Favorite Firing: “I’ve Hired a Murderer!”


asglassOne morning about twenty-five years ago I sat in my law office. I took a call from an HR manager who was a regular client of mine.

“Sara, I think I’ve hired a murderer!” she said with panic in her voice.

“OK, Roxie, tell me what happened,” I replied, trying to keep my voice lawyer-calm.

Roxie explained that an employee had come to see her about another employee, a shipping employee who worked on the loading dock at her company. According to the report, the shipping employee had been convicted of murder and served time in a state prison. Roxie hadn’t talked to the dockworker yet, but she had pulled his personnel file.

His application had left the space blank where it asked “Have you ever been convicted of a crime?” The hiring staff had either not noticed or had not asked about the missing information. At the time, this company didn’t do background checks beyond reference checking. But company policy stated that they didn’t hire any ex-felons.

“You’ll have to talk to him,” I said. “Ask whether the information is true. Then let’s talk again.”

“You want me to talk to a murderer?”

“Has he shown any sign of violence at work?” I asked.

“No. He’s been a decent employee.”

“Just have Security standing by,” I suggested.

Apply_HandThe Facts: Roxie talked to the employee, who admitted he had been convicted of murder. He hadn’t wanted to tell the company about his felonious past, so he deliberately left that part of the application blank. He had been a little surprised that no one asked him about the missing answer, but he was glad to have received the job.

Roxie and I discussed the situation, and she deliberated with other company managers. They decided to terminate the man’s employment. I told her there was some risk, as the man was African-American, and could file a claim of race discrimination. But at the time, the law was pretty clear that if a company had a blanket rule that no felons of any race could be employed, they had a strong defense. Although I told her they needed to check their applications more carefully and raise issues before making their hiring decisions.

The Moral: There are several morals to this story. Some applied twenty-five years ago, and some have developed in the time since this incident occurred.

1. Get hiring data before the person is hired

If you have certain rules that can disqualify applicants, be sure to ask about these issues before hiring someone. Ask about the qualifications of each and every applicant. Blanks in employment applications about qualifications are not acceptable, and the burden will be on the employer to show that the rule is justified, if you don’t even ensure that the forms are filled out correctly.

2. Apply the same qualifications to all applicants

If you have employment qualifications, they should apply to everyone. Don’t let some applicants slip through with lower qualifications than what you have said are required. And certainly don’t vary the qualifications based on an applicant’s race, sex, or other protected classification.

3. Address discrepancies immediately

If you find a discrepancy in an employee’s application, whether before the person is hired or after, address it as soon as you can. Provide an opportunity for the applicant or employee to provide the missing information, if it can be fixed.

If the person has already been hired and the discrepancy can’t be remedied—such as this employee’s prior conviction—you have a difficult decision to make, particularly if the employee has performed adequately. How can you show the missing qualification is job-related, if the employee has performed well? However, if you don’t fire the person, then you risk the validity of your qualifications.

4. Stay on top of federal, state, and local hiring regulations.

Although criminal convictions were an acceptable reason to weed out applicants twenty-five years ago, the EEOC now takes the position that employers cannot have a blanket rule against hiring felons, because minorities have higher conviction rates than whites. The criminal conviction must be related to the job for it to disqualify an applicant. A conviction of fraud would probably disqualify a bookkeeper, but probably would not disqualify the dockworker.

Thus, the risk today of firing the murderer is much greater than it was twenty years ago. Some employers would take the position that any violent crime is a disqualification for any position. Whether the EEOC and your local agencies would accept such a policy is uncertain. Know how judges in the state and federal courts where your business is located have ruled.

Have you ever been surprised by information missing from an applicant’s records?

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Keeping Your Wellness Programs Well: EEOC Notice of Proposed Rulemaking


EEOC sealWellness programs are a popular component of many employee benefit plans. Employers use these programs to encourage healthy behaviors among their employees, thereby reducing long-term medical costs. In addition, these programs often provide financial incentives to employees to engage their interest and sometimes include contests and classes that promote camaraderie and improve the workplace culture.

Over the last fifteen years, I have worked with several employers in a variety of workplaces to design and implement wellness programs. The employers are usually concerned about how to balance the costs and benefits of the programs and how to measure whether the program has a positive impact on employee health. It is also important to focus on changing behaviors that employees can control, while not penalizing them for health issues they cannot control.

