Records Retention in the Electronic Era

The advent of text messaging and e-mail have made a substantial impact on employers - especially since business-related communication has the potential of ending up in front of a jury.

How - and how long - information must be kept is becoming critical. There are state and federal laws that also apply.

The first step is to review your employee files and other documents and determine how long they must be kept - and in what form they can be kept.

A good start is to review this article from McGuireWoods LLP.

Weight Discrimination in America

According to the journal Obesity, weight discrimination is now as common as racial discrimination in US workplaces.

About 17% of men and 9% of women have reported race discrimination; and about 12% of all adults have now reported weight discrimination.

Yet no federal or state law exists that prohibits weight discrimination (for now, at least). The cities of San Francisco and Washington D.C. prohibit weight discrimination.

Discrimination involves health care, education or workplace situations, such as cases in which people said they were fired, denied a job or a promotion because of their weight.

Even though no law currently exists to prohibit this discrimination, why test it? It's extremely expensive to litigate - even when you believe you're right.

Do not make a workplace decision that takes weight into consideration. Use unbiased decision-making that is the best decision for your business.

Thanks to USA Today.

California's Hands-Free Cell Phone Law

On July 1, California is prohibiting all cell phone use for drivers unless a hands-free device is used.

What does this mean for employers?

It means your employee handbook policy should be updated to include the following:

1) You - as an employer - are not responsible for paying violation if a ticket is received; and
2) Since you can be held liable for accidents while an employee is driving on company business, you should prohibit cell phone use unless the employee can pull off to a safe area and make or receive a call;

And remember - California is usually on the forefront of new laws that ultimately get adopted by other states. It's best if you put these policies into place now.

More tips - and an overview of the new law - from Jackson Lewis.

How To Become A Caring Boss

Maureen Moriarty, a Seattle-based executive coach, offers some excellent tips for becoming a more 'caring' boss in this article in the Seattle Post-Intelligencer.

Why would you want to become a more caring boss?

1) Reduced turnover. Studies consistently show that the number one complaint of employees is not pay, but rather that they don't receive enough feedback from their boss. 40% of all employees say a poor boss will likely lead them to leave their employer, and the cost of turnover is prohibitive for any business.

2) Improved business performance. Employees who are happy are better performers, leading to better productivity.

Moriarty's best tip, of course, is for managers to listen more.

But I'll offer my own tip, one that I learned from a colleague who's now the Senior Vice President of Sales for a major insurance company:

You're always on stage.

Whether you realize it or not - you need to understand that as a leader, people are always watching you and feeding off your body language. What you say to employees is magnified in their eyes - even though you may be making what you consider an 'off-the-cuff' remark. People are watching - you are always on stage - so make sure what you do and say always reflects what you expect.

Pre-Employment Drug Testing

There's a fine line between what is desirable and what is legal in the workplace. Many employers would like to institute random drug testing of current employees, or pre-employment drug testing.

If you have such a policy or are considering one, make sure to consult an employment attorney. The laws in this area change so frequently, it's difficult to know what is acceptable and what isn't.

For example, a candidate for a part-time page at a city library in Oregon was required to take a drug test. She refused and sued. The Ninth Circuit Court of Appeal upheld, deciding this was a violation of the 4th Amendment. (Lanier v. City of Woodside)

In California, pre-employment testing is - in many cases - acceptable. But ask yourself what would require the need for drug testing? If it's a receptionist, what is the rationale? It's more understandable if the position requires an employee to drive, or handle cash, or operate machinery. Make sure your decision to drug test is correct for the position and your company, and always consult counsel before implementing such a plan.

From Barker Olmstead & Barnier.

Pets in the Workplace? Don't Count on It

So, the American Pet Products Manufacturers Association polled working Americans 18 years of age and older. According to this survey, about one in five companies allow pets in the workplace.

I find that hard to believe. Although there's little doubt that having a pet reduces stress and increases longevity in humans,

However, allowing pets in the workplace is akin to allowing children in the workplace. It is a distraction that hampers productivity.

A better idea is to have a "Bring Your Pet To Work Day" once or twice a year, just like many employers have a "Bring Your Child To Work Day".

Pets at work might be good for the pet, it might be good for the employee, but it's not good for the workplace.

From the Daily O'Collegian at Oklahoma State University

Personality Tests Prior to Hiring

The phalanx of assessment tests available to employers as they interview job candidates continues to grow.

