“Do you always wash your hands after using the restroom? … Have you ever told a coworker you like her outfit? … Do you use your work computer for non-work-related activities? … Have you been using your computer to watch basketball this March?”
I don’t recommend taking an HR investigation as a practical joke in your workplace, but this ad is pretty darn entertaining.
For the past nine months, my daughter has been taking guitar lessons at School of Rock in Strongsville. This past fall, we upped her from private lessons to the performance program, which, for the beginning students, is known as Rock 101. Her band started with four other kids, but quickly dwindled to just Norah, as the others bailed for various reasons. With a band of only one, the school initially suggested canceling the program for this session. Knowing my daughter, and believing both that she’d want to continue and would be comfortable even as the only child in the band, I asked that the show go on. And it did. And, what a show she gave this past weekend. Here are the results of her hard work.
I have some people to thank, and then I’ll get to the lesson of today’s post (so you don’t think I’m just using this space to shamelessly brag about the awesomeness of my 7-year-old daughter, playing to a standing-room-only house — and, yes, she was tears-to-my-eyes awesome). Thanks to John Koury, the GM of the Strongsville School of Rock, and Shelley Norehad, the school’s owner, for letting Norah do her thing, all by herself, and not cancelling the program as her band mates dropped out. Thank you also to Norah’s amazing guitar teacher, Ed Sotelo. And, finally, thank you Norah’s band: Kayleigh Hyland (bass, keys, and backing vocals, and also the Rock 101 director), Donald Pelc (guitar), and Dominic Velioniskis (drums).
Here’s the takeaway for employers. Stick with your employees, especially in times of difficulty and adversity. They might just surprise you, and may even do something amazing. It would have been very easy for School of Rock to decide that they couldn’t make money on a program of one, and tell us that Norah would have to wait until the Spring for her first Rock 101 experience. Instead, they embraced the enthusiasm and work ethic of a 7-year-old girl and let the show go on. As a result, they allowed her to walk off the stage with a club full of strangers chanting her name. (Contact me for booking info).
Yesterday, Evil Skippy at Work answered a reader’s question about whether an employer can prevent its employees from celebrating Festivus in the workplace.
“What is Festivus,” you ask? “I’ve never heard of it.” Watch this short, five-minute instructional video, and then let’s talk.
As you can see, Festivus, is not a religious holiday. It’s a parody, celebrated on December 23 as a non-commercialized alternative to the holiday season. According to Wikipedia, it started as a family tradition of Seinfeld writer Dan O’Keefe, who brought it into our collective consciousness by incorporating it into a 1997 episode of the show.
Which brings us back to the original question—can an employer ban Festivus at work? Because it’s a secular holiday, Title VII’s religious accommodation requirements do not apply. Unless, of course, it is an expression of an employee’s atheism, which is a “religion” Title VII protects and for which an employer must make a reasonable accommodation.
So, if the employee requesting a workplace Festivus Pole is doing so as an expression of his or her sincerely held atheism, then you should think long and hard before you deny the request. If, however, there is no religion supporting the request, then no law would prohibit you from banning Festivus at your company. Then again, why would you want to in the first place?
Regardless, if you are lucky enough to work for a company that embraces this holiday, consider it a Festivus Miracle.
At 10:35 Saturday morning, I was stopped at an intersection on my way home from dropping my daughter off at her band rehearsal. From the passenger seat of the car stopped next to me in the left-turn lane emerged a guy, mid-twenties, clad in Ohio State gear and holding a beer. After he slid out of the open door, he proceeded to start dancing in the middle of the intersection while “Hang on Sloopy” blared from the car’s radio. After a minute or so of this folly, the red light turned to a green arrow, he jumped back on the car, and it spend around the turn with his door still open.
My thoughts of what an ass this guy was quickly turned to cheers for justice as I saw the blue-and-reds of a police car fly past me to pull over the dancing fool. I didn’t stick around to see the end of the story, but my hope is that he missed Ohio State’s last-second victory over Michigan from the confines of the police station’s lockup.
This guy clearly got what he deserved. No one should feel any sympathy that this early-morning partying clown likely missed the Ohio State / Michigan game. Yet, everyday, employers take pity on poor-performing employees.