On April 20, 2015, the EEOC released a Notice of Proposed Rulemaking addressing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs.

Previously, federal regulations defined acceptable wellness programs under HIPAA. After passage of the Affordable Care Act in 2010, several government agencies approved wellness programs that offered financial incentives to employees, so long as the incentives did not exceed 30% of the cost of coverage to employees. Incentives of up to 50% of coverage were permitted for programs related to preventing or reducing the use of tobacco products.

However, the EEOC was not one of the agencies involved in the earlier regulatory effort. The EEOC took the position that wellness programs designed under the earlier regulations may not comply with Title VII of the Civil Rights Act of 1964 or the ADA. The EEOC challenged several wellness programs in court, most notably in a lawsuit filed against Honeywell International, Inc. Honeywell’s program imposed a penalty on workers who refused to undergo biometric testing. Such penalties are a common component in wellness program design.

The EEOC’s enforcement efforts against Honeywell and other companies has made many employers hesitant to develop new wellness programs, despite the desire of employers to promote healthy behaviors among their employees and to manage their rising health care costs.

With its recent Notice of Proposed Regulations, the EEOC is finally providing guidance on how to design wellness programs it believes are acceptable under the ADA.

First, the EEOC says, wellness programs must be voluntary.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.
  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Next, the programs can only offer limited incentives for employee participation or for achieving health outcomes.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

  • The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.
  • For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This 30% “incentive” basically accepts the existing HIPAA regulatory definition of “reward”, although there are some differences. Most notably, the EEOC proposed regulations cap smoking cessation rewards at 30%, instead of the HIPAA 50%, although if all the employer requires is that the employee answer a question about tobacco use, then a 50% incentive is permitted.

The Notice also limits incentives to 30% for programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination. This is contrary to the HIPAA safe harbor exempting bona fide benefit plans from the ADA prohibition on medical examinations.

The Notice also specifically states that compliance with the proposed rules will not mean that an employer has complied with Title VII of the Civil Rights Act, nor with the Age Discrimination in Employment Act.  Thus, the EEOC’s proposed rules are narrowly limited to compliance with the ADA.

Moreover, the rules state that employers must provide reasonable accommodations to disabled employees who seek to participate in wellness programs, such as sign language interpreters at classes for hearing-impaired participants.

Thus, the EEOC’s proposed regulations are of limited help to employers seeking to design wellness programs. It is of some benefit to know that 30% incentives are acceptable, but the regulations do not go far enough.

For more information, see

EEOC Issues Proposed Rule on Employee Wellness Programs and ADA Compliance, by Terri Gillespie, HRLegalist.com, April 21, 2015 

Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, by Nancy Campbell, SWLaw.com, April 21, 2015

EEOC Publishes Proposed Rule on How the ADA Applies to Employer Wellness Programs, McGuireWoods.com, April 23, 2015

EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs, EmployeeBenefitsUpdate.com, Monday, April 27, 2015

The EEOC’s New Wellness Program Regulations: Notable or Needless, by Michael Mishlove, GSHLLP.com, April 30, 2015

New Guidance On Wellness Programs, by Mathew Parker, LaborLawyers.com, May 2, 2105

What should employers do as a result of the new EEOC Notice of Proposed Rulemaking?

  1. Read the proposed regulations and evaluate your wellness programs for compliance
  2. Consult your attorney and/or benefit plan advisors about possible changes to your wellness plans.
  3. Send your comments on the proposed regulations to the EEOC by June 19, 2015, if you so choose.

What has been your experience with employee wellness programs? What has worked best at your company?

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How to Manage Beyond Employee Engagement


sekulic-Vetta-Getty Images

Sekulic-Vetta-Getty Images

“Employee engagement” became the buzzword for many Human Resources managers in the late 1990s. Previously, we talked about “employee satisfaction” to describe how we should gauge the likelihood of retaining good employees. But then the thrust changed from making employees happy to getting them engaged in the business. Gallup helped, with its Q12 Employee Engagement Survey, which the company refined through the 1990s.

Gallup_Corporate_logoThe Gallup methodology focused on measuring employee engagement through four levels: (1) whether their basic needs were being met, (2) whether they felt supported by management, (3) whether they felt a sense of belonging or teamwork, and (4) whether they felt they were growing at work. Obviously, all four levels are important to keeping employees motivated in their roles.

