Atoning for employers’ biggest sins #employmentsins

Today is Yom Kippur, the Jewish Day of Atonement, the day on which we make peace with God for all of the sins we’ve committed over the past year. On Rosh Hashanah God writes each person’s name in Book of Life. Over the next 10 days, Jews seek forgiveness for wrongs done against God and other human beings. During Yom Kippur, each individual makes their personal petitions to God, and hopes for forgiveness for the upcoming year. If all goes well, when God closes the Book of Life at the end of Yom Kippur, your name remains and your soul is safe for another year.

From the archives: The art of the apology

I’ve been thinking all weekend whether to write about Donald Trump’s 2005 hot mic embarrassment, and, if so, what I’d write about. After all, I’ve already recently written about plagiarism and your b.s. meter in the wake of Melania Trump’s RNC speech, victim blaming sexual harassment victims in the wake of Donald Trump’s comments about his hope for his daughter’s reaction to workplace harassment, and, perhaps most critically, the importance of discourse in setting appropriate tones and modeling appropriate conduct in the workplace and beyond.

Then I saw Mr. Trump’s non-apology, and I had my theme.

Yes, these are my readers

It’s rare that I write a same-day follow-up post, but an email I received from a reader in response to this morning’s post merits special attention.

The email read as follows:

Your article on why your son hates Donald Trump is way off base. I think it exemplifies why you have not adequately informed your son on the facts such as she could always come here on a tourist visa….. Educate your son and let him know that part of the reason for Trump’s stance on ILLEGAL immigration is because one day an Illegal Immigrant just might take the job he wants to earn more money.

This was my response:

He’s 8, and while brilliant (the apple not falling far from the tree), I think the nuances of immigration policy might be a bit much for him. Besides, we start our policy discussions in the Hyman house with nuclear proliferation. Immigration policy isn’t until he turns 10.

I’m going to assume I now have one less reader, and that’s perfectly fine by me.

Discourse matters

My eight-year-old son hates Donald Trump. I know hate is a strong word. I rarely use it (except when describing the most evil of all condiments, mustard. I hate mustard).

But, Donovan hates Donald Trump. All you have to do is mention his name, and he will tell you how much he hates the Donald, and how he has no room in his life for anyone who thinks any differently.

Over the months of listening to our son tell us of his hatred for Trump we never thought to ask why. Until we did.

A humane approach of layoffs

In addition to this blog, I also pen a monthly column for Workforce magazine. Today, I thought I’d share my most recent column, entitled A Humane Approach to Layoffs. Enjoy.

	Look inside >
A Humane Approach to Layoffs

Don’t forget your b.s. meter when conducting workplace investigations

By now, you’ve likely heard about the plagiarism flap that has embroiled the GOP following Melania Trump’s Monday-night convention speech.

In case you missed it, Melania Trump (or her speechwriter) is accused of copying parts of Michelle Obama’s 2008 DNC speech for Mrs. Trump’s 2016 oration.

Decide for yourself:

On LeBron James and boomerang employees

LeBron James is the world’s greatest boomerang employee. He left Cleveland for Miami in 2010, returned in 2014, and delivered The Land our promised title on June 19, 2016.

What is a boomerang employee?
 

7 tips for employers, from your friendly neighborhood plaintiff lawyer

I found a blog post in which a plaintiff-side employment lawyer shared the 7 things employers don’t do, that they should be doing. The three that jumped off the page to me—

• “With every new potential client, I ask if they received a warning before being terminated. As soon as I hear ‘yes,’ it does slow us down in the march toward litigation.”

• “Juries expect some level of progressive discipline—they think it should be required.”

• “People don’t run to attorneys because they think they’ve got a great legal case. They come to see me because they’re angry about they way they were treated, especially on their way out.”

Essential reading: Harvard Business Review’s step-by-step guide to fire someone

File this under posts I wish I’d written. Yesterday, the Harvard Business Review published A Step-by-Step Guide to Firing Someone.