It’s okay to fire an employee. If expectations are communicated and not met, if an employee understands what needs to be done to succeed and misses the mark, or if an employee does not improve after a sufficient number of chances, then it‘s okay to let an employee go. Employers, however manage from a culture of fear. They fear lawsuits, which, in turn, paralyzes employment decisions. As a result, mediocre employees (or worse) keep their jobs.
As we approach the new year, I’d like employers to resolve to break this chain of mediocrity. It’s okay to fire someone, as long as you’re not motivated by an illegal reason. Communicate your expectations, give your people a fair and reasonable chance to meet them, and, if they fail, cut bait. No one feels bad for the dancing Ohio State fan; don’t feel bad for the poor employee who has’t worked out.
Rerun being fired from the supermarket is the last straw for Raj, who rallies the rest of the workers to take some action against their boss Mr. Pronson. However, when the staff goes on strike, Raj finds himself in a jam, since Mama has lost her job and the family now has no source of income.Enjoy this little slice of sitcom history, which teaches the important and timeless lesson that appearances aren’t always what they seem with your employees, what motivates their actions might not be what you think, and employees have lives outside of work that can, and often do, impact how they behave on the job.
Today is 12/12/12. The number 12 holds a lot of historical significance. There are 12 tribes of Israel, 12 months in the Gregorian calendar, 12 signs of the zodiac, 12 days of Christmas, and 12 original studio albums released by the Beatles (in the UK).
Since today won’t come around for another 100 years, I thought I’d honor its unique date with 12 thoughts to help better your workplace.
Review your employee handbooks and other personnel policies (annually is preferred).
If you don’t have policies addressing social media and the other roles technology plays in your workplace, draft one(and train your employees on them).
Hold company-wide harassment training (least once every two years, if not every year).
Make it a point to rid your workplace of bullies (even though there is no law against it).
Even if your business is not a jurisdiction that bans sexual orientation discrimination, adopt a policy outlawing it anyway.
Audit your wage and hour practices.
Document all discipline and performance problems.
Do not make promises to your employees that you cannot keep.
Make hiring and firing decisions based on performance.
Be more understanding of your employees’ family responsibilities outside of the office.
Employ the golden rule — treat your employees as you would want to be treated.
Have fun (but not too much fun).
In Amalgamated Transit Union Local 1433 [pdf], an NLRB administrative law judge ruled that a union did not violate federal labor law by failing to disavow threatening posts made by employees on the union’s Facebook. While the legal nuances of the opinion are interesting, this case raises an issue of deeper import for employers. Labor unions are using social media, and using it effectively, to disseminate information to members and to reach potential members during organizing drives.
It is not just labor unions that are using social media and the Internet to engage employees collectively. Employees are using these tools outside the organizational outreach of labor unions.
Case in point—the recent launch of coworker.org. “What is coworker.org,” you’re asking yourself? “I’ve never heard of it.” I never had either until I read a post yesterday on the Workplace Prof Blog. Coworker.org, describes itself as a website that allows employees to start, run, and win campaigns to change their workplaces. Employees accomplish this mission on the website by starting online petitions.
To date, coworker.org only has one active campaign. It’s against Wal-Mart, seeking the reinstatement of an employee allegedly fired for speaking out against having to work on Black Friday.
I’ll be watching coworker.org to see if it gains any traction. Employers should be watching this site too, but not for the reason you think. Retaliation against any employees who post on the site would be illegal under the National Labor Relations Act, as employees have a right to engage in protected concerted activity.
Instead, employers should pay attention to coworker.org for the same reason they should pay attention to the Amalgamated Transit Union Local 1433 case, Facebook, Twitter, and the blogosphere. Employees are online, talking about what is happening in your workplace. The Internet is today’s complaint box. If you want to fix problems before they get out of control, you need only turn to social media sites and sites like coworker.org and Glassdoor. If your employees are online complaining about you, should you be paying attention?
Have you read the story about a certain presidential candidate telling employers that’s it’s okay to suggest to their employees how to cast their votes in the upcoming election? Here’s the quote, via The Guardian.