Through the recent Great Recession, many businesses spent little effort on retention, or focused that attention only on key employees. Now, with the labor market finally becoming more fluid, employee retention is again receiving management attention. According to recent Deloitte Global Human Capital Trends research, 78% of business leaders rate retention and engagement as urgent or important.

Under traditional theories of employee engagement, the attention managers paid to their employees was deemed critical to employee retention. However, these days, according to Josh Bersin in Forbes, employee retention is dictated more by co-worker relationships than by supervisor relationships. See It’s Time To Rethink The ‘Employee Engagement’ Issue, by Josh Bersin, Forbes, April 10, 2015.

As Bersin says,

“When people leave it is usually a combination of the organization and all its elements that cause turnover. A bad manager can force someone to leave, but usually there are many other factors that create low performance or a departure.”

Some of these other factors are the lack of opportunities for development and leadership and poor relationships with peers.

Now more business commentators are questioning whether engagement is the right strategy for employee retention. Employee engagement should not be an HR activity, but a business strategy. Employee engagement leads to positive interactions with customers which leads to business success.

Bersin says that leaders need to build an organization that is “exciting, fulfilling, meaningful, and fun.” Employees don’t just need to be “engaged,” they need to be committed to the organization’s identity, mission, and culture. They need to be excited to come to work each day.

According to Bersin,

“Companies that understand this topic go beyond engagement surveys: they re-design jobs, they change the work environment, they add new benefits, they continuously develop managers, and they invest in people. They are “mission-driven” and they make sure people are screened for culture and job fit (the wrong person cannot be “engaged” regardless of what HR does).”

Bersin advocates committing to the concept that people are the key to a business’s success. People aren’t our most important resource, they are our business.

What leaders have you known who understood that people are the business? What did they do differently?

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Responding to High-Conflict People During Disputes


On April 15, 2015, the Wall Street Journal ran an article by Cheryl Lu-Lien Tan entitled “Mind Your Email Manners.”  In this article, Ms. Tan recommended more formality in emails than many of us use, as well as brevity in what we say. A workshop I attended later that week on Approaches for High Conflict Disputes, offered by Bill Eddy of the High Conflict Institute, reinforced that message for me. Part of Mr. Eddy’s presentation dealt with how to send BIFF responses—Brief, Informative, Friendly, Firm responses—to persons who are difficult to deal with.

I think I generally follow these principles in my written communications. As an attorney, I learned early to be direct and accurate in my communications. In dealing with corporate leaders in a variety of contexts, I learned to be brief and to ask directly for what I needed from them. In all communications I strove to be courteous and respectful.

But as I lauded myself on my strong communications skills, I remembered the many first drafts I wrote to opposing counsel, in which I lambasted them for their stupidity in opposing my client’s position. I used to type these drafts so furiously my fingers hurt when I was finished. My later drafts usually sounded more reasonable, but I cannot say that I didn’t leave some caustic phrases in the final versions of these letters that got mailed.

I can still dash off an angry letter, which I have to edit before sending. Clearly, BIFF responses are not my default style, no matter how much I tell myself otherwise.

gmail iconIn today’s world, with communications flying back and forth in seconds, it is even more important that we step back before sending our initial drafts of correspondence, particularly when we are dealing with difficult people—whom we might define as anyone with whom we have a conflict. I have found that it is useful to draft my email responses in a Word document, and only past the final version into the email program before I push the “send” button. Another approach is to delete all the recipients’ names from the reply until I am satisfied with the message I want to send.

Although the workshop I attended was focused on “high conflict” individuals—who are often people with personality disorders or other psychological problems—it occurred to me during the workshop that all of us can at times become “high conflict.” All of us have times when we are emotionally involved in a problem and our flight/fight/freeze instincts take over our brains. Some people live in this state more than others, but we all go there at times.

So it is always important to keep all of our communications as rationally based as possible. We should be Brief, Information, Friendly and Firm in our letters and emails, regardless of the circumstances, to minimize the likelihood that we will escalate the situation rather than defuse it.

9781936268726_frontcover__50452.1419805581.500.659Mr. Eddy also recommends that we not Admonish, Advise, or Apologize in our responses to difficult people. While there might be times when apologies or advice are appropriate in normal business communications, his theories are worth considering when we are in the middle of a dispute, as I was in my communications with opposing counsel I mentioned.