The challenge is to decide between purely objective criteria (who is the most qualified person for the job) and subjective (who will be the best fit for my company).

Not all assessments are suitable for use as pre-employment assessments. Psychological assessments that were designed for clinical or diagnostic use, for example, should not be used. The courts have consistently ruled that psychological testing generally has no place in the business environment.

An assessment - properly administered - is invaluable to the hiring process and can increase your productivity while reducing your turnover. I personally favor and administer the Kolbe Assessment program. But find out what works best for you - make sure to involve an expert in the process.

Some excellent advice - some of which I've included here - is from Penny Morey in this article at Entrepreneur.com.

Why Have An Employee Handbook? Part II

I've written before about the need for a business of any size to have legally reviewed, written policies in force.

My favorite example is when an employee chronically comes to work late. If you try to discipline that employee, he or she can simply say, 'no one told me that'. And they could continue to get away with it.

Some employers fear that written policies bind them too much, but a well-written handbook avoids those pitfalls.

Do not use the internet or buy a software program - it takes more time than you think; you don't know how recent those policies were legally reviewed; you won't know if your company needs to have certain policies; and you don't know if those policies are specific to your state.

Get a professional - collaborate - and get the policies legally reviewed to ensure you can consistently - and properly - manage your employees.



Courtesy Kyle R. Still, Ward and Smith, P.A.

Avoiding the Pitfalls of Job References

A highly valued, long-time employee of yours decides to move out of state and asks you to write a reference letter. A no-brainer, right?

Then another employee, whom you've been trying to fire for the past few months, also asks you for a reference letter. Now what do you do?

Yes, you can be held liable for references - and whether you provide them or not. It's possible you could open yourself up for discrimination or defamation charges if you write a letter for one employee but not another.

Often in seminars, I advise clients not to provide references at all. You're under no obligation to do so, and the negative clearly outweighs the positive.

But a written policy must be established, and you must be consistent in following that policy. Many businesses simply provide dates of employment, which is a good practice.

Some employment attorneys recommend a signed waiver, where you only provide information under certain circumstances.

Consistency and communication are the key. Establish that policy, make sure all your employees understand it - and make sure you consistency follow that policy.

From Elarbee Thompson.

When Its Time To Leave Your Job

I'm often asked by unhappy managers if they should leave their job. It's a somewhat complicated question which boils down to a simple question: "Are you happy?"

Happiness in a job is critical - more critical than the money you earn or the uncertainty of trying to find a new job. We spend at least a third of our lives working; why would you want to spend all that time being unhappy?

Unhappy employees are far less productive and - whether you realize it or not - your unhappiness manifests itself on other employees, even if you don't say anything. People know.

Is the grass greener on 'the other side'? You'll never know until you find out.

People hate losses, say Richard H. Thaler and Cass R. Sunstein, authors of "Nudge: Improving Decisions About Health, Wealth, and Happiness," And "losing something makes you twice as miserable (than) gaining the same thing makes you happy." They call this being "loss averse."

We often are so focused on holding on to something we forget there are better things out there. The old saw, "the best time to look for a job is when you have a job," maybe true; but it's also a device for procrastination.

Don't spend your life 'stuck' in a job. Ask yourself every morning if your truly excited about going to work. If the answer is no, you have your answer.

Life is too short.

From Andrea Kay via Courier Post Online.

Nine Great Questions To Ask Your Boss

Too many employees are reactive to their boss - they simply respond to orders and direction. This leads to a lack of mutual understanding, and tasks that don't get done the way the boss intends.

Being proactive, however, can mutually benefit both you and your manager.

It's always better to clarify with a boss. Clarify, in this instance, means making sure you and the boss are on the same page when it comes to tasks, goals and team-building.

A major mistake most managers make is they simply assume their team knows exactly what his or her expectations are. This 'top-down' approach does not work in today's modern workplace.

By asking questions, an employee and manager become more mutually joined; tasks get accomplished quicker and more accurately; and the overall organization improves. It's about communication - two-way communication.

This list of questions, from Careerbuilder via CNN.com, is an excellent way to begin the process.

Cat's Paws, Discrimination, and Coca-Cola

When charges of discrimination are made in your business, the smartest move you can make is to conduct an immediate investigation.

If an investigation isn't made, there are too many issues that can arise, as in the case of Coca-Cola Bottling of Los Angeles (BCI).