Firing an employee is the most difficult job any business owner, executive, manager, or HR person has to do. I’ve been there. It absolutely sucks. (And it absolutely sucks even more when the fired employee breaks down and starts crying). HBR synthesizes the process in three essentials tips to handle the decision, and five (not-so-easy) steps for the termination itself.

The top 10 mistakes employers keep repeating

Today is Groundhog Day, which, because of the eponymous Bill Murray movie, has become synonymous with repeating the same mistakes over, and over, and over…

In that spirit, I thought we’d take a look at the 10 biggest mistakes that employers keep making.

In no particular order:

What Star Wars teaches us about employee relations #TheForceAwakens

My earliest cinematic memories involve Star Wars.

I don’t really remember seeing A New Hope in the theater (I was only 4 years old), but I know I did. I vividly remember watching The Empire Strikes Back with my dad at the Nashaminy Mall. The theater was packed, we were stuck behind two towering men, and I watched with my head peaking between their seats. That’s where my jaw hit the floor when Vader proclaimed that he was Luke’s father. And, with my fandom at a crescendo, I remember my parents pulling me out of school on opening day of Return of the Jedi so that we could wait in line to ensure our seats.

Thank god for Fandango, because Donovan, with his now one-tracked Star Wars mind, and I can see The Force Awakens without disrupting his schooling. Saturday afternoon, I will experience the pure joy of introducing my son to a new Star Wars movie.

The premier of Episode VII has got me thinking, what can Star Wars teach us about employment law?

Should you allow employees to shop online from work?

Today is Cyber Monday, the day online retailers promote their (alleged) deepest holiday discounts. It is estimated that more than 125 million Americans will take advantage of these sales and shop online today. And, many, if not most, of them will do so from work.

The latest available numbers suggest that more and more companies are allowing employees to shop online from work. As of 2014, 27% of employers permit unrestricted access to employees shopping online while at work, up from 16% in 2013 and 10% and 2012. Meanwhile, 42% allow online shopping but monitor for excessive use, while 30% block access to online shopping sites. Similar data is not yet available for 2015, but one can assume that these numbers have continued to trend towards greater access for employees.

Yet, just because companies allow a practice to occur does not mean it makes good business sense. Should you turn a blind eye towards you employees’ online shopping habits, not just today, but across the board? Or, should you permit more open access?

The cost to defend a discrimination lawsuit (and can you do anything about it)

Two and a half years ago I asked, How much does it cost to defend an employment lawsuit? My answer:

The reality is that defending a discrimination or other employment lawsuit is expensive. Defending a case through discovery and a ruling on a motion for summary judgment can cost an employer between $75,000 and $125,000.

Oh, how I love to be right.

What can go wrong when co-workers date? A lot.

True confession time. I watch The Voice. It’s not like it’s at the top of my DVR, but, my remote always seem to stop on NBC between 8 and 10 on Monday and Tuesday nights. (My pick to win this season: Amy Vachal). So, when I heard that Team Shelton and Team Gwen had formed one team outside of work, I thought, “What a great opportunity to write a blog post on office romances.” (This is how the mind of blogger works).

What can do wrong with office romances? As it turns out, a lot. So, in the spirit of The Voice, here’s 10 reasons co-workers shouldn’t turn their chairs for each other.

Guest post: Social Business and HR, Part 1 — Online Reputation Management in the Context of HR

By Mike Wise

Today, we are going to try something new — a guest post. Readers, meet Mike Wise. Mike will be joining us for a three-part series over the next three months to share his thoughts on the social business and human resources. Today is Part 1: Online Reputation Management in the Context of HR.

It’s not illegal to give a negative job reference, but…

When you receive a phone call from a company looking for information on a former employee that was a less than stellar employee, or worse, fired, do you?

(a) Ignore it.
(b) Confirm only the fact of prior employment and dates.
(c) Give a truthful, negative reference.