I hope you make it very clear to your employees what you believe is in the best interest of your enterprise and therefore their job and their future in the upcoming elections. And whether you agree with me or you agree with President Obama, or whatever your political view, I hope — I hope you pass those along to your employees. Nothing illegal about you talking to your employees about what you believe is best for the business, because I think that will figure into their election decision, their voting decision and of course doing that with your family and your kids as well.
Governor Romney is correct about one thing—it is not illegal for employers to talk to their employees about the upcoming election and suggest how to vote. Indeed, as Professor Paul Secunda points out at the Yale Law Journal Online, employers may be able to go so far as to “compel their employees to listen to their political views at such meetings on pain of termination.” According to the Proactive Employer Blog, “employers justify their actions countering that rather than controlling or coercing workers, they are simply educating them.”
There are some laws covering this type of conduct. The federal government criminalizes intimidation, threats, or coercion for the purpose of interfering with one’s right to vote one’s choice in a federal election. A few states (Michigan, for example) expressly prohibit employers from discharging or otherwise coercing employees to influence their votes in political elections. Ohio is not one of those states.
Legal or illegal, however, you need to ask yourself whether holding captive audience meetings to discuss political issues, threatening employees’ jobs, or mandating their attendance at political events is a valid business practice. How you answer the question of whether you think it’s okay to try to shape or influence your employees’ votes helps to define the kind of employer you are. Voting is an intensely personal choice. I don’t think it’s my business how my family members cast their votes. I certainly don’t think it’s an employer’s business how its employees cast their votes. Voting booths have privacy curtains for a reason. Exercise some discretion by not invading that privacy of your workers.
Office Space is one of the great movies about the modern workplace. One of its key plot lines involves sad sack employee Milton Waddams, who mumbles through the movie about his missing stapler and ever-moving desk. Amazingly, the company had laid off Milton years earlier without anyone telling him. When the company fixed a computer glitch that had accidentally kept him on the payroll, Milton finally cracked and burned down the office.
Lawrence v. Youngstown (9/21/12) [pdf], decided last week by the Ohio Supreme Court, gives employers a reason other than arson-avoidance to tell employees that they’ve been fired.
Ohio’s workers’ compensation retaliation statute (Revised Code 4123.90, for those counting) is an odd-duck. It has a two-part statute of limitations. First, the aggrieved employee must provide the employer “written notice of a claimed violation … within the 90 days immediately following the discharge, demotion, reassignment, or punitive action taken.” If the employee sends that written notice, he or she then has up to 180 days from the adverse action to file suit. The 90-day notice requirement is “mandatory and jurisdictional,” and no employee is permitted to file a workers’ compensation retaliation claim without sending the written notice.
In Lawrence, the Court answered a question of timing — does that 90-day period begin to run on the effective date of the discharge or when the employee receives notice of the discharge?
The facts of Lawrence illustrate the potential problem. On January 7, 2007, Youngstown suspended Lawrence without pay from his position with the city. Two days later, the city converted the suspension to a termination, and mailed, via regular mail a letter notifying him of the termination. Lawrence claimed he did not learn of his discharge until February 19, 2007. On April 17, 2007, Lawrence’s attorney sent the city a letter stating that Lawrence intended to bring a lawsuit claiming unlawful workers’ compensation retaliation. When he filed his lawsuit a few months later, the city sought, and obtained its dismissal on the basis that Lawrence’s letter was untimely based on his termination date.
The Ohio Supreme Court reversed. It held that normally the start of the 90-day period triggers from the actual discharge date. It also created an exception when the employee both did not know of the discharge and could not reasonably have learned of it:
A limited exception to the general rule that the 90-day period for employer notice … runs from the employee’s actual discharge…. The prerequisites for this exception are that an employee does not become aware of the fact of his discharge within a reasonable time after the discharge occurs and could not have learned of the discharge within a reasonable time in the exercise of due diligence. When those prerequisites are met, the 90-day time period for the employer to receive written notice … commences on the earlier of the date that the employee becomes aware of the discharge or the date the employee should have become aware of the discharge.
As the Court reminded us in the Lawrence opinion, “Usually, an employer will make a good-faith effort to communicate the fact of the employee’s discharge to the employee when it occurs…. The employer commonly will use a method like personal notification, hand delivery of notice, or a certified letter.” In other words, if you are going to fire an employee, don’t you owe it to him as a human being to at least tell him?