The bottom line is a question that Mr. Eddy recommends we ask about our initial drafts—how is the receiving party likely to react? That question applies to any situation. We should reflect on what impact our communications are having while we still have a chance to change them. Seek advice from a good coach or colleague if you have doubts about what to say or how to say it.

For more on Bill Eddy’s BIFF responses techniques, see the High Conflict Institute website, which offers many free resources for mediators and other professionals engaged in dispute resolution. He has a book entitled BIFF: Quick Responses to High-Conflict People, which also provides more information.

When have you encountered a problem because of a communication you sent?

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Recognizing and Remembering Administrative Professionals This Week


Photo from clker.com

Photo from clker.com

This week is Administrative Professionals Week, and Wednesday, April 22, 2015, is Administrative Professionals Day. This recognition of the secretaries and other administrative professional employees that support our businesses began in the 1950s as National Secretaries Week (and Day). The name of the celebration changed in 2000 to address the changing nature of clerical roles in the workplace.

I don’t know of any manager or professional person in any organization who doesn’t rely heavily on a strong administrative support staff. In my own case, they have saved me from many errors and managed my life for the better on many occasions:

  • “Where’s Attachment C? I think you gave me last week’s version.”
  • “I had to move your appointment with the VP to 10:00. But I held 9:00 open so you can get ready for the meeting.”
  • “Your son called. He missed his flight. I re-booked him tomorrow.”
  • ”Did you really mean to copy so-and-so on this letter?”

When I published my novel,  Playing the Game, I wrote:

“This novel is dedicated to administrative professionals everywhere. They are the ones who keep businesses running.”

The administrative employees in Playing the Game are all named after secretaries I knew during my corporate career. I admired them all.

Today I remember and honor two of my admins who are now deceased—Deanna and Diane. Deanna, who passed away in 2006, was given a role in Playing the Game. My next novel will have to include an admin named Diane; the Diane I knew died this last year.

Deanna was the most competent all-around secretary I ever had, and she worked hard. Not only did she organize my work day, but she kept my boss on track as well. She was the only person he trusted to put together his complicated PowerPoint presentations and strategic planning manuals.

Diane was one of the fastest and most accurate typists in the law office where I worked. I barely had a brief dictated before she had it on my desk. I could trust her to make revisions accurately. She didn’t have any legal training, but she had a good editor’s eye.

I am grateful to these two women and to all the administrative employees who have helped me over the years.

Who are the administrative professionals who impressed you the most during your career? Have you thanked them?

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April is Workplace Violence Awareness Month—How To Address Potential Violence in Your Workplace


Image from the National Safety Council

Image from the National Safety Council

According to the Alliance Against Workplace Violence, April 2015 is the third year for a national observance of Workplace Violence Awareness Month. And April 28 is Workers Memorial Day, in remembrance of workers who have died at work.

I’ve addressed workplace violence before on this blog (for example, here and here), but the return of Workplace Violence Awareness Month is a good occasion to mention it again.

Workplace violence can result from actions of strangers, customers, employees, and relatives of employees. The best defense against workplace violence is awareness of the possible sources of conflict. Any strong workplace violence avoidance program should consider all these sources of violence.

 

1.  Recognizing Employees Who Might Become Violent

Obviously, businesses have the most familiarity with their employees. According to Exigo Business Solutions, here are seven behaviors to watch for in employees that can be potential warning signs of workplace violence.

  • A history of violence
  • Negative reactions to poor performance reviews
  • Drug or alcohol dependencies, which can lead to paranoia or aggressive behavior
  • Romantic obsessions which may lead to inappropriate behavior such as harassment or stalking
  • Requiring repeated instruction, repetition of errors and other concentration problems, which can indicate a troubled employee
  • Depression, which may lead to emotional or aggressive outbursts. Signs of depression can include a slowed work pace, blank facial expressions, inappropriate guilt/shame, etc.
  • Any verbal threats or other activity that is seen as ‘out of character’ for a co-worker

Note that some of these indicators are vague or difficult to determine. The best managers are familiar with their employees and notice when an employee’s behavior changes. They have a good relationship with their staffs, and employees in their organizations seek them out when there are conflicts or problems in the workplace.