A manager told an HR staff member that an employee was insubordinate. Without getting corroborating evidence (or even conducting an investigation), the HR person gave permission to terminate the employee, who is African American. (The HR person never met the employee or knew he was black).

As it turned out, the employee was accusing the supervisor of harboring racial animus towards black workers. Lawsuits ensued. A federal district court dismissed the lawsuit, but an appeals court reversed the ruling, and the case was headed to the U.S. Supreme Court, when BCI settled with the EEOC for $250,000.

Of course, the legal fees for BCI are likely many times higher than the settlement.

If only the HR department had conducted an investigation (or had an outside consultant do it).

Thanks to HR.BLR.COM.

Another Reason To Have An Employee Handbook

There are many good reasons to have a good, frequently updated employee handbook - and very few reasons not to have one, regardless of the size of your business.

One of the most important reasons is to reiterate that you are an 'at-will' employer - meaning an employee can be terminated at any time, and that an employee can quit at any time.

In Kang v. PB Fasteners, a long-term employee attempted to prove that his longevity at the company implied a contract. The U.S. Court of Appeals for the 9th Circuit rejected that claim, in part because the employer’s handbook stated all employment was “at will” and that employees could be terminated without cause at the employer’s discretion. The handbook also stated that it was not intended to “alter the at-will status of employment with the company.

Make sure the at-will statement is included in:

• Your job application (with a signature from the candidate)
• Your job offer letter
• And in the Employee Handbook

Thanks to Jackson Lewis.

Violence Prevention in the Workplace

It's impossible to eliminate violence in the workplace, but there are techniques and methods to reduce the possibility of it happening.

According to Dr. Jeffrey L. Sternlieb, president of MetaWorks, homicide is the number one cause of death of women in the workplace.

• Educate your workplace.
• Make sure you have a Violence Prevention policy in your handbook.
• Train your supervisors on what to do if an incident occurs.
• And make sure all your employees are alert to potential signs of workplace violence.

Courtesy Readingeagle.com

CA Supreme Court Rejects Liability for Supervisors in Retaliation Cases

Supervisors cannot be held liable for retaliation under the California Fair Employment & Housing Act.

The California Supreme Court in Jones v. The Lodge at Torrey Pines Partnership issued the decision.

Retaliation is becoming much more popular in employee relations cases, since it's much easier to prove retaliation than harassment. Often, a harassment investigation can only reveal a 'he said, she said' scenario. The standard for proving retaliation is much lower, and many plaintiff's attorneys are dropping the harassment allegations and staying only with retaliation.

According to Jackson Lewis:

Although individual supervisors cannot be held liable for retaliation, employers should not jump to the conclusion that this decision will reduce FEHA claims significantly. Retaliation claims against individual supervisors are usually only one of several claims asserted by former employees who sue. Indeed the history of this case aptly illustrates this point: Jones asserted claims for harassment and discrimination, as well as retaliation. While litigation costs may diminish somewhat, employers can best avoid the courthouse by adopting and enforcing anti-harassment and -discrimination policies and by training their supervisors to recognize workplace harassment, discrimination and retaliation.

That means training your supervisors, conducting an effective investigation, and implementing policies that absolutely forbid harassment - and retaliation

Managing Your Boss - 30 Years Later

In 1980, one of the most significant articles on modern leadership was published in the Harvard Business Review - "Managing Your Boss," by John J. Gabarro and John P. Kotter changed conventional wisdom from a didactic ('the boss tells you what to do') into a collaboration between employee and employer.

Nearly 30 years later, those concepts are as important as ever. And 'managing up' is a critical component in my book, "Managing People in the 21st Century".

If you manage people, encourage your employees to manage up. If you have a boss (and it's likely you do), make sure you understand the world he/she operates in - what his or her goals and objectives are.

The key to successful leadership is communication.

A conversation with the authors of that article is posted at forbes.com.

Increased Penalties for Immigration Violations

The ICE crackdown continues, with increased penalties for employers who knowingly employ unauthorized aliens that are now in affect.

• First violation for knowing employment of an unauthorized alien, $375.00 (previously $275.00)
• First violation maximum penalty, $3,200.00 (previously $2,200.00)
• Multiple violations maximum penalty, $16,000.00 (previously $11,000.00)

All of these fines are per person. So if you're employing 10 authorized aliens, it's $375 per person you illegally employed.