More than two years ago, I wrote the following, in a post entitled The art of the apology:
Sometimes, all someone wants to resolve a problem is an apology. It’s easy to dig your heals in and fight, especially when you are being accused of something as insidious as discrimination. Those fights will cost you hundreds of thousands of dollars in legal fees. Most times, those fights are necessary. Sometimes, though, a simple apology will suffice to restore the status quo…. The next time you are dealing with a sensitive situation with an employee, before shifting into battle mode stop and ask yourself whether a sincere apology will solve the problem. It may be one of the hardest, and best, decisions you will ever make.
Still need convincing? Watch the following video, and then let me know if you still think there is no value in swallowing your pride and simply saying, “I’m sorry.”
Tragically, mass shootings seem to be all the rage in America. The latest occurred last Friday morning outside New York City’s Empire State Building. The shooter was a disgruntled ex-employee targeting his former coworkers.
Do you have a plan in your workplace for a shooting or other emergency? If not, OSHA offers a comprehensive guide for putting together an emergency action plan. According to OSHA, “the best way” to protect your business and your employees “is to prepare to respond to an emergency before it happens.” Part of that preparation is the drafting of, implementation of, and training your employees about an emergency action plan.
The other part, though, is creating a culture in your workplace to deter violence, or spot potential violence, before it can happen. How can you accomplish this culture?
As with most issues in the workplace, the proverbial ounce of prevention really matters. While there exists no foolproof way to protect your workplace against the kinds of tragedies that we’ve seen lately, these few steps can go a long way to putting you in the best place to deter and respond.
My family and I spent last night with friends at Crocker Park’s Liberty Fest. If you’re not from the Cleveland area, Crocker Park is what marketers call a “Life Style Center.” I call it a really nice outdoor shopping mall. Liberty Fest is Crocker Park’s take on a July 4th celebration, with music, dancing, and stilt walkers. It all culminates with a performance by the Cleveland Pops Orchestra and fireworks. With a 4-year-old and a 6-year-old, we were there for the fireworks.
A line of thunderstorms, though, wreaked havoc on the event’s timing. The fireworks, which were scheduled for 10 pm, did not go off until close to 11. As you could imagine, my kids were not the only ones getting antsy waiting … and waiting … and waiting, as we listened to the Cleveland Pops run through its litany of patriotic songs, led by the emceeing of a local morning radio host who made me remember why I love my Sirius/XM subscription.
As we waited, I got to thinking—why didn’t the event have a contingency plan. Evening thunderstorms are common in Cleveland in the summer. It could not be that difficult to have a back-up itinerary in the event that rain delayed the proceedings. The Pops could have played 5 songs instead of 15. The radio guy could have cut out his not-so-witty banter. And, fireworks could have gone off closer to 10 instead of closer to 11.
The same holds true for your business. I’m sure you have star employees, without whom your business would suffer. Yet, do you know if they are content with their job. Or, do they feel underpaid, under-appreciated, or overworked. Tomorrow, one could walk out the door. Do you have a plan to keep your operations running at peak performance? Or would the departure of even one employee grind your company to a temporary halt.
Employees aren’t indentured to you, and there is nothing you to do to guarantee each works for you until retirement. Yet, let me suggest three simple steps to help you plan for the contingency of a key employee leaving.
I spent last week on Hilton Head Island, South Carolina. If you’ve never been there, do yourself a favor a take a trip. It's about as perfect of a vacation spot you can find in the continental 48 (see sunset below).
On the last day of our vacation, my family took a dolphin cruise through the Calibogue Sound. It was a hands-on trip for the kids. They got to cast a fishing net, pull up a crab pot, and fish for shark. The ship’s captain told us that they usually catch a lot of shark. For example, the day earlier they had reeled in 19, 
including two baby hammerheads. So, it was with much excitement that my daughter cast her line into the sound. After about 5 minutes (an eternity for a 6-year-old) she started asking when she would catch her shark. My wife explained that fishing is more about patience and relaxation than actually 
catching fish. As you would imagine, that did not go over so well with my newly minted 1st grader, although she did stick with it and enjoyed the experience. We, however, were not the only ones having issues. The captain moved the boat to what he hoped would be more fertile water. It wasn’t. She moved again, hoping the third time would be the charm. It wasn’t, and she had to call it a day. Indeed, on our cruise, only one lone shark was reeled in (by the boy next to us, much to my daughter’s chagrin).
