Avoiding EFCA and Leading Better

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:

1. My organization shows a commitment to ethical business decisions and conduct.
2. I have confidence in my company's senior leaders.
3. When my company's senior management says something, you can believe it is true.
4. Where I work, ethical issues and concerns can be discussed without negative consequences.
5. My manager treats me fairly.
6. Senior management is committed to providing high quality products and services to external customers.
7. My company enables people from diverse backgrounds to excel.
8. My manager treats me with respect and dignity.
9. Management shows concern for the well-being and morale of team members.
10. Senior management demonstrates that employees are important to the success of the company.
11. I feel free to try new things on my job, even though my efforts may not succeed.
12. 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

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

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

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

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

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?

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

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

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:

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

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

Thoughts?

How Leaders Find Focus

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

1. 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.
   
2. Know what not to do. Just as important as what you decide to do is what you decide not to do.
   
3. 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

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

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:

1. If you build it, they will come.
2. When times are tough, training is the first thing you should cut.
3. Just build Web-based (e-learning) courses. It's cheaper.
4. All training must be done in an instructor-based classroom setting in order to be valuable and important knowledge.
5. Once learners go through training, the manager never needs to find out how they are applying what they learned.
6. 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.
7. Sending people on a training course will solve all performance problems and development needs.
8. It will be obvious to a skilled trainer what each class participant needs so there is no need to discuss it in advance.
9. I've done presentations. Professional trainers make out that it is far more difficult than it really is.
10. 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?

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:

1. 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.
2. 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.
3. 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.
4. 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.
5. 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?

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

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

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

The bill has two main elements:

1. 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.")
   
2. 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:

1. Adopt an Internal Position Statement on Unions and Labor Relations
2. Conduct An Employee Issue and Satisfaction Audit
3. Ensure that Communication Lines are Open and that Managers are Responsive to Employee Issues
4. 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

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

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

1. Leading In Difficult Times
2. Violence in the Workplace
3. Nine Great Questions To Ask Your Boss
4. Stopping Gossip in the Workplace
5. Pay Raises in a Bad Economy
   

You've Laid Off Staff. Now What?

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

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...

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

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:

1. 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.
2. 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.
3. 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

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

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?

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?

1. 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.
   
2. Train and educate your management team. Everyone who conducts performance reviews needs to understand the ramifications of this act.
3. Review your records retention policies.
   

Management & Leadership Trends 2009

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

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

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

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

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

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

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

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?

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

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 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

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

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

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?

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"?

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:

1. The training is 'a disgraceful sham';
2. "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."
3. [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

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

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.