Most employers do either “a” or “b”, while very few opt for “c”. Many employers avoid “c” because they fear liability if the ex-employee loses a job because of a negative reference. Yet, in Ohio and elsewhere, there is nothing illegal about providing truthful, negative information.

NLRB eviscerates the line between insubordination and protected concerted activity

Employers struggle with how to handle employees to take to social media to vent about work. And, they do so for good reason. For one, employers risk creating a viral nightmare out of a fleeting vent. Also, the NLRB continues to take a long, hard look at Facebook firings.

Case in point: Pier Sixty, LLC [pdf].

A Pier Sixty employee took to his personal Facebook page to vent about how his manager had been talking to co-workers. This employee, however, used what anyone would consider less-than-professional language to express his frustration. 

Bob is such a NASTY MOTHER FUCKER don’t know how to talk to people!!!!!! Fuck his mother and his entire fucking family!!!! What a LOSER!!!! 

Unfortunately for this employer: 1) the company was facing a union election two days later; 2) this employee supported the union; and 3) he ended his post, “Vote YES for the UNION!!!!!!!”

Not so surprisingly, when the employer learned of the Facebook post, it fired the employee. Also not so surprisingly, the foul-mouthed Facebooker filed an unfair labor practice charge with the NLRB.

The NLRB sided with the employee:

[W]hile distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “fuck” and “motherfucker.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.

Even if the air of this workplace is full with tolerated obscenities, should an employer ever have to tolerate this type of language specifically directed at a member of management and his family? More to the point, as the lone dissenter argued:

The language Perez chose to post was not merely obscenity used as curse words or name-calling. The phrases NASTY MOTHER F—er and F—ck his mother and his entire f—ing family are qualitatively different from the use of obscenity that the Respondent appears to have tolerated in this workplace. Perez’ statements were both epithets directed at McSweeney and a slur against his family that also constituted a vicious attack on them.

What are the takeaways for employers?

1. Insubordination is insubordination, period. An employer should not have to put up with this type of harsh language specifically directed at a member of management. Nevertheless, this case illustrates the regulatory environment under which employers currently operate, and the scrutiny that even the safest of terminations might receive.
2. If you want to make sure that you have the freedom to discipline any employee for the use of obscenities, it is safest to apply the same standard to all employees. Nevertheless, I firmly believe that the Board missed the mark in this case. There exists a real and meaningful distinction between the occasional conversational f-bomb and “Fuck his mother and his entire fucking family!!!!“

What does a snowblower have to do with your next employee termination?

We’ve had a robust February of snow in Northeast Ohio, which provided the first excuse of the season to pull my snowblower out of the garage. Since we moved into our house a decade ago, there was not a snow storm that it couldn’t handle. The Sunday newspaper, however, is another story.

Two years ago, we cancelled our Plain Dealer subscription. As working parents of two young kids, reading the paper took a back seat to, well, life in general. The fine folks at the Plain Dealer, however, do not appear to believe us. Each Sunday morning, we awaken to find a four-page “promotional” edition of the paper in the driveway. No amount of phone calls have stopped the annoyance of this weekly driveway spam.

Last Sunday, I awoke to six inches of snow. Perhaps it was because the paper was buried under the blanket of white, or because it didn’t register as a fact important enough to recall, but I did not give the four pages of promo-news a second thought as I pushed the snowblower down my drive. More accurately, I didn’t give it a second thought until I saw a few scraps of paper fly from the chute, followed quickly by the smell of smoke and the abrupt sound of the blades seizing.

“F***ing newspaper,” I yelled!

My wife and I tried, without avail, to dislodge the wet mess of newspaper that had quickly hardened to concrete around and behind the impeller. Knowing that disassembling a piece of heavy machinery is well beyond my pay grade, my wife Googled how to unblock a jammed snowblower. What she read stopped us in our tracks. Apparently, even though the engine is off, and blades blocked, there is a fair amount of tension left in the belt, which would cause the blades to spin when the jam is freed. Since we like having all 10 of our fingers pristinely attached to their respective hands, I pushed the lifeless snowblower back into the garage, and we grabbed our shovels for a long week of pushing and lifting snow.