 

2.  Developing an Effective Workplace Violence Prevention Program

An effective workplace violence prevention program should include

  • An assessment of the specific risks of violence at your particular workplace and an evaluation of the controls and policies already in place
  • Measures to ensure the physical security of offices and facilities, such as installing alarm systems, protective barriers, and routes for escape if danger occurs
  • Personal protective equipment, if needed, including personal-alarm systems and mechanisms for contacting security or law enforcement
  • A plan of action for responding to acts of workplace violence
  • Services to treat traumatized employees involved in an incident of workplace violence
  • Workplace-violence awareness training for employees.

See 6 Tips for Creating an Effective Workplace-Violence Prevention Program, by Tiffany Robertson, September 3, 2014, on WeComply.com (a Thomson Reuters compliance blog).

Training should cover the warning signs of a potential violent act, how to report any concerns and what to do if violence does occur. Training should cover employee’s responsibility not only for their own safety, but also for that of their coworkers, customers, and any members of the public who enter the workplace.

Workplace violence prevention is a crucial part of any crisis management program. Involve your HR and your risk management personnel in advance.

Don’t wait for the crisis to occur.

For more information on avoiding workplace violence, see:

OSHA website page on Workplace Violence

What Are You Doing for Workplace Violence Awareness Month?, by Erin Harris, April 23, 2014, Crisis Prevention Institute

Behavior Management Strategies, Crisis Prevention Institute

Spotlight on Workplace Violence Prevention and Awareness in April, WeComply.com (a Thomson Reuters compliance blog)

 

If you have experienced a threat of workplace violence, what was the most important lesson you learned?

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Resolving Conflict in the Workplace: The Earlier, the Better


Image from Forbes

Image from Forbes

As a litigator and as a mediator, I have frequently seen workplace conflicts that have escalated beyond repair. Once a manager is convinced that an employee cannot perform, it is hard to change that manager’s mind. Once an employee believes that a manager or co-worker has engaged in harassment or discrimination, there is little likelihood of salvaging the relationship. An amicable parting of the ways is usually the most that a mediator can hope for.

This was one reason I moved from practicing law into Human Resources—I wanted to move further up the process of managing workplace problems, with the hope of fixing more of them. To some extent, I was successful. But unfortunately, I found that Human Resources comes with its own baggage. Too often HR is seen by employees as in management’s pocket and by management as ineffectual or not focused on the bottom line.

Nevertheless, I came to believe that the best chance of solving workplace problems is with direct communication between managers and employees, with HR serving primarily as a coach for both parties and a referee when emotions run too high or one party or the other steps out of bounds.

But both managers and employees often do not have the communications skills needed to resolve their conflicts. A recent article on Mediate.com, Integrating Conflict Management and Workplace Mediation Practices: A Blueprint for Future Practice, by Daniel Dana, Craig Runde (February 2015), makes this point.

Messrs. Dana and Runde suggest that mediators learn to coach their clients in how to manage their differences. The skills needed, they say, include expanded self-awareness, enhanced emotional intelligence, and improved conflict communications capabilities. Here are their suggestions:

Expanding self-awareness is typically approached by coaching, interviewing, or using assessment instruments such as the Conflict Dynamics Profile or the Thomas-Killman Conflict Mode Instrument.  When people become more aware of how they typically respond to workplace conflict, they are better able to employ constructive approaches and avoid defaulting into destructive or ineffective ones.

The human experience of conflict is replete with complex emotions, and helping clients learn to manage those emotions is of great importance for conflict management practitioners.  This includes improving awareness of what triggers one’s negative emotions in the first place and developing personal practices for managing those emotions and regaining a sense of balance.

Enhancing constructive communications involves learning about one’s behavior patterns and working on lessening the use of habitual destructive behaviors.  Those habits often escalate or prolong conflict.  Improved patterns increase the use of constructive responses, which clarify issues and develop sustainable solutions that benefit both parties.

Yet Dana and Runde recognize that coaching alone will often not be enough to manage workplace conflicts. There is still a role for neutral third parties—either internal or external mediators.

Again, following the principle that resolving a conflict sooner rather than later is the best way to preserve a workplace relationship, then internal company mediators serve an important role. But bringing in an external mediator is more effective than litigating a dispute.

What has your experience been with resolving workplace conflicts? Can people learn to handle most conflicts themselves? When is a third-party essential to resolving the dispute?

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