Managing Swine Flu in the Workplace

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

...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

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

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

USCIS Conducting H-1B Site Inspections

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

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

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

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

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

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

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

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?

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

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

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

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

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?

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

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:

1. Complaints to the DFEH increased by more than 15% in 2008 (3,000 more complaints);
2. Disability claims were most frequently filed, followed by retaliation, sexual harassment and age discrimination;
3. In fact, disability claims comprised more than 36% of all claims;
4. 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

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:

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

Workplace Investigations - Who's Telling The Truth?

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.