As I am wont to do when I am not blogging, I began to think about what this tale could teach you, my readers. Much like fishing, in dealing with marginally performing workers, employers must know when to fish and when to call it a day. And, much like our ship’s captain, you usually don’t quit at the 1st sign of failure.
Employees are investments—of time, training, salary, and benefits. Unless an employee commits an egregious violation of the rules that cannot be tolerated, most deserve multiple chances to prove themselves worthy. Performance problems are not terminable offenses; they are teaching opportunities. Use them to hone your employees, and only terminate when an employee proves himself or herself un-teachable. You will be surprised how many employees you can rehabilitate (and investments you can save) merely by resisting the urge to cut bait too early on your marginal performers.
I’ll miss experiencing the sunsets at Harbour Town, but I’m happy to be home, and, believe it or not, happy to be back at work.
(If you’re interested in reading more about our vacation—and who wouldn’t be—you can jump over to my wife’s blog).
The court properly granted summary judgment because reasonable minds could only conclude that appellant’s actions in photographing an inmate placing his penis on a sandwich and then feeding the sandwich to another inmate were manifestly outside the scope of employment.
I can promise you read that sentence correctly. It is the Ohio Supreme Court’s digest summary for Cantwell v. Franklin Cty. Bd. of Commrs. (Ohio Ct. App. 5/22/12) [pdf] You can do a double-take, a triple-take, or as many takes as you need. It is still going to say that a Franklin County jail guard, while delivering bologna sandwiches to inmates, asked an inmate to place his penis on a sandwich, took of cell phone photo of said penis sandwich, and fed said sandwich (sans penis) to another unsuspecting inmate while taunting him.
The lawsuit concerned whether these actions were in good faith, and not manifestly outside the scope of Cantwell’s employment or official responsibilities, which would determine whether the county had a duty to defend Cantwell in the prisoners’ subsequent civil rights lawsuits.
What could Cantwell possibly argue?
It was commonplace for jokes and pranks to take place at the Franklin County jail between inmates, as well as hazing to take place between deputies, and such, if not condoned, were certainly not discouraged. Thus, appellant contends, because these jokes were encouraged, promoted, and tolerated, his “joke” to give Copeland a genital-tainted sandwich was not manifestly outside the scope of his employment.
The explanation is a whole lot funnier than the joke. Needless to say, none of this amused the court, which affirmed the trial court’s dismissal of Cantwell’s claim.
From this mess of a case, I draw the following lesson. You cannot always guard against lawsuits by ex-employees. I am certain that given these facts, the county never dreamed it would be defending a lawsuit by this employee. Yet, he found a reason to sue. No termination (no matter the reason) is bulletproof. Even the most rock-solid termination can result in a lawsuit. That fear, however, should not hamstring employers from making appropriate termination decisions based on legitimate reasons. The best you can do with any termination is to make sure every “i” is dotted and every “t” is crossed (with the help of counsel, if needed), and let the chips fall where they may.
The Employee Polygraph Protection Act regulates (and restricts) the use of polygraph tests in the workplace. For example, it prohibits an employer from disclosing to anyone an employee’s polygraph results without the employee’s consent, and also prohibits an employer from taking an adverse action against an employee based on the results of a polygraph.
Bass v. Wendy’s of Downtown, Inc. (N.D. Ohio 5/1/12) discusses the limits of both of these prohibitions. More importantly, however, this case raises a more practical question about the use of polygraphs in the workplace.
In 2007, a cash deposit went missing from Wendy’s. As part of its investigation, Wendy's asked Donald Bass to submit to a polygraph examination, which he failed. Despite the failed test, Bass continued to work for Wendy’s as a part-time employee. More than two years later, Wendy’s passed over Bass for a promotion to General Manager. A few months later, it fired him for inappropriately touching a female employee.
Bass claimed that Wendy’s violated the EPPA by: 1) disclosing the results of his 2007 polygraph to the Ohio Civil Rights Commission in support of its position that the store did not discriminate against him; and 2) relying on the 2007 polygraph to deny him the promotion.