“What,” you are saying to yourselves, “does this story have to do with employee terminations?”

When you terminate an employee, you cannot act on impulse. When the snowblower jammed, my first impulse  was to do everything possible to unjam it. The joy of my success, however, would have been severely tempered by a hospital trip to reattach my finger(s). The same holds true when you terminate an employee. Without exception, you cannot act out of anger or impulse. Your decisions must be well researched and deliberate. Review the personnel file. Talk to managers and supervisors. Read relevant policies. Research how similar employees have been treated in similar situations. And, if you have any doubt, call your employment lawyer. More often than not, impulse leads to lawsuits.

I’ll leave it to you to decide—between a lawsuit or lost finger—which is the more painful.

“Buyer’s regret” as an adverse employment action

Nearly a year ago, in Deleon v. City of Kalamazoo, the 6th Circuit decided that an employee could claim discrimination when he was “involuntarily” transferred into a position for which he had earlier voluntarily applied. 

At the time, I thought it was one of the worst decisions I had ever read.

Yesterday, the Supreme Court decline to review the Deleon case. Typically, these denials are unceremonious affairs, with nary a word other than “denied” pronounced. Justice Alito, however, apparently agreeing with my assessment of the 6th Circuit’s decision, took the rare occasion to draft a dissent to the denial (pdf here). This is what he wrote:

An old maxim warns: Be careful what you wish for; you might receive it. In the Sixth Circuit, however, employees need not be careful what they ask for because, if their request is granted and they encounter buyer’s regret, they can sue.

No termination is perfectly insured against a lawsuit. Some are more high risk than others (and those should be accompanied by an offer a severance package in exchange for a release of claims). Even the easiest decisions, however, carry some amount of risk. On any given day, any judge or jury could agree with the employee and decide against you. You job as an employer is to balance the risk of a lawsuit against the risk of keeping an employee employed and make a reasoned, informed decision about whether to retain, fire, or fire with a severance offer. And, please, don’t have buyer’s regret.

[Hat tip: Phil Miles’s Lawffice Space] 

For want of a well-placed pickle: will your termination pass the red-face test?

Have you ever refused to eat at fast food sandwich because the pickles were off? Not “off” as in omitted, or “off” as in taste, but “off” as in alignment, or, these pickles are arranged in a triangle and not in a square on my patty?

If you answered “yes”to this question, you’re lying, because no one in the history of the world has ever said or thought that their McPickles are mis-aligned.

Ask yourself, then, why an employer would try to justify an employee’s discipline on the grounds of “poor pickle placement.”

Last week I discussed EYM King of Michigan, in which an NLRB Administrative Law Judge invalided a fast-food restaurant’s no-loitering policy. In that same case, the same ALJ also considered the suspension and termination of an employee who worked part-time for a labor union and had previously struck other local fast food establishments over raising the minimum wage. On September 20, 2013, that employee, Claudette Wilson, was sent home early without pay for “not placing pickles on sandwiches in a perfect square as she was supposed to.” The day prior, she had met with a co-worker in the parking lot to fill out a union questionnaire on wages, for which she received a written warning for violating the no-loitering policy.

The ALJ concluded that the employer’s suspension of Wilson discriminated against her for engaging in protected union activity:

Wilson admits that she did not put pickles on her sandwiches in perfect squares as she was supposed to, due to her anger over the written warning she received.  However, given Respondent’s animus towards her protected activity, as evidence by the illegal warning given toher the same day, I find that the General Counsel has made a prima facie that her discipline (being sent home early) was related to Wilson engaging in protected activity in Respondent’s parking lot the day prior.

Folks, no one in their right mind is going to believe that a fast-food worker suffered discipline for poor pickle placement. Your personnel decisions must pass the red-face test. Can you consider the decision without repelling in embarrassment? If not, it’s best to pass on the decision and live to fight another day. If you react poorly to your own decision, imagine how a judge or jury will react.