications are endless, as outlined by Christopher W. Olmstead:

Does the company have sufficient ongoing contacts within the state of California, such that under the Oracle court’s ruling, California labor laws should apply to its workers while working in California?

Does the applicable California labor law provide superior protection to the out-of state resident? (In most cases, the answer will be “yes” because of California’s more rigorous laws.)

What rights under California law apply to the workers? Consider, for example, wage and hour law (e.g. exempt status, overtime, meal and rest periods), and fair employment practices (e.g. disability law).

If you have non-California employees who work in California - even infrequently - contact your employment attorney.

If it can happen to Oracle, it can happen to you.

Courtesy Barker Olmsted & Barnier

Bad Bosses and Your Health

2008-12-29T04:00:00.000-08:00

Working for a bad boss is never fun.

Now, Swedish researchers have shown that working for a bad boss can kill you.

Employees who worked for four years with managers who were inconsiderate, opaque, uncommunicative and poor advocates were about 60 percent more likely to suffer a heart attack or other life-threatening cardiac condition.

The study tracked 3,100 men over a 10 year period. And it shows that despite best intentions, what happens on the job doesn't stay at the job - people take it home with them.

Is it really worth a job to be tortured by a bad boss? No. Life is too short.

And if you're a boss who doesn't know if you're good or bad - it's time to find out.

Courtesy Fort Worth Star Telegram.

A "Family Atmosphere" in the Workplace?

2008-12-27T12:35:00.000-08:00

I generally get concerned when hearing about a business that cultivates a 'family-like atmosphere'. Although noble in intent, the fact is that you are a business - regardless of your intentions or the size of your operation. I can list case after case where a business owner who wanted to create a 'family' atmosphere ended up getting burned by the eventual employee who becomes disgruntled at work.

And think of the phrase - "we're like a family here". Families have break-ups, problems and issues - and so do businesses.

So when I read this article in the Wall Street Journal, I had reservations.

Decagon Devices, a Pullman, Wash., scientific instruments and sensor maker with about 70 employees, won a Top Small Business Workplace award from the WSJ.

Decagon's CEO, Tamsin Jolley, admits that she had to let some employees go. Although those employees fit in with the corporate culture, they simply weren't doing the job.

It's a short but interesting read. And what I particularly appreciate about Jolley's comments is when she says

"...it has do to with the value we place on employees...I think it also facilitates communication and employee input across all areas of the company, because employees that know each other well are more willing to speak up and share their ideas with each other."

THAT'S a good corporate culture. Not necessarily creating a 'family', but creating a workplace conducive to communication and productivity.

Common Sense

2008-12-18T04:15:00.000-08:00

Most human resource issues can be focused into one area: practicing common sense.

Jessica De Vault, a columnist for the Fayetteville Observer, went to a corporate holiday party as a guest of an employee. She'd never been to such a party before. After attending, she was moved to write this column outlining ways to behave at a company party.

Ms. De Vault is not a human resources professional nor employment attorney (as far as I know). But her advice is absolutely spot on.

Most of the time, common sense (if actually practiced) is the best way to develop and follow guidelines for good professional behavior.

Wal-Mart Settles A Wage & Hour Lawsuit

2008-12-17T04:00:00.000-08:00

Over $54 million to settle a lawsuit to workers in just the state of Minnesota.

What did Wal-Mart do this time?

Allegedly, the cut their workers' rest breaks and didn't prevent workers from working 'off-the-clock' in a 10-year period ending last month.

Employees read articles like this and see an opportunity to win the lottery. It's especially prevalent in bad economic times. (In good economic times, it tends to be only disgruntled employees who look to cause trouble).

If Wal-Mart, with a huge staff of human resource professionals, can have this happen - it most certainly can happen to you.

Review your Wage & Hour practices as part of a comprehensive employment audit of your operations.

Courtesy msnbc.com

Wage & Hour Issues Engulfs Tom Colicchio

2008-12-16T04:00:00.000-08:00

Tom Colicchio, owner and chef at the Craft restaurant empire, is the latest in a never-ending line of employers who have been sued for wage and hour issues.

This time, it's misappropriating employee tips and withholding overtime pay that's alleged in a lawsuit filed by a former employee.

I cannot more highly recommend that any restaurant owner immediately contact an employment attorney or qualified human resources consultant to review tipping practices

Craftsteak Restaurant at the MGM Grand Las Vegas

and all wage and hour issues. It's happening to restaurants like Craft to Starbucks, and it can happen to you.