The court dismissed both claims:
Here’s my question. If Bass failed a polygraph in 2007, why was he around years later to grope a female employee and claim discrimination? If you are going to jump through all of the legal hoops necessary to use a polygraph to confirm an employee’s theft, use the results. As this case shows, nothing good comes from retaining an employee who steals from you.
Last night, the Philadelphia Flyers rallied from 3 goals down to take game 1 of their first round series from their cross-state rivals, the Pittsburgh Penguins. Right now, you’re all thinking to yourselves, what can this possibly have to do with employment law or employee relations?
Four months ago, Dallas Stars’ center Steve Ott delivered a hit to Flyers’ star Claude Giroux, who had just returned to the lineup from a concussion. At the end of the period, Flyers’ coach Peter Laviolette chased down Ott in the Stars’ tunnel and confronted him about what he perceived as a cheap shot. According to Philly.com, Giroux appreciated his coach’s action: “It’s good to see we have each other’s back.”
Two weeks ago, Laviolette again stood up for his players, following a fight-filled conclusion to a game against the Penguins. The fights were precipitated by what Laviolette called a “gutless” move by the Pens to put its enforcers on the ice at end of a 6-3 blowout. As all 10 players on the ice fought, Laviolette stood on the boards yelling at Pens’ assistant coach Tony Granato. After the game, Laviolette defended his tirade (via CSNPhilly.com): “Those guys hadn’t played in 12 minutes; it was a gutless move by their coach.” Again, Giroux stood up for his coach (via CSNPhilly.com): “He’s got our back…. He’s an intense coach who loves his players.”
Which brings me back to last night. The Flyers fell into a quick 0-3 hole. They needed to rally. And, they did. Don’t think for a minute that whatever motivation Laviolette used to jump-start his team had added impact because his players know that he stands up for them. He has their backs, and they responded with 4 unanswered goals and a 1-0 series lead.
Your organization is not a hockey team, but there is a lesson to learn from Peter Laviolette. If you have your employees’ backs, they will reciprocate. You never know when you’ll need your employees to rally for you (overtime, sales quotas, deadlines, etc.). Make it easier for them to go the extra mile by standing up for them when they need it. Reward good performance. Recognize star performers. Take complaints seriously. Have an open-door for your employees. Your employees will pay you back in spades.
At his Work Matters blog, Mike Maslanka asked the following question: “What will be on your tombstone?” Don’t get me wrong. I love my job and would not trade what I do for a living for any other profession. But, please kill me again if my tombstone is work-related. I’d much prefer, “He was a great husband and dad,” or, “He loved his family,” to, “He could write a great brief,” or, “He could oral argue with the best of them.”
That’s my tombstone, but what about yours? A tombstone is your legacy. It’s a phrase that is supposed define you for all eternity. That’s why it's etched in stone. So, if you could pre-write your own tombstone as an employer, what would it say? How does this sound? “A company that treated everyone fairly.” Or, “Employees loved to work there.” So, what does your tombstone say? Leave me a comment below, or, post on Twitter with the hashtag #HRtombstone.
Beware the ides of March.
– Julius Caesar, Act I, scene i.
2,056 years ago, Julius Caesar was assassinated. To mark that occasion two years ago, I wrote that employers should be wary of the types of problem employees within their organizations. That lesson rings as true today as it did then: certain archetypes of employees bear a knife in the form of a potential lawsuit, or worse.
Yesterday, Greg Smith offered his resignation to Goldman Sachs by way of a scathing op-ed in the New York Times. The banking giant thought enough of Smith to include him in its college recruiting video and promote him from summer intern all the way to executive director. Yet, I’m certain it had no idea that he harbored a level of unparalleled disenchantment and dissatisfaction that led him to a very public (and embarrassing) resignation. Smith objected to a corporate culture of greed that included his colleagues privately referring to clients as “muppets” (hence, the press labeling Smith’s op-ed the “muppet manifesto”). I’m not here to defend Smith. In fact, his very public bridge burning should cause any prospective employer great pause before hiring him.
In my piece, Beware these types of problem employees, Smith is archetype number 10: the unhappy employee. You must know what’s going on with your employees. Be aware and tackle these problems head-on. Do not provide your employees the opportunity to stab you in the back.