Make sure to audit your employee files and I-9 procedures.

How To Talk To Your Boss

(Almost) everyone has a boss. And bosses spend so much of their timing dealing with and listening to complaints, it becomes easy to 'tune out' another employee with yet another complaint.

I made it a rule with my employees - never complain unless that complaint comes with your solution. And make your point quickly - no one (least of all the boss) wants to spend long hours hearing someone make the same point over and over again.

James Lukaszewski, author of "Why Should the Boss Listen to You?" and a crisis-management expert, says workers who want to be listened to also need to:

• Understand where the boss is coming from, and the goals he or she may be trying to achieve. "Bosses hear many voices every day," he says. "You have to say something that will matter to them from their perspective."
• Recommend solutions rather than giving orders. Too often employees seeking to be trusted advisers act as if they were entitled to give their opinion and a boss should be obligated to listen.
• Reduce stress and tension. Be the person who can walk into a room and everyone is comfortable you're there, Lukaszewski says. Humor and stories often help ease tension.
• Deliver recommendations in a digestible, usable form. Be brief, positive and constructive.
• Propose incremental solutions. Don't insist that you have the entire answer to a problem, but your suggestion may be part of a solution for your boss. "They want a menu of things to choose from," he says.

From the Colorado Springs Gazette via South Florida Sun-Sentinel.

March Madness and its Effect on the Workplace

Even the most casual sports fan is aware of the NCAA Men's Basketball Tournament. Next to the Super Bowl, more money is wagered on this event than any other.

As many as 37 million people are expected to participate in the wagering, according to an estimate by Challenger, Gray & Christmas, a job counseling firm in Chicago.

The FBI has estimated about $2.5 billion will be bet on the tournament.

With this popularity comes major issues for the workplace.

First of all, betting is illegal everywhere in the United States except Las Vegas and Atlantic City.

Next, the basketball 'pool' that's prevalent in many businesses likely violates a handbook policy that prohibits solicitation and distribution.

CBS and the NCAA have also announced that all games this year will be available live on-line, so the possibility of workers spending their hours watching basketball and not being productive is also likely. In fact, economic experts are predicting all the office time spent following the games over the next several weeks could add up to more than $1.2 billion in lost productivity. The estimate is nearly 20 percent of the work force, will spend an average of 13.5 minutes a day following the games and updating their brackets.

Do not wait to solve problems before they happen. Although there's interest and fun involved, your business should prohibit office pools. In addition, you should have a written policy should state that internet and e-mail use is for business purposes only. (If not just to reduce lack of productivity, it should also reduce the potential for harassment and discrimination).


Thanks to CNN Money.com, Dallas Morning News, WRAL * Local Techwire

Perenchio's Rules of the Road

Jerry Perenchio is one of the savviest managers I've ever seen. He is a multi-billionaire through a long career ranging from a sports-event promoter (remember the Billy Jean King-Bobby Riggs tennis match in the 1970's) to his brilliant acquisition and sale of Univision.

I particularly respect his low-key public persona. You'll never see him give an interview. He's brutally tough of his managers, but if they perform - their careers are limitless.

Here are his rules of the road, which should be required reading for anyone in management.

1. Stay clear of the press. No interviews, no panels, no speeches, no comments. Stay out of the spotlight — it fades your suit.
2. No nepotism, no hiring of friends.
3. Never rehire anyone.
4. Hire people smarter and better than you. Delegate responsibilities to them. Doing so will make your job easier.
5. You've got to know your territory. Cold!
6. Do your homework. Be prepared.
7. Teamwork.
8. Take options, never give them.
9. Rely on your instincts and common sense. If you go against them you generally regret it.
10. No surprises. We don't give them. We don't want to get them.
11. Never lose sight of what business you're in. Stick to your "last."
12. When you suit up each day it's to play in Yankee Stadium or Dodger Stadium. Think big.
13. If you have a problem, don't delay. Face up to it immediately and solve it.
14. Loose lips sink ships!
15. Supreme self-confidence, never arrogance.
16. A true leader is accessible — no job too big, no job too small.
17. Communication is our business. You can reach any of your associates anytime, anywhere, anyplace.
18. If you make a mistake, admit it. Just don't make too many.
19. Don't be a "customer's person" (man or woman).
20. Always, always take the high road. Be tough but fair and never lose your sense of humor.